DeNARDO v. MUNICIPALITY OF ANCHORAGE, A-10118 (Alaska App. 3-18-2009)


Court of Appeals No. A-10118.Court of Appeals of Alaska.
March 18, 2009.

Appeal from the Superior Court, Third Judicial District, Anchorage, Sen K. Tan, Judge, Trial Court Nos. 3AN-08-04159 CI 3AN-07-10277 CR.

Daniel DeNardo, pro se, Anchorage, Appellant. Amy K. Doogan, Jo-Ann Chung, Assistant Municipal Prosecutors, and James N. Reeves, Municipal Attorney, Anchorage, for Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

COATS, Chief Judge.

Superior Court Judge Sen K. Tan dismissed Daniel DeNardo’s petition for a writ of habeas corpus. DeNardo appeals.Page 2

The Municipality of Anchorage charged DeNardo with theft for shoplifting items from a Fred Meyer store. DeNardo was released on his own recognizance later in the day. While the charges were pending, DeNardo filed a petition for a writ of habeas corpus. In the petition, DeNardo claims that the Municipality of Anchorage and third parties did not preserve the items which he was accused of shoplifting, thereby depriving him of exculpatory evidence. He also claims that he was unlawfully deprived of tape and video recorded evidence of the incident.

Judge Tan denied the petition, relying on Kolody v. State.[fn1] InKolody, we pointed out that “Alaska Civil Rule 86(n) codifies the rule that the writ of habeas corpus is an extraordinary remedy, and that litigants are not allowed to seek habeas corpus relief if they are entitled to seek relief using normal trial court or appellate procedures.”[fn2] We also noted that the Alaska rule was the same as the federal rule, and that “in federal court, a criminal defendant must pursue other available remedies — which generally means following the orderly course of a trial and an appeal — before resorting to the writ of habeas corpus.”[fn3] In Kolody, we held that the defendant was not entitled to file a writ of habeas corpus to challenge his attorney’s performance in a pending criminal case because the defendant had other trial court remedies available to him.[fn4]

In the present case, as Judge Tan found, DeNardo had available to him legal remedies to pursue the claims he was making. And we note that DeNardo has filed aPage 3
direct appeal of his theft conviction, where he raises the same issue raised here in his petition for writ of habeas corpus. Because he has other remedies available to him, DeNardo cannot seek habeas corpus relief.

The judgment of the superior court is AFFIRMED.

[fn1] 172 P.3d 842 (Alaska App. 2007).

[fn2] Id. at 843.

[fn3] Id. (citing Johnson v. Hoy, 227 U.S. 245, 247, 33 S. Ct. 240, 241,57 L. Ed. 497 (1913)).

[fn4] Id.Page 1