Johnson v. State

• Decision Date: 27 April 2015
• Docket Number: No. 41414.,41414.
• Citation: 353 P.3d 1086,158 Idaho 852
• Court: Idaho Court of Appeals
• Parties: Robert Terry JOHNSON, Petitioner–Appellant, v. STATE of Idaho, Respondent.

158 Idaho 852

353 P.3d 1086

Robert Terry JOHNSON, Petitioner–Appellant,

v.STATE of Idaho, Respondent.

No. 41414.

Court of Appeals of Idaho.

April 27, 2015.

Rehearing Denied Aug. 14, 2015.

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.

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, 131 Idaho 135, 953 P.2d 219 (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 July 10, 1997) (unpublished).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 Brady² 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, 2011 WL 11056697 (Ct.App. Aug. 8, 2011) (unpublished).

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 proffered a sufficient reason for filing the claims in the second successive petition; in addition, the notice of intent to dismiss explained that res judicata and the law-of-the-case doctrine applied to bar the second successive petition.

Johnson replied to the notice of intent to dismiss, and the district court appointed counsel to address the timeliness of the claims in the second successive petition and to address why the second successive petition was not barred by res judicata or the law-of-the-case doctrine. Counsel filed a second reply to the notice of intent to dismiss, including affidavits. The district court then issued a memorandum decision summarily dismissing the second successive petition. In that decision, the court addressed information put forward by Johnson, but it ultimately decided that res judicata and the law-of-the-case doctrine barred the second successive petition. Although Johnson filed a motion for reconsideration, the court denied the motion, and Johnson appeals.

II.STANDARD OF REVIEW

Even though a petitioner must generally raise all claims for post-conviction relief in his original petition, he may assert a claim in a successive petition if there is "sufficient reason" that the claim "was not asserted or was inadequately raised in the original [petition]." Idaho Code § 19–4908. A court considering whether there is sufficient reason for filing the claim in a successive petition must consider whether the claim was asserted within a reasonable time. Charboneau v. State, 144 Idaho 900, 905, 174 P.3d 870, 875 (2007) ("The trial court's analysis of ‘sufficient reason’ permitting the filing of a successive petition must necessarily include an analysis of whether the claims being made were asserted within a reasonable period of time.").

Idaho Code section 19–4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to a motion by a party or upon the court's own initiative, if 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 law. On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010) ; Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct.App.2008). Over questions of law, we exercise free review.

Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009) ; Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct.App.2001).

The interpretation of a statute is an issue of law over which we exercise free review. Aguilar v. Coonrod, 151 Idaho 642, 649–50, 262 P.3d 671, 678–79 (2011). Such interpretation must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. Verska v. Saint Alphonsus Reg'l Med. Ctr., 151 Idaho 889, 893, 265 P.3d 502, 506 (2011).

III.ANALYSIS

On appeal, Johnson argues that the district court erred by summarily dismissing his second successive petition because he provided sufficient reason to file the claims. Specifically, he avers that affirmative misrepresentations by counsel that handled Johnson's first successive petition and his efforts to remedy counsel's deficiencies provide sufficient reason, distinguishing his case from Murphy v. State, 156 Idaho 389, 327 P.3d 365 (2014).⁵ Johnson also contends that the court erred by summarily dismissing his second successive petition because he established an issue of material fact as to whether the claims in his second successive petition were filed within reasonable time.

The district court, although noting that Johnson did not provide a sufficient reason for filing the claims in the second successive petition, determined that Johnson's second successive petition was barred by the doctrine of res judicata and the law-of-the-case doctrine.⁶ The doctrine of res judicata applies to post-conviction proceedings. See, e.g., Knutsen v. State, 144 Idaho 433, 440, 163 P.3d 222, 229 (Ct.App.2007) (applying res judicata to a post-conviction claim). The doctrine of res judicata contains both claim preclusion (true res judicata) and issue preclusion (collateral estoppel). Hindmarsh v. Mock, 138 Idaho 92, 94, 57 P.3d 803, 805 (2002). Claim preclusion bars a subsequent action between the same parties upon the same claim that was already adjudicated in a valid final judgment on the merits. Id. Therefore, to apply claim preclusion, three elements must exist: "(1) same parties; (2) same claim; and (3) final judgment." Ticor Title Co. v. Stanion, 144 Idaho 119, 124, 157 P.3d 613, 618 (2007).

In this case, Johnson's second successive petition involves the same parties as the first successive petition. The second successive petition also asserts the same claims that were presented in the first successive petition, along with additional reasons as to why there was sufficient reason to file the claims in the second successive petition. Finally, Johnson's first successive petition was dismissed because that petition did not raise a genuine issue of material fact and the State was entitled to judgment as a matter of law because the claims had not been asserted within a reasonable time (as affirmed on appeal). Hence, the claims in Johnson's first successive petition were adjudicated and dismissed in a final judgment on the merits. See Makin v. Liddle, 108 Idaho 67, 68, 696 P.2d 918, 919 (Ct.App.1985) (per curiam) (applying claim preclusion based on a prior action that ended in a summary judgment); see also Idaho Rule of Civil Procedure 41(b) ("Unless the court in its order for dismissal otherwise specifies ... any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, or for failure to join a party under Rule 19, operates as an adjudication upon the merits."); 18A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 4435 (2d ed.2002) (discussing a final judgment "on the merits" and commenting that "it is clear that an entire claim may be precluded by a judgment that does not rest on any examination whatever of the substantive rights asserted") and § 4444 ("Both claim preclusion and issue preclusion result from summary judgments that rest on the lack of any genuine issue of material fact going to the merits of claim or defense.").

Here, all three elements of claim preclusion exist and apply to the second successive petition. Despite the fact that Johnson may have new reasons to assert in support of the claims he raised in his first successive petition, claim preclusion bars him from asserting different theories in support of the claims already adjudicated. See Andrus v. Nicholson, 145 Idaho 774, 777, 186 P.3d 630, 633 (2008) ("[C]laim preclusion under the doctrine of res judicata is not limited to theories that were actually litigated in the prior...