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Eby v. State

March 18, 2010


Appeal from the District Court of the First Judicial District of the State of Idaho, Kootenai County. Hon. John P. Luster, District Judge.

The opinion of the court was delivered by: Horton, Justice

2010 Opinion No. 30

The district court order denying motion to set aside entry of dismissal is vacated and the case is remanded for further proceedings.

After years of shocking and disgraceful neglect of his case by a series of attorneys appointed to represent Daniel Lee Eb y (Eby), his petition for post-conviction relief was dismissed for inactivity pursuant to I.R.C.P. 40(c). In this appeal, we are asked to decide whether Eby may be entitled to relief from the order of dismissal pursuant to I.R.C.P. 60(b). We conclude that, in rare instances, such relief may be available under I.R.C.P. 60(b)(6) and we remand this case to the district court for a determination whether Eby is entitled to such relief.


Eby was charged with and convicted of first degree murder, conspiracy to commit robbery, and attempted robbery for events surrounding the death of Mel Evenson. State v. Eby, 136 Idaho 534, 536, 37 P.3d 625, 627 (Ct. App. 2001). On appeal, the Idaho Court of Appeals rejected three of Eby's challenges (regarding suppression of incriminating statements, allowing testimony regarding Eby's confession, and jury instructions) but reversed Eby's conviction for attempted robbery, holding that the offense merged with the conviction for first degree murder. Id. at 540-41, 37 P.3d at 631-32.

On January 24, 2002, Eby, acting pro se, timely filed a petition for post-conviction relief alleging ineffective assistance of counsel and that the prosecution withheld evidence. Eby requested court-appointed counsel. The district court appointed the Kootenai County Public Defender to represent Eby on January 29, 2002. On February 12, 2002, the Office of the Kootenai County Public Defender withdrew and designated Jeffery Smith as Conflict Public Defender. Between February 12 and August 12, 2002, no documents were filed with the court and there is no indication in the record that Mr. Smith conducted any work on the case. On August 12, 2002, the district court issued a notice of proposed dismissal for inactivity under I.R.C.P. 40(c) with a deadline of August 29, 2002. Thereafter, by way of a handwritten notation on the bottom of a copy of the notice of proposed dismissal, dated August 30, 2002, Judge Luster stated ―[n]ew representation will be forthcoming on this matter per John Adams. No dismissal.‖

On October 8, 2002, the Kootenai County Prosecuting Attorney moved for summary dismissal of the petition. On October 23, 2002, Rolf Kehne filed a notice of appearance and on October 25, 2002, a substitution of counsel was filed, naming Mr. Kehne as Eby's attorney. Between that date and June 14, 2005, the date on which the district court entered its order dismissing the petition for inactivity, the district court issued no less than five notices of its intention to dismiss the action for inactivity pursuant to I.R.C.P. 40(c).*fn1 During this time, Mr. Kehne filed no amendments to Eby's pro se petition nor any response to the state's motion for summary dismissal. The only filings with the district court were four responses to the notices of proposed dismissal and requests for retention. These responses did indicate that Mr. Kehne had conducted a ―review, investigation, research and analysis of post-conviction issues‖ and assured the court that he would file an amended petition. In Mr. Kehne's February 25, 2005 response to the court's February 8, 2005 notice of proposed dismissal, he stated that an ―Amended Petition will be filed on or before Friday the 4th of March, 2005, or a sworn declaration explaining why it was not, and giving more detail justifying retention will be filed by that date.‖ Neither a petition nor a sworn declaration were filed prior to the district court's order dismissing the petition.*fn2

On August 9, 2005, Eby wrote to the clerk of the district court inquiring as to the status of the case. Although the response to this inquiry is not part of the record, Eby mailed a ―Notice of Appeal and Notice for a Re-Hearing on Order of Dismissal/Retention State Post-Conviction‖ along with a cover letter and certificate of service on August 17, 2005. These submissions were followed by a pro se brief on September 6, 2005. On October 3, 2005, Eby filed a pro se motion for appointment of counsel. On November 17, 2005, the district court entered an order directing that a new attorney be appointed to represent Eby. On March 7, 2006, the Kootenai County Public Defender filed a notice of substitution of counsel, designating Linda Payne as Eby's fourth post-conviction attorney.

Ms. Payne, as of May 24, 2006, was apparently unaware that Eby's case had been dismissed, as she wrote to Eby that ―[t]he status of your case is in abeyance.‖ She also wrote that Judge Luster was not ―pushing [Eby's] case to hearing‖ as Judge Luster was ―giving [her] time to work on [a different] murder case and yours before he sets a hearing.‖

On August 22, 2006, Ms. Payne filed an ―Amended Petition for Post-conviction Relief‖ which advanced the new claim that Eby's sentences violated his Eighth Amendment rights. This effort to amend the petition prompted an objection from the State, filed on September 1, 2006, which noted that Eby's petition had been previously dismissed. The case then languished until January 31, 2007, when Ms. Payne moved for summary disposition as to the Eighth Amendment claim.

On April 9, 2007, Ms. Payne filed a motion to set aside the order dismissing the petition. On April 17, 2007, the district court held a hearing on the motions to set aside the order of dismissal and for summary disposition. In her oral argument, Ms. Payne first advanced the claim that relief from the Rule 40(c) order was available to Eby under I.R.C.P. 60(b). Applying the holding from this Court's decision in Castle v. Hays, 131 Idaho 373, 957 P.2d 351 (1998), the court held that Eby was not entitled to relief under I.R.C.P. 60(b) following a dismissal for inactivity pursuant to I.R.C.P. 40(c). On April 24, 2007, the district court entered its order denying Eby's motion to set aside the order of dismissal.

Eby timely appealed. The Idaho Court of Appeals vacated the district court's order, holding that I.R.C.P. 60(b) applies to dismissals based on I.R.C.P. 40(c). This Court granted review.


The interpretation of the Idaho Rules of Civil Procedure is a matter of law over which this Court has free review. Canyon County Bd. of Equalization v. Amalgamated Sugar Co., 143 Idaho 58, 60, 137 P.3d 445, 447 (2006). The decision to grant or deny a motion under I.R.C.P. 60(b) is committed to the discretion of the trial court. Pullin v. City of Kimberly, 100 Idaho 34, 36, 592 P.2d 849, 851 (1979).

A trial court's decision whether to grant relief pursuant to I.R.C.P. 60(b) is reviewed for abuse of discretion. The decision will be upheld if it appears that the trial court (1) correctly perceived the issue as discretionary, (2) acted within the boundaries of its discretion and consistent with the applicable legal standards, and (3) reached its determination through an exercise of reason. A determination under Rule 60(b) turns largely on questions of fact to be determined by the trial court. Those factual findings will be upheld unless they are clearly erroneous. If the trial court applies the facts in a logical manner to the ...

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