Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
The opinion of the court was delivered by: Gutierrez, Chief Judge
2013 Unpublished Opinion No. 401
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Judgment summarily dismissing successive petition for post-conviction relief, vacated and case remanded.
Eugene Ray Cobell appeals from the district court's judgment summarily dismissing his successive petition for post-conviction relief. Specifically, Cobell asserts the district court erred by dismissing the petition on the ground that Cobell's claim of ineffective assistance of prior post-conviction counsel was not a proper basis upon which to file a successive petition. For the reasons set forth below, we vacate the judgment of dismissal and remand the case for further proceedings.
A jury found Cobell guilty of rape and forcible sexual penetration by use of a foreign object. In July 2008, the district court entered a judgment of conviction and imposed concurrent, unified sentences of life, with ten years determinate, for each charge. Cobell directly appealed, making several claims: (1) violation of his Fifth Amendment right to remain silent when the prosecutor cross-examined him about his post-Miranda*fn1 silence; (2) prosecutorial misconduct during closing argument where the State commented on Cobell's silence after receiving his Miranda rights and misstated evidence; (3) cumulative error; and (4) excessive sentences. This Court affirmed the judgment of conviction and sentences, finding the district court erred by allowing the prosecutor to question Cobell regarding his post-Miranda silence, but such error was harmless; the prosecutor did not commit misconduct; the misstatement of evidence did not rise to the level of fundamental error; the slight trial error did not warrant the grant of a new trial under the cumulative error doctrine; and the sentences were not excessive. State v. Cobell, 148 Idaho 349, 223 P.3d 291 (Ct. App. 2009). Thereafter, Cobell filed a petition for post-conviction relief. The district court dismissed the petition in June of 2010, a decision that Cobell did not appeal.*fn2
On July 28, 2011, Cobell filed a successive pro se petition for post-conviction relief. In his successive petition, Cobell asserted the inadvertent omission of key claims and issues in his original post-conviction petition was to blame for its dismissal and he claimed ineffective assistance of his prior post-conviction counsel. Cobell claimed actual innocence due to a medical issue, which rendered him incapable of committing the crimes. Cobell further claimed ineffective assistance of trial counsel for failing to investigate the medical issue, prosecutorial misconduct at both the trial and sentencing, and other claims. Cobell concluded the successive petition was an attempt to raise issues that he was not given a fair opportunity to present in his original post-conviction petition.
The State moved to dismiss the petition, citing as a ground for dismissal Cobell's failure to allege any reason why Cobell's claims were not raised in the original petition. The district court issued a notice of intent to dismiss wherein it concluded a successive petition based on ineffective assistance of prior post-conviction counsel was without merit. Although Cobell responded to the notice of intent to dismiss, the district court issued an order summarily dismissing the petition for the reason stated within the notice and subsequently entered a judgment. Cobell timely appeals.
Cobell asserts the district court dismissed his successive petition on the sole basis that a claim for ineffective assistance of prior post-conviction counsel was not a proper basis upon which to file a successive petition, a decision that was error. Cobell argues the district court's conclusion is contrary to precedent from Idaho appellate courts, which states that ineffective assistance of post-conviction counsel can provide a sufficient reason to support a successive post-conviction petition that raises new issues or renews claims brought forth in an original petition. The State responds that, although the district court did not expressly acknowledge that ineffective assistance of post-conviction counsel may be a sufficient reason for reasserting previously dismissed claims in a successive petition, Cobell's conclusory claim that post-conviction counsel was ineffective, was insufficient to withstand summary dismissal as stated in the district court's order. The State argues there was no error by the district court because Cobell failed to allege a prima facie showing of ineffective assistance of post-conviction counsel--i.e., Cobell did not allege what actions by post-conviction counsel were deficient or how they prejudiced him.
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. Idaho Code § 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 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. 1987) (Burnett, J., concurring). Thus, when a second or successive petition 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, 992 P.2d at 794.
In its notice of intent to dismiss, the district court recited the standard for filing a successive petition, including that the court must be able to find a sufficient reason that a ground was not raised in an initial post-conviction petition. In citing the reasons for the intended dismissal, the district court noted:
Here, the petitioner's sole argument that his claims were not adequately raised in his initial post conviction petition is that his post-conviction counsel was ineffective. However, because there is no right to post-conviction counsel, a petition based on ineffectiveness of post-conviction counsel is without merit. Follinus v. State, 127 Idaho 897, 908 P.2d 590 (Ct. App. 1995). Because the petitioner has not ...