Dunlap v. State

Decision Date02 November 2015
Docket NumberNo. 41105.,41105.
Citation360 P.3d 289,159 Idaho 280
CourtIdaho Supreme Court
Parties Timothy Alan DUNLAP, Petitioner–Appellant, v. STATE of Idaho, Respondent.

Federal Defender Services of Idaho, Boise, for appellant. Bruce D. Livingston argued.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. LaMont Anderson argued.

HORTON, Justice.

This is an appeal from the district court in Caribou County, which summarily dismissed Timothy Dunlap's successive petition for post-conviction relief. Dunlap raised several substantive claims for post-conviction relief. For each substantive claim, he advanced a corresponding claim of ineffective assistance of appellate counsel. We affirm the district court's summary dismissal of Dunlap's successive petition for post-conviction relief.


This is the sixth appeal considered by this Court following Dunlap's plea of guilty to first-degree murder. This Court repeated the factual and procedural background of this case most recently in State v. Dunlap, 155 Idaho 345, 357–58, 313 P.3d 1, 13–14 (2013) (Dunlap V ), as follows:

On October 16, 1991, Dunlap entered and robbed the Security State Bank in Soda Springs, Idaho. Dunlap entered the bank, stood within a few feet of bank teller Tonya Crane, and ordered her to give him all of her money. Without hesitation, Tonya Crane did so. Dunlap immediately and calmly pulled the trigger of his sawed-off shotgun, which was less than two feet from Tonya Crane's chest, literally blowing her out of her shoes. Police officers responded immediately. When the officers arrived at the bank, Tonya Crane had no pulse. When taken to the hospital she was pronounced dead on arrival.
Dunlap fled the scene, but subsequently surrendered to police. After being given his Miranda rights, Dunlap confessed to the murder and to a murder that occurred ten days before in Ohio. The following day, Dunlap again confessed and explained how he planned and completed both murders. Dunlap was charged with first-degree murder and robbery.
Within days of his arrest, Dunlap arranged to be interviewed by Marilyn Young, Associate Editor of the Albany New Tribune in Indiana. During the interviews Dunlap explained to Young how he murdered his girlfriend in Ohio with a crossbow and then traveled west where he subsequently planned to rob the Soda Springs' bank. Dunlap described the bank robbery and Tonya Crane's murder to the editor.
In Idaho on December 30, 1991, Dunlap pled guilty to first-degree murder for shooting Tonya Crane during the course of a robbery. "In the agreement, the State dropped the robbery and use of a firearm in the commission of a robbery charges, and Dunlap pled guilty to first degree murder and use of a firearm in the commission of a murder." State v. Dunlap, 125 Idaho 530, 531, 873 P.2d 784, 785 (1993) (Dunlap I ). The plea agreement allowed the State to seek the death penalty. Id.
During the plea colloquy the court questioned Dunlap and his attorneys about Dunlap's mental history and whether it would have any impact on his ability to plead guilty. [The district court then reviewed medical records Dunlap provided related to his mental health.] ... The district court judge continued with the hearing, but informed the parties he would make his decision about accepting the plea after he had a chance to review the documents. After reviewing the records, the court accepted Dunlap's plea.
After the aggravation-mitigation hearing the district court imposed the death penalty. Dunlap appealed his conviction and sentence, but this Court affirmed both. Id.
On May 12, 1994, Dunlap filed a petition for post-conviction relief. The district court dismissed the petition because it was not filed within forty-two days of entry of judgment. This Court reversed the district court's decision and remanded Dunlap's case for further proceedings. Dunlap v. State, 131 Idaho 576, 961 P.2d 1179 (1998) (Dunlap II ).
Prior to the commencement of the evidentiary hearing, the State conceded that error occurred during Dunlap's sentencing proceeding and he would have to be resentenced. On January 11, 2002, based on the State's concession, the district court ordered a new sentencing hearing be held, but denied Dunlap's guilt-phase post-conviction relief. Dunlap timely appealed from the denial of the post-conviction application.

(alteration in original) (quoting Dunlap v. State, 141 Idaho 50, 55–56, 106 P.3d 376, 381–82 (2004) (Dunlap III )).

In Dunlap III, "this Court upheld the district court's denial of Dunlap's petition for post-conviction relief and the validity of his guilty plea." Dunlap V, 155 Idaho at 358, 313 P.3d at 14. However, we "also recognized that in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court held that death sentences must be imposed by a jury, not a judge, and remanded the case for resentencing by a jury." Id.

The resentencing proceedings began with jury selection on February 6, 2006. Each potential juror completed a twenty-seven page questionnaire prior to voir dire. The district court and counsel then conducted general voir dire before proceeding to individual voir dire. Individual voir dire was limited by the district court to five minutes per side for each juror.

The sentencing hearing was conducted between February 13 and February 22, 2006. The jury found that the State had proven three aggravating factors beyond a reasonable doubt: (1) that by the murder, or the circumstances surrounding its commission, Dunlap exhibited utter disregard for human life (utter disregard aggravator); (2) the murder was committed in the perpetration of, or attempt to perpetrate arson, rape, robbery, burglary, kidnapping, or mayhem and Dunlap had the specific intent to cause the death of a human being (specific intent aggravator); and (3) by prior conduct or conduct in the commission of the murder at hand, Dunlap exhibited a propensity to commit murder that will constitute a continuing threat to society (propensity aggravator). With respect to each individual aggravating circumstance, the jury concluded that all mitigating circumstances, when weighed against the specific individual aggravating circumstance, were not sufficiently compelling to make imposition of the death penalty unjust. On February 22, 2006, in accordance with the verdict, the district court entered a judgment sentencing Dunlap to death.

Following entry of the judgment, the State Appellate Public Defender's Office (SAPD) became Dunlap's counsel of record. On May 27, 2008, Dunlap filed a petition for post-conviction relief challenging his resentencing proceedings (the 2008 Petition). The State moved for summary dismissal of the 2008 Petition, which the district court granted on November 24, 2009. In a consolidated appeal, Dunlap challenged his sentence and the summary dismissal of his 2008 Petition (Consolidated Resentencing Appeal).

While the Consolidated Resentencing Appeal was pending, on April 7, 2011, Dunlap's new attorneys with the Capital Habeas Unit of the Federal Defender Services of Idaho filed an additional petition for post-conviction relief. In this petition, Dunlap presented several substantive claims which he had not advanced in the 2008 Petition. Dunlap further claimed ineffective assistance of appellate counsel due to the failure to present the substantive claims on appeal.

On May 21, 2012, the State moved for summary dismissal of Dunlap's latest petition for post-conviction relief. On January 25, 2013, Dunlap moved for leave to amend his petition. The district court granted Dunlap's motion and Dunlap filed his Amended Petition for Post–Conviction Relief on February 15, 2013 (the 2011 Petition or Successive Petition). The parties submitted supplemental briefing in support of and in opposition to the State's motion for summary dismissal and the district court allowed post-argument briefing on the issues raised in the Successive Petition.

The district court granted the State's motion for summary dismissal and dismissed each of Dunlap's claims for post-conviction relief. The district court concluded that Dunlap's substantive claims were not timely under Idaho Code section 19–2719, as they could have been raised in his 2008 Petition. The district court concluded that Dunlap's claims of ineffective assistance of appellate counsel regarding his 2008 Petition should be dismissed because Dunlap failed to show SAPD's performance was deficient and that Dunlap had failed to show that he was prejudiced by SAPD's performance. The district court entered its final judgment dismissing Dunlap's Successive Petition on June 24, 2013. Dunlap timely appealed.

On August 27, 2013, this Court issued its decision in the Consolidated Resentencing Appeal. Dunlap V, 155 Idaho 345, 313 P.3d 1. We affirmed the judgment sentencing Dunlap to death. Id. at 392, 313 P.3d at 48. We also affirmed in part and vacated in part the district court's summary dismissal of Dunlap's 2008 Petition. Id. We concluded that the district court erred in summarily dismissing Dunlap's claim of ineffective assistance of trial counsel "regarding the investigation and presentation of mitigating evidence" and his claim of constitutional violations related to the State's alleged knowledge and failure to disclose exculpatory evidence related to Dunlap's mental health. Id. at 388–90, 313 P.3d at 44–46. This Court remanded for an evidentiary hearing on those two issues. Id. at 392, 313 P.3d at 48.


Dunlap's Successive Petition sought to have the district court consider substantive claims for post-conviction relief and for each substantive claim, a corresponding claim of ineffective assistance of appellate counsel. This opinion comprises two parts. First, we address the timeliness of the substantive claims for post-conviction relief. Because we conclude Dunlap's substantive claims were not pursued in a timely manner, we will address the merits of these claims in the...

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