2013 Unpublished Opinion No. 550
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.
Judgment summarily dismissing petition for post-conviction relief, affirmed
Greg S. Silvey, Star, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Chief Judge
Shaun Elmo Hyer appeals from the district court's judgment summarily dismissing his petition for post-conviction relief. For the reasons set forth below, we affirm.
FACTS AND PROCEDURE
The background of this case is explained in this Court's unpublished opinion in the prior appeal, Hyer v. State, Docket No. 36802 (Ct. App. Oct. 29, 2010):
In the underlying criminal case, Hyer pled guilty to one count of lewd conduct with a minor under sixteen pursuant to a plea agreement. I.C. § 18-1508. Hyer entered the agreement in exchange for the state dismissing three counts of possession of sexually exploitative material. The district court imposed a unified twenty-year sentence, with six years determinate. Hyer challenged the sentence through an Idaho Criminal Rule 35 motion arguing that he "received two addenda to his presentence investigation report (PSI), which he was unaware of at the time his sentence was imposed." The district court granted a hearing on the Rule 35 motion and subsequently entered a written order affirming the original sentence. Hyer appealed and this Court vacated his judgment of conviction and remanded the case to the district court for resentencing at a proceeding in which Hyer was in attendance. Following remand, the district court re-entered judgment.
More than four years after the re-entered judgment of conviction, Hyer filed a pro se petition for post-conviction relief alleging: (1) ineffective assistance of counsel; (2) violation of his Fifth Amendment privilege against self-incrimination; and (3) denial of "fundamental fairness embedded in the Fourteenth Amendment due process clause." In addition, Hyer filed a motion for appointment of counsel. The district court granted Hyer's request for counsel, and also issued a notice of intent to dismiss all claims except for one claim of ineffective assistance of counsel. The district court subsequently entered an order summarily dismissing Hyer's petition after receiving no response from Hyer. Hyer then filed a motion for reconsideration through counsel pursuant to Idaho Rule of Civil Procedure 60(b). Hyer's post-conviction counsel submitted an affidavit in support of the motion in which he stated that he and Hyer were in disagreement over which claims should be pursued. Hyer's counsel acknowledged that he had not complied with the district court's notice, but asked the court to find good cause or excusable neglect for his noncompliance. The district court determined that the disagreement between Hyer and his counsel did not justify the failure to file a timely response and denied the motion to reconsider. Hyer appeals from both the summary dismissal of his petition for post-conviction relief as well as the denial of the motion for reconsideration.
Id. This Court reversed in part, finding that the district court erred by not providing proper notice before it dismissed Hyer's claim that trial counsel failed to file an appeal and remanded the case for further proceedings. Id.
On remand, the State moved for summary dismissal and filed a memorandum in support, raising the affirmative defense of the statute of limitations and asserting that the petition was untimely filed. The district court held a hearing wherein Hyer presented no evidence, but rested on his affidavit. The ...