Appeal from the District Court of the Sixth Judicial District, State of Idaho, Power County. Hon. Peter D. McDermott, District Judge.
The opinion of the court was delivered by: Lansing, Chief Judge
Order summarily dismissing application for post-conviction relief, affirmed.
In this post-conviction action, Jason Charles Amboh appeals the summary dismissal of his claim that his defense attorney was deficient for failing to file a timely notice of appeal from Amboh's judgment of conviction. We affirm the district court's determination that this post-conviction action is barred by the statute of limitation.
Amboh pleaded guilty to driving under the influence. The judgment of conviction was filed on June 21, 2007. On August 12, 2007, Amboh wrote his public defender "in regard to an appeal." The attorney replied by letter dated August 14, 2007, saying that the time to appeal had already expired but that the attorney had filed a late notice of appeal anyway. The letter stated:
I received your letter dated August 12, 2007 today. As you know, you had 42 days to appeal the Court's sentencing. That time has passed. You indicated you have attempted to get a hold of me. I have reviewed my phone messages and do not see that you called. If you tried to call me collect from jail, I would not reflect that on my phone messages.
You still have Post Conviction Relief rights. This is contained in the Idaho Criminal Rule 57. If you have any question about Rule 57, call me or write me.
I assume you will be disappointed your appeal period has run, but honestly that appeal had no legs to run on. (I do not believe the appeal would be successful.) I also do not believe your Rule 57 will have any success, but you can file it if you want to. As always, I will respond to any of your letter.
I have filed the Appeal anyway.
The notice of appeal was filed on August 15, 2007.
The State Appellate Public Defender's Office (SAPD) was appointed to represent Amboh on his direct appeal. The Idaho Supreme Court issued a conditional order dismissing Amboh's appeal as untimely because the appeal was not filed within forty-two days after the judgment of conviction as required by Idaho Appellate Rule 14(a). On September 25, 2007, the Court entered a final dismissal order, and a remittitur was issued on September 28, 2007. The SAPD, however, did not inform Amboh that his direct appeal had been dismissed, nor did it communicate with him in any way. Amboh apparently made no inquiry about the status of the appeal until February 2, 2009, when he contacted the SAPD and learned that his appeal had been dismissed sixteen months earlier.
On March 11, 2009, Amboh, acting pro se, filed a petition for post-conviction relief alleging that his defense counsel was ineffective for failing to file a timely notice of appeal from his judgment of conviction. Apparently to excuse his late-filed petition, he also asserted lack of communication by his appellate counsel, contending that he did not learn of the dismissal of his direct appeal until January 26, 2009. The State moved for summary dismissal on the basis that Amboh's petition was not filed within the one-year statute of limitation, Idaho Code § 19-4902(a). At a hearing, Amboh asserted that the time for filing his petition should be equitably tolled until he discovered that his direct appeal had been dismissed, and that his petition was ...