ALISHA ANN MURPHY, Defendant-Appellant.
STATE OF IDAHO, Plaintiff-Respondent,
2014 Opinion No. 24
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. John K. Butler, District Judge.
District court order denying appointment of counsel and summary dismissal of successive petition for post-conviction relief, affirmed.
Sara B. Thomas, Idaho Appellate Public Defender, Boise, for appellant. Erik R. Lehtinen, Deputy Idaho Appellate Public Defender argued.
Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Lori Anne Fleming, Deputy Attorney General argued.
BURDICK, Chief Justice. Justices, EISMANN, J. JONES, HORTON and SCHROEDER, J., pro tem, CONCUR.
[156 Idaho 390] BURDICK, Chief Justice
Alisha Ann Murphy petitioned this Court for review of the Court of Appeals' opinion regarding her successive petition for post-conviction relief in Murphy v. State, No. 37254 (Idaho Ct. App. July 26, 2012). On appeal, Murphy argued that the district court erred in denying her request for counsel, summarily dismissing her successive petition, and denying her I.R.C.P. 60(b) motion for reconsideration. She argued that her ineffective assistance of trial counsel claims were properly before the district court on successive petition because, under this Court's decision in Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955 (1981), ineffective assistance of post-conviction counsel constituted sufficient reason to bring a successive petition under I.C. § 19-4908. The Court of Appeals reversed in part and affirmed in part, concluding that the district court properly dismissed three out of the four ineffective assistance of counsel claims without appointing counsel. As to the remaining claim, the Court of Appeals held that Murphy alleged sufficient facts to raise the possibility of a valid claim and remanded that
[156 Idaho 391] claim to the district court for appointment of counsel. Murphy argues on review that she is entitled to relief from the district court's orders denying counsel and summarily dismissing each of the claims in her successive petition. Murphy further argues that the Court of Appeals should have vacated the summary dismissal order and remanded the case for appointment of counsel generally having found the existence of one possibly valid claim.
We hold that that ineffective assistance of post-conviction counsel is not a sufficient reason under I.C. § 19-4908 for allowing a successive petition, and thus, overrule Palmer v. Dermitt. Accordingly, the Court of Appeals' decision is reversed and the district court's order of summary dismissal of Murphy's successive petition for post-conviction relief is reinstated.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 26, 2001, Murphy was convicted of first degree murder of her husband, James Murphy. She appealed the conviction and sentence, which were affirmed in an unpublished opinion. State v. Murphy, 139 Idaho 388, 79 P.3d 747 (Idaho Ct. App. 2003).
Murphy filed a pro se application for post-conviction relief asserting numerous claims of ineffective assistance of counsel, police misconduct, prosecutorial misconduct, and judicial misconduct, together with a motion for the appointment of counsel. At all relevant times during the proceedings for post-conviction relief, Murphy was represented by appointed counsel. The court summarily dismissed Murphy's petition for post-conviction relief in its entirety. On appeal, the Court of Appeals affirmed the district court in part, reversed in part, and remanded the bulk of Murphy's claims to the district court for further proceedings. Murphy v. State, 143 Idaho 139, 139 P.3d 741 (Ct. App. 2006). Of relevance to the present appeal, the Court of Appeals affirmed the summary dismissal of Murphy's claim of ineffective assistance of counsel regarding counsel's failure to call Norma Jo Robinson, Murphy's mother, to testify at trial about a telephone message allegedly left by James Murphy on Robinson's answering machine on the night that he was killed. Additionally, the court reversed the summary dismissal of her claim that defense counsel was ineffective for failing to hire a forensic pathologist to aid the defense. The Court of Appeals then remanded the case with instructions for the district court to authorize funding for a forensic pathologist to review Murphy's claim. Also of relevance to this appeal, because notice of grounds for dismissal had not been given to Murphy by the district court, the Court of Appeals reversed the dismissal of several other claims, including her claim that her trial counsel was ineffective for failing to obtain telephone records that Murphy claimed would show a call from James Murphy's cell phone or the Murphy home's landline telephone to Robinson's telephone after the time that Murphy and her children had left the house.
On remand, after authorizing Murphy to hire an independent forensic pathologist at public expense, the district court ultimately granted Murphy an evidentiary hearing to address her remaining claims of ineffective assistance of counsel for defense counsel's failure to: (1) retain a forensic pathologist; (2) retain a gunshot residue (" GSR" ) expert; (3) retain a blood spatter expert; and (4) investigate mobile phone records. Murphy's counsel waived all of her remaining claims for post-conviction relief except the claim that counsel was ineffective for failing to retain a forensic pathologist.
At the conclusion of the evidentiary hearing, the district court entered a decision addressing all of the claims, including those waived by counsel, and denied post-conviction relief to the petitioner. Murphy then appealed for a third time contending that the district court erred in denying relief as to the lone claim that was the subject of the evidentiary hearing. The Court of Appeals affirmed the district court's denial of this claim discerning no prejudice to Murphy from defense counsel's failure to hire a forensic pathologist. Murphy v. State, No. 34920 (Idaho Ct. App. Apr. 17, 2009).
While Murphy's third appeal was pending, she filed a successive petition ...