Opinion
Court of Appeals No. A-11237 No. 6078
08-13-2014
JEROME D. LOGAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jerome D. Logan, pro se, Hudson, Colorado, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-12-4694 CI t/w 3AN-00-5765 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Jerome D. Logan, pro se, Hudson, Colorado, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. PER CURIAM.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Jerome D. Logan was convicted of first-degree murder, second-degree murder, and third-degree assault. More than seven years after his convictions were affirmed on direct appeal, Logan filed a pro se application for post-conviction relief, alleging that he had received ineffective assistance of counsel from the attorneys who represented him at trial and on appeal. The superior court dismissed Logan's application as untimely.
Logan v. State, 2004 WL 1837674, at *1 (Alaska App. Aug. 18, 2004) (unpublished).
See AS 12.72.020(a)(3)(A) (providing that an application for post-conviction relief must be filed within eighteen months of conviction or, if the conviction was appealed, within one year after the appellate court's decision is final under the Alaska Rules of Appellate Procedure).
Logan then filed a pro se appeal. Because it appeared that Logan had not been made aware of his right to appointed counsel under Holden v. State, we remanded the case to the superior court to determine whether Logan wished to assert his right to counsel under Holden.
172 P.3d 815 (Alaska App. 2007).
On remand, the superior court held a hearing and found that Logan did not wish to assert his right to counsel and that his waiver of counsel was both knowing and voluntary. The court further found that Logan was competent to proceed pro se in this case. In light of those findings, we now resume our consideration of Logan's pro se appeal.
In his briefing to this Court, Logan concedes that his application for post-conviction relief is untimely under AS 12.72.020(a)(3)(A). And he does not argue that any of the statutory exceptions to this statute of limitations apply in his case. He does not claim, for example, that there is newly discovered evidence or that he suffered from a mental or physical disability. Nor does he assert any equitable grounds for tolling the statute of limitations that would excuse his lack of diligence in pursuing a timely application.
See AS 12.72.020(b)(1)-(2).
Id.
See, e.g., Alex v. State, 210 P.3d 1225, 1228 (Alaska App. 2009) (suggesting that the statute of limitations could be equitably tolled in cases where the applicant attempted to pursue his claim in another forum); see also Holland v. Florida, 568 U.S. 631, 649, 652 (2010) (recognizing that the statute of limitations for federal habeas corpus claims may be equitably extended to remedy the egregious performance of appointed counsel that contributed to the missed deadline).
Rather, Logan argues that a "procedural default" excuses the lateness of his filing. But a procedural default is not an excuse; instead, it is the consequence of an applicant's failure to comply with relevant procedures. In other words, Logan's untimely filing resulted in a procedural default.
Logan notes that a claim of ineffective assistance of counsel may excuse a procedural default. But the ineffectiveness claims in Logan's application relate only to the performance of his attorneys at trial and on direct appeal. Even if those attorneys were ineffective, that would not explain Logan's seven-year delay in filing an application attacking their performance. He has not argued, for example, that either one of his attorneys gave him mistaken advice about the filing deadline for post-conviction relief applications. Thus, assuming that a claim of ineffective assistance of counsel would excuse a procedural default, that exception does not apply to Logan.
Finally, Logan argues that a court may depart from a statute of limitations to prevent a "miscarriage of justice." Such an injustice would occur in his case, Logan claims, because he can prove by clear and convincing evidence that he is actually innocent of the crimes for which he was convicted.
Alaska Statute 12.72.020(b)(2) allows a court to consider a late post-conviction relief application based on "newly discovered evidence" if several conditions are met. But in his application, Logan offers no new evidence. Instead, he only claims that his trial attorney should have done a better job cross-examining the State's expert witnesses and that his appellate attorney should have argued that the jury's verdict was against the weight of the evidence.
Logan's actual claim on appeal, then, is that this Court should create a new exception to AS 12.72.020's filing deadline for cases in which the applicant argues that the evidence presented at trial actually establishes the defendant's innocence. Whatever the merits of such an exception might be, we have no reason to apply it in this case. We addressed a similar due process argument in Xavier v. State, which we rejected in the context of that particular case. We likewise reject this argument in the context of this case because, like Xavier, Logan has not established that application of the statute of limitations to his post-conviction relief application would violate due process of law or cause a miscarriage of justice.
We have been reluctant to find that the due process clause of the Alaska Constitution offers no remedy to defendants who could prove their factual innocence. See Osborne v. State, 110 P.3d 986, 995 (Alaska App. 2005); see also Grinols v. State, 10 P.3d 600, 615 (Alaska App. 2000), aff'd in part, 74 P.3d 889 (Alaska 2003) (suggesting that due process might require reviewing a defaulted constitutional claim if the failure to do so would result in a miscarriage of justice, such as the conviction of one who is actually innocent).
278 P.3d 902 (Alaska App. 2012).
Id. at 905.
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We therefore AFFIRM the superior court's dismissal of Logan's application for post-conviction relief.