Appeal from the District Court of the Second Judicial District, State of Idaho, Latah County. Hon. John R. Stegner, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
2012 Unpublished Opinion No. 531
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Judgment summarily dismissing successive petition for post-conviction relief, affirmed.
Kanay A. Mubita appeals from the district court's judgment summarily dismissing his successive petition for post-conviction relief. Mubita asserts he presented an issue of material fact and, therefore, the district court erred in summarily dismissing his petition. We affirm.
On March 30, 2006, a jury found Mubita guilty of eleven felony counts of transfer of bodily fluid which may contain the human immunodeficiency virus (HIV), in violation of Idaho Code § 39-608. The district court imposed consecutive unified sentences of four years, with four months determinate, for each count. Mubita filed a petition for post-conviction relief and a direct appeal of his conviction. The district court stayed the petition pending resolution of the appeal. In June 2008, the Idaho Supreme Court upheld Mubita's conviction, concluding: (1) the district court did not err in denying Mubita's motion to suppress documents from the Health Department released to the prosecutor's office; (2) it was harmless error to admit certain laboratory test results under the business records exception to the hearsay rule; (3) oral-genital contact between Mubita and one of his victims was factually sufficient to violate Idaho Code § 39-608; and (4) the jury instructions did not violate Mubita's due process rights. State v. Mubita, 145 Idaho 925, 188 P.3d 867 (2008), abrogated on other grounds by Verska v. Saint Alphonsus Reg'l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).
Through counsel appointed by the district court, Mubita thereafter filed an amended petition for post-conviction relief asserting he was denied an interpreter; documents used at trial to show he was HIV positive and aware of his HIV status were fraudulent; his request for an HIV test was denied; he was denied access to his medical records; his counsel at trial represented him ineffectively; and his counsel on his direct appeal had a conflict of interest with his trial counsel because both were county public defenders. Mubita also claimed he was not HIV positive. The State filed a motion for summary disposition, and after conducting a hearing, the district court issued an order dismissing all but two of Mubita's claims--that Mubita was not HIV positive and that he needed an interpreter during the criminal proceedings. After providing Mubita notice and opportunity to supplement his petition, the court dismissed Mubita's claim that he was not HIV positive because Mubita failed to submit additional evidentiary support. The court held an evidentiary hearing on Mubita's need for an interpreter and later issued an order dismissing that claim as well. Mubita appealed the dismissal of his initial post-conviction petition only on the ground that the district court erred in denying the motion by post-conviction counsel asking for leave to withdraw. This Court affirmed in an unpublished decision. Mubita v. State, Docket No. 36913 (Ct. App. Apr. 11, 2011).
During the pendency of his appeal on the initial post-conviction petition, Mubita filed a successive petition for post-conviction relief on July 9, 2010, accompanied with a motion requesting appointment of post-conviction counsel. In the successive petition, Mubita asserted five claims: (1) he was denied the right to testify at his trial; (2) trial counsel failed to subpoena a witness for trial; (3) trial counsel failed to communicate with him prior to trial; (4) counsel (Mubita does not specify which) failed to call in a handwriting expert to verify whether certain documents used as evidence in his trial were fraudulent; and (5) post-conviction counsel gave ineffective assistance by failing to follow up on Mubita's ability to read English, the denial of his right to testify, and trial counsel's failure to subpoena a witness. The district court denied the request for appointment of counsel and gave notice of its intent to dismiss, finding the claims were frivolous either because they facially lacked merit or because they had been previously raised and Mubita did not show a sufficient reason to raise them again in a successive petition. Mubita responded to the notice of intent to dismiss, alleging some additional facts and providing an affidavit in support. The district court found Mubita failed to supply facts sufficient to create any genuine issue of material fact and summarily dismissed Mubita's successive petition. Mubita timely appeals.
A. Standard of Review for Successive ...