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Johnson v. State

Court of Appeals of Idaho

April 27, 2015

ROBERT TERRY JOHNSON, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent

2015 Opinion No. 22

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding County. Hon. John K. Butler, District Judge.

Judgment of the district court summarily dismissing second successive petition for post-conviction relief, affirmed.

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

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

GUTIERREZ, Judge. Chief Judge MELANSON and Judge GRATTON CONCUR.

OPINION

Page 1087

GUTIERREZ, Judge

Robert Terry Johnson appeals from the judgment of the district court summarily dismissing his second successive petition for post-conviction relief. For the reasons that follow, we affirm.

I.

FACTS AND PROCEDURE

Underlying this second successive petition for post-conviction relief, Johnson pled guilty in 1994 to two counts of first degree murder. Although Johnson did not file a direct appeal,[1] he filed a petition for post-conviction relief asserting ineffective assistance of defense counsel; this Court affirmed the summary dismissal of that petition in Johnson v. State, Docket No. 23177 (Ct.App. July 10, 1997) (unpublished). More than a decade later, Johnson filed his first successive petition for post-conviction relief. The first successive petition contended that the prosecutor committed a Brady [2] violation, that there was new evidence--specifically, a confession by Johnson's co-defendant--and that defense counsel provided ineffective assistance.[3] The State moved for summary dismissal, and the district court summarily dismissed the first successive petition. The district court determined that the claims were not filed within a reasonable time and determined that Johnson did not submit admissible evidence to support the claims. On appeal, this Court affirmed because the claims were not filed within a reasonable time, although we did not address the other ground for dismissal. Johnson v. State, Docket No. 37378 (Ct.App. Aug. 8, 2011) (unpublished).

Page 1088

Within a month of the appeal in his first successive petition being remitted, Johnson filed his second successive petition for post-conviction relief and moved for the appointment of counsel. Johnson's second successive petition presented the same claims as the first, but it also asserted that post-conviction and appellate counsel who handled Johnson's first successive petition provided ineffective assistance and asserted that the district court erred by not considering pro se motions that Johnson had filed in the action on his first successive petition.[4] The district court subsequently issued a notice of intent to dismiss. That notice denied Johnson's motion for the appointment of counsel and informed Johnson that his ineffective assistance of counsel assertions did not provide a basis for post-conviction relief, but may provide sufficient reason. However, the notice also informed Johnson that he had not ...


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