2013 Unpublished Opinion No. 519
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. Michael R. Crabtree, District Judge.
Judgment summarily dismissing petition for post-conviction relief, affirmed.
Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Chief Judge
Aristeo Gomez Martinez appeals from the judgment summarily dismissing his petition for post-conviction relief. Specifically, he contends the district court erred in dismissing his claim that his defense counsel was ineffective for failing to appeal the denial of his Idaho Criminal Rule 35 motion. For the reasons set forth below, we affirm.
FACTS AND PROCEDURE
Martinez filed a petition and affidavit for post-conviction relief alleging, inter alia, that his defense counsel was ineffective for failing to file an appeal from the denial of Martinez's Rule 35 motion. Martinez alleged that he specifically asked his defense counsel to file an appeal, but counsel never filed any appeal. The district court issued a notice of intent to dismiss all grounds for which Martinez had petitioned for post-conviction relief. As to Martinez's assertion that his defense counsel had failed to file the appeal he requested, the district court stated that Martinez had not made a prima facie showing of deficient performance because his allegation failed to establish that he made the request within the timeframe required for an appeal. Despite having counsel appointed, Martinez did not respond to the notice of intent to dismiss. The district court summarily dismissed his petition and entered a judgment. Martinez appeals.
Martinez asserts that the district court erred by dismissing his claim because he was not required to prove, at the summary dismissal stage, that he requested his defense counsel to file an appeal within forty-two days of the denial of his Rule 35 motion. Martinez contends his unrebutted allegation that he requested an appeal that was never filed is sufficient to create a material issue of fact, or in the alternative, that the ...