961 P.2d 1179 (Idaho 1998), 22087, Dunlap v. State

Docket Nº:22087.
Citation:961 P.2d 1179, 131 Idaho 576
Opinion Judge:JOHNSON,
Party Name:Timothy Alan DUNLAP, Petitioner-Appellant, v. STATE of Idaho, Respondent.
Attorney:Leo N. Griffard, Jr., Boise; and Nevin, Herzfeld, & Benjamin, Boise, for appellant. Leo N. Griffard, Jr. argued. Alan G. Lance, Attorney General; Michaelina B. Murphy, Deputy Attorney General, Boise, for respondent. Michaelina B. Murphy, argued.
Judge Panel:TROUT, C.J., and SILAK, SCHROEDER and WALTERS, JJ., concur.
Case Date:March 19, 1998
Court:Supreme Court of Idaho
 
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Page 1179

961 P.2d 1179 (Idaho 1998)

131 Idaho 576

Timothy Alan DUNLAP, Petitioner-Appellant,

v.

STATE of Idaho, Respondent.

No. 22087.

Supreme Court of Idaho, Boise.

March 19, 1998

Rehearing Denied July 8, 1998.

Leo N. Griffard, Jr., Boise; and Nevin, Herzfeld, & Benjamin, Boise, for appellant. Leo N. Griffard, Jr. argued.

Alan G. Lance, Attorney General; Michaelina B. Murphy, Deputy Attorney General, Boise, for respondent. Michaelina B. Murphy, argued.

JOHNSON, Justice.

This is a death penalty case in which the issues concern post-conviction relief. We conclude that under the circumstances of this case the petitioner presented a prima facie showing that he did not know and could not reasonably have known until new counsel was appointed for him that no post-conviction relief application had been filed on his behalf within forty-two days after the filing of the judgment sentencing him to death. We also conclude that the filing of a post-conviction petition within forty-two days after the appointment of new counsel was reasonable.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS

Timothy Alan Dunlap (Dunlap) pled guilty to first degree murder. On April 20, 1992, the trial court sentenced Dunlap to death. Dunlap appealed to this Court, which affirmed the judgment. State v. Dunlap, 125 Idaho 530, 873 P.2d 784 (1993), cert. denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 554 (1994) (Dunlap I ). In the trial court and before this Court, Dunlap was represented by different attorneys (Dunlap's prior counsel) than those who represent him in the present case (Dunlap's current counsel).

Following Dunlap I, Dunlap initiated federal habeas corpus proceedings, and the federal district court appointed Dunlap's current counsel to represent him in federal court. Dunlap's current counsel discovered that his prior counsel had not filed an application for post-conviction relief in state court.

On May 12, 1994, Dunlap filed a petition for post-conviction relief (the petition). This was almost two years after the expiration of the forty-two day time limit referred to in section 19-2719(4) of the Idaho Code (I.C.).

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[131 Idaho 577] In the petition, Dunlap alleged ineffective assistance of Dunlap's prior counsel with respect to his plea, sentencing, appeal, and lack of post-conviction proceedings. The trial court granted the state's motion to dismiss the...

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