Opinion
Court of Appeals No. A-10464.
August 18, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-07-2310 CI.
Alan R. Newby Jr., pro se, Eloy, Arizona, Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Alan R. Newby Jr. was convicted of first-degree murder for the killing of Mark Lacy in 1993. This court affirmed his conviction in 1995, and affirmed the superior court's dismissal of Newby's first petition for post-conviction relief in 1998. In 2007, Newby filed a second application for post-conviction relief. Superior Court Judge Randy M. Olsen dismissed Newby's second application, and Newby now appeals that dismissal.
AS 11.41.100(a).
See Newby v. State, Memorandum Opinion and Judgment No. 3116, (Alaska App. March 29, 1995), 1995 WL 17220791; Newby v. State, 967 P.2d 1008, 1009 (Alaska App. 1998).
Newby, 1995 WL 17220791 at *1-2.
Newby, 967 P.2d at 1009 (PCR).
Newby's second application alleged that his conviction should be vacated based on newly discovered evidence. At Newby's criminal trial, the State presented Agent John Riley of the Federal Bureau of Investigation (FBI), who testified about his comparison of bullet fragments taken from Lacy's body with bullets from a box of ammunition found in Lacy's home. Riley testified that some of the bullets in the box were "analytically indistinguishable" from the fragments in Lacy's body, based on a technique known as Comparative Bullet Lead (CBL) analysis. This technique has been criticized and is no longer used by the FBI.
Newby alleged that his conviction should be vacated because this discredited CBL analysis was used at his trial. Judge Olson dismissed the application because Newby's claims about the CBL analysis failed to establish his innocence. Newby's Second Application Is Time-Barred
Newby's conviction became final when the Alaska Supreme Court denied his petition for hearing from this court's decision on June 23, 1999. The statute of limitations required any application for post-conviction relief to be filed within one year of that date. But Newby did not file his second application for post-conviction relief until 2007.
See Newby v. State, Alaska Supreme Court File No. S-08911.
AS 12.72.020(a)(3)(A).
The statute of limitations for post-conviction relief applications is subject to an exception for newly discovered evidence. To rely on this exception an applicant must prove (1) that the evidence is newly discovered as defined by the rule, (2) that it is not merely cumulative or impeachment evidence, and (3) that the application "establishes by clear and convincing evidence that the applicant is innocent." If Newby presented newly discovered evidence fulfilling these criteria, his application would not be barred by the statute of limitations.
AS 12.72.020(b)(2).
AS 12.72.020(b)(2)(A) — (D).
Judge Olsen considered evidence outside the pleadings when he granted the State's motion to dismiss, so we review this order as one granting summary disposition. We view the evidence in the light most favorable to the applicant and ask whether the State established that there were no material issues of fact and whether the State was entitled to dismissal as a matter of law. In the context of this case, the question boils down to whether Newby's evidence of the weakness of CBL analysis tends to establish that he is innocent.
See Phillips v. Gieringer, 108 P.3d 889, 892 (Alaska 2005) (holding that under Alaska Civil Rule 12(b), if the court does not exclude materials outside of the pleading when deciding a motion to dismiss, the motion is treated as a motion for summary judgment).
See Alaska R. Crim. P. 35.1(f)(3); Wasser Winters Co. v. Ritchie Bros. Auctioneers (Am.) Inc., 185 P.3d 73, 77 (Alaska 2008) (reviewing summary judgment under the similar provisions of Civil Rule 56).
We summarized the other evidence supporting Newby's conviction in our decision affirming the denial of Newby's first application for post-conviction relief. Lacy was discovered in his trailer with a single gunshot wound to his head. There was no sign of a forced entry and no evidence of a struggle, and most of Lacy's belongings were undisturbed. The only items missing from the trailer were Lacy's car, some firearms, and a telephone.
Newby, 967 P.2d at 1009.
Id.
Shortly thereafter, Newby was arrested when he was found in possession of Lacy's car. Lacy's missing telephone was found at Newby's residence. Newby attempted to sell two shotguns that were similar to the ones taken from Lacy's home. Then, about a year later, Newby told two fellow inmates that he had shot and killed a man. Newby stated that he had shot a man in the head during an argument, and that he had stolen property from the victim's residence, including a vehicle.
Id.
Thus, even without the CBL analysis, there was substantial evidence to convict Newby. Moreover, presenting new evidence that would impeach the CBL analysis or make it inadmissible is not the same as presenting evidence that tends to show that Newby is innocent. As Judge Olsen concluded, "The [new] evidence merely impeaches the expert testimony that Lacy may have been killed by ammunition from a box in his own home. The evidence does not prove Newby did not fire the shot that killed Lacy." In other words, the weakness in the CBL analysis does not indicate that there was another perpetrator, establish an alibi, or otherwise tend to establish Newby's innocence. Accordingly, Newby's application is barred by the general statute of limitations.
See Commonwealth v. Fisher, 870 A.2d 864, 871-72 (Pa. 2005).
Newby argues that two cases from other jurisdictions support a different result. In the Maryland case of Clemons v. State and the New Jersey case of State v. Behn, the presentation of CBL analysis at trial warranted reversal of the defendants' convictions. However, we conclude that both of these cases are distinguishable.
896 A.2d 1059 (Md. 2006).
868 A.2d 329 (N.J. App. 2005).
Clemons involved a direct appeal from a trial court order denying the defendant's motion to exclude testimony about CBL analysis. The Maryland Court of Appeals held that the trial judge erred in admitting the evidence because CBL analysis failed the Mary land test requiring general acceptance by the scientific community. This case does not suggest that Newby's attack on the CBL analysis tends to prove his innocence.
Id. at 1073, 1078.
In Behn, the defendant was convicted of murder for the killing of a coin dealer. The Appellate Division of the New Jersey Superior Court recognized that this was a highly circumstantial case: There were no witnesses to the crime, and the main circumstance linking Behn to the victim was that Behn had evidently done business with the victim at some point during the day of the murder. The prosecution called an expert from the FBI to testify that CBL analysis showed that the bullets that killed the victim matched bullets in the defendant's possession. On post-conviction review, the court concluded that the CBL analysis was central to the case and that this evidence likely affected the jury's verdict. Behn is distinguishable because the CBL analysis evidence was central to the outcome of that case. In Newby's case, the newly discovered weakness in the CBL analysis does nothing to establish that Newby is innocent.
Id. at 332-33.
Id. at 333-35.
Id. at 342-46.
Newby's case might have been analogous to Behn if the challenged CBL testimony had linked the bullet that killed Lacy to a box of ammunition that Newby purchased, or that was found in Newby's possession or in his home — thus providing circumstantial evidence that Newby was the murderer. But here, the challenged testimony merely tended to prove that Lacy was shot with a bullet that came from a box of ammunition that Lacy owned — a box that was still in Lacy's house after the murder. This was circumstantial evidence that Lacy was shot with his own gun, but it did not identify who might have done the shooting. Other Issues
Newby made a motion to compel the State to provide him with an article cited in a footnote of one in the exhibits attached to the State's motion to dismiss. The exhibit was filed to support the State's claims that the weakness in CBL analysis was not newly discovered evidence because criticism of CBL analysis had arisen by 1991. After dismissing the application for post-conviction relief, Judge Olsen denied the motion to compel as moot.
Newby now argues that the trial court improperly denied his motion to compel production of this article. But we agree that this issue was moot. Even if we assume that Newby's application involved newly-discovered evidence, the application would still be untimely because this evidence does not tend to prove Newby's innocence. The issue about whether Newby's submission constituted newly discovered evidence is therefore no longer in controversy.
Newby also argues that the trial court erred in denying a motion to strike. Newby had originally included two additional claims in his second application for post-conviction relief: (1) that his prosecution violated double jeopardy and (2) that the State violated his right to due process by failing to timely disclose its reliance upon prison informants. But Judge Olsen ordered that he would not consider these claims and would only consider arguments regarding newly discovered evidence or the ineffectiveness of counsel in Newby's first application for post-conviction relief.
Newby then filed a motion to strike the portions of the State's motion to dismiss that addressed the claims that Judge Olsen would not consider. Judge Olsen denied this motion, explaining that the motion to strike was moot following his dismissal of Newby's application for post-conviction relief.
On appeal, Newby argues that the judge abused his discretion by not striking the State's arguments regarding the claims that Judge Olsen did not consider. We also conclude that this issue is moot. The motion to strike did not affect the judge's decision on the timeliness of Newby's application. And the fact that the State's arguments remained part of the record did nothing to prejudice Newby.
The State also argued to the superior court that Newby's application for post-conviction relief was barred because his claim was based only on the admission of evidence at trial and because he had filed a previous application for post-conviction relief. We are not required to address these issues because Newby's application was barred by the statute of limitations.
AS 12.72.020(1).
AS 12.72.020(6).
Conclusion
We therefore AFFIRM the superior court's order dismissing the application for post-conviction relief.