Transcript
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    Post-Conviction Relief

    Hon. David W. Gratton

    Chief JudgeIdaho Court of Appeals

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    Scope of Webinar

    Recent cases in the post-convictionarenacases issued within the lasttwo years.

    Discussion of ways in which we canimprove how post-conviction cases arepresented and decided.

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    Statute of Limitations

    Person v. State, 147 Idaho 453 (Ct. App. 2009)

    Rhoades v. State, 148 Idaho 247 (2009)

    Amboh v. State, 149 Idaho 650 (Ct. App. 2010)

    State v. Ochieng, 147 Idaho 621 (2009)

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    Person v. State

    147 Idaho 453 (Ct. App. 2009)GENERAL STATEMENT OF STATUTE OF LIMITATIONS:

    Idaho Code Section 19-4902(a) requires that such a petition be filed anytime within one (1) year from the expiration of the time for appeal or fromthe determination of an appeal or from the determination of a proceedingfollowing an appeal, whichever is later. The failure to file a timely petition

    is a basis for dismissal of the petition, assuming the defendant has notshown reason why the statute of limitations should be tolled.

    GENERAL STATEMENT OF TOLLING:

    Idaho courts have recognized equitable tolling in only two situations:

    where the petitioner was incarcerated in an out-of-state facility on an in-state conviction without legal representation or access to Idaho legalmaterials and where mental disease and/or psychotropic medicationrenders a petitioner incompetent and prevents petitioner from earlierpursuing challenges to his conviction.

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    Rhodes v. State

    148 Idaho 247 (2009)Rhodes recognizes the tolling standard set outby the court of appeals, but then also reaffirmedthe standard from Charboneau v. State, 144Idaho 900 (2007):

    In Charboneau v. State, we considered therelationship of I.C 19-4902 and I.C. 19-4908. 144Idaho 900, 174 P.3d 870 (2007). In Charboneau, thisCourt recognized that rigid application of I.C. 19-

    4902 would preclude courts from considering claimswhich simply are not known to the defendant withinthe time limit, yet raise important due process issues.Id. at 904, 174 P.3d at 874.

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    Rhodes v. State

    148 Idaho 247 (2009)

    This Court has never explicitly addressedwhen a case would raise an important due

    process issue. However, the serious dueprocess concerns enunciated in Charboneauencompass cases involving access to courtsclaims. Martinez v. State, 130 Idaho 530,

    535-36, 944 P.2d 127, 132-33 (Ct. App.1997). It would similarly cover claims ofincompetency. Chico-Rodriguez, 141 Idaho at582-83, 114 P.3d at 140-41.

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    Rhodes Further Stated That:

    BRADY VIOLATION CLAIMS WOULD SUPPORT TOLLING.

    THE COURT NEED NOT , IN THAT CASE, DETERMINE WHETHERDUE PROCESS REQUIRES A FREE-STANDING ACTUAL INNOCENCEEXCEPTION TO THE APPLICATION OF I.C. 19-4902.

    INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS CAN OR SHOULDBE KNOWN AFTER TRIAL - THUS, NOT SUPPORTING TOLLING.

    IF TOLLING IS APPROPRIATE, THEN THE APPLICATION MUST BEFILED WITHIN THE REASONABLE TIME STANDARD USED FOR

    THE FILING OF SUCCESSIVE APPLICATIONS.

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    Summary of

    Statute of Limitations

    These cases do not seem to deviate from theunderlying premise that tolling will not be

    recognized unless the applicant was actuallyprevented, for whatever reason, from being ableto bring the application within the one yearperiod.

    See Evensiosky v. State, 136 Idaho 189 (2001).

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    Miscellaneous

    Statute of Limitations

    Amboh v. State, 149 Idaho 650 (Ct. App. 2010)(appeal dismissed as untimely does not extendthe period to file for post-conviction relief).

    State v. Ochieng, 147 Idaho 621 (2009) (districtcourt may sua sponte raise the statute oflimitations - allowing the court to state thestatute of limitations as a ground for summarydismissal).

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    Appoint of Counsel

    Judd v. State, 148 Idaho 22 (Ct. App.2009).

    Melton v. State, 148 Idaho 339 (2009)

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    Judd v. State

    148 Idaho 22 (Ct. App. 2009)The standard whether to grant counsel has not changed.

    Consequently, if facts are alleged giving rise to the possibility ofa valid claim, the trial court should appoint counsel in order to

    give the petitioner an opportunity to work with counsel andproperly allege the necessary supporting facts. Id. [E]veryinference must run in the petitionersfavor where the petitioneris unrepresented at that time and cannot be expected to knowhow to properly allege the necessary facts. Id. at 794, 102 P.3dat 1113. Only if all of the claims alleged in the petition are

    frivolous may the court deny a request for counsel. Id. at 792,102 P.3d at 1111; Brown v. State, 135 Idaho 676, 679, 23 P.3d138, 141 (2001).

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    Judd v. State

    148 Idaho 22 (Ct. App. 2009)

    The Court has emphasized that the standard forappointment of counsel is lower than forsummary dismissal

    The determination whether to appoint counsel andthe determination whether a petition is subject tosummary dismissal are thus controlled by quitedifferent standards, with the threshold showing that isnecessary in order to gain appointment of counsel

    being considerably lower than that which is necessaryto avoid summary dismissal of a petition. Id. at 655,152 P.3d at 16; Plant, 143 Idaho at 761, 152 P.3d at632.

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    Melton v. State

    148 Idaho 339 (2009)

    The district court must generally rule on therequest for counsel before dismissing the case(this rule has not changed)

    In Charboneau, we held that the court should havefirst determined whether Charboneau was entitled tocourt-appointed counsel before denying his petitionfor post-conviction relief on its merits: By notspecifically addressing the appointment of counsel

    issue before dealing with the substantive issues of[the petition], the district court abused its discretion.Id.

    Judd v. State, 148 Idaho 22 (Ct. App. 2009); Hust v. State,147 Idaho 682 (Ct. App. 2009).

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    Melton v. State

    148 Idaho 339 (2009)

    Even though the district court does notrule on the motion for counsel beforesummarily dismissing the application, theappellate court will uphold the dismissal ifthe application does not raise the

    possibility of a valid claim.

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    Melton v. State

    148 Idaho 339 (2009)

    Here, we find that the district court erred in notspecifically addressing Meltons motion forappointment of counsel before it addressed thesubstantive merits of his petition. However, we findthat such error did not affect Meltons substantialrights because Meltons successive petition for post-conviction relief did not raise the possibility of a validclaim.

    Judd v. State, 148 Idaho 22 (Ct. App. 2009)(time-barredapplication); Hust v. State, 147 Idaho 682 (Ct. App.2009)(time-barred application).

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    Summary Dismissal

    Sufficiency of Notice

    No Notice Requirement

    Dismissal on Grounds Other Than Thos in theNotice

    Dismissal in Part on Grounds in States Notice

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    DeRush v. State

    146 Idaho 599 (2009)

    SUFFICIENCY OF NOTICE FOR SUMMARYDISMISSAL

    The Court in DeRush retreated from a seriesof cases that had required a high level ofdetail and specificity regarding the asserted

    deficiencies in the applicants claims in orderto be considered adequate notice.

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    DeRush v. State

    146 Idaho 599 (2009)

    CONSISTENT WITH THESE PRIOR CASES, THEAPPLICATION IN DERUSHE ARGUED:

    DeRush contends that for the notice to state itsgrounds with particularity, the notice must identifywith particularity why an applicants evidence or legaltheories are considered deficient. The notice must

    provide any deficiency in the applicants evidence orany legal analysis that needs to be addressed in orderto avoid dismissal of the petition.

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    DeRush v. State

    146 Idaho 599 (2009)

    BUT THE SUPREME COURT STATED:

    The particularity requirement of Rule 7(b)(1)

    does not mandate that level of detail. TheRule only requires reasonable particularity.Patton v. Patton, 88 Idaho 288, 292, 399 P.2d262, 264-65 (1965). If the notice is sufficient

    that the other party cannot assert surprise orprejudice, the requirement is met. Id. at 292,399 P.2d at 265.

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    DeRush v. State

    146 Idaho 599 (2009)

    In order to give guidance to the courtsand practitioners - as well as the court ofappeals - the DeRush Court attempted todescribe the level of detail needed in orderto satisfy the notice requirement:

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    DeRush v. State

    146 Idaho 599 (2009)If the ground for summary disposition is that assertions by the applicantare not admissible evidence, stating the ground with reasonableparticularity requires no more than the level of particularity required toobject to the admissibility of that evidence, such as that it is conclusory,hearsay, or lacking foundation. It is rarely necessary to further explainthose objections. If the ground for summary disposition is that there isno admissible evidence on an essential element of a claim, reasonableparticularity only requires pointing that out. For example, claims ofineffective assistance of defense counsel or of prosecutorial misconductin withholding evidence favorable to the accused both require prejudiceto the defendant. State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476,483 (2008) (a claim for ineffective assistance of counsel requires ashowingthereis a reasonable probability that, but for counselserrors,the result would have been different); Dunlap v. State, 141 Idaho 50,

    64, 106 P.3d 376, 390 (2004) (an essential element of a Brady violationis that prejudice must have ensued). Reasonable particularity onlyrequires pointing out that there is a lack of evidence showing prejudice.It does not require explaining what further evidence is necessary,particularly since it may not exist.

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    Kelly v. State

    149 Idaho 517 (2010)

    THE COURT, IN KELLY, UNDERSCORED THEHOLDING IN DERUSH REGARDING THESUFFICIENCY OF NOTICE.

    The Kelly Court described the notice:

    The States MSD seeks summary dismissal of all claims on

    the ground that Kelly has no evidentiary basis to support hisclaims. Small v. State, 132 Idaho 327, 331, 971 P.2d 1151,1155 (Ct. App. 1998).

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    Kelly v. State

    149 Idaho 517 (2010)

    Kelly argued this was no notice, as opposedto insufficient notice. Kelly held that the

    notice was adequate to place the question ofthe sufficiency of Kellys evidence in supportof each of his claims at issue, stating:

    This Court will not engage in a sufficiency-of-the-notice analysis under the guise of consideringwhether an appellant was provided with any noticeat all.

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    SUFFICIENCY OF NOTICE APPEARS

    TO BE A DEAD APPELLATE ISSUE.

    DeRush held that sufficiency of noticecould not be raised for the first time onappeal.

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    KELLY DESCRIBED HOW THE ISSUE SHOULD

    BE RAISED IN THE DISTRICT COURT:

    To properly preserve this issue for appeal, an applicant wouldmerely have to raise the issue below so that the district court hadan opportunity to rule on it. For example, where the petitioner forpost-conviction relief receives a motion for summary dismissal anddoes not feel that the motion for summary dismissal andaccompanying memoranda provides him with sufficient notice of the

    grounds for summary dismissal - under the standard established inDeRush - he may file a motion with the district court under I.R.C.P.7, objecting to the motion for summary dismissal on the basis that itfails to provide him with sufficient notice. Likewise, the petitionercould object to the sufficiency of the notice at the summarydismissal hearing before the district court. Finally, if the districtcourt grants the States motion for summary dismissal, the

    petitioner may file an I.R.C.P. 11 motion for reconsideration, citingto DeRush and arguing that the States motion and accompanyingmemoranda did not provide sufficient notice.

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    NO NOTICE

    1. Through the States motion for summarydismissal and/or court notice, the grounds fordismissal must be provided to the applicant atleast 20 days prior to dismissal. Kelly stated:

    Thus, where a trial court dismisses a claim based upongrounds other than those offeredby the States motionfor summary dismissal, and accompanying memorandathe defendant seeking post-conviction relief must beprovided with a 20-day notice period. See Martinez v. State,126 Idaho 813, 817, 892 P.2d 488, 492 (Ct. App. 1995).Where the dismissal is based upon the grounds offered bythe State, additional notice is unnecessary. See id.

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    NO NOTICE

    CLAIMS OMITTED FROM NOTICE WHICH HAVE BEENADDRESSED IN UNPUBLISHED DECISIONS.

    The practical difficulty is identifying what issues are actually

    raised in the pro se application.

    Even if trial counsel argues what he/she thinks are the issuesraised in the application, appellate counsel may find more.

    Amended application may incorporate the prior pro seapplication and thereby fail to limit the issues.

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    NO NOTICE

    Issues raised for the first time in responseto a motion or notice of dismissal are notproperly before the court without formalamendment.

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    Ridgley v. State,

    148 Idaho 671 (2010)1. Dismissal on grounds other than stated in the

    motion/notice generally requires reversal.

    2. However, if the appellate court can concludethat dismissal would have been appropriateon the grounds for which notice was actuallygiven, then dismissal was appropriate

    a. Baxter v. State, 149 Idaho 859 (2010)(applying Ridgley).

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    DISMISSAL BASED IN PART ON GROUNDS SET FORTH

    IN NOTICE. THE KELLY COURT STATED:

    When a trial court summarily dismisses anapplication for post-conviction relief basedin part on the arguments presented by theState, this is sufficient to meet the noticerequirements. See Workman v. State, 144

    Idaho 518, 524, 164 P.3d 798, 804(2007).

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    EVIDENTIARY ISSUES

    1. Judicial Notice

    2. Pleadings as Evidence

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    JUDICIAL NOTICE

    1. DeRush: the district court was notrequired to take judicial notice of theunderlying criminal case.

    2. Newman v. State, 149 Idaho 225 (Ct. App.2010). The rules of evidence apply torequests to take judicial notice. State Bardocuments do not meet the requirements ofIRE 201(b), So judicial notice is not requiredunder IRE 201(d).

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    Esquivel v. State, 149 Idaho 255 (Ct. App. 2010)

    Sets out the appellate court view of judicial notice

    The post-conviction record on appeal does not automatically includethe record of the underlying criminal case. A post-convictionproceeding is not an extension of the criminal case from which itarises. Rather, it is a separate civil action in which the applicantbears the burden of proof imposed upon a civil plaintiff. Paradis v.State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986). No part ofthe record from the criminal case becomes part of the record in thepost-conviction proceeding unless it is entered as an exhibit.Exhibits, as well as transcripts of the pre-trial proceedings, the trial,and sentencing hearing in the criminal case, even if previouslyprepared as a result of a direct appeal or otherwise, are not beforethe trial court in the post-conviction proceeding and do not becomepart of the record on appeal unless presented to the trial court asexhibits, Roman v. State, 125 Idaho 644, 648, 873 P.2d 898, 902(Ct. App. 1994), or unless the trial court takes judicial notice of suchrecords from the criminal case. Idaho Rule of Evidence 201.

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    JUDICIAL NOTICE

    Although the district court may have reviewed portionsof the record from the underlying criminal action on itsown initiative, if the petitioner does not include such

    material in the record on appeal from the denial of post-conviction relief, the appellate court will not consider it.LaBelle v. State, 130 Idaho 115, 119, 937 P.2d 427, 431(Ct. App. 1997). If either party intends to include anypart of the underlying criminal record considered in the

    post-conviction proceedings, as part of the record onappeal, it must do so by designation in accordance withIdaho Appellate Rule 28 or by moving to augment therecord pursuant to I.A.R. 30.

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    PLEADINGS AS EVIDENCE

    Willie v. State, 149 Idaho 649 (CT. APP. 2010) reiterated seeminglyforgotten Loveland v. State, 141 Idaho 933 (Ct. App. 2005) holding:

    However, this Court held that, unless introduced into evidence at

    the hearing, verified applications and affidavits do not constituteevidence. Loveland, 141 Idaho at 936, 129 P.3d at 754. This Courtconcluded that Loveland was still required to prove his allegations atthe hearing by a preponderance of the evidence. Id. Further, thisCourt held that the standard for avoiding summary dismissal, inwhich the district court is required to accept the applicationsallegations as true, is not applicable at an evidentiary hearing. Id.

    Therefore, because Loveland never introduced his application oraffidavits into evidence at the evidentiary hearing, this Courtdetermined that the district court did not err when it dismissedLovelands application for post-conviction relief.

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    RIGHT TO TESTIFY

    DeRush v. State, 146 Idaho 599 (2009)

    Barcella v. State, 148 Idaho 469 (Ct. App.2009)

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    DeRush

    1. The district court erred in analyzing DeRush's claim as allegingineffective assistance of counsel rather than as alleging denial ofhis constitutional right to testify in his own behalf.

    2. A defendant in a criminal proceeding has the right to testify in hisown behalf.

    3. Although a defendant can and should consult with counsel aboutthe risks and benefits of testifying, the ultimate decision ofwhether to do so must be left to the defendant.

    4. The State also conceded that the district court erred in dismissingthis claim.

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    Barcella

    1. In the district court Barcella claimed IAC for counsel failingto allow him to testify.

    2. On appeal, Barcella argued a direct constitutional

    violation of his right to testify rather than IAC, claimingDeRushe stood for the proposition that even if the claim waspled as IAC, the post-conviction court was required to analyzeit as a direct violation.

    3. Barcella held that DeRush did not stand for the propositionthat an IAC claim, with an underlying direct constitutionalviolation issue, must be analyzed, no matter how pled, as bothIAC and a direct violation claim.

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    PSYCHOSEXUAL EVALUATIONS

    Vavold v. State, 148 Idaho 44 (2009);Kriebel v. State, 148 Idaho 188 (Ct. App.2009)

    Hughes v. State, 148 Idaho 448 (Ct. App.2009)

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    Vavold v. State, 148 Idaho 44 (2009);

    Kriebel v. State, 148 Idaho 188 (Ct. App. 2009):

    Estradadid not announce a new rule oflaw and should not be appliedretroactively.

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    Hughes v. State,

    148 Idaho 448 (Ct. App. 2009):

    1. The right to counsel, under Estrada, is limited to advisingclient, prior to the PSE, of rights regarding participation in thePSE. No right for counsel to be present for a PSE or polygraph.

    2. Hughes claimed IAC for failing to ensure Miranda warningbefore PSI. PSI is not a critical stage and thus counsel couldnot have rendered IAC.

    3. Estradadid not change the Stricklandstandard for prejudice,however, the prejudice evaluation turns on: 1) whether thecontent of the PSE is materially unfavorable; 2) the extent ofthe sentencing courts reliance on the PSE; and 3) totality ofthe evidence before the sentencing court.

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    RELIEF FROM ORDER OF DISMISSAL

    Eby v. State, 148 Idaho 731 (2010)

    1. Dismissed for inactivity, I.R.C.P. 40(c).

    2. Held: in rare instances (shocking and disgraceful

    neglect of his case by a series of attorneys),I.R.C.P. 60(b)(6) will allow relief from an orderdismissing an application for inactivity under I.R.C.P.40(c).

    3. The Court stated: Our decision today is limited inscope, and has potential application only to post- conviction relief proceedings, rather than all civil

    cases.

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    DISCUSSION

    Ways to improve how post-convictioncases are presented and decided.

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    Contact Information

    Chief Judge David W. GrattonIdaho Court of Appeals

    PO Box 83720

    Boise, ID 83720-0101(208) 334-5167


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