IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket Nos. 37370/37371
WALLY KAY SCHULTZ, )
) 2011 Opinion No. 27
Petitioner-Appellant, )
) Filed: May 9, 2011
v. )
) Stephen W. Kenyon, Clerk
STATE OF IDAHO, )
)
Respondent. )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho,
Minidoka County. Hon. Michael R. Crabtree, District Judge.
Orders summarily dismissing petitions for post-conviction relief, affirmed.
Molly J. Huskey, State Appellate Public Defender; Erik R. Lehtinen, Deputy
Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________
LANSING, Judge
Wally Kay Schultz appeals from the district court’s orders summarily dismissing his
petitions for post-conviction relief. Because we determine the statute of limitation had run on all
Schultz’s properly pled claims, we affirm.
I.
BACKGROUND
In separate cases, Schultz was found guilty of felony domestic violence in August of
2005, and pleaded guilty to possession of methamphetamine in December of 2005. The
proceedings were apparently consolidated for sentencing. The district court entered judgments
of conviction in December 2005, but retained jurisdiction over Schultz. After Schultz
successfully completed the retained jurisdiction program, the district court placed him on
probation for five years. To that end, the district court issued a “Temporary Order on Rider
Review” on May 22, 2006, that stated Schultz was placed on probation with “the usual terms and
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conditions” and noted that a copy of “the formal paperwork” would be forthcoming. State v.
Schultz, 147 Idaho 675, 676, 214 P.3d 661, 662 (Ct. App. 2009). Three days later, on May 25,
2006, the district court issued another order entitled, “Order Upon 180-Day Review Hearing, I.C.
§ 19-2601(4).” Id. This order also purported to place Schultz on probation and outlined more
specific terms of probation. Id.
Schultz filed notices of appeal from his judgments of conviction on July 6, 2006, forty-
five days after the May 22 order and forty-two days after the May 25 order. The State filed a
respondent’s brief on November 24, 2008, arguing that Schultz’s appeal should be dismissed as
untimely because the forty-two-day deadline for filing should have started to run from the
May 22 order. This Court ultimately agreed with the State and dismissed Schultz’s appeals on
May 29, 2009. Id. A remitittur was issued on August 27, 2009.
After the State filed its respondent’s brief, but before this Court announced its decision,
Schultz filed petitions for post-conviction relief from his underlying convictions. Schultz filed
the petition pertinent to his possession conviction on January 13, 2009, and the petition pertinent
to his domestic violence conviction on March 24, 2009. The petition addressing the possession
conviction alleged ineffective assistance of trial counsel for failure to conduct a proper
investigation, failure to file a motion to suppress evidence, and failure to request that Schultz’s
sentences run concurrently. The petition attacking the domestic violence conviction alleged
ineffective assistance of trial counsel for failure to “object to [the] prosecutor’s comments,”
failure to call certain witnesses, and failure to investigate the victim’s “character and morals.”
Schultz also claimed prosecutorial misconduct, apparently based on various comments made by
the prosecutor during closing argument.
Although both petitions claimed ineffective assistance of trial counsel, neither mentioned
the failure of counsel to file a timely appeal. After the State had filed its answer to Schultz’s
petition regarding the possession case, Schultz filed a document entitled “Ammendment [sic] to
Post Conviction” on February 20, 2009. In that document, Schultz attempted to add a claim of
ineffective assistance of counsel for failure to timely file an appeal from Schultz’s convictions.
Similarly, after the State moved for dismissal of the other post-conviction action, Schultz filed a
“Supplemental Brief in Support of Post Conviction Relief,” arguing ineffective assistance of
counsel for failure to file a timely appeal. The State did not object to these filings but argued for
dismissal because the post-conviction petitions had been filed outside the one-year statute of
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limitation, Idaho Code § 19-4902(a). The State argued that the limitation period began to run
when the time for direct appeal from Schultz’s underlying convictions had expired, July 3, 2006.
The district court agreed and dismissed Schultz’s petitions.
In these consolidated appeals, Schultz argues that confusion caused by the district court’s
issuance of two separate orders placing him on probation, and his counsel’s consequent late
filing of notices of appeal in the criminal cases, tolled the statute of limitation until Schultz could
reasonably discover that the direct appeals were untimely filed. He asserts that he could not
reasonably have discovered that the appeals were untimely filed until this Court dismissed the
direct appeal or, at the earliest, when the State filed its respondent’s brief on appeal arguing that
the appeal was untimely.
II.
ANALYSIS
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 877-78, 993 P.2d at 1208-09.
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 statute of limitation for post-conviction actions, I.C. § 19-4902(a), provides that an
application for post-conviction relief may be filed at any time within one year from the
expiration of the time for appeal in the criminal case or from the determination of appeal or from
the determination of a proceeding following an appeal, whichever is later. See Sayas v. State,
139 Idaho 957, 959, 88 P.3d 776, 778 (Ct. App. 2003). An appeal from a judgment of conviction
may be filed within forty-two days of the entry of judgment. Idaho Appellate Rule 14(a). Thus,
if no appeal is filed from a judgment of conviction, the one-year limitation period for a post-
conviction action commences on the forty-third day after judgment. It runs from that same date
if an applicant filed a direct appeal that is later determined to be untimely and therefore invalid.
Amboh v. State, 149 Idaho 650, 653, 239 P.3d 448, 451 (Ct. App. 2010); Loman v. State, 138
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Idaho 1, 2, 56 P.3d 158, 159 (Ct. App. 2002). An untimely notice of appeal in the criminal case
cannot postpone the commencement of the limitation period because a time-barred notice of
appeal does not confer jurisdiction on the appellate courts and, thus, there is no valid appeal for
an appellate court to “determine” that could extend the post-conviction statute of limitation under
I.C. § 49-4902(a). Loman, 138 Idaho at 2, 56 P.3d at 159. A time-barred petition for post-
conviction relief must be dismissed. Evensiosky v. State, 136 Idaho 189, 190-91, 30 P.3d 967,
968-69 (2001); Sayas, 139 Idaho at 959, 88 P.3d at 778.
The statute of limitation may be equitably tolled, however. Equitable tolling for post-
conviction actions is “borne of the petitioner’s due process right to have a meaningful
opportunity to present his or her claims.” Leer v. State, 148 Idaho 112, 115, 218 P.3d 1173,
1176 (Ct. App. 2009).
Schultz argues that the district court erred in determining that his post-conviction
petitions are barred by the statute of limitation because Schultz received ineffective assistance of
counsel when his counsel failed to file timely direct appeals, and because Schultz did not
discover this untimely filing until, at the earliest, the State’s response on direct appeal. These
circumstances, Schultz argues, tolled the statute of limitation in his cases. He asserts that when
appeals were taken in his two criminal cases, he had no way of knowing that this Court would
ultimately conclude that the notices of appeal were invalid because they were filed three days
late. Schultz maintains that because he had a good faith belief that his appeals were timely,
absent tolling of the statute of limitation he will be deprived of a reasonable opportunity to
present his claims, and therefore will be deprived of due process.
A petitioner’s due process right is not violated by a statute of limitation bar unless he can
show such an inability to file a timely petition that he was denied any meaningful opportunity to
present his post-conviction claims. See Amboh, 149 Idaho at 653, 239 P.3d at 451; Leer, 148
Idaho at 115, 218 P.3d at 1176; Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct.
App. 2008). Tolling is not allowed for a petitioner’s own inaction.
Idaho appellate courts have not permitted equitable tolling where the post-
conviction petitioner’s own lack of diligence caused or contributed to the
untimeliness of the petition. . . . Rather, in cases where equitable tolling was
allowed, the petitioner was alleged to have been unable to timely file a petition
due to extraordinary circumstances beyond his effective control, or the facts
underlying the claim were hidden from the petitioner by unlawful state action.
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Amboh, 149 Idaho at 653, 239 P.3d at 451 (citations omitted).
Equitable tolling has been recognized in Idaho 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. Rhoades v. State, 148 Idaho 247, 251, 220 P.3d 1066, 1070 (2009);
Leer, 148 Idaho at 115, 218 P.3d at 1176. In addition, in some circumstances commencement of
the limitation period may be delayed until the petitioner discovers the facts giving rise to the
claim. In Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007), the Idaho
Supreme Court recognized that at least where the post-conviction claim raises important due
process issues, the limitation period may be postponed until the petitioner has discovered the
factual basis for the claim. As we said in Amboh, 149 Idaho at 653, 239 P.3d at 451, “[I]n cases
where equitable tolling was allowed, the petitioner was alleged to have been unable to timely file
a petition due to extraordinary circumstances beyond his effective control, or the facts underlying
the claim were hidden from the petitioner by unlawful state action.”
The standard for application of equitable tolling in post-conviction actions is a stringent
one, as illustrated in Evensiosky. In that case, the petitioner alleged that he had asked four
different attorneys to file a notice of appeal, and only after the time for appeal had expired did he
discover that no appeal had been filed. After learning this, the petitioner was left with seven
weeks to file a post-conviction petition before the limitation period would expire. He was
housed in an Idaho prison facility for most of that period, but for the final eight days he was
transferred to a correction facility in Louisiana, where he had no access to Idaho courts.
Nevertheless, our Supreme Court held that because the petitioner had discovered the facts giving
rise to his ineffective assistance of counsel claim for failure to file an appeal before the
expiration of the statute of limitation, and had sufficient time thereafter within which to file a
petition (approximately six weeks excluding the Louisiana incarceration), there was no basis to
apply a discovery exception. Evensiosky, 136 Idaho at 191, 30 P.3d at 969. Schultz’s
opportunity to file his post-conviction action was far greater than that of the petitioner in
Evensiosky, who discovered the factual basis for his claim only seven weeks before the filing
deadline and whose opportunity was further foreshortened by a transfer to Louisiana.
Given this authority, we conclude that the statute of limitation on Schultz’s properly pled
post-conviction claims was not tolled. As in Loman and Amboh, because Schultz’s appeal was
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untimely filed, it was invalid and therefore could not extend the statute of limitation period.
Schultz knew of the underlying facts giving rise to his claims of prosecutorial misconduct and
ineffective assistance of trial counsel (for various alleged trial errors) no later than the conclusion
of his criminal trial. Schultz was not prevented from filing post-conviction petitions asserting
these claims at any time after his judgment of conviction. He had one year and forty-two days to
do so. That Schultz chose not to file his post-conviction petitions earlier because he was under
the mistaken belief that the law allowed him more time to file, does not equate, as Schultz
contends, to a deprivation of any reasonable opportunity to do so. Cf. Judd v. State, 148 Idaho
22, 26, 218 P.3d 1, 5 (Ct. App. 2009) (holding that “a discovery exception to a statute of
limitation applies only to the discovery of facts not discovery of the law”). If, as our Supreme
Court held in Evensiosky, a petitioner is not deprived of due process when he has only a six-week
opportunity to file a petition after discovery of the basis of his claims, there was no deprivation
of due process here, where Schultz had a full year and forty-two days within which to file but
chose to wait over three years because he incorrectly believed the law allowed him to wait. This
choice is not “extraordinary circumstances beyond [a petitioner’s] effective control,” as
discussed in Amboh, sufficient to trigger equitable tolling.
We will not address any tolling arguments concerning Schultz’s ineffective assistance of
counsel claim for his attorney’s failure to file a timely appeal because Schultz did not plead this
claim below. A petitioner cannot amend his petition once a responsive pleading has been filed
without permission of the court or written permission of the State. I.R.C.P. 15(a); Cole v. State,
135 Idaho 107, 111, 15 P.3d 820, 824 (2000) (holding that, even where post-conviction
petitioner reserved the option to file an amended petition in his opening petition, simply filing an
amended petition is insufficient to request leave to file an amended petition; “a motion for leave
to file an amended petition was required before it was necessary for the district judge to consider
the amended petition”). The record here shows that Schultz did not obtain permission from
either the court or the State to file an amended petition. Consequently, the only petitions we will
consider on appeal are his initial petitions, which do not raise ineffective assistance of counsel
claims for failure to bring a timely appeal.
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III.
CONCLUSION
Because the statute of limitation began to run on Schultz’s properly pled claims at the
expiration of his time for direct appeal, his petitions were untimely. We therefore affirm the
district court’s orders dismissing Schultz’s untimely post-conviction petitions.
Chief Judge GRATTON and Judge GUTIERREZ CONCUR.
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