2013 Unpublished Opinion No. 716
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. John K. Butler, District Judge.
Judgment summarily dismissing action for post-conviction relief, affirmed.
Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.
On appeal, Omar Escobedo argues he received ineffective assistance of counsel because his attorney failed to provide him a copy of this Court's decision on direct appeal, which prevented him from seeking a petition for review and thereby precluded relief in a future federal habeas corpus action. We affirm the decision of the trial court dismissing Escobedo's post-conviction action because we find that summary dismissal was proper, albeit on a legal theory different from the one applied by that court.
This Court previously addressed Escobedo's claims on direct appeal. State v. Escobedo, Docket No. 37050 (Ct. App. May 31, 2011) (unpublished). In that opinion, we set forth the following factual background concerning the original trial:
According to the state's evidence, while his girlfriend's daughter, A.G., was in third grade, Escobedo came home early one morning during A.G.'s Christmas break from school. He spent the night in her mother's room, and then around 7 a.m., entered her room where she and her six-year-old brother were playing video games. He proceeded to commit an act of manual to genital contact upon her and then rubbed his penis on her arm and stomach. . . .
Escobedo was charged by indictment with one count of lewd conduct with a minor under sixteen, Idaho Code § 18-1508, and one count of sexual abuse of a child under sixteen, I.C. § 18-1506 . . . .
. . . .
The jury found Escobedo guilty of both counts.
We affirmed the decision of the trial court on direct appeal. Escobedo thereafter filed a petition for post-conviction relief and an affidavit in support of that petition. In his petition, Escobedo raised twenty-one claims, most of which alleged that trial counsel provided ineffective assistance of counsel. The claim in paragraph 9(b)(12) alleged, "Counsel Was Deficient In Performance Failing To Provide Me With Copies Of Any Records In This Case, Requiring Me To Seek An Order Requiring Him To Do So On Collateral Attack." Additionally, in his affidavit, Escobedo stated that:
Counsel finally sent me a copy of the Court Of Appeals Opinion, but it was to [sic] late to file a Petition for Review, due to the fact my 21 day deadline to file for review or rehearing had expired (Prejudice/Deficient Performance) and this did not allow me to exhaust my State remedies.
Despite a court order to amend the petition, Escobedo never did so. Accordingly, the only portion of the pleading that mentions any failure to provide court documents to Escobedo is claim 9(b)(12). After responding to the petition, the State moved for summary dismissal arguing that, for each claim, ...