from the Superior Court, Third Judicial District, Trial Court
No. 3AN-14-09493 CI, Anchorage, Michael L. Wolverton, Judge.
Cynthia L. Strout, Law Office of Cynthia L. Strout,
Anchorage, for the Appellant.
R. Simel, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
1995, Brian Hall was convicted of first-degree murder and
second-degree murder for the shooting deaths of Mickey
Dinsmore and Stanley Honeycutt. In the years following his
conviction, Hall litigated two post-conviction relief
applications, both of which were denied. Hall now seeks to
litigate a third post-conviction relief application based on
what he claims is newly discovered evidence of innocence that
was not available when he litigated his previous
post-conviction relief applications.
proceedings below, the superior court summarily dismissed
Hall's application under AS 12.72.020(a)(6) - the
statutory provision that prohibits a defendant from bringing
an application for post-conviction relief if "a previous
application for post-conviction relief has been filed under
[AS 12.72] or under the Alaska Rules of Criminal
Procedure." On appeal, Hall argues that this statutory
provision should not apply to claims based on newly
discovered evidence of innocence. For the reasons explained
here, we agree with Hall that due process precludes
application of the statutory bar on successive petitions when
a defendant is raising a post-conviction relief claim based
on newly discovered evidence of innocence that was not
previously available to the defendant. However, because it is
not clear whether Hall's claim qualifies as newly
discovered evidence of innocence under AS 12.72.020(b)(2), we
conclude that a remand for litigation of this question is
we vacate the superior court's dismissal of Hall's
postconviction relief application, and we remand this case to
the superior court for further proceedings consistent with
the guidance provided here.
background and prior proceedings
the evening of April 16, 1993, seventeen-year-old Brian Hall
and four of his friends drove together to a bonfire in a
parking lot on Campbell Airstrip Road. Hall had a loaded
pistol with him.
after they arrived, Hall and his friends got into a shouting
match with the occupants of another vehicle, Mickey Dinsmore
and Stanley Honeycutt. A fifteen-year-old girl, Monica
Shelton, briefly acted as an intermediary between the two
vehicles. Moments later, Dinsmore and Honeycutt began to
slowly drive up along the driver's side of Hall's
vehicle. As they did so, Dinsmore extended a beer bottle,
bottom end up, to the driver of Hall's car, stating,
"We ain't got no beef with you; do you want some of
who was then standing outside the passenger door of his
vehicle, testified at trial that he thought Dinsmore had a
gun. Hall pulled his own gun out of his back pocket and fired
three shots over his car towards Dinsmore. One shot hit
Dinsmore on the top of the head and another shot hit
Honeycutt in the mouth. Both Dinsmore and Honey cutt died as
a result of the gunshot wounds inflicted by Hall.
waiver of juvenile jurisdiction, Hall was indicted on two
counts of first-degree murder. Hall's defense at trial
was self-defense. He testified that he believed that Dinsmore
had a gun because Monica Shelton had relayed to Hall and his
friends, "[Dinsmore and Honeycutt] have a gun, and
they'll shoot [you], so just leave." Likewise,
Hall's defense investigator claimed that Shelton had told
him, in an unrecorded interview prior to trial, that she
thought she had told Hall that Dinsmore and Honeycutt had a
gun or might have a gun.
at trial Shelton maintained that she never told Hall that
Dinsmore had a gun.
equivocation on whether she said anything to Hall about a gun
was discussed in the defense opening statement at trial, and
again during closing arguments. During his direct examination
of Shelton, the prosecutor questioned Shelton about her
statement to the defense investigator. Shelton testified that
she did not recall making that statement, but that she may
have done so. Shelton was adamant, however, that the truth
was that she had not told Hall that Honeycutt and
Dinsmore had a gun.
was convicted of one count of first-degree murder for
shooting Dinsmore and one count of second-degree murder for
years after Hall was convicted, in November 2012, a defense
investigator who had been hired by Hall's family
contacted Shelton and interviewed her. In the interview
(which was recorded and transcribed), Shelton said that she
was willing to "put the record straight." Shelton
told the defense investigator that she did remember
telling Hall that there was a gun because Dinsmore and
Honeycutt said they had a gun and pointed to their glove box.
She stated, "I did tell [Hall and his friends] that
there was a gun . . . and that might've been why [Hall]
thought 'I'm gonna shoot first.'"
statement was not made under oath, and she never affirmed the
statement in an affidavit.
after the recorded interview was obtained, Hall's
attorney filed a motion for a new trial based on newly
discovered evidence. The motion was later modified and
refiled as an application for post-conviction relief. This
was Hall's third application for post-conviction relief.
Hall had previously filed two applications for
post-conviction relief in 1999 and 2008, raising various
ineffective assistance of counsel claims. Both applications
had been dismissed and their dismissals affirmed by this
State filed a motion to dismiss the third post-conviction
relief application, arguing, inter alia, that
Hall's application was barred under ...