Anderson v. State, Docket No. 37147
| Decision Date | 30 May 2012 |
| Docket Number | Docket No. 37147 |
| Parties | STEVEN KIM ANDERSON, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
2012 Unpublished Opinion No. 497
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. G. Richard Bevan, District Judge.
Judgment summarily dismissing successive petition for post-conviction
relief, affirmed.
Steven Kim Anderson, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
Attorney General, Boise, for respondent.
Steven Kim Anderson appeals from the summary dismissal of his successive petition for post-conviction relief. He asserts that the district court erred by dismissing the petition without giving him sufficient notice and without first ruling on his motion for appointment of counsel, and that the district court erroneously concluded that his successive petition was procedurally barred. We affirm.
Anderson was convicted of aggravated battery after a jury trial, and sentenced to a unified term of fifteen years with seven years determinate. The judgment of conviction and sentence were affirmed in an unpublished decision. State v. Anderson, Docket No. 25632 (Ct. App. Feb. 27, 2001). Anderson later filed a petition for post-conviction relief raising a number of issues, including ineffective assistance of counsel and prosecutorial misconduct. The districtcourt granted summary dismissal, and this Court affirmed in an unpublished decision. Anderson v. State, Docket Nos. 30079, 30080, 30625 (Ct. App. June 2, 2006).
On August 26, 2006, Anderson filed a successive petition for post-conviction relief asserting: (1) that the prosecutor committed misconduct at trial by knowingly eliciting testimony from a witness, C.B., that was different from C.B.'s prior out-of-court statements; and (2) that trial counsel was ineffective for failing to address the prosecutor's misconduct. The district court appointed counsel and, on September 13, issued notice of intent to dismiss the petition for several reasons, including that the successive petition was untimely because the claims were not raised within a reasonable time of their discovery. Anderson filed an amended petition with the assistance of counsel, asserting that his attorney's failure to raise the claims in his original petition was ineffective assistance of counsel, and the court scheduled an evidentiary hearing. At the hearing--which was not held until March 26, 2009, as the result of multiple continuances--Anderson's attorney requested to withdraw the amended petition pursuant to her obligations under Idaho Rule of Civil Procedure 11.1 The court deemed the amended petition withdrawn and reinstated the original petition. Anderson's attorney then stated that she could not continue to represent Anderson because of a breakdown of communication. The Court allowed her to withdraw and stayed the proceedings. The court subsequently appointed new counsel and, on June 9, reissued notice of its intent to dismiss the original petition on the same grounds stated in the original notice. Anderson's new attorney also was permitted to withdraw because of a breakdown of attorney-client communication. Upon permitting Anderson's second attorney to withdraw, the court ruled that "the petition as stated is frivolous, [and] does not warrant appointment of additional counsel." Nevertheless, Anderson filed another motion forappointment of counsel, which the court denied. On November 18, the court again issued notice of intent to dismiss the petition on the same grounds stated in previous two notices.
On May 5, 2010, Anderson refiled a handwritten copy of the amended petition for post-conviction relief which had been filed and withdrawn by Anderson's first counsel, and the court scheduled an evidentiary hearing for August 3. Anderson also filed a renewed motion for appointment of counsel, and the State filed a motion for summary dismissal, asserting that Anderson's successive petition was untimely. The district court granted the State's motion for summary dismissal. Anderson appeals.
A petition for post-conviction relief under the Uniform Post Conviction Procedure Act (UPCPA) is civil in nature. Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007). The petitioner must prove the claims upon which the petition is based by a preponderance of the evidence. Id. When the alleged facts, even if true, would not entitle the applicant to relief, the trial court may dismiss the application without holding an evidentiary hearing. Idaho Code § 19-4906(b), (c); Charboneau, 144 Idaho at 903, 174 P.3d at 873; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Cooper v. State, 96 Idaho 542, 545, 531 P.2d 1187, 1190 (1975). If the petitioner's evidence raises a genuine issue of material fact which, if resolved in his favor, would demonstrate entitlement to relief, summary disposition is not appropriate. Charboneau, 144 Idaho at 903, 174 P.3d at 873. Therefore, on review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of material fact exists based on the pleadings, depositions, and admissions together with any affidavits on file, and whether the petitioner's allegations, if true, show a right to relief. Id.; Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993).
All claims for post-conviction relief must be raised in an original, supplemental, or amended application. I.C. § 19-4908. An original application must be filed within one year from the expiration of the time for appeal or from the determination of an appeal or from the determination of a proceeding following an appeal, whichever is later. I.C. § 19-4902. Successive petitions are impermissible "unless the court finds a ground for relief asserted whichfor sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application." I.C. § 19-4908. While Section 19-4908 sets forth no fixed time within which successive petitions may be filed, the "sufficient reason" language in the statute necessarily provides "a reasonable time within which such claims [may be] asserted in a successive post-conviction petition, once those claims are known." Charboneau, 144 Idaho at 905, 174 P.3d at 875. The determination of what is a reasonable time is considered on a case-by-case basis. Id.
We first address Anderson's assertion that the court erred by considering the State's motion to dismiss, which was filed six days before the scheduled evidentiary hearing. Anderson asserts that motion was untimely because it did not comply with the court's scheduling order or applicable rules of civil procedure.2 Anderson relies on Wolfe v. State, 117 Idaho 645, 649, 791 P.2d 26, 30 (Ct. App. 1990). In Wolfe, this Court stated:
A motion for summary disposition is the procedural equivalent of a motion for summary judgment. See Ramirez v. State, 113 Idaho 87, 741 P.2d 374 (Ct. App. 1987). Rules and statutes applicable in civil proceedings generally are available to parties involved in post-conviction applications. I.C. § 19-4907(a). Motions for summary judgment must be filed at least sixty days before trial or within seven days of the order setting the case for trial, whichever date comes later. I.R.C.P. 56(a), (b). The motion, together with supporting affidavits and brief, must be served on the opposing party at least twenty-eight days before the time set for hearing. I.R.C.P. 56(c). The purposes of the time requirements in Rule 56 are twofold: to give the opposing party an adequate opportunity to respond and to give the court an adequate opportunity to make a reasoned decision.
Here, the district court entered an order on May 24, 2010, scheduling the evidentiary hearing for August 3, 2010. The State's motion for summary judgment was not filed until July 28. Thus, the motion was not filed at least sixty days before the evidentiary hearing or within seven days of the scheduling order. Additionally, Anderson did not receive at least twenty-eight days' notice before the hearing on the motion, which in this case was scheduled for August 3--the same day as the evidentiary hearing. Noncompliance with scheduling or noticerequirements of Rule 56 does not require reversal, however, absent a showing of prejudice. See I.R.C.P. 61 (). Thus, in Ponderosa Paint Mfg., Inc. v. Yack, 125 Idaho 310, 317, 870 P.2d 663, 670 (Ct. App. 1994), we declined to reverse a summary judgment merely because the summary judgment motion and supporting documents were not mailed to the opposing party at least thirty-one days in advance of the hearing as required by I.R.C.P. 56(c) and 6(e)(1). We held that the technical error did not require reversal because the appellants had not demonstrated that, if given additional time, they could have submitted evidence or legal argument that would have prevented the summary judgment against them. Ponderosa, 125 Idaho at 317, 870 P.2d at 670. See also McClure Eng'g, Inc. v. Channel 5 KIDA, 143 Idaho 950, 955, 155 P.3d 1189, 1194 (Ct. App. 2006); In re Estate of Keeven, 126 Idaho 290, 298, 882 P.2d 457, 465 (Ct. App. 1994). Despite the short notice, Anderson was able to file an eight-page response to the State's motion, replete with numerous citations to authority, before the hearing. Anderson has not asserted that he could have submitted any additional evidence or legal argument if given additional time. Therefore, Anderson has not demonstrated reversible error.
Anderson also...
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