2013 Unpublished Opinion No. 788
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.
Judgment denying appointment of counsel and dismissing successive petition for post-conviction relief, affirmed.
Dennis Benjamin of Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Chief Judge
Adriel Ayon Nunez appeals from the district court's judgment denying his motion for appointment of counsel and dismissing his successive petition for post-conviction relief. Specifically, he contends the district court erred by denying his motion for appointment of counsel. For the reasons set forth below, we affirm.
FACTS AND PROCEDURE
In 2003, Nunez was convicted of trafficking in methamphetamine. This Court affirmed his conviction. State v. Nunez, Docket No. 30114 (Ct. App. Oct. 19, 2004) (unpublished). Nunez filed a petition for post-conviction relief in July 2005, raising numerous issues. The district court summarily dismissed some of the claims and denied the remaining claims following an evidentiary hearing. Nunez appealed and this Court affirmed the denial of post-conviction relief. Nunez v. State, Docket No. 33224 (Ct. App. Jan. 4, 2008) (unpublished).
In August 2011, Nunez filed, pro se, a document entitled "A Verified Motion for Telephonic Hearing with Notice. In Re: U.N. Treaty Violations." Among other claims, the motion alleged the testing of the controlled substance in his underlying case was tainted by malfeasance at the state laboratory. Nunez requested the appointment of counsel to act "in the limited capacity of Subpoenas' [sic] & Marshaling the Witnesses." The district court treated the motion as a successive post-conviction petition and appointed the Twin Falls County Public Defender as counsel. The court scheduled a pretrial conference for November 21 and an evidentiary hearing for December 19. The court subsequently entered a notice of intent to dismiss Nunez's petition, notifying Nunez that the majority of his claims were barred because he could have raised them below and they were not timely. In respect to Nunez's allegation regarding the state laboratory, the court found the claim was timely given the date of the discovery of the alleged laboratory improprieties, but nevertheless indicated it intended to dismiss the claim because Nunez "failed to allege facts to show that the lab's testing in his case was inaccurate."
Nunez filed a motion making several assertions, including objecting to the appointment of counsel in any capacity other than what he "expressly defined" in relation to his initial request for counsel. The district court issued a second notice of intent to dismiss Nunez's petition for the purpose of reissuing its first notice of intent to dismiss; the court also indicated the time for objection would be "renewed" from the date of the second notice. Nunez filed a "Notice of Error, Objection and Request for Relief, " which, among other things, articulated the merits of his claim regarding the state laboratory. He asserted the controlled substances evidence introduced at his trial (specifically regarding the weight of the methamphetamine) was incorrect and/or tainted by impropriety at the laboratory and therefore was inadmissible. Upon Nunez's request, the court ordered that documents relevant to the laboratory testing in Nunez's case be sent directly to Nunez and his standby counsel. The State complied and Nunez filed an affidavit indicating that as a result of phone communications with standby counsel, Nunez had identified certain "facts and admissible evidence" to support his claim regarding the state laboratory. Specifically, he alleged the controlled substances evidence had "undergone an impermissible variance in weight, " for which there was no explanation. He reiterated he was not waiving his right to proceed pro se.
The State responded, contending that any variance in the weight of the methamphetamine was known or should have been known at the time of Nunez's first petition for post-conviction relief and therefore was waived. The district court entered an order summarily dismissing all of Nunez's post-conviction claims except that pertaining to the state laboratory. In regard to the latter issue, the court noted it was "extremely difficult to ascertain precisely what the Plaintiff is alleging." To avoid the "possibility of error" it granted Nunez an evidentiary hearing to commence on December 19, "solely on the issue of improper drug testing" as there was a "question of fact warranting an evidentiary hearing concerning the claim of improper drug testing which could entitle Plaintiff to some relief." The ...