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Post-Conviction Relief

Post-Conviction Relief. Hon. David W. Gratton Chief Judge Idaho Court of Appeals. Scope of Webinar. Recent cases in the post-conviction arena – cases issued within the last two years. Discussion of ways in which we can improve how post-conviction cases are presented and decided.

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Post-Conviction Relief

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  1. Post-Conviction Relief Hon. David W. Gratton Chief Judge Idaho Court of Appeals

  2. Scope of Webinar • Recent cases in the post-conviction arena – cases issued within the last two years. • Discussion of ways in which we can improve how post-conviction cases are presented and decided.

  3. 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)

  4. Person v. State147 Idaho 453 (Ct. App. 2009) GENERAL STATEMENT OF STATUTE OF LIMITATIONS: Idaho Code Section 19-4902(a) requires that such a petition be filed “any time within one (1) year from the expiration of the time for appeal or from the determination of an appeal or from the determination of a proceeding following an appeal, whichever is later.” The failure to file a timely petition is a basis for dismissal of the petition, assuming the defendant has not shown 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 legal materials and where mental disease and/or psychotropic medication renders a petitioner incompetent and prevents petitioner from earlier pursuing challenges to his conviction.

  5. Rhodes v. State148 Idaho 247 (2009) Rhodes recognizes the tolling standard set out by the court of appeals, but then also reaffirmed the standard from Charboneau v. State, 144 Idaho 900 (2007): In Charboneau v. State, we considered the relationship of I.C § 19-4902 and I.C. § 19-4908. 144 Idaho 900, 174 P.3d 870 (2007). In Charboneau, this Court recognized that rigid application of I.C. § 19-4902 would preclude courts from considering claims which simply are not known to the defendant within the time limit, yet raise important due process issues. Id. at 904, 174 P.3d at 874.

  6. Rhodes v. State148 Idaho 247 (2009) This Court has never explicitly addressed when a case would raise an important due process issue. However, the serious due process concerns enunciated in Charboneau encompass cases involving access to courts claims. Martinez v. State, 130 Idaho 530, 535-36, 944 P.2d 127, 132-33 (Ct. App. 1997). It would similarly cover claims of incompetency. Chico-Rodriguez, 141 Idaho at 582-83, 114 P.3d at 140-41.”

  7. Rhodes Further Stated That: • BRADY VIOLATION CLAIMS WOULD SUPPORT TOLLING. • THE COURT NEED NOT , IN THAT CASE, DETERMINE WHETHER DUE PROCESS REQUIRES A FREE-STANDING ACTUAL INNOCENCE EXCEPTION TO THE APPLICATION OF I.C. § 19-4902. • INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS CAN OR SHOULD BE KNOWN AFTER TRIAL - THUS, NOT SUPPORTING TOLLING. • IF TOLLING IS APPROPRIATE, THEN THE APPLICATION MUST BE FILED WITHIN THE “REASONABLE TIME” STANDARD USED FOR THE FILING OF SUCCESSIVE APPLICATIONS.

  8. Summary of Statute of Limitations These cases do not seem to deviate from the underlying premise that tolling will not be recognized unless the applicant was actually prevented, for whatever reason, from being able to bring the application within the one year period. See Evensiosky v. State, 136 Idaho 189 (2001).

  9. MiscellaneousStatute of Limitations Amboh v. State, 149 Idaho 650 (Ct. App. 2010) (appeal dismissed as untimely does not extend the period to file for post-conviction relief). State v. Ochieng, 147 Idaho 621 (2009) (district court may sua sponte raise the statute of limitations - allowing the court to state the statute of limitations as a ground for summary dismissal).

  10. Appoint of Counsel • Judd v. State, 148 Idaho 22 (Ct. App. 2009). • Melton v. State, 148 Idaho 339 (2009)

  11. Judd v. State148 Idaho 22 (Ct. App. 2009) The standard whether to grant counsel has not changed. Consequently, if facts are alleged giving rise to the possibility of a valid claim, the trial court should appoint counsel in order to give the petitioner an opportunity to work with counsel and properly allege the necessary supporting facts. Id. [E]very inference must run in the petitioner’s favor where the petitioner is unrepresented at that time and cannot be expected to know how to properly allege the necessary facts. Id. at 794, 102 P.3d at 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.3d 138, 141 (2001).

  12. Judd v. State148 Idaho 22 (Ct. App. 2009) The Court has emphasized that the standard for appointment of counsel is lower than for summary dismissal The determination whether to appoint counsel and the determination whether a petition is subject to summary dismissal are thus controlled by quite different standards, with the threshold showing that is necessary in order to gain appointment of counsel being considerably lower than that which is necessary to avoid summary dismissal of a petition. Id. at 655, 152 P.3d at 16; Plant, 143 Idaho at 761, 152 P.3d at 632.

  13. Melton v. State148 Idaho 339 (2009) The district court must generally rule on the request for counsel before dismissing the case (this rule has not changed) In Charboneau, we held that the court should have first determined whether Charboneau was entitled to court-appointed counsel before denying his petition for post-conviction relief on its merits: By not specifically 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).

  14. Melton v. State148 Idaho 339 (2009) Even though the district court does not rule on the motion for counsel before summarily dismissing the application, the appellate court will uphold the dismissal if the application does not raise the possibility of a valid claim.

  15. Melton v. State148 Idaho 339 (2009) Here, we find that the district court erred in not specifically addressing Melton’s motion for appointment of counsel before it addressed the substantive merits of his petition. However, we find that such error did not affect Melton’s substantial rights because Melton’s successive petition for post-conviction relief did not raise the possibility of a valid claim. Judd v. State, 148 Idaho 22 (Ct. App. 2009)(time-barred application); Hust v. State, 147 Idaho 682 (Ct. App. 2009)(time-barred application).

  16. Summary Dismissal • Sufficiency of Notice • No Notice Requirement • Dismissal on Grounds Other Than Thos in the Notice • Dismissal in Part on Grounds in State’s Notice

  17. DeRushé v. State146 Idaho 599 (2009) SUFFICIENCY OF NOTICE FOR SUMMARY DISMISSAL The Court in DeRushé retreated from a series of cases that had required a high level of detail and specificity regarding the asserted deficiencies in the applicant’s claims in order to be considered adequate notice.

  18. DeRushé v. State146 Idaho 599 (2009) CONSISTENT WITH THESE PRIOR CASES, THE APPLICATION IN DERUSHE ARGUED: DeRushé contends that for the notice to state its grounds with particularity, the notice must identify with particularity why an applicant’s evidence or legal theories are considered deficient. The notice must provide any deficiency in the applicant’s evidence or any legal analysis that needs to be addressed in order to avoid dismissal of the petition.

  19. DeRushé v. State146 Idaho 599 (2009) BUT THE SUPREME COURT STATED: The particularity requirement of Rule 7(b)(1) does not mandate that level of detail. The Rule only requires reasonable particularity. Patton v. Patton, 88 Idaho 288, 292, 399 P.2d 262, 264-65 (1965). If the notice is sufficient that the other party cannot assert surprise or prejudice, the requirement is met. Id. at 292, 399 P.2d at 265.

  20. DeRushé v. State146 Idaho 599 (2009) In order to give guidance to the courts and practitioners - as well as the court of appeals - the DeRushé Court attempted to describe the level of detail needed in order to satisfy the notice requirement:

  21. DeRushé v. State146 Idaho 599 (2009) If the ground for summary disposition is that assertions by the applicant are not admissible evidence, stating the ground with reasonable particularity requires no more than the level of particularity required to object to the admissibility of that evidence, such as that it is conclusory, hearsay, or lacking foundation. It is rarely necessary to further explain those objections. If the ground for summary disposition is that there is no admissible evidence on an essential element of a claim, reasonable particularity only requires pointing that out. For example, claims of ineffective assistance of defense counsel or of prosecutorial misconduct in withholding evidence favorable to the accused both require prejudice to the defendant. State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476, 483 (2008) (a claim for ineffective assistance of counsel requires a showing “there is a reasonable probability that, but for counsel’s errors, 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 violation is that “prejudice must have ensued”). Reasonable particularity only requires 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.

  22. Kelly v. State149 Idaho 517 (2010) THE COURT, IN KELLY, UNDERSCORED THE HOLDING IN DERUSHÉ REGARDING THE SUFFICIENCY OF NOTICE. The Kelly Court described the notice: The State’s MSD seeks summary dismissal of all claims on the ground that Kelly has no evidentiary basis to support his claims. Small v. State, 132 Idaho 327, 331, 971 P.2d 1151, 1155 (Ct. App. 1998).

  23. Kelly v. State149 Idaho 517 (2010) Kelly argued this was no notice, as opposed to insufficient notice. Kelly held that the notice was adequate to place the question of the sufficiency of Kelly’s evidence in support of each of his claims at issue, stating: This Court will not engage in a sufficiency-of-the-notice analysis under the guise of considering whether an appellant was provided with any notice at all.

  24. SUFFICIENCY OF NOTICE APPEARS TO BE A DEAD APPELLATE ISSUE. DeRushé held that sufficiency of notice could not be raised for the first time on appeal.

  25. KELLY DESCRIBED HOW THE ISSUE SHOULD BE RAISED IN THE DISTRICT COURT: To properly preserve this issue for appeal, an applicant would merely have to raise the issue below so that the district court had an opportunity to rule on it. For example, where the petitioner for post-conviction relief receives a motion for summary dismissal and does not feel that the motion for summary dismissal and accompanying memoranda provides him with sufficient notice of the grounds for summary dismissal - under the standard established in DeRushé - 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 it fails to provide him with sufficient notice. Likewise, the petitioner could object to the sufficiency of the notice at the summary dismissal hearing before the district court. Finally, if the district court grants the State’s motion for summary dismissal, the petitioner may file an I.R.C.P. 11 motion for reconsideration, citing to DeRushé and arguing that the State’s motion and accompanying memoranda did not provide sufficient notice.

  26. NO NOTICE • Through the State’s motion for summary dismissal and/or court notice, the grounds for dismissal must be provided to the applicant at least 20 days prior to dismissal. Kelly stated: Thus, where a trial court dismisses a claim based upon grounds other than those offered — by the State’s motion for summary dismissal, and accompanying memoranda — the defendant seeking post-conviction relief must be provided 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 by the State, additional notice is unnecessary. See id.”

  27. NO NOTICE CLAIMS OMITTED FROM NOTICE WHICH HAVE BEEN ADDRESSED 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 issues raised in the application, appellate counsel may find more. Amended application may incorporate the prior pro se application and thereby fail to limit the issues.

  28. NO NOTICE Issues raised for the first time in response to a motion or notice of dismissal are not properly before the court without formal amendment.

  29. NO NOTICE Barcella v. State, 148 Idaho 469 (Ct. App. 2009), decided between DeRushé and Kelly, rejected Barcella’s claim that the State’s motion for summary dismissal was so “vague” as to constitute no notice.

  30. 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 conclude that dismissal would have been appropriate on the grounds for which notice was actually given, then dismissal was appropriate a. Baxter v. State, 149 Idaho 859 (2010) (applying Ridgley).

  31. DISMISSAL BASED IN PART ON GROUNDS SET FORTH IN NOTICE. THE KELLY COURT STATED: When a trial court summarily dismisses an application for post-conviction relief based in part on the arguments presented by the State, this is sufficient to meet the notice requirements. See Workman v. State, 144 Idaho 518, 524, 164 P.3d 798, 804 (2007).

  32. EVIDENTIARY ISSUES 1. Judicial Notice 2. Pleadings as Evidence

  33. JUDICIAL NOTICE 1. DeRushé: the district court was not required to take judicial notice of the underlying criminal case. 2. Newman v. State, 149 Idaho 225 (Ct. App. 2010). The rules of evidence apply to requests to take judicial notice. State Bar documents do not meet the requirements of IRE 201(b), So judicial notice is not required under IRE 201(d).

  34. 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 include the record of the underlying criminal case. A post-conviction proceeding is not an extension of the criminal case from which it arises. Rather, it is a separate civil action in which the applicant bears the burden of proof imposed upon a civil plaintiff. Paradis v. State, 110 Idaho 534, 536, 716 P.2d 1306, 1308 (1986). No part of the record from the criminal case becomes part of the record in the post-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 previously prepared as a result of a direct appeal or otherwise, are not before the trial court in the post-conviction proceeding and do not become part of the record on appeal unless presented to the trial court as exhibits, Roman v. State, 125 Idaho 644, 648, 873 P.2d 898, 902 (Ct. App. 1994), or unless the trial court takes judicial notice of such records from the criminal case. Idaho Rule of Evidence 201.

  35. JUDICIAL NOTICE Although the district court may have reviewed portions of the record from the underlying criminal action on its own 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 any part of the underlying criminal record considered in the post-conviction proceedings, as part of the record on appeal, it must do so by designation in accordance with Idaho Appellate Rule 28 or by moving to augment the record pursuant to I.A.R. 30.

  36. PLEADINGS AS EVIDENCE Willie v. State, 149 Idaho 649 (CT. APP. 2010) reiterated seemingly forgotten 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 constitute evidence. Loveland, 141 Idaho at 936, 129 P.3d at 754. This Court concluded that Loveland was still required to prove his allegations at the hearing by a preponderance of the evidence. Id. Further, this Court held that the standard for avoiding summary dismissal, in which the district court is required to accept the application’s allegations as true, is not applicable at an evidentiary hearing. Id. Therefore, because Loveland never introduced his application or affidavits into evidence at the evidentiary hearing, this Court determined that the district court did not err when it dismissed Loveland’s application for post-conviction relief.

  37. RIGHT TO TESTIFY DeRushé v. State, 146 Idaho 599 (2009) Barcella v. State, 148 Idaho 469 (Ct. App. 2009)

  38. DeRushé 1. The district court erred in analyzing DeRushé's claim as alleging ineffective assistance of counsel rather than as alleging denial of his constitutional right to testify in his own behalf. 2. A defendant in a criminal proceeding has the right to testify in his own behalf. 3. Although a defendant can and should consult with counsel about the risks and benefits of testifying, the ultimate decision of whether to do so must be left to the defendant. 4. The State also conceded that the district court erred in dismissing this claim.

  39. Barcella 1. In the district court Barcella claimed IAC for counsel failing to allow him to testify. 2. On appeal, Barcella argued a direct constitutional violation of his right to testify rather than IAC, claiming DeRushe stood for the proposition that even if the claim was pled as IAC, the post-conviction court was required to analyze it as a direct violation. 3. Barcella held that DeRushé did not stand for the proposition that an IAC claim, with an underlying direct constitutional violation issue, must be analyzed, no matter how pled, as both IAC and a direct violation claim.

  40. 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)

  41. Vavold v. State, 148 Idaho 44 (2009); Kriebel v. State, 148 Idaho 188 (Ct. App. 2009): Estrada did not announce a new rule of law and should not be applied retroactively.

  42. Hughes v. State, 148 Idaho 448 (Ct. App. 2009): 1. The right to counsel, under Estrada, is limited to advising client, prior to the PSE, of rights regarding participation in the PSE. No right for counsel to be present for a PSE or polygraph. 2. Hughes claimed IAC for failing to ensure Miranda warning before PSI. PSI is not a critical stage and thus counsel could not have rendered IAC. 3. Estrada did not change the Strickland standard for prejudice, however, the prejudice evaluation turns on: 1) whether the content of the PSE is materially unfavorable; 2) the extent of the sentencing court’s reliance on the PSE; and 3) totality of the evidence before the sentencing court.

  43. RELIEF FROM ORDER OF DISMISSALEby 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 order dismissing an application for inactivity under I.R.C.P. 40(c). 3. The Court stated: “Our decision today is limited in scope, and has potential application only to post- conviction relief proceedings, rather than all civil cases.”

  44. DISCUSSION Ways to improve how post-conviction cases are presented and decided.

  45. Contact Information Chief Judge David W. Gratton Idaho Court of Appeals PO Box 83720 Boise, ID 83720-0101 (208) 334-5167

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