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Stuart v. State

May 10, 2010


Appeal from the District Court of the Second Judicial District of the State of Idaho, Clearwater County. Hon. Ron Schilling, District Judge.

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

2010 Opinion No. 51

The appeal is dismissed.

Gene Frances Stuart (Stuart) appeals the district court‟s judgment dismissing his fourth petition for post-conviction relief as untimely under I.C. § 19-2719. In this appeal, Stuart argues that I.C. § 19-2719 is inapplicable to him as it does not retroactively apply to his case, it is an ex post facto law, it violates the Idaho Constitution‟s separation of powers, it violates his equal protection and due process rights under the Idaho and U.S. Constitutions, it is an unconstitutional suspension of the right of habeas corpus, and it is unconstitutionally vague. We dismiss the appeal.


Stuart was convicted in 1982 of first-degree murder of three-year old Robert Miller (Robert) in 1981. This is the eighth time this Court has been asked to examine some aspect of this case.

The facts of this case are described in State v. Stuart (Stuart I), 110 Idaho 163, 715 P.2d 833 (1985). In 1980 Stuart met and began dating Kathy Miller (Kathy), the mother of then two-year-old Robert. Stuart and Kathy dated throughout 1981 and Stuart "assumed primary control over Robert, feeding, clothing and caring for him." Id. at 165, 715 P.2d at 835. In late 1980 and throughout 1981, Robert began to show various signs that he was being physically abused. Id. at 165-66, 715 P.2d at 835-36. On September 19, 1981, Stuart brought Robert to the emergency room. Stuart claimed that Robert had vomited after being put down for a nap and that he then noticed that Robert‟s breathing was unusual. Stuart claimed to have attempted mouth-to-mouth resuscitation before Robert again vomited. Stuart then rushed Robert to the hospital. Id at 166, 715 P.2d at 836. Robert was pronounced dead on arrival. Emergency room personnel noted that Robert‟s body was cold, casting doubt as to Stuart‟s description of the sequence of events. Id.

An autopsy was conducted, revealing that Robert died as a result of internal hemorrhaging caused by the rupture of his liver. Id. The pathologist‟s observations during the autopsy were inconsistent with Stuart‟s description of the events preceding Robert‟s death. Additionally, the pathologist found a number of bruises, both internal and external, a subdural hematoma on Robert‟s head, and X-rays revealed that Robert had suffered a broken left arm several months before his death. Id. at 166-67, 715 P.2d at 836-37.

Stuart was arrested and charged with Robert‟s murder and, after conviction, was sentenced to death. Id. at 167, 715 P.2d at 837. In Stuart I, this Court considered Stuart‟s claims on direct appeal and affirmed the conviction and sentence. Id. at 177, 715 P.2d at 847.

In 1986, Stuart filed his first petition for post-conviction relief. This first post-conviction petition was brought under the Uniform Post Conviction Procedure Act (UPCPA) (I.C. § 19-4901 et seq.). The district court summarily dismissed Stuart‟s petition pursuant to I.C. § 19-4906. On appeal, this Court affirmed. Stuart v. State (Stuart II), 118 Idaho 865, 873, 801 P.2d 1216, 1224 (1990).

Stuart filed his second petition for post-conviction relief in 1988. Again, the petition was brought under the UPCPA. Stuart v. State (Stuart III), 118 Idaho 932, 934, 801 P.2d. 1283, 1285 (1990). In this petition, Stuart asserted that telephone conversations with his attorney were monitored by the Sheriff‟s Department and that the prosecution used these conversations to gather evidence it otherwise did not have. Stuart alleged that this monitoring violated his constitutional rights to effective assistance of counsel and due process. Id. at 933, 891 P.2d at 1284. The district court summarily dismissed the petition pursuant to I.C. § 19-4906. This Court reversed and remanded the case for an evidentiary hearing. Id. at 935, 801 P.2d at 1286.

On remand, the district court conducted an evidentiary hearing and, based on the testimony and evidence presented, denied Stuart‟s petition. Stuart v. State (Stuart IV), 127 Idaho 806, 808, 907 P.2d 783, 785 (1995). Consistent with Stuart III, the focus of the evidentiary hearing was whether Stuart‟s conversations with his attorneys were monitored. Disturbingly, the evidentiary hearing revealed that phone logs maintained by the Sheriff‟s Department which would have identified all calls placed by or to Stuart had been destroyed. Nevertheless, the district court found that Stuart failed to demonstrate that any telephone calls with his attorneys had been monitored. Stuart appealed and, again, this Court overturned the district court‟s decision. We remanded the case to the district court with instructions to weigh the evidence in a light favorable to Stuart because of the Sheriff‟s Office‟s destruction of evidence. Stuart IV, 127 Idaho at 817, 907 P.2d at 794.

While the appeal in Stuart IV was pending, Stuart brought a motion under I.R.C.P. 60(b)(5), "asserting that the Court‟s opinion in State v. Tribe, 123 Idaho 721, 852 P.2d 87 (1993), regarding second degree murder by torture reverses Stuart I, thereby entitling Stuart to relief from the trial court‟s judgment rendered after the evidentiary hearing." Stuart v. State (Stuart V), 128 Idaho 436, 437, 914 P.2d 933, 934 (1996). This Court affirmed the district court‟s denial of Stuart‟s motion. Id. at 438, 914 P.2d at 935.

In the proceedings until this point, Stuart was represented by his trial counsel, Robert Kinney. On November 9, 1995, on remand from this Court‟s decision in Stuart IV, Mr. Kinney was permitted to withdraw and a second attorney, Scott Chapman, was appointed. Following another evidentiary hearing, the district court concluded that Stuart‟s rights had not been violated by the monitoring of his telephone conversations. Stuart appealed. This Court affirmed the district court‟s decision. Stuart v. State (Stuart VI), 136 Idaho 490, 36 P.3d 1278 (2001).

In 2002, Stuart filed a petition for writ of habeas corpus in federal court. The court appointed the Federal Public Defenders Unit of Eastern Washington and Idaho to represent Stuart and stayed his execution. On November 14, 2002, the federal court granted a motion to hold the federal proceedings in abeyance pending final determination of state court proceedings. In addition to the present (fourth) petition for post-conviction relief, on August 2, 2002, Stuart filed a third petition for post-conviction relief based on the holding of Ring v. Arizona, 536 U.S. 584 (2002). The district court denied relief in that case. This Court heard the appeal of that decision on August 24, 2009.

The present petition for post-conviction relief was filed on December 3, 2002. In his petition, Stuart advanced claims of prosecutorial misconduct, failure to disclose mitigating evidence, and ineffective assistance of counsel. The State moved for summary dismissal of Stuart‟s petition, asserting that the petition was barred by operation of I.C. § 19-2719. Stuart raised a variety of constitutional and statutory arguments claiming that I.C. § 19-2719 should not be applied to his case. The district court rejected these arguments and, considering I.C. § 19-2719(5), found that Stuart‟s claims had not been raised in a timely fashion as Stuart reasonably could have known of these claims within forty-two days following his conviction. Accordingly, the district court summarily dismissed Stuart‟s petition for post-conviction relief. Stuart timely appealed.*fn1


A petition for post-conviction relief is a civil proceeding, governed by the Idaho Rules of Civil Procedure. Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Post-conviction procedures are generally governed by the Uniform Post-Conviction Procedure Act (UPCPA), I.C. § 19-4901 et seq. Idaho law, however, provides a specific procedure to address and expedite post-conviction proceedings in capital cases. I.C. § 19-2719. "[Idaho Code] § 19-2719 does not eliminate the applicability of the UPCPA to capital cases, but it supersedes the UPCPA to the extent that their provisions conflict." McKinney v. State, 133 Idaho 695, 700, 992 P.2d 144, 149 (1999). ""When this Court is presented with a motion to dismiss by the State based upon the provisions of Idaho Code § 19-2719, the proper standard of review this Court should utilize is to directly address the motion, determine whether or not the requirements of section 19-2719 have been met, and rule accordingly.‟ . . . . Any successive petition for post-conviction relief not within the exception of subsection (5) of the statute shall be dismissed summarily. See I.C. § 19-2719(11)." Hairston v. State, 144 Idaho 51, 55-56, 156 P.3d 552, 556-57 (2007) (quoting Creech v. State, 137 Idaho 573, 575, 51 P.3d 387, 389 (2002)) judgment vacated on other grounds sub nom Hairston v. Idaho, ___ U.S. ___, 128 S.Ct. 1442 (2008).

Stuart raises questions of statutory construction as well as the state and federal constitutionality of I.C. § 19-2719. Both constitutional questions and questions of statutory interpretation are questions of law over which this Court exercises free review. Federated Publ'ns, Inc. v. Idaho Bus. Rev., Inc., 146 Idaho 207, 210, 192 P.3d 1031, 1034 (2008).

There is a presumption in favor of the constitutionality of the challenged statute or regulation, and the burden of establishing that the statute or regulation is unconstitutional rests upon the challengers. An appellate court is obligated to seek an interpretation of a statute that upholds it [sic] constitutionality. The judicial power to declare legislative action unconstitutional should be exercised only in clear cases.

Am. Falls Reservoir Dist. No. 2 v. Idaho Dep't of Water Res., 143 Idaho 862, 869, 154 P.3d 433, 440 (2007) (internal citations omitted).


A. Stuart Has Failed To Allege Facts Necessary For A Finding That His Petition For Post-Conviction Relief Was Timely Filed In Compliance With The Requirements Of I.C. § 19-2719

Stuart‟s petition raised claims that fall into three categories. First, he alleged that the prosecution in his initial trial committed four acts of prosecutorial misconduct.*fn2 Second, he alleged that the prosecution withheld mitigating information while arguing that no such information existed. Third, he raised an ineffective assistance of counsel claim based on the representation provided by the attorney who represented Stuart at trial, on direct appeal and in connection with his first two post-conviction petitions.

The State moved for summary dismissal of Stuart‟s claims, asserting that "Petitioner has failed, based upon the pleadings before this court, to establish he has complied with the requirements of Idaho Code § 19-2719." Stuart responded to the motion by advancing statutory and constitutional challenges to the application of I.C. § 19-2719 to his petition.

Idaho Code Section 19-2719 provides a series of procedural requirements for post-conviction petitions in capital cases. These provisions supersede the UPCPA to the extent that any conflict exists. Dunlap v. State, 146 Idaho 197, 199-200, 192 P.3d 1021, 1023-24 (2008) (citing McKinney, 133 Idaho at 700, 992 P.2d at 149). Of particular import are the strict time bars of I.C. § 19-2719. Idaho Code § 19-2719(3) provides that within "forty-two (42) days of the filing of the judgment imposing the punishment of death, and before the death warrant is filed, the defendant must file any legal or factual challenge to the sentence or conviction that is known or reasonably should be known." Idaho Code § 19-2719(5) further provides:

If the defendant fails to apply for relief as provided in this section and within the time limits specified, he shall be deemed to have waived such claims for relief as were known, or reasonably should have been known. The courts of Idaho shall have no power to consider any such claims for relief as have been so waived or grant any such relief.

As Stuart faces a death sentence, the provisions of I.C. § 19-2719 are generally applicable. In addition to the explicit limitations of I.C. § 19-2719, this Court has also implied a "timeliness" requirement. "Claims not known or which could not have reasonably been known within 42 days of judgment must be asserted within a reasonable time after they are known or reasonably could have been known." Paradis v. State, 128 Idaho 223, 227, 912 P.2d 110, 114 (1996) (citing Paz v. State, 123 Idaho 758, 760, 852 P.2d 1355, 1357 (1993)). Claims not raised within that reasonable time, like claims that should have been known but were not raised, are deemed to be waived. Because Stuart‟s judgment was entered on December 9, 1982, these claims may only be considered under I.C. § 19-2719 if (a) they were not and could not reasonably have been known within 42 days after judgment; and, if so, (b) they were raised within a reasonable time after they reasonably could have been known.

"A petitioner bringing a successive petition for post-conviction relief has a heightened burden and must make a prima facie showing that issues raised in that petition fit within the narrow exception provided by the statute." Pizzuto v. State, 127 Idaho 469, 471, 903 P.2d 58, 60 (1995) (citing Paz, 123 Idaho at 760, 852 P.2d at 1357). Where a claim is brought that alleges that a claim could not reasonably be known within the forty-two day period prescribed by I.C. § 19-2719(5), this Court reviews "the allegations in [a] successive petition to determine whether . . . claims were known or reasonably should have been known within statutory time limits established in I.C. § 19-2719. If such claims are barred, no appeal on the merits will be heard, and we will dismiss the successive petition. I.C. § 19-2719(11)." Porter v. State, 139 Idaho 420, 421, 80 P.3d 1021, 1022 (2003).

Rather than attempting to comply with these clearly established pleading requirements or otherwise attempting to demonstrate by way of supporting affidavit(s) that his claims were not known to him nor could they reasonably have been known, Stuart apparently elected to challenge the application of I.C. ยง 19-2719 to his petition on statutory and constitutional ...

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