Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine County. Hon. Robert J. Elgee, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
2012 Unpublished Opinion No. 550
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Judgment summarily dismissing successive petition for post-conviction relief, affirmed.
Marco Antonio Rios-Lopez appeals from the judgment summarily dismissing his successive petition for post-conviction relief. He asserts the district court erred in finding that his successive petition was untimely. We affirm.
Rios-Lopez was convicted of three counts of trafficking in cocaine and three counts of failure to affix a drug tax stamp. He was sentenced to consecutive unified terms of fourteen years, with seven years determinative, for each of the three counts of trafficking, and unified terms of two years, with one year determinate, for each count of failing to affix tax stamps, for a total unified term of forty-eight years, with twenty-four years determinate. This Court affirmed the judgment of conviction and sentences in an unpublished decision. State v. Rios-Lopez, Docket No. 28142 (Ct. App. Aug. 12, 2003). Rios-Lopez filed a petition for post-conviction relief on September 24, 2003, asserting numerous claims, including that his counsel was ineffective for failing to present an alibi defense at trial and omitting mitigating evidence at sentencing. The district court granted the State's motion for summary disposition on November 15, 2004, determining Rios-Lopez did not raise a material issue of fact to be entitled to post-conviction relief because his allegations were unsupported by facts contained in affidavits, records, or other evidence. This Court affirmed in an unpublished decision. Rios-Lopez v. State, Docket No. 31421 (Ct. App. Oct. 28, 2005). Rios-Lopez then filed for habeas corpus relief in the federal district court. The federal district court denied his petition for writ of habeas corpus on March 30, 2009.
On March 11, 2010, Rios-Lopez filed a successive petition for post-conviction relief asserting ineffective assistance of post-conviction counsel. Rios-Lopez alleged his post-conviction counsel was ineffective in pursuing his initial post-conviction petition by failing to provide the district court with the required evidence as set forth in Idaho Code § 19-4903. The district court granted the State's motion for summary disposition finding Rios-Lopez's petition, filed over five years from the date of dismissal of his initial petition for post-conviction relief, when Rios-Lopez knew or should have known of the claims, was not filed within a reasonable period of time. Rios-Lopez appeals.
A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008); see also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). All claims for post-conviction relief must be raised in an original, supplemental, or amended petition. I.C. § 19-4908. An original petition must be filed within one 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. I.C. § 19-4902(a). 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 that for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended petition.
I.C. § 19-4908; Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007). While section 19-4908 sets forth no fixed time within which successive petitions may be filed, the "sufficient reason" language in the statute necessarily provides "a reasonable time within which such claims [may be] asserted in a successive post-conviction petition, once those claims are known." Charboneau, 144 Idaho at 905, 174 P.3d at 875.
There is no constitutionally protected right to the effective assistance of counsel in post-conviction relief proceedings and such an allegation, in and of itself, is not among the permissible grounds for post-conviction relief. See Follinus v. State, 127 Idaho 897, 902, 908 P.2d 590, 595 (Ct. App. 1995); Wolfe v. State, 113 Idaho 337, 339, 743 P.2d 990, 992 (Ct. App. 1987). Ineffective assistance of prior post-conviction counsel may, however, provide "sufficient reason" for permitting newly asserted allegations or allegations inadequately raised in the initial petition to be raised in a subsequent post-conviction petition. Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 2008). See also Palmer v. Dermitt, 102 Idaho 591, 596, 635 P.2d 955, 960 (1981); Hernandez v. State, 133 Idaho 794, 798, 992 P.2d 789, 793 (Ct. App. 1999). Failing to provide a post-conviction petitioner with a meaningful opportunity to have his or her claims presented may be violative of due process. Schwartz, 145 Idaho at 189, 177 P.3d at 403; Hernandez, 133 Idaho at 799, 992 P.2d at 794. See also Abbott v. State, 129 Idaho 381, 385, 924 P.2d 1225, 1229 (Ct. App. 1996); Mellinger v. State, 113 Idaho 31, 35, 740 P.2d 73, 77 (Ct. App. ...