2014 Unpublished Opinion No. 375
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Ronald J. Wilper, District Judge.
Judgment summarily dismissing third successive petition for post-conviction relief, affirmed.
Lacey Mark Sivak, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; L. LaMont Anderson, Deputy Attorney General, Chief, Capital Litigation Unit, Boise, for respondent.
GUTIERREZ, Chief Judge
Lacey Mark Sivak appeals from the district court's judgment summarily dismissing his third successive petition for post-conviction relief. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
In 1981, Sivak was found guilty of robbery, felony murder, and possession of a firearm during the commission of a robbery for an incident resulting in the death of Dixie Wilson. The district court sentenced Sivak to death for the murder. The Idaho Supreme Court affirmed Sivak's convictions and sentence. State v. Sivak (Sivak I), 105 Idaho 900, 674 P.2d 396 (1983). Sivak filed his initial petition for post-conviction relief in September 1984, which was denied by the district court following an evidentiary hearing. On appeal, the Idaho Supreme Court addressed Sivak's double jeopardy claim, holding that Sivak's robbery conviction merged as a lesser included offense into his felony murder conviction. Sivak v. State (Sivak II), 112 Idaho 197, 211, 731 P.2d 192, 206 (1986). The Supreme Court also reversed Sivak's death sentence because the district court denied Sivak's motion to present additional mitigation evidence. Id. at 203, 731 P.2d at 198. On remand, the district court again sentenced Sivak to death. However, on appeal, the Supreme Court again reversed the sentence because the district court failed to properly weigh the aggravating factors against the mitigating factors. State v. Sivak (Sivak III), 119 Idaho 320, 321-22, 806 P.2d 413, 414-15 (1990).
Sivak was again sentenced to death on remand. He filed a successive post-conviction petition, which the district court denied. The Idaho Supreme Court affirmed the death sentence and the denial of post-conviction relief. State v. Sivak (Sivak IV), 127 Idaho 387, 901 P.2d 494 (1995). Sivak then commenced federal habeas proceedings. During the pendency of the federal proceedings, Sivak filed his second successive post-conviction petition, which the district court denied. The Supreme Court affirmed the denial. Sivak v. State (Sivak V), 134 Idaho 641, 644, 8 P.3d 636, 639 (2000).
The federal district court denied Sivak all habeas relief. The Ninth Circuit Court of Appeals affirmed the federal district court on all guilt-phase issues, but reversed the death sentence due to evidentiary errors that occurred at sentencing. Sivak v. Hardison, 658 F.3d 898 (9th Cir. 2011).
Once the case was remanded to the state district court, the State filed a notice of intent to seek the death penalty. Prior to his resentencing, Sivak filed a third successive petition for post-conviction relief, which is at issue in this appeal. Although difficult to decipher, the basis of the petition is apparently a contention that his double jeopardy rights were violated because he was acquitted of premeditated murder, but convicted of felony murder. The State filed a response, asserting Sivak's successive petition was premature because he had not yet been resentenced and, pursuant to Idaho Code § 19-2719(6), appeals from a death sentence and denial of post-conviction relief must be consolidated. Alternatively, the State asserted that Sivak's successive petition was untimely because it raised an issue that should have been filed within forty-two days of the entry of the judgment of conviction and was a claim that was known or reasonably could have been know when his prior post-conviction petitions were filed. The State also disputed the substantive assertion of the petition.
The district court issued a notice of intent to dismiss, advising Sivak that his successive petition would be dismissed unless he provided the court "with evidence in the form of [an] affidavit or other admissible evidence to support his Petition." Sivak responded with a number of virtually illegible pleadings. The district court issued an order dismissing Sivak's successive petition, indicating that because resentencing was still pending, it was "untimely because a sentence of death is possible and if a death sentence is imposed, the time for filing a petition for ...