Vickrey v. State, Docket No. 36768 (Idaho App. 6/7/2010)
| Decision Date | 07 June 2010 |
| Docket Number | Docket No. 36768. |
| Parties | MARK VICKREY, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Thomas F. Neville, District Judge.
Order dismissing petition for post-conviction relief, affirmed.
Mark Vickrey, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy Attorney General, Boise, for respondent.
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Mark Vickrey appeals after the district court summarily dismissed his petition for post-conviction relief as untimely and denied Vickrey's motion for reconsideration. Vickrey argues that the district court erred by dismissing his petition without notice and by not considering Vickrey's petition on the merits, either because the statute of limitations was tolled or because the court could have considered the petition to be for a writ of habeas corpus. Vickrey also argues that the district court erred in denying his motion for reconsideration without first holding a hearing.
In January 2005 or 2006,1 Vickrey was convicted of sexual battery of a minor. He did not appeal his judgment of conviction. Vickrey filed a post-conviction petition on February 4, 2009, alleging various grounds for relief. The State moved to dismiss Vickrey's petition as untimely pursuant to Idaho Code § 19-4902, which requires that a post-conviction petition be filed within one year from the later of the expiration of the time for appeal from the judgment of conviction, the determination of an appeal, or the determination of a proceeding following an appeal. The district court held that Vickrey's petition was barred by the statute of limitations and dismissed it. Vickrey filed a motion to reconsider, which the district court denied.
Vickrey appeals from the dismissal order and the denial of his motion for reconsideration. Vickrey argues that the district court should have filed a notice of its intent to dismiss his petition before actually dismissing it. He also asserts that the statute of limitations for his petition was tolled or, alternatively, that the court could have considered the petition as one seeking a writ of habeas corpus, to which the statute of limitations in I.C. § 19-4902 did not apply. Vickrey argues that this Court should "reinstate" his right to appeal his judgment of conviction and asserts that he was denied effective assistance of counsel in his criminal case. Concerning his motion for reconsideration, Vickrey contends that the district court should have held a hearing before denying it.
A petition for post-conviction relief initiates a civil proceeding. Wilson v. State, 133 Idaho 874, 877, 993 P.2d 1205, 1208 (Ct. App. 2000); Hassett v. State, 127 Idaho 313, 315, 900 P.2d 221, 223 (Ct. App. 1995). Summary dismissal by the district court is the procedural equivalent of summary judgment under Idaho Rule of Civil Procedure 56. Hassett, 127 Idaho at 315, 900 P.2d at 223. We will uphold a summary dismissal on appeal if the alleged facts, if true, would nevertheless not entitle petitioner to relief as a matter of law. Matthews v. State, 122 Idaho 801, 807, 839 P.2d 1215, 1221 (1992); Wilson, 133 Idaho at 877, 993 P.2d at 1208. Legal conclusions are reviewed de novo. Owen v. State, 130 Idaho 715, 716, 947 P.2d 388, 389 (1997); Wilson, 133 Idaho at 878, 993 P.2d at 1209.
The State filed a motion to dismiss Vickrey's post-conviction action on March 2, 2009, arguing that Vickrey's action was time-barred. Three months later, over a month after appointing counsel for Vickrey, the district court granted the State's motion and dismissed Vickrey's post-conviction action. Vickrey now argues that the court erred in dismissing his petition without first issuing a notice of intent to dismiss.
Presumably, Vickrey bases his argument on I.C. § 19-4906(b), which requires that the district court give a petitioner twenty days' notice before sua sponte dismissing a post-conviction petition. Buss v. State, 147 Idaho 514, 517, 211 P.3d 123, 126 (Ct. App. 2009). However, if the State files and serves a properly supported motion to summarily dismiss pursuant to I.C. § 19-4906(c), further notice from the court is ordinarily unnecessary because the motion itself serves as notice. Saykhamchone v. State, 127 Idaho 319, 321-22, 900 P.2d 795, 797-98 (1995); Buss, 147 Idaho at 517, 211 P.3d at 126. Because the district court here summarily dismissed by granting the State's motion, no further notice was required and Vickrey's argument fails.
Vickrey first contends that the district court should have addressed his petition on the merits because the statute of limitations was tolled. Vickrey argues it was tolled by actual innocence, by prosecutorial misconduct amounting to a violation of the State's duty of disclosure under Brady v. Maryland, 373 U.S. 83 (1963), by a "state created barrier" in the form of insufficient access to legal resources, and by the district court not instructing Vickrey on tolling standards and not ensuring that Vickrey's attorney briefed a tolling argument to the district court.2 Both Vickrey's actual innocence claim and his prosecutorial misconduct claim arise out of the same facts. Vickrey argues that the prosecution had DNA evidence that was mentioned to the grand jury but was never tested and that could have proven Vickrey's innocence.
The Idaho Supreme Court has recognized that rigid application of the statute of limitations "would preclude courts from considering `claims which simply are not known to the defendant within the time limit, yet raise important due process issues.'" Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009). Thus, in instances of a Brady violation, the limitations period may be tolled until discovery of the Brady violation. Rhoades, 148 Idaho at 251, 220 P.3d at 1070. In addition, equitable tolling in a post-conviction action has been recognized by Idaho appellate courts where the petitioner was incarcerated in an out-of-state facility without legal representation or access to Idaho legal materials and where mental disease and/or psychotropic medication prevented the petitioner from timely pursuing challenges to the conviction. Leer v. State, 148 Idaho 112, 115, 218 P.3d 1173, 1176 (Ct. App. 2009).
In reviewing claims of equitable tolling, this Court must first consider whether the asserted claims "raise important due process issues" sufficient to trigger equitable tolling. Rhoades, 148 Idaho at 250, 220 P.3d at 1069. Next, the Court must determine whether any claims that would be entitled to equitable tolling have been adequately supported by the facts and claims in the pleadings. Id. at 251, 220 P.3d at 1070. In other words, the petitioner must establish a prima facie case of the claims entitled to equitable tolling. Id. at 253, 220 P.3d at 1072.
To establish a prima facie case for the "actual innocence" claim, Vickrey "must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 253, 220 P.3d at 1072 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Vickrey has not met this burden. First, he does not suggest the DNA evidence is newly discovered evidence; he admits that the prosecution had disclosed its existence at the grand jury proceeding and was therefore available to his defense attorney. He thus has shown no reason why this claim could not have been presented within the one-year limitations period. Further, Vickrey's argument that the State should have tested the DNA evidence before entering into a plea agreement with Vickrey does not show that this evidence would prove his innocence as required by the Rhoades and Schlup standard. As Vickrey has not presented this Court with a prima facie showing of actual innocence, this claim cannot be the basis for equitable tolling.
There is likewise no merit in Vickrey's contention that the limitations period should be tolled because the prosecution committed misconduct amounting to a Brady violation by failing to give Vickrey DNA evidence in its possession. Due process requires that material exculpatory evidence known to the State or in its possession be disclosed to the defendant. Brady, 373 U.S. at 87; Dunlap v. State, 141 Idaho 50, 64, 106 P.3d 376, 390 (2004). A Brady violation is found if (1) there was undisclosed evidence favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Dunlap, 141 Idaho at 64, 106 P.3d at 390. If there was no undisclosed evidence, there can be no Brady violation. Here, Vickrey does not contend that he was unaware of the DNA evidence. Rather, his complaint seems to be that it was not tested. Brady only requires that the State disclose the existence of potentially exculpatory evidence, not that it test the evidence on behalf of the defendant. Therefore, no Brady violation is shown and there has been no showing why this claim, even if meritorious, could not have been brought within the limitations period.
Vickrey also contends that the statute of limitations should be tolled because the State created a barrier to his action by not providing sufficient access to legal resources. Prisoners have a constitutional right of access to the courts, guaranteed by the Fourteenth Amendment, for purposes of challenging their convictions, sentences, or the conditions of their confinement. Lewis v. Casey, 518 U.S. 343, 355 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977); Drennon v. Hales, ...
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