IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 28528/29653/29680
JAMES H. HAIRSTON, )
)
Petitioner-Appellant, )
)
v. )
)
STATE OF IDAHO, ) 2007 Opinion No. 52
)
Respondent. ) Boise, January 2007 Term
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STATE OF IDAHO, ) Filed: March 28, 2007
)
Plaintiff-Respondent, ) Stephen W. Kenyon, Clerk
)
v. )
)
JAMES H. HAIRSTON, )
)
Defendant-Appellant. )
Appeal from the District Court of the Sixth Judicial District of the State of Idaho, Bannock
County. Hon. Peter D. McDermott, District Judge.
The Motion to Dismiss Petitioner’s consecutive petitions for post-conviction relief is: granted.
Federal Defenders of Eastern Washington and Idaho, Moscow; and Leo N. Griffard Jr., Boise,
for appellant. Bruce Livingston argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. L. LaMont Anderson,
Deputy Attorney General, argued.
______________________________________
TROUT, Justice
James Hairston appealed from the dismissal of his consolidated successive petitions for
post-conviction relief, petition for writ of habeas corpus, and motion to correct illegal sentence,
to vacate sentence of death and for new sentencing trial. The State then moved to dismiss the
appeal on procedural grounds.
I.
FACTUAL AND PROCEDURAL BACKGROUND
James Hairston was convicted by a jury of two counts of first degree murder and robbery
in connection with the deaths of William and Dalma Fuhriman. The district court found four
statutory aggravating factors and imposed a death sentence for each of the two murders and life
in prison for the robbery. Hairston appealed his convictions and sentences and the denial of his
petition for post-conviction relief. This Court affirmed the district court on August 24, 1999.
State v. Hairston, 133 Idaho 496, 500-501, 988 P.2d 1170, 1174-75 (1999). In June of 2000, a
federal public defender was appointed and Hairston filed a federal habeas petition, which is still
pending in federal court.
This case addresses the consolidated appeal by Hairston of the dismissal by the district
court of two separate, additional post-conviction petitions. On May 18, 2001, Hairston filed a
second petition for post-conviction relief prompting a stay of his federal habeas petition.
Hairston raised 21 claims of ineffective assistance of counsel on appeal. He also raised a denial
of resources claim based on the trial judge’s denial of a mitigation expert, whom Hairston sought
to hire for the purpose of showing significant brain damage. The State filed a motion to dismiss
pursuant to Idaho Code section 19-2719, which was granted, and Hairston appealed.
On August 2, 2002, Hairston filed a third petition for post-conviction relief and/or writ of
habeas corpus as well as a motion to correct illegal sentence, to vacate sentences of death, and to
request a new sentencing hearing. Hairston claimed that his death sentence was unconstitutional
under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002), which held that juries, rather than a
judge, must find aggravating factors in capital cases. The State moved to dismiss Hairston’s
petition and Rule 35 motion under I.C. § 19-2719, and the court granted the State’s motion.
Hairston then appealed those decisions, and all cases were consolidated.
Additionally, with regard to both his second and third petitions, Hairston moved to
disqualify the district judge. Hairston based his motions on a letter from the district judge to the
victims’ family members which was sent after this Court’s opinion in the first appeal. The letter
is dated August 26, 1999, and reads, in part: “As you are aware the Supreme Court of Idaho has
affirmed Mr. Hairston’s conviction and sentence. Now that he has had his appeal, if I had my
way, he would be executed tomorrow; however, now the federal court is involved it will
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probably be 10-15 years before a resolution, which is an abominable system.” In light of the
letter, Hairston asserted, the judge should disqualify himself or should be disqualified because he
could not sit fairly on Hairston’s case. The district judge denied the motions to disqualify before
dismissing Hairston’s second and third petitions.
The State now moves to dismiss Hairston’s consolidated appeals. The State claims the
Court is without jurisdiction to hear the appeals under I.C. § 19-2719, which governs post-
conviction relief proceedings in capital cases. The statute provides a defendant one opportunity
to raise all challenges to the conviction and sentence in a post-conviction relief petition, which
must be filed within 42 days after entry of judgment. An exception is provided under I.C. § 19-
2719(5), which permits a successive petition if a defendant can demonstrate that claims were not
known and could not reasonably have been known within 42 days of the entry of the judgment of
conviction. The claims raised in Hairston’s second and third petition, asserts the State, were
known or reasonably should have been known at the time of the filing of the first petition, and
any claims that were later discovered were not filed within a reasonable time thereafter. The
State argues Hairston’s claims do not meet the requirements under I.C. § 19-2719 and that this
Court is consequently without jurisdiction. The Court set the State’s motion to dismiss for oral
argument, and that matter is presently before the Court.
II.
STANDARD OF REVIEW
“When this Court is presented with a motion to dismiss by the State based upon the
provisions of Idaho Code § 19-2719, the proper standard of review this Court should utilize is to
directly address the motion, determine whether or not the requirements of section 19-2719 have
been met, and rule accordingly.” Creech v. State, 137 Idaho 573, 575, 51 P.3d 387, 389 (2002).
Idaho Code § 19-2719 contains the expedited procedure for post-conviction relief. The
statute provides a capital defendant with one opportunity to raise all challenges to the conviction
and sentence in a petition for post-conviction relief, to be requested within 42 days after the
judgment is filed. I.C. § 19-2719(2); State v. Rhoades, 120 Idaho 795, 806, 820 P.2d 665, 676
(1991). The statute, however, makes an exception for those unusual cases where it can be
demonstrated that the issues were not known and reasonably could not have been known within
the time frame allowed by the statute. See I.C. § 19-2719(5); Fields v. State, 135 Idaho 286, 17
P.3d 230 (2000); Rhoades, 120 Idaho at 806, 820 P.2d at 676. The statute requires:
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(5) If the defendant fails to apply for relief as provided in this section and within the time
limits specified, he shall be deemed to have waived such claims for relief as were known,
or reasonably should have been known. The courts of Idaho shall have no power to
consider any such claims for relief as have been so waived or grant any such relief.
(a) An allegation that a successive post-conviction petition may be heard because of
the applicability of the exception herein for issues that were not known or could not
reasonably have been known shall not be considered unless the applicant shows the
existence of such issues by (i) a precise statement of the issue or issues asserted
together with (ii) material facts stated under oath or affirmation by credible persons
with first hand knowledge that would support the issue or issues asserted. A pleading
that fails to make a showing of excepted issues supported by material facts, or which is
not credible, must be summarily dismissed.
(b) A successive post-conviction pleading asserting the exception shall be deemed
facially insufficient to the extent it alleges matters that are cumulative or impeaching
or would not, even if the allegations were true, cast doubt on the reliability of the
conviction or sentence.
(c) A successive post-conviction pleading asserting the exception shall be deemed
facially insufficient to the extent it seeks retroactive application of new rules of law.
I.C. § 19-2719(5). A claim that reasonably should be known immediately upon the completion
of the trial and can be raised in a post-conviction petition, but is not raised in the first post-
conviction petition, is deemed waived. See Fields, 135 Idaho at 290, 17 P.3d at 234; Rhoades,
120 Idaho at 797, 820 P.2d at 667. Even where post-conviction claims could not have been
known within the 42-day statutory period, I.C. § 19-2719 still requires a defendant to bring the
claims within a reasonable time after the claims were known or should have been known.
Pizzuto v. State, 134 Idaho 793, 799, 10 P.3d 742, 748 (2000). A petitioner bringing a successive
petition for post-conviction relief has a heightened burden and must make a prima facie showing
that issues raised in that petition fit within the narrow exception provided by the statute. Creech,
137 Idaho at 575, 51 P.3d at 389; Pizzuto v. State, 127 Idaho 469, 471, 903 P.2d 58, 60 (1995).
Any successive petition for post-conviction relief not within the exception of subsection (5) of
the statute shall be dismissed summarily. See I.C. § 19-2719(11).
III.
DISCUSSION
A. Constitutionality of I.C. § 19-2719
Hairston argues that I.C. § 19-2719 is unconstitutional and therefore cannot limit his
ability to bring his claims in a post-conviction petition and have them heard in the underlying
consolidated appeals.
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First, Hairston contends the statute’s 42-day limit for filing a petition in a capital case is
too short to comport with fundamental fairness, denying Hairston the equal protection and due
process of law under the United States Constitution and Idaho Constitution. We have previously
considered and rejected arguments that the disparate treatment of capital defendants under I.C.
§ 19-2719 violates their equal protection and due process rights. In State v. Beam, 115 Idaho
208, 766 P.2d 678 (1989), this Court held that the 42-day time limit imposed on capital
defendants survived rational basis review and did not violate a defendant’s constitutional right to
equal protection. Id. at 213, 766 P.2d at 683. In Rhoades, the Court approved Beam’s equal
protection analysis and addressed a due process challenge to the statute’s 42-day time limit.
Rhoades, 120 Idaho at 806, 820 P.2d at 676. “The legislature has seen fit,” the Court explained,
“to appropriately limit the time frame within which to bring challenges which are known or
which reasonably should be known.” Id. at 807, 820 P.2d at 676. Evaluating the statute’s
procedural safeguards under the balancing test in Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct.
652 (1950), the Court concluded that “I.C. § 19-2719 is not unconstitutional under due process
analysis.” Id. This Court finds no reason to reverse our previous holdings affirming the
constitutionality of I.C. § 19-2719.
Hairston also argues that I.C. § 19-2719 is unconstitutionally vague in identifying the
standard for waiver of claims. A statute that is vague, indefinite, or uncertain violates the due
process clause of the United States Constitution and Idaho Constitution. Olsen v. J.A. Freeman
Co., 117 Idaho 706, 715, 791 P.2d 1285, 1294 (1990). A civil statute is not unconstitutionally
vague if persons of reasonable intelligence can derive core meaning from it. Id. Subsection (5)
of I.C. § 19-2719 states that claims a defendant “should reasonably have known,” are waived,
whereas subsection (5)(a) states that claims a defendant “could” have known are waived. I.C.
§ 19-2719 (5), (5)(a). Hairston argues these standards are internally inconsistent and the statute
is therefore, unconstitutionally vague. We disagree. The statute requires an objective
examination of whether a defendant should have known of a claim at the time of the filing of the
first petition. Under the statute, claims that were “known, or reasonably should have been
known,” are waived, while claims that “were not known or could not have reasonably been
known” may be considered so long as other procedural requirements are met. I.C. § 19-2719(5),
(5)(a). The statute does not offer two standards. Rather, it identifies two possibilities under a
single clear standard: either a defendant reasonably should have known of certain claims and so
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has waived them, or he reasonably could not have known of certain claims and so may file a
successive petition. We reject Hairston’s arguments that I.C. § 19-2719 is unconstitutionally
vague.
Finally, Hairston asks this Court to overrule Paz v. State, 123 Idaho 758, 852 P.2d 1355
(1993). In Paz, this Court held that I.C. § 19-2719 does not foreclose claims that could not have
been known within the statute’s 42-day limit and “implicitly establishes a framework for
timeliness.” Id. at 760, 852 P.2d at 1357. Under that framework, “[c]laims that were not known
or could not have reasonably been known within 42 days of judgment must be asserted within a
reasonable time after they are known or reasonably could have been known.” Id. Paz, Hairston
claims, improperly grafted onto I.C. § 19-2719 a requirement that successive petitions be filed
within a “reasonable time.” This Court has repeatedly endorsed the “reasonable time”
framework enunciated by Paz. See, e.g., Porter v. State, 136 Idaho 257, 260, 32 P.3d 151, 154
(2001); Fields, 135 Idaho at 290, 17 P.3d at 234 (2000); Rhoades v. State, 135 Idaho 299, 301,
17 P.3d 243, 245; Dunlap v. State, 131 Idaho at 576, 576, 961 P.2d 1179, 1180 (1998). We see
no reason to revisit that analysis.
B. Claims regarding ineffective assistance of appellate counsel
Hairston’s appeal to this Court raises 21 claims of ineffective assistance of appellate
counsel. The State argues this Court has no jurisdiction to consider these claims because they
are untimely under I.C. § 19-2719(5).
Ineffective assistance of appellate counsel claims, by their very nature, cannot be raised
in an initial post-conviction proceeding. While such claims are not foreclosed under I.C. § 19-
2719, the statute “implicitly establishes a framework for timeliness….” Paz, 123 Idaho at 760,
852 P.2d at 1357. As noted above, ineffective assistance of appellate counsel claims “must be
asserted within a reasonable time after they are known or reasonably could have been known.”
Id. In McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999), this Court further explained:
“When this Court has concluded that an issue could not have been known within 42 days, it has
required the petitioner to assert the issue soon after the issue is known.” Id. at 710, 992 P.2d at
150 (emphasis in original).
This Court has measured forward from the date a defendant’s appellate brief was filed to
determine whether claims raised in successive petitions were raised within a “reasonable time.”
See Paz, 123 Idaho at 760, 852 P.2d at 1357. In Paz, the Court held that issues raised or not
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raised by appellate counsel were known at the time of the filing of the appellate brief and that
claims asserted four years thereafter were not filed within a reasonable time. 123 Idaho at 760,
852 P.2d at 1357. In Fields, this Court held that “a two-and-one-half-year span from the date of
the first appellate brief to the assertion of claims is an unreasonable length of time for the pursuit
of post-conviction relief,” and dismissed the petition accordingly. 135 Idaho at 290, 17 P.3d at
234. “[F]ollowing the principle in the Paz and Fields decisions that issues raised or not raised by
appellate counsel were known at the time of the filing of the first appellate brief,” the Court held
in Porter that “the three-year span from the date of Porter’s first appellate brief to the assertion
of his current claims is an unreasonable length of time for the pursuit of post-conviction relief.”
136 Idaho at 260, 32 P.3d at 154. While the Court in Porter relied on the date of the appellate
brief to evaluate the timeliness of the defendant’s ineffective assistance of appellate counsel
claims, we noted that the successive petition was filed more than a year after the Federal
Defender was appointed to the case, and more than five months after the defendant’s habeas
petition containing identical claims was filed in federal court. Id.
Hairston raised his ineffective assistance of appellate counsel claims on May 18, 2001,
three years after his appellate briefing of March 1998, nearly a year after the appointment of the
Federal Defender on June 5, 2000, and nearly five months after the filing of his federal habeas
petition on December 15, 2000. Hairston makes no showing that his situation is different from
those in Paz, Fields, and Porter, in which the Court concluded that issues raised or not raised by
appellate counsel were known at the time the appellate brief was filed. Under Fields and Porter,
the three-year gap between Hairston’s March 1998, appellate briefing and his May 18, 2001,
post-conviction petition is an unreasonable length of time. Hairston’s claims regarding
ineffective assistance of appellate counsel are untimely under I.C. § 19-2719 and are dismissed.
C. Claims regarding appointment of a mitigation specialist
The State moved to dismiss Hairston’s appeal which claimed a denial of resources based
on the trial court’s refusal to provide Hairston with a mitigation specialist. Hairston appeals the
trial court’s denial of a mitigation specialist based on evidence discovered by Dr. Ricardo
Weinstein, himself a mitigation specialist retained by the Capital Habeas Unit of the Federal
Defenders. According to Hairston, Dr. Weinstein has discovered “evidence that petitioner
suffers from significant, physiological brain damage to the right frontal lobe of his brain, and
presents physiological characteristics consistent with fetal alcohol syndrome.”
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Pursuant to I.C. § 19-2719(5), this Court is deprived of jurisdiction of any claims that
were known or could reasonably have been known within 42 days of the judgment imposing the
death sentence. Furthermore, “[a]ny claims actually asserted on direct appeal are barred by
operation of res judicata, and any claims raised in a prior application for post-conviction relief
are barred by operation of Idaho Code § 19-2719(5).” Row v. State, 135 Idaho 573, 576, 21 P.3d
895, 898 (2001).
In his direct appeal and initial post-conviction petition, Hairston claimed denial of
resources based on the judge’s denial of a mitigation specialist. This Court addressed the issue:
Hairston relies upon Smith v. McCormick, 914 F.2d 1153 (9th Cir.1990), for the
proposition that the appointment of a mitigation specialist is constitutionally required.
This reliance is misplaced. ... At counsel’s request, a psychiatrist was appointed to
consult with defense counsel and to explore possible mitigation evidence for use at
Hairston’s sentencing. The district court also appointed an investigator to assist with
Hairston’s defense both before and during the trial and sentencing. We do not believe
that the district court abused its discretion or violated the United States or Idaho
Constitutions by refusing to also appoint a “mitigation specialist.”
Hairston, 133 Idaho at 516, 988 P.2d at 1190. Hairston’s claim is res judicata. The fact that
Hairston now has a mitigation specialist willing to testify to Hairston’s deficiencies does not
change this Court’s analysis. It is a claim previously raised and was also clearly known within
the statutory time limits set by I.C. § 19-2719. The State has shown that Hairston’s denial of
resources claim does not satisfy the narrow exception allowed under I.C. § 19-2719(5).
D. Claims under Ring
Hairston filed his third petition for post-conviction relief in the wake of the United States
Supreme Court’s decision in Ring that juries, rather than judges, must determine the existence of
aggravating factors in capital cases. See Ring, 536 U.S. at 609, 122 S.Ct. at 2443.
In Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519 (2004), the United States
Supreme Court held that “Ring announced a new procedural rule that does not apply
retroactively to cases already final on direct review.” Id. at 358, 124 S. Ct. at 2526. Relying on
Summerlin, this Court concluded that Ring is not retroactive to cases on collateral review. Porter
v. State, 140 Idaho 780, 782, 102 P.3d 1099 (2004). This Court has dismissed claims under Ring
brought in successive petitions for post-conviction relief, holding that the claims do not fall
within the exceptions of I.C. § 19-2719 and are therefore barred. Hoffman v. State, 142 Idaho
27, 29, 121 P.3d 958, 961 (2005); State v. Leavitt, 141 Idaho 895, 896-97, 120 P.3d 283, 284-85
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(2005). Hairston’s case was completed on direct appeal prior to the issuance of Ring, and Ring
therefore has no applicability to this case. Hairston’s third petition for post-conviction relief is
also dismissed.
E. Rule 35 motion
Hairston filed his third petition for post-conviction relief and/or writ of habeas corpus and
motion to correct illegal sentences, to vacate sentences of death and for new sentencing trial
pursuant, in part, to Idaho Criminal Rule 35. Rule 35 provides that “[t]he court may correct an
illegal sentence at any time and may correct a sentence that has been imposed in an illegal
manner within the time provided herein for the reduction of sentence.” I.C.R. 35. However, I.C.
§ 19-2719 requires that “[a]ny remedy available by post-conviction procedure, habeas corpus or
any other provision of state law must be pursued according to the procedures set forth in this
section and within the time limitations of subsection (3) of this section.” I.C. § 19-2719(4). In
State v. Beam, 121 Idaho 862, 828 P.2d 891 (1992), this Court held that the 42-day time
limitation in I.C. § 19-2719(3), not Rule 35, applies to claims of illegality of a death sentence.
Id. at 863, 862 P.2d at 892. The Court reached the same conclusion in McKinney, stating that
“I.C.R. 35 applies to criminal sentences in general, but is superseded in death sentences by I.C. §
19-2719.” 133 Idaho at 705, 992 P.2d at 154. See also Leavitt, 141 Idaho at 898, 120 P.3d at
286. The Court’s jurisdiction in this case is governed by I.C. § 19-2719, not Rule 35. Hairston
may not avoid the jurisdictional limitations of I.C. § 19-2719 by filing a Rule 35 motion.
F. Motions to disqualify the district judge
The final issue we must address is Hairston’s argument that the district judge erred in
refusing to disqualify himself from considering the second and third petitions for post-conviction
relief. Hairston’s argument is not that the district judge was biased at the time of trial and initial
appeal. Rather, he argues that the judge’s letter to the victims’ family members demonstrates
bias against Hairston and in favor of his immediate execution existing at the time Hairston
brought his second and third petitions for post-conviction relief in 2001 and 2002.
The only question before the Court is whether, as an initial matter, Hairston satisfies the
jurisdictional requirements under I.C. § 19-2719. This is a question of law. Discussion of the
merits of Hairston’s motion for disqualification is unnecessary to the resolution of the motion
before the Court. See Pizzuto v. State, 127 Idaho 469, 471, 470-71 n.1, 903 P.2d 58, 60 n. 1
(1995). Hairston’s right to an unbiased judge is premised on his right to an unbiased hearing of
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his consecutive petitions for post-conviction relief, and his right to an unbiased hearing on those
petitions is limited by the jurisdictional requirements of I.C. § 19-2719. Because we conclude
Hairston has failed to meet the jurisdictional requirements of I.C. § 19-2719, it follows that
Hairston was not entitled to a hearing on his petitions in the court in which he brought them, and
any alleged prejudice in those proceedings is irrelevant. This Court, therefore, will not address
Hairston’s claim that the district court erred in denying the motions to disqualify.
IV.
CONCLUSION
In these consolidated cases on appeal, Hairston has failed to raise his claims in a timely
manner and there is no basis for proceeding with this appeal. Because these claims fall outside
the narrow exceptions provided in I.C. § 19-2719(5), the trial court’s orders are not appealable,
and we grant the State’s motion to dismiss. Accordingly, we dismiss Hairston’s consolidated
appeals.
Chief Justice SCHROEDER and Justices EISMANN, BURDICK and JONES
CONCUR.
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