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Lopez v. State

Court of Appeals of Idaho

October 22, 2014

ERNESTO GARZA LOPEZ, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent

2014 Opinion No. 89

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. James C. Morfitt, District Judge.

Order summarily dismissing successive petition for post-conviction relief, affirmed.

Robyn Fyffe of Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent.

MELANSON, Judge. Judge LANSING and Judge GRATTON, CONCUR.

OPINION

Page 1200

MELANSON, Judge

Ernesto Garza Lopez appeals from the district court's summary dismissal of his successive petition for post-conviction relief. Specifically, he argues the district court erred in denying his motion for enlargement of time to respond to its notice of intent to dismiss. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

In 2006, Lopez pled guilty to felony domestic battery. I.C. § § 18-903(b), 18-918(2). The district court imposed a unified sentence of ten years, with a minimum period of confinement of six years. Lopez filed an I.C.R. 35 motion, which the district court denied. On appeal, this Court affirmed the denial of the I.C.R. 35 motion in an unpublished opinion. State v. Lopez, Docket No. 33362 (Ct. App. Aug. 17, 2007). In July 2007, Lopez filed a pro se petition for post-conviction relief. Lopez alleged his guilty plea was not knowing, intelligent, or voluntary and that his attorney provided ineffective assistance of counsel by coercing his guilty plea. The district court appointed post-conviction counsel. However, appointed counsel indicated she would not file an amended petition because she believed (incorrectly) that Lopez's original pro se petition was untimely. The state filed an answer and moved for summary dismissal.

The district court held a hearing where the parties and district court acknowledged that Lopez's petition was timely filed. The district court continued the matter and Lopez filed a complaint against his counsel with the Idaho State Bar Association. The attorney withdrew, and the district court appointed Lopez new counsel. The new attorney withdrew, and the district court appointed a third attorney. The district court held a hearing on the state's motion for summary dismissal. Counsel for Lopez appeared and argued against the motion. The district court granted the state's motion and summarily dismissed Lopez's petition. This Court affirmed the dismissal on appeal in an unpublished opinion. State v. Lopez, Docket No. 37206, (Ct. App. Mar. 11, 2011).

In March 2012, Lopez filed a successive petition for post-conviction relief. Lopez asserted his guilty plea was not knowing, intelligent, and voluntary and that his attorney in the criminal case provided ineffective assistance in relation to the plea. Lopez further asserted his post-conviction attorney provided ineffective assistance by failing to discern this allegedly invalid plea and that this was a sufficient reason for bringing a successive petition. On April 11, 2012, the district court appointed counsel to pursue the successive petition. On April 16, 2012, the district court issued a notice of intent to summarily dismiss Lopez's successive petition as being untimely and asserting an improper basis for a successive petition. The district court provided Lopez twenty days to respond. Twenty-three days later, Lopez filed a pro se motion for enlargement of time to respond. Lopez articulated problems with his appointed counsel and, as a result, indicated he desired additional time to respond to the notice pro se. Lopez also indicated he planned to request substitute counsel. The district court entered an order striking the pro se filing and summarily dismissing the successive petition. With respect to the pro se motion for enlargement of time, the district court noted that the motion did not contain any facts, authority, or good cause challenging the ...


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