Alaska

Criminal Procedure

Rule 35.1 – Post-Conviction Procedure

(a)Scope . A person who has been convicted of or sentenced for a crime may institute a proceeding for post- conviction relief under AS 12.72.010 – 12.72.040 if the person claims:

(1) that the conviction or the sentence was in violation of the constitution of the United States or the constitution or laws of Alaska;

(2) that the court was without jurisdiction to impose sentence;

(3) that a prior conviction has been set aside and the prior conviction was used as a statutorily required enhancement of the sentence imposed;

(4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

(5) that the applicant’s sentence has expired, that the applicant’s probation, parole or conditional release has been unlawfully revoked, or that the applicant is otherwise unlawfully held in custody or other restraint;

(6) that the conviction or sentence is otherwise subject to collateral attack upon any ground or alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;

(7) that

(A) there has been a significant change in law, whether substantive or procedural, applied in the process leading to the applicant’s conviction or sentence;

(B) the change in law was not reasonably foreseeable by a judge or a competent attorney;

(C) it is appropriate to retroactively apply the change in law because the change in law requires observance of procedures without which the likelihood of an accurate and fair conviction is seriously diminished; and

(D) the failure to retroactively apply the change in law would result in a fundamental miscarriage of justice, which is established by demonstrating that, had the change in law been in effect at the time of the applicant’s trial, a reasonable trier of fact would have a reasonable doubt as to the guilt of the applicant;

(8) that the applicant should be allowed to withdraw a plea of guilty or nolo contendere in order to correct manifest injustice as set out in Criminal Rule 11(h); or

(9) that the applicant was not afforded effective assistance of counsel at trial or on direct appeal.

(b)Not a Substitute for Remedies in Trial Court – Replaces All Other Remedies for Challenging the Validity of a Sentence. This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or direct review of the sentence or conviction. It is intended to provide a standard procedure for accomplishing the objectives of all of the constitutional, statutory or common law writs.

(c)Commencement of Proceedings – Filing – Service. A proceeding is commenced by filing an application with the clerk at the court location where the underlying conviction is filed. Application forms will be furnished by the clerk of court. An application must be filed within the time limitations set out in AS 12.72.020 or AS 12.72.025. The clerk shall open a new file for the application, promptly bring it to the attention of the court and give a copy to the prosecuting attorney.

(d)Application – Contents. The application shall (1) identify the proceedings in which the applicant was convicted, (2) state the date shown in the clerk’s certificate of distribution on the judgment complained of, (3) state the sentence complained of and the date of sentencing, (4) specifically set forth the grounds upon which the application is based, and (5) clearly state the relief desired. If the application challenges a Department of Corrections or Board of Parole decision, the application shall (1) identify the specific nature of the proceedings or challenged decision, (2) state the date of the proceedings or decision, (3) specifically set forth the facts and legal grounds upon which the application is based, and (4) clearly state the relief desired. Facts within the personal knowledge of the applicant shall be set out separately from other allegations of facts and shall be under oath. Affidavits, records, or other evidence supporting its allegations shall be attached to the application or the application shall recite why they are not attached. The application shall identify all previous proceedings, together with the grounds therein asserted, taken by the applicant to secure relief from the conviction or sentence including any previous applications for post-conviction relief. Argument, citations and discussion of authorities are unnecessary. Applications which are incomplete shall be returned to the applicant for completion.

(e)Indigent Applicant.

(1) If the applicant is indigent, filing fees shall be paid under the provisions of AS 09.19 and counsel shall be appointed consistent with AS 18.85.100 to assist the applicant.

(2) Within 60 days of an attorney’s appointment on behalf of an indigent applicant, the attorney shall file with the court and serve on the prosecuting attorney

(A) a statement that the litigation will proceed on the claims alleged in the application filed by the applicant; or

(B) an amended application for post-conviction relief; or

(C) a certificate that the attorney

(i) does not have a conflict of interest;

(ii) has reviewed the facts of the underlying proceeding or action challenged in the application, and the pertinent law;

(iii) has consulted with the applicant and, if appropriate, with trial counsel; and

(iv) has determined that the claims presented in the application have no arguable merit and that the applicant has no other colorable claims for post-conviction relief.

(3) The certificate described in subparagraph (e)(2)(C) shall include a full description of

(A) the claims the attorney has considered;

(B) the materials the attorney has reviewed;

(C) the investigations the attorney has conducted; and

(D) the reasons why the attorney has concluded that all of the applicants potential claims have no arguable merit.

(f)Pleadings and Judgment on Pleadings.

(1) The state shall file an answer or a motion within 45 days of service of an original, amended, or supplemental application filed by counsel or by an applicant who elects to proceed without counsel, or of a notice of intent to proceed on the original application under (e)(2)(A) of this rule. The applicant shall have 30 days to file an opposition, and the state shall have 15 days to file a reply. The motion, opposition, and reply may be supported by affidavit. At any time prior to entry of judgment the court may grant leave to withdraw the application. The court may make appropriate orders for amendment of the application or any pleading or motion, for pleading over, for filing further pleadings or motions, or for extending the time of the filing of any pleading. In considering a pro se application the court shall consider substance and disregard defects of form, but a pro se applicant will be held to the same burden of proof and persuasion as an applicant proceeding with counsel. If the application is not accompanied by the record of the proceedings challenged therein, the respondent may file with its answer the record or portions thereof that are material to the questions raised in the application.

(2) If appointed counsel has filed a certificate under (e)(2)(C) of this rule, and it appears to the court that the applicant is not entitled to relief, the court shall indicate to the parties its intention to permit counsel to withdraw and dismiss the application and its reasons for so doing. The applicant and the prosecuting attorney shall be given an opportunity to reply to the proposed withdrawal and dismissal. If the applicant files a response and the court finds that the application does not present a colorable claim, or if the applicant does not file a response, the court shall permit counsel to withdraw and order the application dismissed. If the court finds that the application presents a colorable claim, the court may grant leave to file an amended application or direct that the proceedings otherwise continue.

(3) The court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

(g)Hearing – Evidence – Order. The application shall be heard in the court in which the underlying criminal case was heard. The application may be heard before any judge of that court, but if the sentencing judge is available, the case shall be initially assigned to that judge. An electronic recording of the proceeding shall be made. All rules and statutes applicable in civil proceedings, including pre-trial and discovery procedures are available to the parties except that Alaska Rule of Civil Procedure Rule 26(a)(1)-(4) does not apply to post-conviction relief proceedings. The court may receive proof by affidavits, depositions, oral testimony, or other evidence. Unless otherwise required by statute or constitution, the applicant bears the burden of proving all factual assertions by clear and convincing evidence. The court may order the applicant brought before it for the hearing or allow the applicant to participate telephonically or by video conferencing. If the court finds in favor of the applicant, it shall enter an appropriate order with respect to the conviction or sentence in the former proceedings, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented. The order made by the court is a final judgment.

(h)Expedited Consideration . An applicant may move for expedited consideration of the application for post-conviction relief. The motion must comply with Civil Rule 77(g).

Alaska R. Crim. P. 35.1

Added by SCO 822, effective August 1, 1987; amended by SCO 1153 effective July 15, 1994; by SCO 1186 effective July 15, 1995; by SCO 1242 effective July 15, 1996; by SCO 1273 effective July 15, 1997; by SCO 1303 effective January 15, 1998; by SCO 1625 effective April 16, 2007; by SCO 1668 effective April 15, 2008; by SCO 1670 effective nunc pro tunc toJuly 1, 2008; by SCO 1733 effective July 1, 2010; and by SCO 1838 effective October 1, 2014.

Note to SCO 1242: Criminal Rule 35.1 was amended by ch. 79 §§ 32-39 SLA 1995. Sections 4 through 10 of this order are adopted for the sole reason that the legislature has mandated the amendments.

Chapter 75 SLA 2008 (SB 265), effective July 1, 2008, enacted extensive changes to various criminal statutes. According to section 42 of the Act, AS 12.72.020(a) and (b) as amended by sections 26 and 27, and the provisions of AS 12.72.020(d), as added by section 28, have the effect of amending Criminal Rule 35.1 by restricting the authority of a court to hear certain applications, claims, or proceedings for post-conviction relief and by prescribing a procedure for a court to determine if an application, claim, or proceeding may be considered.

Note: Chapter 20 SLA 2010 (SB 110), effective July 1, 2010, enacted changes relating to post-conviction relief procedures. According to section 14 of the Act, AS 12.73, added by section 6 of the Act, has the effect of amending Alaska Rule of Criminal Procedure 35.1.

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