RANDY L. McKINNEY, Plaintiff-Appellant,
STATE OF IDAHO, Defendant-Respondent.
Opinion No. 64
from the District Court of the Seventh Judicial District of
the State of Idaho, in and for Butte County. Hon. Alan C.
Stephens, District Judge.
judgment of the district court is affirmed.
R. Lehtinen, Deputy State Appellate Public Defender, Boise,
argued for appellant.
L. Anderson, Deputy Attorney General, Boise, argued for
an appeal out of Butte County from a judgment dismissing a
petition for post-conviction relief. We affirm the judgment.
November 1981, a jury found Randy Lynn McKinney guilty of
first degree murder (both by premeditated killing and by
felony murder), conspiracy to commit murder, robbery, and
conspiracy to commit robbery for the April 1981 shooting
death of Robert Bishop, Jr. On March 27, 1982, the district
court sentenced McKinney to death for first degree murder, an
indeterminate thirty years for conspiracy to commit murder
and conspiracy to commit robbery, and fixed life for robbery.
Id. This Court affirmed his convictions and the
death sentence, State v. McKinney, 107 Idaho 180,
687 P.2d 570 (1984); and this Court affirmed the denial of
his subsequent petitions for post-conviction relief,
McKinney v. State, 115 Idaho 1125, 772 P.2d 1219
(1989); McKinney v. State, 133 Idaho 695, 992 P.2d
144 (1999); McKinney v. State, 143 Idaho 590, 150
P.3d 283 (2006).
April 1997, McKinney filed a petition for habeas corpus in
federal district court, and on September 25, 2009, the court
ruled that he was not entitled to any relief related to the
guilt phase of his state case but that he was entitled to
resentencing because of the ineffective assistance of his
attorney at the capital sentencing hearing.
than appealing the court's decision, the State and
McKinney entered into a binding sentencing agreement titled
"Rule 11 Sentencing Agreement" on November 18,
2009, in which they agreed that McKinney would "be
sentenced to a term of fixed life without the possibility of
parole for the crime of first-degree murder, concurrent with
his sentences for conspiracy to commit murder, robbery and
conspiracy to commit robbery." In 2009, McKinney was sentenced in
accordance with the plea agreement.
2010, McKinney filed a motion pursuant to Idaho Criminal Rule
35 to correct an illegal sentence, contending that being
sentenced for both robbery and first-degree murder was barred
by the state and federal double jeopardy clauses and a
multiple-punishment statute that was in effect when he
committed the crimes. The district court denied his motion,
and this Court affirmed that denial on appeal. State v.
McKinney, 153 Idaho 837, 291 P.3d 1036 (2013).
April 8, 2013, McKinney filed a petition for post-conviction
relief, commencing this case. In his petition, McKinney
requested that counsel be appointed to represent him, and the
district court appointed counsel for him.
29, 2014, the State filed a motion to dismiss the petition.
The grounds stated in the motion were as follows:
This petition should be dismissed, as it is a successive
petition, which has been previously denied in Butte County
Case No. CV-2001-000105; Butte County Case No.
CV-2002-000118; and Bonneville County Case No.
CV-1990-00040093-PC, I.C. § 19-4908. The State
respectfully requests the Court take judicial notice of the
prior petition and pleadings in each of the three above
Petitioner's Petition for Post Conviction Relief is
barred by the Statute of Limitations, I.C. § 19-4902(a).
Additionally, Petitioner waived his right to appeal or seek
post conviction relief from the disposition of the Court in
Butte County Case No. CR-81-0005, at sentencing, on November
18, 2009, the agreement of which is attached hereto as
Exhibit "1." The defendant, as well as two of
defendant's separate and independent legal counsel
entered into the plea agreement in writing on November 18,
Petitioner has no evidentiary basis to support his claims.
Small v. State, 132 Idaho 327, 331, 971 P.2d 1151,
1155 (Ct. App. 1999).
State did not file a memorandum or affidavit in support of
the motion to dismiss. However, it did file a motion asking
the district court to take judicial notice of the
"Transcript of the Defendant's Re-Sentencing on
November 18, 2009 at which Defendant waives his right to
appeal this sentence pursuant to a plea agreement" and
"of the Record, Transcripts, pleadings, Orders, Rulings
or Opinions[, ] responsive pleadings, guilty plea forms,
agreements and including any and all filed or lodged
documents in Case No. CR 81-0005." The State's
motion to dismiss was heard over one year later on November
18, 2014. At the beginning of the hearing, the district court
granted the motion for judicial notice. After the hearing, the court issued its
findings of fact and conclusions of law in which it concluded
that "the Petitioner has failed to alleged [sic] facts
supporting the claims in the application for relief and that
no genuine issue of material fact exists. The claims are
hereby dismissed with prejudice." It then entered a
judgment dismissing the petition with prejudice, and McKinney
the District Court Err in Dismissing McKinney's Petition
for Post-Conviction Relief?
application for post-conviction relief is in the nature of a
civil proceeding, entirely distinct from the underlying
criminal action. The Idaho Rules of Civil Procedure generally
apply." Ferrier v. State, 135 Idaho 797,
798-99, 25 P.3d 110, 111-12 (2001). "Unlike the
complaint in an ordinary civil action, however, an
application for post-conviction relief must contain more than
'a short and plain statement of the claim' that would
suffice for a complaint under I.R.C.P. 8(a)(1)."
Charboneau v. State, 144 Idaho 900, 903, 174 P.3d
870, 873 (2007). Rather, Idaho Code section 19-4903 requires
that the petition shall set forth, separately from other
factual allegations, "[f]acts within the personal
knowledge of the applicant, " which shall be verified,
and that "[a]ffidavits, records, or other evidence
supporting its allegations shall be attached to the
application or the application shall recite why they are not
Code section 19-4906(c) permits either party in a
post-conviction relief proceeding to file a motion for
summary disposition of the application. The trial court can
grant the motion when "it appears from the pleadings,
depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted,
that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of
a post-conviction relief proceeding is governed by the Idaho
Rules of Civil Procedure, Stuart v. State, 127 Idaho
806, 813, 907 P.2d 783, 790 (1995); I.C. § 19-4907(a), a
motion for summary disposition must "state with
particularity the grounds therefor." Saykhamchone v.
State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995);
I.R.C.P. 7(b)(1)(B). "If the notice is sufficient that
the other party cannot assert surprise or prejudice, the
requirement is met." DeRushé v. State,
146 Idaho 599, 601, 200 P.3d 1148, 1150 (2009).
case, McKinney was represented by counsel. If he contended
that the grounds of the State's motion to dismiss were
not stated with particularity, he was required to raise that
issue in the trial court, and he cannot raise it for the
first time on appeal. Id. at 602, 200 P.3d at 1151.
In Kelly v. State, 149 Idaho 517, 236 P.3d 1277
(2010), we explained what a petitioner for post-conviction
relief must do in order to preserve any issue of lack of
To properly preserve this issue for appeal, an applicant
would merely have to raise the issue below so that the
district court had an opportunity to rule on it. For example,
where the petitioner for post-conviction relief receives a
motion for summary dismissal and does not feel that the
motion for summary dismissal and accompanying memoranda
provides him with sufficient notice of the grounds for
summary dismissal-under the standard established in
DeRushé-he may file a motion with the
district court under I.R.C.P. 7, objecting to the motion for
summary dismissal on the basis that it fails to provide him
with sufficient notice. Likewise, the petitioner could object
to the sufficiency of the notice at the summary dismissal
hearing before the district court. Finally, if the district
court grants the State's motion for summary dismissal,
the petitioner may file an I.R.C.P. 11 motion for
reconsideration, citing to DeRushé and
arguing that the State's motion and accompanying
memoranda did not provide sufficient notice.
Id. at 522 n.1, 236 P.3d at 1282. McKinney did not
contend in the trial court that the State's motion to
dismiss failed to state the grounds of the motion with
Code section 19-4906(b) provides that the court "may
indicate to the parties its intention to dismiss the
application and its reasons for so doing, " but if it
does so "[t]he applicant shall be given an opportunity
to reply within 20 days to the proposed dismissal."
Therefore, "if the State moves to dismiss a petition
under Idaho Code § 19-4906(c), the court cannot dismiss
a claim on a ground not asserted by the State in its motion
unless the court gives the twenty-day notice required by
Section 19-4906(b)." DeRushé, 146 Idaho
at 602, 200 P.3d at 1151.
appeal, McKinney contends that the district court erred in
dismissing five of his post-conviction claims on grounds that
were not asserted by the State and that the court did not
give him a twenty-day opportunity to reply to its reasons for
dismissing them. Those claims are labeled by McKinney on
appeal as "Claims 2, 3, 4, 6 & 7."
Claim No. 2.
McKinnney asserted as Claim No. 2:
Whether or not upon re-sentencing, and pursuant to the
binding plea agreement, the Petitioner was sentenced for
"premeditated Murder", or was the Petitioner
sentenced for "First Degree Murder" (Felony
Murder), and to continue to refer to the sentence and
conviction as Premeditated Murder is not correct and violates
denying that claim, the district court wrote:
The Petitioner's claim that he was sentenced for
"premeditated murder" as opposed to "first
degree murder" is a frivolous claim for which relief
cannot be granted, nor does the Petitioner allege any
specific violation of law, error by the Court or cause of
action for which relief can be granted, as noted by the
Court, "it defies belief that the State would
gratuitously absolve McKinney of serving any sentence
whatsoever for premeditated murder." State v.
McKinney, 153 Idaho 837[, 841 n.7, 291 P.3d 1036, 1040
the State nor the district court gave McKinney notice of this
reason for dismissal. However, that does not require that we
automatically vacate the dismissal of this claim. Ridgley