Post-Conviction Practice and Procedure

1. Post-ConvictionPractice and Procedure Hon. David W. Gratton Hon. Molly J. Huskey January 25, 2013

2. APPLICABLE RULES AND PRINCIPLES OF LAW • Proceeding Civil in Nature. A petition for post-conviction relief initiates a proceeding that is civil in nature. • Civil Procedure. The petition shall be processed under the Idaho Rules of Civil Procedure except as otherwise ordered by the trial court. 2

3. APPLICABLE RULES AND PRINCIPLES OF LAW • Idaho Rules of Evidence Apply. The court may receive proof by affidavits, depositions, oral testimony, or other evidence. • Petitioner’s Burden. The petitioner shall have the burden of proving the petitioner’s grounds for relief by a preponderance of the evidence. 3

4. PROCEDURAL REQUIREMENTS FOR PETITIONER • Venue. A proceeding is commenced by filing an application with the clerk of the district court in which the conviction took place. • Filing. The petition must be filed as a separate action from the criminal matter. • Petition. An application for relief from a judgment of conviction and/or sentence shall be in the form of a petition. 4

5. PROCEDURAL REQUIREMENTS FOR PETITIONER • Sufficiency of the Petition. The petition must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records or other evidence supporting its allegations must be attached, or the petition must state why such supporting evidence is not included with the petition. 5

6. PROCEDURAL REQUIREMENTS FOR PETITIONER • Amending the Petition: • Before Answer. The petition may be amended once as a matter of course prior to the filing of an answer. • After Answer. After any responsive pleading is filed, a petition may be amended only upon leave of the court. • Upon Order of the Court. Upon appointment of counsel, the court may wish to consider entry of a pre-trial procedural order, I.R.C.P. 16, requiring amendment of the petition. 6

7. PROCEDURAL REQUIREMENTS FOR PETITIONER (Cont.) • Amended Petition Supersedes. If the amended petition incorporates the prior pro se petition, in reality, the issues are no more definite than the incorporated pro se petition. • Consent to Amendment. The petitioner’s consent to the filing of the amended petition should be secured in order to avoid any contention that claims which were raised in the pro se petition were dropped in the amended petition without petitioner’s consent. 7

8. PROCEDURAL REQUIREMENTS FOR PETITIONER • Time Limit for Filing Petition. • One Year Time for Filing. An application may be filed at 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. • Raising the Limitations Period.The time bar of the statute of limitations is an affirmative defense that may be waived if it is not pled by the State. However, the court may raise the statute of limitations on its own motion. 8

9. PROCEDURAL REQUIREMENTS FOR PETITIONER (Cont.) • One Year from the Time for Appeal. Where no appeal is taken, the petitioner has one year and forty-two days from the appealable judgment within which to file a petition for post-conviction relief. • Motions Affecting Judgment or Sentence. Petition must be filed within one year from the date of the clerk’s filing stamp on the order deciding such motion. • Retained Jurisdiction. Petition challenging sentence may be filed within one year of order relinquishing jurisdiction or granting probation. But petition challenging judgment must be filed within one year and forty-two days of judgment. 9

10. PROCEDURAL REQUIREMENTS FOR PETITIONER (Cont.) • Revocation of Probation. The time for filing a post-conviction petition challenging a judgment of conviction or sentence does not start anew from the entry of a probation revocation order. However, a claim alleging ineffective assistance of counsel during the probation revocation proceeding may be timely. • Rule 35 Motion. Filing of a Rule 35 motion for reduction of sentence does not extend the time period in which to attack the underlying conviction. 10

11. PROCEDURAL REQUIREMENTS FOR PETITIONER (Cont.) • One Year from an Appeal. The petitioner generally has one year from the issuance of the remittitur to file a petition for post-conviction relief. • Untimely Appeal. An untimely notice of appeal in a criminal case does not postpone the commencement of the limitation period. • One Year from a Proceeding Following an Appeal. A proceeding following an appeal may include a remand of the criminal case to the trial court as a consequence of the direct appeal from a judgment of conviction or a petition for certiorari. But, the time limit to file an application for post-conviction relief is not renewed or extended by any collateral post-judgment proceeding. 11

12. PROCEDURAL REQUIREMENTS FOR PETITIONER • Tolling of the Statute of Limitations. In Rhoades v. State, 148 Idaho 247, 251, 220 P.3d 1066, 1070 (2009) the Court held that the rigid application of I.C. § 19-4902 would preclude courts from considering claims which simply are not know to the defendant within the time limit, yet raise important due process issues, citing Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007). The Court further stated that it had never explicitly addressed when a case would raise important due process issues. However, the Court expressly acknowledged several instances of tolling: 12

13. PROCEDURAL REQUIREMENTS FOR PETITIONER (Cont.) • Out-of-State Incarceration. Tolling recognized where petitioner was incarcerated in an out-of-state facility on an in-state conviction without representation or access to Idaho legal materials. • Mental Health or Medications. Tolling recognized where mental disease and/or psychotropic medication renders a petitioner incompetent and prevents the petitioner from earlier pursuing challenges to conviction. • Access to Courts. Denial of access to the courts may support tolling. • Incompetency. Claims of incompetency may support tolling. • Prosecutorial Misconduct. Violations under Brady v. Maryland, 373 U.S. 83 (1963), would support tolling. Deliberate deception in a criminal prosecution may entitle a petitioner to tolling. 13

14. PROCEDURAL REQUIREMENTS FOR PETITIONER • Partial Impairment.In Evensiosky v. State, 136 Idaho 189, 190, 30 P.3d 967, 968 (2001), the Court held that Evensiosky was not entitled to tolling where he had sufficient time while in Idaho to pursue his claim before the statute of limitations expired, even though he was without access for a substantial portion of the limitation period. • Length of Tolling. Tolling ends when the condition preventing the petitioner from filing a petition ends or the circumstance, e.g., Brady violation, is discovered. The petitioner has a “reasonable time” following cessation of the disability to file a petition. What is a reasonable time is determined on a case-by-case basis. 14

15. PROCEDURAL REQUIREMENTS FOR PETITIONER • Successive Petition for Post-Conviction Relief.If an initial post-conviction action was timely filed, an inmate may file a subsequent petition outside of the one-year limitation period if the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended petition. Ineffective assistance of prior post-conviction counsel may, however, provide “sufficient reason” for permitting newly asserted allegations or allegations inadequately raised in the initial application to be raised in a subsequent post-conviction petition. Analysis of “sufficient reason” permitting the filing of a successive petition includes an analysis of whether the claims being made were asserted within a reasonable period of time. 15

16. COUNSEL—WHEN MUST COUNSEL BE APPOINTED? • Exercise of Discretion in Appointment of Counsel: When presented with a request for appointment of counsel, the court must address this request before ruling on the substantive issues in the case. • Legal Standard for Appointment of Counsel. 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. Only if all of the claims alleged in the petition are frivolous may the court deny a request for counsel. 16

17. THE STATE’S ANSWER • The Answer Should be Filed Within Thirty Days. Idaho Code § 19‑4906(a) requires that the State file any responsive document to the petition for post‑conviction relief within thirty (30) days of the date of its original filing, or within any further time that the court may fix. However, if the documents before the court do not require relief, then the timeliness of the State’s response is irrelevant. 17

18. ESTABLISHING A RECORD OF THE UNDERLYING CRIMINAL CASE • Criminal Record in Post-Conviction Proceeding. 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. 18

19. ESTABLISHING A RECORD OF THE UNDERLYING CRIMINAL CASE • Judicial Notice. • Discretionary.A court may take judicial notice, whether requested or not. When a court takes judicial notice of records, exhibits, or transcripts from the court file in the same or a separate case, the court shall identify the specific documents or items that were so noticed. • Mandatory.If requested by a party and supplied with the necessary information. • Judicial Notice of Recollection. A judge may take judicial notice of personal recollection of prior proceedings to the extent that the judge recalls what occurred. Navarro v. Yonkers, 144 Idaho 882, 887, 173 P.3d 1141, 1147 (2007). However, the previous hearing must be transcribed so that any alleged error in such judicial notice is subject to appellate review. 19

20. SUMMARY DISPOSITION • Summary Disposition Standards.Summary disposition of a post-conviction petition is appropriate only if there exists no genuine issue of material fact which, if resolved in the petitioner’s favor, would entitle petitioner to the requested relief. • Uncontroverted Allegations. The trial court must accept as true verified allegations of fact in the application or in supporting affidavits, no matter how incredible they may appear, unless they have been disproved by other evidence in the record. • Facts Construed in Favor of Non-Moving Party. The court will liberally construe the facts and reasonable inferences in favor of the non-moving party. 20

21. SUMMARY DISPOSITION (Cont.) • Conclusory Allegations and Conclusions of Law Need Not be Accepted. The court is not required to accept either the petitioner’s mere conclusory allegations, unsupported by admissible evidence, or the petitioner’s conclusions of law. • Disproved Claims. Summary dismissal is appropriate where the record from the criminal action or other evidence conclusively disproves essential elements of the petitioner’s claims. • Questions of Law. A petition which raises only questions of law is suitable for disposition on the pleadings. 21

22. SUMMARY DISPOSITION (Cont.) • Inferences. As the trial court, rather than a jury, will be the trier of fact in the event of an evidentiary hearing, summary dismissal is appropriate where the evidentiary facts are not disputed, despite the possibility of conflicting inferences to be drawn from the facts, for the court alone will be responsible for resolving the conflict between those inferences. • Prima Facie Showing.The petitioner must make a prima facie case, on each essential element of the claim upon challenge in a summary disposition proceeding. • Inadmissible Evidence.The petition must be supported by written statements from competent witnesses or other verifiable information. Id. Where petitioner’s affidavits are based upon hearsay rather than personal knowledge, summary disposition without an evidentiary hearing is appropriate. 22

23. SUMMARY DISPOSITION • Summary Disposition Upon Motion or Notice of the Court. The State may file a motion for summary disposition pursuant to I.C. § 19-4906(c). With or without a motion from the State, the Court may serve a notice of intent to summarily dismiss pursuant to I.C. § 19-4906(b). 23

24. SUMMARY DISPOSITION • Notice of Grounds for Summary Disposition. Whether summary disposition is initiated by virtue of a motion from the State and/or upon notice from the Court, the grounds upon which summary disposition is based must be stated. • Sufficiency of Notice. In DeRushe, the Court retreated from a series of cases that required a high level of detail and specificity regarding the asserted deficiencies in the petitioner’s claims in order to be considered adequate notice. The Court stated that the particularity requirement of Rule 7(b)(1) does not mandate that level of detail. The Rule only requires reasonable particularity. If the notice is sufficient that the other party cannot assert surprise or prejudice, the requirement is met. 24

25. SUMMARY DISPOSITION (Cont.) • Sufficiency of Notice May Not be Raised for First Time on Appeal.The DeRushe Court held that the question of specificity of notice must be raised in the trial court and may not be raised for the first time on appeal. • Summary Disposition on Grounds for Which No Notice was Given.The Court may not grant summary disposition on a ground for which no notice was given through the State’s motion and/or the Court’s notice of intent to summarily dismiss. 25

26. SUMMARY DISPOSITION (Cont.) • Summary Disposition Granted in Part Upon Grounds for Which Notice was Given.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. • Additional Notice.If the Court determines that summary disposition is appropriate on grounds for which no notice has been given the Court must provide notice of those grounds, and the time requisite time to respond, before the Court may dismiss on those grounds. 26

27. SUMMARY DISPOSITION • Twenty Days in Which to Respond. Whether summary disposition is initiated by virtue of a motion from the State and/or upon notice from the Court, the petitioner must be given twenty (20) days within which to respond. • Failure to Respond to Motion or Notice of Intent.A petitioner’s failure to reply does not bar appeal of the dismissal. • Filing Amended Petition in Response to Motion or Notice of Intent. It is improper to file an amended petition in response. A motion to amend is necessary. 27

28. SUMMARY DISPOSITION • Decision on Summary Disposition. Findings of fact are not required. However, statement of the district court’s reasoning for granting summary disposition of the petitioner’s claims may be necessary in order to determine that dismissal was not granted on a basis for which no notice was given and for effective appellate review. 28

29. EVIDENTIARY HEARING • When Petitioner’s Presence is Required at an Evidentiary Hearing. A petitioner must be produced at the hearing only “where there are substantial issues of fact as to evidence in which he participated.” Whether such “substantial issues” exist is a matter within the discretion of the district court. • Burden of Proof. The petitioner has the burden of proving, by a preponderance of the evidence, the allegations on which his or her claim is based. 29

30. EVIDENTIARY HEARING • The Idaho Rules of Evidence Apply. It is not enough to allege that a witness would have testified to certain events, or would have rebutted certain statements made at trial, without providing through affidavit, non-hearsay evidence of the substance of the witnesses’ testimony. 30

31. EVIDENTIARY HEARING • Proof. The court may receive proof by affidavits, depositions, oral testimony, or other evidence. • All Evidence Must be Offered and Admitted at the Evidentiary Hearing. Unless introduced into evidence at the hearing, verified petitions and affidavits do not constitute evidence. • The Credibility and Weight Given to a Witness’s Testimony and the Inferences to be Drawn from the Evidence are all Matters Within the Province of the Trial Court.The court should make credibility determinations in its findings of fact. 31

32. EVIDENTIARY HEARING • Findings of Fact and Conclusions of Law Required.The court shall make specific findings of fact, and state expressly its conclusions of law, related to each issue presented. 32