ESMAILKA v. STATE, A-9051 (Alaska App. 2-22-2006)

DAVID P. ESMAILKA, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9051.Court of Appeals of Alaska.
February 22, 2006.

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge. Trial Court No. 4FA-04-1582 CI.

David P. Esmailka, pro se, Florence, Arizona.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

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

COATS, Chief Judge.

David P. Esmailka was convicted of second-degree murder. Approximately two and one half years later, Esmailka filed an application for post-conviction relief. The trial court granted the State’s motion to dismiss the application on the ground that it was time-barred under the applicable statute of limitations. We affirm the trial court’s dismissal of Esmailka’s post-conviction relief application because it is barred under the applicable statute of limitations for post-conviction relief applications.

Factual and procedural background

On January 23, 2002, Esmailka was convicted of second-degree murder[fn1] and sentenced to 30 years’ imprisonment, with 7 years suspended. Esmailka did not appeal his conviction or sentence. On July 7, 2004, Esmailka filed a pro se application for post-conviction relief alleging several claims. On July 30, 2004, Superior Court Judge Randy M. Olsen appointed Assistant Public Advocate David K. Allen to represent Esmailka on his post-conviction relief application. On November 9, 2004, the State filed a motion to dismiss Esmailka’s application, arguing that his claims were time-barred under AS 12.72.020(a)(3)(A), the applicable statute of limitations for post-conviction relief applications. On November 12, 2004, Allen wrote Esmailka, advising him that the court would dismiss his case if he did not provide evidence of an exception that would allow them to circumvent the statute of limitations. Esmailka did not reply. On December 28, 2004, Allen filed a notice with the superior court that no opposition to the State’s motion would be filed. On January 11, 2005, Judge Olsen granted the State’s motion without a written decision. Esmailka now appeals.

Absent an exception, Esmailka’s post-conviction relief application is barred by the applicable statute of limitations

Alaska Statute 12.72.020 details the limitations on applications for post-conviction relief. Subsection (a)(3)(A) of that statute provides the relevant time period within which an application must be filed. Read in conjunction, the statute provides:

A claim may not be brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure if the later of the following dates has passed, except that if the applicant claims that the sentence was illegal there is no time limit on the claim: (A) if the claim relates to a conviction, two years after the entry of the judgment of the conviction or, if the conviction was appealed, one year after the court’s decision is final under the Alaska Rules of Appellate Procedure. . . .[fn2]

For purposes of this statute, the entry of the judgment of conviction marks the date from which the two-year time period begins to run.[fn3] “The date of entry of a criminal judgment is the date the judgment is put on the official electronic record by the judge unless otherwise specified by the judge . . . and the effective date will be included in the written judgment.”[fn4] The filing of the petition for post-conviction relief constitutes the relevant event for purposes of deciding whether a petition is filed in a timely manner.[fn5]

In Esmailka’s case, because he did not appeal his conviction, the relevant time period within which he was required to file his application was two years.[fn6] Judgment was entered on January 23, 2002. This event marked the date that the two-year time period began to run. Thus, Esmailka had until January 23, 2004 to file his application for post-conviction relief. Esmailka filed his application on July 7, 2004, approximately five and a half months after the required filing period. Based on these facts, absent some exception, Esmailka’s application is time-barred under AS 12.72.020(a)(3)(A).

Esmailka’s case does not fall within any exception to the time period within which an applicant must file his post-conviction relief application

An applicant can only avoid the time limitations of AS12.72.020(a)(3)(A) under three clearly defined circumstances: (1) the applicant establishes that he exercised due diligence in presenting his claim and that he was unable to present his claim within the allotted time due to a physical or mental disability;[fn7] (2) the applicant establishes due diligence and that he was physically prevented by a state agent from filing his claim within the prescribed time;[fn8] or (3) the claim is based on newly discovered, admissible evidence, the applicant used due diligence in presenting his claim, the evidence is not cumulative or impeaching, and it establishes the applicant’s actual innocence.[fn9] All three exceptions require the applicant to diligently pursue his claim of relief.

In his application (which is also his opening brief in this appeal), Esmailka makes numerous claims. But he does not set out any argument addressing his failure to meet the statute of limitations.

In his reply brief, Esmailka claims that he had difficulty filing his application because of various problems he encountered while he was in jail. Even if we accepted all of the allegations in Esmailka’s reply brief as true, Esmailka would not establish grounds for an exception to the statute of limitations. Furthermore, Esmailka had the opportunity in the trial court to present any reasons that he had for failing to comply with the statute of limitations. The State moved to dismiss on the ground that Esmailka had not complied with the statute of limitations. Esmailka’s attorney asked him to supply him with any reason why Esmailka had not been able to file within the statute of limitations. Esmailka did not present his current claim that he had difficulty complying with the statute of limitations until his reply brief was filed. This is a factual claim that needed to be presented and developed in the trial court. It cannot be raised on appeal, much less in the reply brief.[fn10] We accordingly affirm Judge Olsen’s dismissal of Esmailka’s application for post-conviction relief.

The judgment of the superior court is AFFIRMED.

[fn1] AS 11.41.110(a).

[fn2] AS 12.72.020(a)(3)(A); see also Alaska Criminal Rule 35.1(c).

[fn3] AS 12.72.020(a)(3)(A).

[fn4] Alaska Criminal Rule 32.3(a)(3).

[fn5] Mullin v. State, 996 P.2d 737, 740 (Alaska App. 2000).

[fn6] AS 12.72.020(a)(3)(A).

[fn7] AS 12.72.020(b)(1)(A).

[fn8] AS 12.72.020(b)(1)(B).

[fn9] AS 12.72.020(b)(2).

[fn10] See Katmailand, Inc. v. Lake Peninsula Borough,904 P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins.Co. of New York, 803 P.2d 406, 411 (Alaska 1990); Hitt v. J.B.Coghill, Inc., 641 P.2d 212, 213 n. 4 (Alaska 1982).