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Nelson v. State

Court of Appeals of Idaho

October 8, 2014

GREGORY JOSEPH NELSON, Petitioner-Appellant,
STATE OF IDAHO, Respondent

Page 1164

2014 Opinion No. 83

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Lynn G. Norton, District Judge.

Judgments summarily dismissing successive petitions for post-conviction relief, affirmed.

Nevin, Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.



Page 1165

GUTIERREZ, Chief Judge.

Gregory Joseph Nelson appeals from the district court's judgments summarily dismissing his fourth and fifth successive petitions for post-conviction relief. For the reasons set forth below, we affirm.



In affirming Nelson's convictions and sentences on direct appeal, we summarized the underlying facts of Nelson's crimes:

According to the evidence presented at trial, appellant Gregory J. Nelson went to the home of K.M., a ten-year-old girl who lived in his neighborhood. Nelson knew that K.M.'s parents would not be home that morning because her father was in Alaska and her mother was at work. When Nelson arrived, he offered to pay K.M. twenty dollars if she would come and clean the travel trailer in which he lived. After an initial refusal, K.M. ultimately agreed, and Nelson drove her to his trailer. Shortly after they arrived and K.M. began cleaning, Nelson told K.M. that he was a doctor and that he wanted her to remove her shirt. When she refused, he knocked her down on the bed, held a pillow over her face until she agreed to remove her clothing, and then sexually molested her. After the incident, Nelson drove K.M. back to her house. Once there, K.M. immediately told her two brothers that Nelson had hurt her, and they took her to the house of a neighbor. The neighbor telephoned K.M.'s mother, who arrived a few minutes later as did police and paramedics. K.M. was then taken to a hospital where she was examined by a physician.

State v. Nelson, 131 Idaho 210, 213, 953 P.2d 650, 653 (Ct. App. 1998).

A jury found Nelson guilty of first degree kidnapping, Idaho Code § 18-4501, and lewd conduct with a minor, I.C. § 18-1508. Nelson raised ten issues on direct appeal, including a claim that the district court erred by admitting physical evidence for which the State failed to establish an adequate chain of custody. This Court affirmed Nelson's convictions and sentences. Nelson, 131 Idaho at 221-22, 953 P.2d at 661-62.

Page 1166

Over the next several years, Nelson filed a petition for post-conviction relief and three successive petitions, all of which were denied. He appealed the denial of the first two and this Court affirmed both times. In 2011, he filed his fourth successive petition for post-conviction relief, requesting DNA testing of materials in the rape kit and K.M.'s underwear (Docket No. 40661). The district court appointed counsel and pursuant to a stipulation between the parties, the district court ordered DNA testing be performed. A specific type of DNA test, Y-STR, was performed and indicated that Nelson and his paternal relatives could not be excluded as the source of the male DNA profile obtained from the relevant evidence.

After the results were received, the State moved for dismissal of Nelson's post-conviction petition. Nelson filed pro se motions seeking to replace his appointed counsel, as well as a pro se supplemental motion for post-conviction relief, supporting affidavits, and other documents, in which he appeared to contend that the Y-STR DNA test was insufficient because such testing cannot be linked to a specific individual, but is instead useful only in excluding individuals as DNA contributors. Nelson requested that a different type of DNA test, STR, be conducted. Unlike Y-STR testing, he asserted, STR testing would identify the specific contributor of the DNA samples and could be compared against the national DNA database. The district court denied Nelson's motion for substitute counsel and requested that Nelson's appointed counsel respond to the State's motion for summary dismissal. The district court also barred Nelson from continuing to file documents pro se. Nelson's counsel filed an objection to the State's motion for summary dismissal and requested that the court consider Nelson's pro se filings in which he requested additional testing. The district court did so, but denied Nelson's request for additional DNA testing and granted the State's motion for summary dismissal of Nelson's fourth successive post-conviction petition.

While Docket No. 40661 was pending, Nelson asserted that evidence uncovered in that case showed the existence of inconsistent labeling and descriptions of various items in the rape kit, which he alleged indicated evidence tampering. The district court stayed consideration of the claim pending the outcome of Docket No. 40661. Nelson formally asserted the evidence tampering claim in a fifth, successive post-conviction petition (Docket No. 40828). He moved for appointment of counsel and submitted additional argument. The district court denied the motion for appointment of counsel and summarily dismissed the petition.

Nelson timely appealed from the district court's summary dismissal of his petitions in both Docket No. 40661 and Docket No. 40828. The Idaho Supreme Court granted ...

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