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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

TERRY ANTHONY CLAYTON, 

 Appellant,

 v. 

STATE OF ALASKA, 

 Appellee.

Court of Appeals No. A-13013 

Trial Court No. 3AN-15-10248 CI

O P I N I O N 

No. 2755 — August 18, 2023 

Appeal from the Superior Court, Third Judicial District, 

Anchorage, Jennifer Henderson, Judge. 

Appearances: Jane B. Martinez, Law Office of Jane B. 

Martinez, LLC, Anchorage, under contract with the Office of 

Public Advocacy, for the Appellant. Timothy W. Terrell, 

Assistant Attorney General, Office of Criminal Appeals, 

Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, 

for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison, 

Judges.

Judge ALLARD. 

In 1987, Terry Anthony Clayton was convicted of first-degree murder for 

the shooting death of Lisa Haverling. This Court affirmed Clayton’s conviction on 
– 2 – 2755

direct appeal in an unpublished memorandum decision.

1

In that decision, we referred to 

the evidence against Clayton as “overwhelming.”

2

In 2015, Clayton filed an application for post-conviction relief, claiming 

that the FBI hair and fiber analyst who testified at his trial had given erroneous 

testimony. The superior court dismissed the application as untimely on two independent 

grounds: (1) that it was not supported by “admissible” evidence, and (2) that it did not 

establish Clayton’s “innocence” by clear and convincing evidence. 

Clayton now appeals, arguing that the superior court erred in dismissing 

his application. We agree with Clayton that his application was supported by evidence 

in a form sufficient to survive a motion for summary dismissal. We also question 

whether the superior court may have applied an unduly stringent standard of “innocent” 

for purposes of AS 12.72.020(b)(2), the statutory exception to the statute of limitations 

for claims of newly discovered evidence. But for the reasons explained in this opinion, 

we conclude that — even applying the lower standard advocated by Clayton — Clayton 

has failed to establish a prima facie case of timeliness under the statutory exception. 

We therefore affirm the superior court’s order of dismissal.

Underlying facts and proceedings related to Clayton’s trial

In 1987, following a jury trial, Clayton was convicted of the murder of 

Lisa Haverling and sentenced to a term of imprisonment of 99 years. We summarized 

the case against Clayton in his direct appeal, and we briefly restate the facts here. 

Haverling’s body was found in her apartment, face down with a rope 

around her legs and hands. She had been shot twice in the back of the head. She had a 

stab wound in her lower back, and her left wrist had been cut. Police found no signs of 

1 Clayton v. State, 1989 WL 1594949, at *3-4 (Alaska App. May 3, 1989) 

(unpublished). 

2

Id. at *3. 
– 3 – 2755

a forced entry or sexual assault, but Haverling was missing two rings, one of which was 

described by her friend as distinctive. The police found a .25 caliber shell casing 

underneath the bed.

The police subsequently received an anonymous tip that Terry Clayton 

had murdered Haverling. Eventually, the police contacted Henry Mason, a close friend 

of Clayton’s. Mason told the police that his wife had provided the anonymous tip, and 

that he had been the source of her information. Mason agreed to cooperate with the 

police.

Mason reported that Clayton, who lived in an apartment building located 

adjacent to Haverling’s, had previously spent an afternoon with Haverling and learned 

that she had money. According to Mason, Clayton said, “She’s gone and she’s mine.” 

Clayton and Mason had previously committed burglaries together, and Mason told the 

police that he assumed Clayton intended to burglarize Haverling’s apartment.

Mason later confronted Clayton about the murder. According to Mason, 

Clayton initially denied committing the murder but ultimately confessed to the killing. 

Mason said that Clayton told him that he had gone into Haverling’s apartment and 

waited until she returned for lunch. He then surprised her and demanded that she write 

him two checks, one for $1,700 and one for $800. Mason testified that Clayton said he 

took Haverling upstairs, sexually assaulted her, and then tied her up. Clayton said he 

intended to leave at that point, but that he then decided to look more closely at 

Haverling’s checkbook. He noticed that Haverling had written the checks out of 

sequence, in the middle of the checkbook. Clayton said that he became enraged and 

returned upstairs and shot Haverling.

After examining Haverling’s checkbook, the police found that a check had 

been torn from the center of the book. At trial, the State introduced evidence that the 

check was written in Haverling’s handwriting to Clayton for $800. 

The police obtained a warrant to search Clayton’s rented storage locker. 

In the locker, the police found both a .25 caliber pistol and a knife in a box with 
– 4 – 2755

Clayton’s fingerprints on it. FBI laboratory technicians testified that the bullets used to 

kill Haverling were discharged from this pistol, and that there were spots of human 

blood on both the knife and the pistol. (When interviewed, Clayton admitted that he 

owned a gun and knife similar to the ones found in his storage locker, but he stated that 

he had used the knife to cut steak.)

The police also discovered that Clayton had pawned a distinctive ring 

three days after the murder; one of Haverling’s co-workers identified the ring as 

Haverling’s. (When questioned about the ring, Clayton told the police that he had 

pawned the ring, but claimed he had obtained it in a drug deal a month prior.) 

A witness who lived across the street from Clayton later testified at trial 

that Clayton’s car was in the parking lot of the apartment complex all morning on the 

day of the murder, and that he saw Clayton come out of his apartment around 1:15 p.m. 

— just past the lunch hour during which Haverling was murdered.

The State also introduced the testimony of FBI Special Agent Chester 

Blythe, who conducted hair and fiber analysis on hairs recovered from Haverling’s body 

and Clayton’s clothing.

For the most part, Agent Blythe was very moderate in his claims. Blythe 

testified that microscopic hair comparisons could not be used to identify a person to the 

exclusion of others because “[t]his is not a positive association like a fingerprint.” He 

also acknowledged that there was “no reliable study or statistic available” that could 

provide a percentage likelihood that two hairs were from the same person. 

In accordance with these recognized limits, Blythe testified that a hair 

recovered from the sweatpants Clayton was wearing during his arrest resembled a pubic 

hair and that the hair was “consistent” with Haverling’s and “could have come from 

her.” Blythe also testified that wool fibers found on Clayton’s jacket and pants were 

“consistent with” wool fibers that were taken from Haverling’s skirt — noting that they 

“exhibited the same characteristics” and were both from a black sheep whose wool 

remained black even after the dyes were eliminated from the fiber. Lastly, Blythe 
– 5 – 2755

testified that there were hairs on Clayton’s jacket that were “consistent with” hairs taken 

from Haverling’s cats.

But despite acknowledging the limits of microscopic hair comparison 

analysis, Agent Blythe also made statements that seemed to suggest that a positive 

identification could be made to the exclusion of others and that a percentage could be 

assigned to the likelihood of a match. Blythe testified, for example, that it was “likely”

that the pubic hair found on Clayton’s clothes belonged to Haverling, and he put the 

percentage of that likelihood as “a lot higher” than fifty percent. The State relied on 

Blythe’s testimony at closing, offering the hair and fiber evidence as proof that Clayton 

had been in Haverling’s apartment. 

Clayton’s defense at trial was that Mason had framed Clayton for the 

murder and that Mason was Haverling’s real killer. Clayton presented evidence that 

Mason had a key to his storage locker (although there was also testimony suggesting 

that it would have been very difficult for Mason to have gained access to the storage 

locker area without Clayton being present). Clayton attacked Mason’s credibility and 

the fact that he had been granted immunity for multiple unrelated property and drug 

crimes in exchange for his testimony.

Clayton also relied on a part of Agent Blythe’s hair and fiber testimony 

that was favorable to Clayton. At trial, Blythe testified that he recovered a foreign hair 

from Haverling’s dead body that was “consistent with” hair taken from Henry Mason,

although it was longer than Mason’s current hair style. Clayton introduced evidence 

that Mason shaved his head after the murder occurred, and Clayton used Agent Blythe’s 

testimony to support his defense that Mason had killed Haverling and then “set up” 

Clayton by planting other evidence that incriminated Clayton.

The jury rejected this defense and found Clayton guilty of first-degree 

murder. 
– 6 – 2755

Post-conviction relief proceedings 

Around 2013, the FBI, the Innocence Project, and the National 

Association of Criminal Defense Lawyers began reviewing testimony and lab reports 

by FBI examiners involving microscopic hair analysis. In particular, the FBI identified 

some FBI examiners who had given testimony that “exceeded the limits of science by 

overstating the conclusions that may appropriately be drawn from a positive association 

between evidentiary hair and a known hair sample.” Clayton was notified of this review 

in 2015 because Agent Blythe, the FBI hair analyst who testified in his case, was one 

of the criticized examiners.

In response, Clayton filed a pro se application for post-conviction relief 

and was appointed an attorney to help him with the post-conviction relief process. 

Clayton’s application was filed nineteen years after the statute of limitations had 

expired.3

In 2016, the FBI sent a letter to the State of Alaska stating that it had 

reviewed the testimony of Agent Blythe in Clayton’s case, and that it had concluded 

that certain statements in Blythe’s microscopic hair testimony “exceeded the limits of 

the science.” The letter indicated that the Innocence Project and the National 

Association of Criminal Defense Lawyers had also independently reviewed Blythe’s 

testimony and they agreed with the FBI’s conclusions. The letter was signed by Special 

Counsel Norman Wong and it included unsigned reports documenting the results of the 

FBI review and the independent review by the Innocence Project and the National 

Association of Criminal Defense Lawyers.

The FBI letter made clear that “[t]he science underlying microscopic hair 

comparison [was] not the subject of this review.” Instead, the review was targeted at 

3

In 1995, the legislature instituted a two-year statute of limitations on most postconviction relief claims (which was later lowered to eighteen months). The bill included a 

provision allowing anyone with a conviction date prior to July 1994 to file a claim before 

July 1996. C.S.H.B. 201, § 40, 19th Leg. 1st Sess. (1995). 
– 7 – 2755

FBI examiners who exceeded the limits of science “by overstating the conclusions that 

may appropriately be drawn from a positive association between evidentiary hair and a 

known hair sample.” The letter compared these types of errors to “cases in which the 

FBI Laboratory report and examiner testimony presented conclusions that may 

appropriately be drawn from a positive association.”

The letter indicated that Agent Blythe’s testimony contained two types of 

errors: (1) it stated or implied that the evidentiary hair could be associated with a 

specific individual to the exclusion of all others; and (2) it assigned to the positive 

association a statistical weight or probability or provided a likelihood that the 

questioned hair originated from a particular source, or an opinion as to the likelihood 

or rareness of the positive association that could lead the jury to believe that valid 

statistical weight could be assigned to a microscopic hair association.

The FBI letter noted that, in federal cases, the United States Department 

of Justice was waiving reliance on the statute of limitations and other procedural-default 

defenses in order to permit the resolution of post-conviction relief claims based on 

similar erroneous testimony. 

Clayton’s attorney subsequently filed an amended application for postconviction relief, arguing that the FBI letter constituted newly discovered evidence that 

required Clayton’s conviction to be vacated in the interests of justice. The attorney also 

argued that the tainted FBI testimony had undermined the fundamental fairness of 

Clayton’s trial and violated Clayton’s state and federal due process rights. The amended 

application did not acknowledge that the statute of limitations had expired nineteen 

years earlier.

The State filed a motion to dismiss Clayton’s application as untimely. In 

its motion to dismiss, the State made clear that, unlike the federal government, it was 

not waiving any statute of limitations or procedural defenses to these post-conviction 

relief claims based on allegedly tainted FBI expert testimony. The State therefore 

pointed out that, in order for Clayton’s application to be accepted as timely under 
– 8 – 2755

Alaska law, Clayton needed to meet the requirements of AS 12.72.020(b)(2), the 

statutory exception to the statute of limitations for post-conviction relief claims based 

on newly discovered evidence. Under this provision, a court may hear an application 

for post-conviction relief that falls outside the statute of limitations if the application is: 

(2) based on newly discovered evidence if the applicant 

establishes due diligence in presenting the claim and sets out 

facts supported by evidence that is admissible and

(A) was not known within

(i) 18 months after entry of the judgment of 

conviction[;]

(B) is not cumulative to the evidence presented at 

trial;

(C) is not impeachment evidence; and

(D) establishes by clear and convincing evidence that 

the applicant is innocent.[4]

The State argued that Clayton had failed to meet this standard in two 

different ways. As an initial matter, the State argued that the FBI letter and attached

reports were unsworn hearsay, and that Clayton’s application was therefore not 

supported by “admissible” evidence. The State also separately argued that the FBI letter 

was “mere impeachment” and it did not undermine the State’s case in any significant

way,

5

and it did not establish by clear and convincing evidence that Clayton was 

actually innocent.

In response, Clayton argued that the reports he submitted were admissible 

as business records, and he asserted that he would be unable to procure affidavits or 

4 AS 12.72.020(b)(2). 

5 Mooney v. State, 167 P.3d 81, 91 (Alaska App. 2007) (explaining that, in the postconviction relief context, impeachment evidence “simply reinforces the types of 

impeachment that were previously available,” whereas newly discovered evidence that 

“undermines the government’s case in a new and significant way . . . is not ‘merely 

impeaching’”).
– 9 – 2755

other information from the FBI until the discovery phase of litigation. Clayton also 

argued that he was not required to meet the statutory standard under 

AS 12.72.020(b)(2); instead, he claimed that he was only required to meet the standard 

used for timely motions for new trial based on new evidence. This standard —

commonly referred to as the Salinas standard based on the Alaska Supreme Court case 

Salinas v. State — is very similar to the standard under AS 12.72.020(b)(2), with one 

important difference.6 The Salinas standard does not require a defendant to establish by 

clear and convincing evidence that they are “innocent.” Instead, it requires the 

defendant to show that the newly discovered evidence would “probably produce an 

acquittal” (when considered with the totality of evidence that would be available at a 

new trial).

7

The superior court rejected both of Clayton’s arguments and granted the 

State’s motion to dismiss. The court ruled first that the FBI documents did not qualify 

as “business records” under the hearsay exception, and that Clayton had therefore failed 

to support his application with “admissible” evidence. The court also ruled that, even if 

admissible, the FBI letter and reports did not establish by clear and convincing evidence 

that Clayton was “innocent.” The superior court did not explain what Clayton would 

have to show to establish his innocence under this standard, although the court made 

clear that the standard was higher than the Salinas “probably produce an acquittal” 

6 The Salinas standard asks whether the evidence (1) is, in fact, newly discovered; 

(2) was discovered with reasonable diligence on the part of the movant; (3) is not merely 

cumulative or impeaching; (4) is material to the issues involved; and (5) would probably 

produce an acquittal. Salinas v. State, 373 P.2d 512, 514 (Alaska 1962). 

7 See id. at 514-15 (asking whether the newly discovered evidence was so material 

that it would probably produce an acquittal in a new trial); see also James v. State, 84 P.3d 

404, 407 (Alaska 2004) (remanding post-conviction relief case for express findings on 

whether newly discovered evidence would probably produce an acquittal because “the 

superior court neither explicitly nor implicitly stated the likely effect of the recantation 

evidence on a jury at a new trial”).
– 10 – 2755

standard that applied to motions for new trial and timely post-conviction relief 

applications.

Following the court’s order, Clayton filed a motion for reconsideration,

arguing that the court had failed to address his due process claims. The superior court 

issued a handwritten order, ruling that the motion for reconsideration was untimely and 

that any constitutional claims had been waived for inadequate briefing. The court also 

noted that by applying the statute of limitations under AS 12.72.020, it had implicitly 

rejected any argument that the statute was unconstitutional as applied to Clayton’s case.

This appeal followed.

Why we conclude that the FBI letter and accompanying reports would 

have been sufficient to sustain Clayton’s initial burden at the pleading 

stage

Clayton first claims that the superior court erred by dismissing his 

application for lack of evidentiary support. Clayton argues that, at this preliminary stage 

of the post-conviction relief proceeding, the FBI letter and attached reports were 

sufficiently trustworthy to qualify as “admissible” evidence for purposes of 

AS 12.72.020(b)(2). We agree. 

On appeal, the State argues that Clayton should have used the Freedom of 

Information Act to obtain information from the FBI regarding the authors of the report. 

But it is not clear how realistic this option would have been.8 The State also argues that 

Clayton should have secured his own microscopic hair analysis expert who could then 

have submitted an affidavit attesting to the same conclusions that the FBI analysts 

reached. But arguably such an affidavit would be no more “admissible” than the FBI 

documents in the sense that affidavits, although sworn, are not directly admissible at 

8 See, e.g., Kuplen v. U.S. Dep’t of Justice, 2013 WL 5476566 (W.D.N.C. Oct. 2, 

2013) (unpublished) (discussing Freedom of Information and Privacy Act request 

involving Agent Blythe where the FBI refused to provide records). 
– 11 – 2755

trial.9 Courts nevertheless accept affidavits as sufficient to meet a pleading standard 

because they are generally accepted as reliable evidence that the true evidence — i.e., 

the live testimony — will be available at trial.10

Here, Clayton was relying on documents created by the federal 

government that had been originally sent to the State and whose authenticity was not in 

doubt. Clayton’s burden at this preliminary stage of the proceeding was to present wellpleaded assertions of fact which, if ultimately proven, would establish that he is entitled 

to relief.11 The FBI letter and accompanying reports, although unsworn, were sufficient 

to demonstrate that Clayton could produce admissible evidence to support his claim that 

Agent Blythe’s testimony was tainted by error, even if he was unable to provide the 

identity of the person who might provide that evidence at a future evidentiary hearing 

or retrial. Indeed, the FBI letter was an admission of flawed testimony by a 

governmental agency that testified on behalf of the State at Clayton’s trial; this 

admission was presumably against the agency’s self-interest and thus sufficiently 

trustworthy to qualify as admissible under the residual hearsay exception, at least for 

purposes of fulfilling Clayton’s initial pleading requirement.12

9 See Greenway v. Heathcott, 294 P.3d 1056, 1065 (Alaska 2013) (describing witness 

affidavits as “quintessentially hearsay and suspect evidence” and upholding trial court’s 

decision to decline to accept affidavits in lieu of testimony subject to cross-examination).

10 Cf. Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th 

Cir. 2006) (“At the summary judgment stage, evidence need not be submitted ‘in a form 

that would be admissible at trial.’ Parties may, for example, submit affidavits in support of 

summary judgment, despite the fact that affidavits are often inadmissible at trial as hearsay, 

on the theory that the evidence may ultimately be presented at trial in an admissible form.” 

(citations omitted)). 

11 Alaska R. Crim. P. 35.1(d); LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 

2007). 

12 See Alaska R. Evid. 803(23), 804(b)(5) (residual hearsay exception for statements 

with “circumstantial guarantees of trustworthiness” on par with listed hearsay exceptions);
– 12 – 2755

Under the residual hearsay exception, a statement that has “equivalent 

circumstantial guarantees of trustworthiness” as other exceptions to the hearsay rule is

considered admissible if the court determines that:

(a) the statement is offered as evidence of a material fact; 

(b) the statement is more probative on the point for which it 

is offered than any other evidence which the proponent can 

procure through reasonable efforts; and (c) the general 

purposes of these rules and the interest of justice will best be 

served by admission of the statement into evidence.[13]

Here, Clayton’s attorney asserted that it was difficult to obtain the names of the 

reviewers at this early stage of the post-conviction relief proceedings, but that these 

names would be easier to obtain in the second stage of the proceedings, when Clayton

would have access to discovery tools and the power of the court. Given this, and given 

the circumstantial guarantees of trustworthiness that the FBI letter otherwise provided, 

we conclude that Clayton’s application should not have been dismissed on the ground 

that he had failed to present an adequate evidentiary basis for his claims. 

Why we conclude that Clayton’s application was properly dismissed and 

that he failed to meet his burden under AS 12.72.020(b)(2), regardless of 

how that burden is construed

Under Alaska law, a defendant may move for a new trial based on newly 

discovered evidence within 180 days of their final judgment.

14 These claims are 

evaluated under the standard first announced in 1962 by the Alaska Supreme Court in 

Salinas v. State: whether the evidence (1) is, in fact, newly discovered; (2) was 

discovered with reasonable diligence on the part of the movant; (3) is not merely 

see also Alaska R. Evid. 804(b)(3) (hearsay exception for statements against interest); cf. 

Alaska R. Evid. 801(d)(2) (admission of party opponent is not hearsay).

13 Alaska R. Evid. 803(23). 

14 Alaska R. Crim. P. 33(c).
– 13 – 2755

cumulative or impeaching; (4) is material to the issues involved; and (5) would probably 

produce an acquittal.15 As we observed in Mooney v. State, almost every jurisdiction in 

the country uses a test essentially identical to the Salinas test in the new trial context.16

Both the Alaska Supreme Court and this Court have applied this same 

Salinas test in the context of timely post-conviction relief claims based on newly 

discovered evidence — i.e., applications that are filed within the statute of limitations 

and brought under AS 12.72.010(4).17 This statute provides that a person is entitled to 

post-conviction relief if “there exists evidence of material facts, not previously 

presented and heard by the court, that requires vacation of the conviction or sentence in 

the interest of justice.”18 Thus, a defendant who files a timely application for postconviction relief based on newly discovered evidence is entitled to vacation of their 

conviction in the interests of justice if they can prove, inter alia, that the newly 

discovered evidence would “probably produce an acquittal” when evaluated as part of 

the totality of the evidence that would be available at a new trial.19 The State does not 

contest that the Salinas standard applies to these timely post-conviction relief claims.

15 Salinas v. State, 373 P.2d 512, 514 (Alaska 1962).

16 Mooney v. State, 167 P.3d 81, 91 (Alaska App. 2007) (citing 5 Wayne R. LaFave 

et al., Criminal Procedure § 24.11(d), at 623-28 (2d ed. 1999)).

17 See Lewis v. State, 901 P.2d 448, 450 (Alaska App. 1995) (holding that the Salinas 

test applies to newly-discovered evidence claims raised in an application for postconviction relief under Criminal Rule 35.1(a)(4)); see also James v. State, 84 P.3d 404, 

406 (Alaska 2004) (discussing how to evaluate the impact of a recantation in assessing 

whether, in a post-conviction relief application, the recantation would “probably produce 

an acquittal,” as required by the Salinas standard); Mooney, 167 P.3d at 83, 90-91 (applying 

the Salinas test in the context of a timely post-conviction relief application).

18 AS 12.72.010(4); see also Alaska R. Crim. P. 35.1(a)(4).

19 James, 84 P.3d at 407-08 (holding that newly discovered evidence “must be 

realistically evaluated in light of the totality of the evidence to be presented in the event of 

a retrial”). 
– 14 – 2755

In the current case, Clayton argues that the same Salinas standard applies 

to otherwise untimely post-conviction relief claims based on newly discovered evidence

that are brought outside the applicable statute of limitations. In other words, Clayton 

argues (essentially) that the statutory language contained in AS 12.72.020(b)(2)(D) —

“establishes by clear and convincing evidence that the applicant is innocent” — should 

be construed as requiring no more than the “probably produce an acquittal” standard 

under Salinas. He further asserts that it would be unconstitutional to require anything 

more than the Salinas standard. 

Clayton’s arguments raise a question of first impression for this Court. 

Although this Court has discussed the possible meaning of AS 12.72.020(b)(2) in 

various unpublished cases, there are no published cases construing this statutory 

provision.20 In particular, there are no published cases addressing what the legislature 

meant by the term “innocent” and whether that term was intended to convey something 

different than “not guilty.” We note that in Schlup v. Delo, the United States Supreme 

Court observed that “proof beyond a reasonable doubt marks the legal boundary 

between guilt and innocence,” and the Court defined a claim of “actual innocence” for 

purposes of the federal “actual innocence” gateway as requiring proof that “it is more 

likely than not that no reasonable juror would have convicted [the defendant] in light of 

the new evidence.”21 In reaching this conclusion, the Court stated that the adoption of 

20 See, e.g., Fox v. State, 2016 WL 6310766, at *1 (Alaska App. Oct. 26, 2016) 

(unpublished) (suggesting that defendant could establish his innocence by clear and 

convincing evidence if he proved that “his illegal act was actually the product of 

entrapment”); Simpson v. State, 2008 WL 4757150, at *2 (Alaska App. Oct. 29, 2008) 

(unpublished) (addressing but not resolving the meaning of “innocent” under 

AS 12.72.020(b)(2)); State v. Finney, 2001 WL 1448756, at *4 (Alaska App. Nov. 14, 

2001) (unpublished) (suggesting that the standard under AS 12.72.020(b)(2) is “more 

stringent” than the “probably produce an acquittal” standard).

21 Schlup v. Delo, 513 U.S. 298, 327-28 (1995).
– 15 – 2755

this standard “reflect[ed] the proposition, firmly established in our legal system, that 

the line between innocence and guilt is drawn with reference to a reasonable doubt.”22

Other jurisdictions have likewise defined the term “innocent” or 

“innocence” in their post-conviction relief statutes to mean that the defendant would be 

found not guilty on a retrial.

23 Sometimes the term is used to mean not only that the 

defendant would be found not guilty of the underlying offense, but also that the 

defendant would be found not guilty of any accomplice liability or any lesser included 

22 Id. at 328.

23 See, e.g., Schmidt v. State, 909 N.W.2d 778, 795-98 (Iowa 2018) (“For an applicant 

to succeed on a freestanding actual-innocence claim, the applicant must show by clear and 

convincing evidence that, despite the evidence of guilt supporting the conviction, no 

reasonable fact finder could convict the applicant of the crimes for which the sentencing 

court found the applicant guilty in light of all the evidence, including the newly discovered 

evidence.”); Riley v. State, 819 N.W.2d 162, 170 (Minn. 2012) (“[E]stablishing actual 

innocence requires evidence that renders it more likely than not that no reasonable juror 

would convict.”); People v. Morgan, 817 N.E.2d 524, 527 (Ill. 2004) (“Our court has 

therefore recognized the right of postconviction petitioners to assert a claim of actual 

innocence based on newly discovered evidence. To win relief under that theory, the 

evidence adduced by the defendant must . . . be of such conclusive character that it would 

probably change the result on retrial.” (citations omitted)); Haas v. Commonwealth, 871 

S.E.2d 257, 276-77 (Va. 2022) (“A person seeking a writ of actual innocence . . . must 

prove [by a preponderance of the evidence] that the evidence on which his petition is based 

. . . is material and, when considered with all of the other evidence in the current record, 

will prove that no rational trier of fact would have found proof of guilt . . . beyond a 

reasonable doubt.” (citations omitted)).
– 16 – 2755

offense.24 This is similar to the definition of “innocence” contained in AS 12.73, 

Alaska’s post-conviction DNA testing statute. 25

However, in Clayton’s case, the superior court appeared to assume that 

“innocent” meant something other than “not guilty.” According to the superior court, it 

was not enough for Clayton to show that the new evidence would probably have 

produced an acquittal at trial in the sense that the jury would have reached a different 

verdict; instead, the court stated that Clayton needed to meet “the higher burden of 

establishing innocence.”

It is not clear what the superior court meant when it referred to a “higher 

burden of establishing innocence.” It is possible the court meant only to highlight the 

difference between the Salinas preponderance of the evidence standard and the “clear 

and convincing” burden of proof required by AS 12.72.020(b)(2).26 It is also possible 

that the court was applying the “higher burden” of proving that the defendant would not 

only be found not guilty of the underlying crime, but also would be found not guilty as 

an accomplice or of any lesser included offense.

27 Alternatively, it is possible that the 

superior court was interpreting “innocence” as requiring some sort of affirmative 

24 See, e.g., La. Code Crim. Proc. Ann. art. 926.2 (2021) (defining finding of “factual 

innocence” to require that new evidence establish that “no rational juror would have found 

the petitioner guilty beyond a reasonable doubt of either the offense of conviction or of any 

felony offense that was a responsive verdict”). 

25 See AS 12.73.090(2) (defining “innocence” for purposes of post-conviction DNA 

statute as meaning that “the applicant was not a perpetrator of or an accomplice to the 

offense or lesser included offense for which the applicant was convicted”).

26 Geisler v. State, 2021 WL 3179639, at *1 n.6 (Alaska App. July 28, 2021) 

(unpublished) (citing State v. Finney, 2001 WL 1448756, at *4 (Alaska App. Nov. 14, 

2001) (unpublished)) (referring to the standard for untimely post-conviction relief 

applications as “more stringent” than the standard for timely post-conviction relief 

applications). 

27 See AS 12.73.090. 
– 17 – 2755

showing beyond simply proving that the defendant would be found “not guilty” at any 

new trial.

We conclude that we need not resolve this question here because we are

convinced that Clayton is not entitled to relief regardless of what the word “innocent”

means. In other words, even if Clayton is correct and the language in 

AS 12.72.020(b)(2)(D) — “establishes by clear and convincing evidence that the 

applicant is innocent” — requires only that the defendant show that the newly 

discovered evidence would “probably produce an acquittal” under the Salinas standard, 

we would still conclude that Clayton has failed to meet this burden. 

As we stated in our decision in Clayton’s direct appeal, “the evidence 

against Clayton was overwhelming” and there was “substantial physical evidence 

connecting Clayton to the crime scene.”28 This physical evidence not only included the 

hair and fiber analysis contained in Agent Blythe’s testimony, but also included 

evidence of the gun and knife found in Clayton’s storage locker, evidence that a check 

written from Haverling’s checkbook had Clayton’s name on it, and evidence that 

Clayton pawned Haverling’s distinctive ring three days after her murder. 

Moreover, although Clayton asserts that none of Agent Blythe’s testimony 

would be admissible at a new trial, there is little reason to believe that would be true. 

As already explained, the FBI letter made clear that it was not invalidating all expert 

testimony related to microscopic hair comparisons; instead, it was only invalidating 

expert testimony that “exceeded the limits of science” — e.g., testimony that 

erroneously claimed that a positive identification to the exclusion of others could be 

28 Clayton v. State, 1989 WL 1594949, at *3 (Alaska App. May 3, 1989) 

(unpublished). 
– 18 – 2755

made or that erroneously ascribed a particular percentage to the likelihood that a 

positive identification could be made.29

A review of Agent Blythe’s testimony at Clayton’s trial reveals that, for 

the most part, Agent Blythe did not make such erroneous claims.30 Indeed, as already 

explained, Agent Blythe largely acknowledged that microscopic hair comparison could 

not yield a positive association to the exclusion of any other source. And although he 

claimed at a couple points in his testimony that it was “likely” that the pubic hair found 

on Clayton’s clothing belonged to Haverling, he also acknowledged that there were no 

statistics or percentages that actually applied to microscopic hair comparisons. 

In addition, the erroneous statements identified by the FBI reports were 

only made in relation to the pubic hair. Agent Blythe did not make any such erroneous 

claims with regard to the cat hairs or the wool fibers. Instead, his testimony was simply 

that the cat hairs found on Clayton’s clothing were “consistent with” hairs taken from 

Haverling’s cats. And he similarly testified that the wool fibers found on Clayton’s 

clothing were “consistent with” the wool fibers taken from Haverling’s skirt, explaining

that he reached this conclusion because the fibers “exhibited the same characteristics” 

and because they retained their blackness even after the dye was eliminated from the 

fibers (which suggested that they both came from a black sheep). Notably, there is 

nothing in the FBI letter or the associated reports (both of which addressed only errors 

29 We note that, by limiting his evidentiary support for his claims to the FBI letter and 

the accompanying reports, Clayton limited his criticisms of Agent Blythe’s microscopic 

hair and fiber analysis to the criticisms contained in those documents. 

30 See, e.g., Crump v. May, 2023 WL 2240289, at *5-6 (D. Del. Feb. 27, 2023) 

(unpublished) (noting, in case with similarly tainted hair testimony, that the FBI letter 

would not probably produce an acquittal where the expert also made equivocating 

statements along the same lines as Agent Blythe did here). 
– 19 – 2755

in microscopic hair comparison analysis) that discredits this part of Agent Blythe’s 

testimony.31

In any case, even if we assume that the majority of Agent Blythe’s 

testimony would not be introduced at a new trial, the jury would still likely hear at least 

some expert testimony regarding the hairs and fibers found on Clayton’s clothing. 

Moreover, this evidence would be presented along with all the other evidence used to 

convict Clayton, which included: Henry Mason’s testimony regarding Clayton’s 

alleged confession; the $800 check made out to Clayton that seemingly corroborates 

the confession; the discovery of the gun that was used to shoot Haverling in Clayton’s 

storage locker; Clayton’s admissions that the gun belonged to him; Clayton’s admission 

that the knife that was found in the storage locker with the gun also belonged to him 

and his claim that the blood on the knife was from cutting steak; evidence that Clayton 

was seen at the apartment complex around the time of the murder; and evidence that 

Clayton pawned one of Haverling’s distinctive rings a few days after the murder. 

Given all this, we conclude that Clayton’s pleadings failed to show that 

the newly discovered evidence contained in the FBI letter and the accompanying reports 

would probably produce an acquittal at a new trial. In sum, although it is an open 

question what “establishes by clear and convincing evidence that the applicant is 

innocent” actually means under Alaska law, we need not decide that issue in this case 

because Clayton has failed to show that he is entitled to relief even under the lower 

Salinas standard that he advocates. 

31 Cf. McCartney v. Warden, 2016 WL 11811648, at *2 (W.D. La. Jan. 5, 2016) 

(unpublished) (distinguishing between tainted FBI hair analysis and untainted FBI fiber 

analysis).
– 20 – 2755

Clayton’s due process arguments 

In the proceedings before the superior court, Clayton’s post-conviction 

relief attorney made a number of vague constitutional claims under the due process 

clause. The superior court later dismissed these claims as inadequately briefed. We 

likewise conclude that Clayton has failed to sufficiently articulate his due process 

claims on appeal. We nevertheless address them here to the extent we can based on the 

briefing we have received. 

First, to the extent that Clayton is arguing that AS 12.72.020(b)(2) is 

unconstitutional because it requires a higher standard than the Salinas “probably 

produce an acquittal” standard, this argument is moot because Clayton has failed to 

show that he can meet the Salinas standard. 

Second, to the extent that Clayton is arguing that due process is violated 

when tainted expert testimony renders a trial “fundamentally unfair,” we conclude that 

Clayton has failed to show that the tainted FBI testimony rendered his trial 

fundamentally unfair.32 As already explained, the erroneous statements comprised only 

a small part of Agent Blythe’s testimony, and the majority of his testimony would likely 

be allowed in any new trial. Moreover, Clayton’s conviction was supported by 

significant evidence separate from Agent Blythe’s testimony, and Clayton has failed to 

show that the outcome of his case would have been different even without Agent 

Blythe’s testimony. 

Lastly, to the extent that Clayton is arguing that due process was violated 

because the State “knew or should have known” that it was introducing “false or 

perjured” testimony, we find this claim unpreserved. 33 On appeal, Clayton cites to a 

32 See United States v. Berry, 624 F.3d 1031, 1041-42 (9th Cir. 2010) (refusing to find 

a trial fundamentally unfair where expert used significantly criticized, though not wholly 

unreliable, analytical methods but expert’s “conclusions were not overstated”). 

33 Cf. Napue v. Illinois, 360 U.S. 264 (1959) (holding that a defendant is deprived of 

a fair trial when (1) the government introduces false or misleading testimony or allows it 
– 21 – 2755

federal decision, United States v. Ausby, in which a federal court granted habeas relief 

to a defendant because the federal government conceded that it knew or should have 

known that the microscopic hair analysis it introduced at trial was false. 34 But the State 

has made no such concession here, and Clayton’s post-conviction relief attorney failed 

to even allege that the State knew or should have known of the problems with Agent 

Blythe’s testimony when he filed Clayton’s amended application for post-conviction 

relief. Clayton’s reliance on Ausby and the related authority in his briefing is therefore 

misplaced. 

Conclusion 

The superior court’s order dismissing Clayton’s application for postconviction relief is AFFIRMED. 

to go uncorrected, (2) the government knew or should have known that the testimony was 

false, and (3) the false evidence was material to the conviction).

34 United States v. Ausby, 916 F.3d 1089, 1095 (D.C. Cir. 2019).