ALLARD, Judge.
Michael D. Bailey was convicted of second-degree murder and four counts of tampering with physical evidence following a jury trial. After his convictions were affirmed on direct appeal, Bailey filed an application for post-conviction relief alleging ineffectiveness of trial counsel. The application was filed twelve days late. Bailey asserted in an affidavit that he had been unable to file a timely application because notary services were unavailable "for a lengthy period of time" at the correctional facility where he was housed. On a motion to dismiss by the State, the superior court found that Bailey had failed to present "any admissible evidence" that the notary services were actually unavailable. The superior court further found that Bailey had failed to meet his burden of presenting "clear and convincing evidence" that he was entitled to relief. The superior court therefore dismissed the application as both untimely and failing to state a prima facie case for relief.
On appeal, Bailey contends that the superior court erred in dismissing his application as untimely and further erred by applying the wrong legal standard in evaluating his application to see whether it stated a prima facie case. We agree with Bailey that he raised a triable issue of fact as to whether his application should have been accepted as timely. We also agree that the superior court used the wrong legal standard in evaluating Bailey's pleadings. We conclude, however, that this error was harmless because Bailey's application fails to state a prima facie case for post-conviction relief even under the correct legal standard. This also makes the timeliness error moot. We therefore affirm the superior court's dismissal of Bailey's application.
A jury convicted Michael D. Bailey of second-degree murder for killing his wife, Susan Bailey, and of four counts of tampering with physical evidence.
Bailey filed a pro se application for post-conviction relief that was first received by the clerk's office on February 9, 2009. Bailey was required to correct various procedural deficiencies to his application, including a failure to pay a filing fee or submit a financial declaration to qualify for a fee exemption. After Bailey's application was finally complete in August 2009, the court appointed Bailey counsel.
Bailey then filed an amended application through counsel alleging eight claims of ineffective assistance against his trial counsel, Assistant Public Defenders Julia Moudy, Wally Tetlow, and David Reinecke. Bailey supported his application with his own affidavit and affidavits from each of his trial counsel.
The State moved to dismiss Bailey's amended application, asserting that (1) the application was untimely because it was filed twelve days after the statutory deadline, and (2) that the amended application failed to state a prima facie case for relief. In response, Bailey conceded that his application was untimely, but he argued that the "savings clause" under AS 12.72.020(b)(1)(B) applied because a lack of notary services at the prison in which he was housed prevented him from timely filing his application.
Bailey provided an affidavit attesting that "notary services were not available [at Red Rock Correctional Center] for a lengthy period of time, ending on Tuesday, January 27, 2009."
Superior Court Judge Michael Spaan granted the State's motion to dismiss. The court accepted Bailey's premise that if he was prevented from filing due to an absence of notary services at the prison, his application might qualify for resurrection under the savings clause. The court found, however, that Bailey had not provided "any admissible evidence" that notary services were actually unavailable.
The superior court also dismissed Bailey's application on the State's alternative ground. The court stated that Bailey had "the burden of proving all factual assertions by clear and convincing evidence" and that Bailey had failed to produce even a "scintilla of evidence" that his trial lawyers were ineffective.
Bailey appeals, arguing that (1) the savings clause applied to his untimely application; (2) the superior court used the wrong legal standard in evaluating whether his pleadings stated a prima facie case for relief; and (3) his case should be remanded to the superior court for reevaluation of whether it states a prima facie case under the correct legal standard.
Under AS 12.72.020(a)(3)(A), an application for post-conviction relief must be brought no later than one year after the appellate court's decision on appeal becomes final. In Bailey's case, this Court's decision on appeal became final on January 28, 2008, the date that the Alaska Supreme Court denied Bailey's petition for hearing.
Bailey concedes that he failed to meet this statutory deadline, but he argues that the superior court erred in failing to recognize that he raised a triable issue of fact as to whether the statutory "savings clause" should have applied to his case. Alaska Statute 12.72.020 provides, in pertinent part:
Bailey argued below that he was "physically prevented" from filing a timely claim by the prison's failure to provide notary services during the relevant time. The superior court found that Bailey had failed to produce any "admissible evidence" to support this claim. The court noted that the prison materials submitted by Bailey suggested only that the prison did not have a set notary schedule during the relevant time.
Bailey argues that this ruling is error because he also submitted an affidavit directly stating that "notary services were not available for a lengthy period of time ending on January 27, 2009." We agree with Bailey that his affidavit constituted admissible evidence on this issue and that it raised a triable issue of fact as to whether notary services were available during the relevant time.
On appeal, the State challenges the underlying premise of Bailey's savings clause argument. The State argues that lack of notary services at a prison (even if true) does not prevent a prisoner from filing a timely application. The State asserts that Bailey was still free to file an un-notarized application within the statutory deadline and that no state agent "physically prevented" him from doing so. The State argues that verification by notary is a procedural defect that can be corrected at a later date and that Bailey therefore had no excuse for failing to file a timely, albeit procedurally deficient, application.
We agree with the State that, unlike timeliness which is jurisdictional, notarization is a procedural defect.
We note that Alaska law already provides a solution for the dilemma that Bailey asserts he faced here. Under AS 09.63.020, a litigant may "certify" a document that the law requires to be verified if a notary public is otherwise unavailable. The certification must include the date and place of execution, the fact that a notary public or other official empowered to administer oaths is unavailable, and the following signed statement: "I certify under penalty of perjury that the foregoing is true."
The problem with the State's argument, however, is that neither Criminal Rule 35.1 nor the court system's post-conviction application form alerts defendants to this option. Quite to the contrary, both the rule and the form explicitly discourage a defendant from filing an unverified application under any circumstances. Criminal Rule 35.1(d) requires an applicant to state "under oath" all facts within his personal knowledge and warns applicants that incomplete applications "shall be returned to the applicant for completion." The court system's application likewise directs applicants not to sign their application "until in the presence of a notary or court clerk."
Given these clear directives, it is understandable why a state prisoner like Bailey, who is dependent on the prison for access to notary services, might have believed that he had to wait until notary services became available to file his application even though doing so meant missing the statutory deadline. We decline therefore to accept the State's argument that Bailey's actions demonstrated a lack of diligence as a matter of law.
Thus, we conclude that the superior court erred in failing to recognize that Bailey raised a triable issue of fact as to whether the savings clause applied to his otherwise untimely application. We therefore turn to the court's alternative ruling that Bailey's application failed to state a prima facie case for relief.
In evaluating whether a defendant's pleadings state a prima facie case for post-conviction relief, the trial court is required to evaluate all well-pleaded assertions of fact in the amended application and all supporting documents, and to decide whether those well-pleaded assertions of fact, if ultimately proved, would entitle the defendant to relief.
On appeal, the parties agree that the superior court failed to use the correct legal standard to evaluate Bailey's pleadings. The State argues, however, that the error was harmless because our review is de novo and Bailey's application fails to state a prima facie case under the correct legal standard.
Bailey's reliance on Moses is misplaced. In Moses, the superior court dismissed the defendant's application for failure to state a prima facie case under the wrong legal standard, and we remanded the case back to the superior court for a new evaluation under the correct legal standard.
In LaBrake, this Court directly clarified that the requirement that the trial court treat all "well-pleaded assertions of fact" as true at the pleading stage did not apply to assertions of fact that were not well-pleaded. As the Court explained:
Moses was decided only seven months after the decision in LaBrake was issued, and Moses filed his amended application without the benefit of LaBrake's clarification of the pleading requirements. In contrast, Bailey filed his amended application more than three and a half years after our decision in LaBrake. The reasons underlying the remand in Moses do not exist here.
We therefore turn to the question of whether Bailey's application states a prima facie case for post-conviction relief.
To present a prima facie case of ineffective assistance of counsel under Alaska law, a defendant must plead facts that, if true, would entitle the defendant to relief on both prongs of the Risher
In particular, the defendant's pleadings must rebut the presumption that the attorney performed competently and the further presumption that the attorney's actions were motivated by "sound tactical considerations."
In the trial court proceedings below, Bailey alleged eight claims of ineffective assistance of counsel against his various trial attorneys. On appeal, however, Bailey focuses on only four claims:
With regards to the first claim, Bailey alleged that he tape-recorded his conversations with police officers and that he told Moudy where to find the recordings. Bailey claimed that the tape-recordings "would have shown that the investigating officers were wrong when they testified about incriminating statements [Bailey] had made to them." In her affidavit, Moudy stated that on April 7, 2002, Bailey told her about "tapes and papers" in his possession at his home but that the pre-trial investigation determined that a person named "Breezy" had Bailey's tapes and property and that Bailey was not able or willing to provide Breezy's true identity to the defense team. Bailey did not file a counter-affidavit or otherwise respond to the assertions about Breezy in his pleadings.
On appeal, Bailey argues that these facts establish a prima facie case and that they were sufficient to raise a triable issue of "whether the evidence was what Mr. Bailey said it was, and if so, whether Ms. Moudy was diligent and acted reasonably to investigate it." This is incorrect. An attorney cannot be ineffective for failing to follow through on information he or she never received.
Bailey's second claim is that Moudy, Tetlow, and Reinecke were ineffective because they failed to secure medical records or testimony that Bailey claimed would have shown that he was injured and could not lift an object as heavy as a human body. Bailey produced no documentation of any physical injury to support this claim or any explanation of what documentation allegedly existed at the time that would have been available to his attorneys and what specifically that documentation would have showed.
On appeal, Bailey argues that he raised a triable issue of fact as to whether his injuries were severe enough to be relevant and exculpatory, and whether his trial counsel was diligent in investigating them. But this is incorrect. Evidence is not presumed to exist or to have exculpatory value based only on a defendant's conclusory assertions that it does.
Bailey's third claim on appeal is a claim that he never made in the trial court. Bailey points out that Moudy's affidavit admitted that Bailey had told her that he had knee problems and vocational rehabilitation while Tetlow's affidavit did not discuss this issue. Bailey argues that he has therefore raised a triable issue of fact as to whether his attorneys shared relevant information with each other about Bailey's allegedly exculpatory physical injuries. But Bailey never made this claim below and therefore cannot raise it now on appeal.
Bailey's last claim for relief is based on Bailey's claim that "[m]y lawyers all knew that my only transportation was a truck which was not running . . . and that I could not have moved a body in my truck for this reason." On appeal, Bailey argues that whether or not he had access to a working vehicle creates a triable question of fact. But Tetlow and Reinecke both recalled being told this fact and determining that its exculpatory value was negligible in light of Bailey's presumed access to other vehicles. Bailey has not argued why that assessment was incorrect or how that determination was not the type of tactical decision that a competent attorney might make.
We AFFIRM the superior court's judgment.
