Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
The opinion of the court was delivered by: Gratton, Judge
2013 Unpublished Opinion No. 399
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Order summarily dismissing successive petition for post-conviction relief, affirmed; order denying motion for appointment of counsel, affirmed.
John Thomas Rainey, appearing pro se, appeals from the district court's order summarily dismissing his successive petition for post-conviction relief and its denial of his motion for appointment of counsel. For the reasons set forth below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Rainey pled guilty to sexual battery of a minor child sixteen or seventeen years of age, and the district court imposed a unified sentence of life with twenty-five years determinate, pursuant to Idaho Code § 18-1508A(4). The conviction and sentence were affirmed on appeal. Rainey timely filed a pro se post-conviction petition alleging ineffective assistance of counsel. The district court denied his motion for appointment of counsel and dismissed the petition. Rainey appealed but later filed a motion to dismiss the appeal, which the Idaho Supreme Court granted.
On April 26, 2012, Rainey filed a successive pro se petition for post-conviction relief. Rainey reasserted the ineffective assistance of counsel claim, and alleged his sentence constituted cruel and unusual punishment by being imposed without regard for the presentence investigator's recommendations, and that the district court violated his Sixth Amendment right when it denied his request for appointment of counsel in his first post-conviction petition. The district court denied Rainey's request for appointment of counsel in his successive petition. The court then entered an order conditionally dismissing the successive petition and gave Rainey twenty days to file a response. Rainey filed a motion for reconsideration of the denial of counsel, which the district court denied and entered an order dismissing the successive petition on June 26, 2012. Rainey timely appealed.
On appeal, Rainey assigns no specific error to the district court's order denying his request for appointment of counsel or summary dismissal of his successive post-conviction petition, but rather reasserts the arguments he made in the district court on his successive petition for post-conviction relief. Rainey alleges that his sentence amounts to cruel and unusual punishment, that the district court did not follow the recommendations of the presentence investigator in his criminal case, and that the district court ignored his defense of "somnambulism." Further, Rainey asserts that he was denied his constitutional right to counsel in his first post-conviction petition, and then asserts various grounds for ineffective assistance of counsel in his criminal case.
If a post-conviction petitioner is unable to pay for the expenses of representation, the trial court may appoint counsel to represent the petitioner in preparing the petition in the trial court and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). When a district court is presented with a request for appointed counsel, the court must address this request before ruling on the substantive issues in the case. Id; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The district court abuses its discretion where it fails to determine whether a petitioner for post-conviction relief is entitled to court-appointed counsel before denying the petition on the merits. See Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
In determining whether to appoint counsel pursuant to I.C. § 19-4904, the district court should determine if the petitioner is able to afford counsel and whether the situation is one in which counsel should be appointed to assist petitioner. Charboneau, 140 Idaho at 793, 102 P.3d at 1112. In its analysis, the district court should consider that petitions filed by a pro se petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts sufficient to state a claim may not be alleged because they do not exist or because the pro se petitioner does not know the essential elements of a claim. Id. Some claims are so patently frivolous that they could not be developed into viable claims even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint counsel in order to give petitioner an opportunity to work with counsel and properly allege the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
If an initial post-conviction action was timely filed and has been concluded, an inmate may file a subsequent application outside of the one-year limitation period if the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application. I.C. § 19-4908. Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007). 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 application to be raised in a subsequent post- conviction application. 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 applicant 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. 1987) (Burnett, J., concurring). Thus, when a second or successive application alleging ineffectiveness of the initial post-conviction counsel is filed outside of the initial one-year limitation period, application of the relation-back doctrine may be appropriate. See Hernandez, 133 Idaho at 799, ...