IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 36779
JASON CHARLES AMBOH, )
) 2010 Opinion No. 48
Petitioner-Appellant, )
) Filed: July 14, 2010
v. )
) Stephen W. Kenyon, Clerk
STATE OF IDAHO, )
)
Respondent. )
)
Appeal from the District Court of the Sixth Judicial District, State of Idaho,
Power County. Hon. Peter D. McDermott, District Judge.
Order summarily dismissing application for post-conviction relief, affirmed.
Deborah A. Whipple of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for
appellant.
Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
Attorney General, Boise, for respondent.
________________________________________________
LANSING, Chief Judge
In this post-conviction action, Jason Charles Amboh appeals the summary dismissal of
his claim that his defense attorney was deficient for failing to file a timely notice of appeal from
Amboh’s judgment of conviction. We affirm the district court’s determination that this post-
conviction action is barred by the statute of limitation.
I.
BACKGROUND
Amboh pleaded guilty to driving under the influence. The judgment of conviction was
filed on June 21, 2007. On August 12, 2007, Amboh wrote his public defender “in regard to an
appeal.” The attorney replied by letter dated August 14, 2007, saying that the time to appeal had
already expired but that the attorney had filed a late notice of appeal anyway. The letter stated:
I received your letter dated August 12, 2007 today. As you know, you had
42 days to appeal the Court’s sentencing. That time has passed. You indicated
you have attempted to get a hold of me. I have reviewed my phone messages and
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do not see that you called. If you tried to call me collect from jail, I would not
reflect that on my phone messages.
You still have Post Conviction Relief rights. This is contained in the
Idaho Criminal Rule 57. If you have any question about Rule 57, call me or write
me.
I assume you will be disappointed your appeal period has run, but honestly
that appeal had no legs to run on. (I do not believe the appeal would be
successful.) I also do not believe your Rule 57 will have any success, but you can
file it if you want to. As always, I will respond to any of your letter.
I have filed the Appeal anyway.
The notice of appeal was filed on August 15, 2007.
The State Appellate Public Defender’s Office (SAPD) was appointed to represent Amboh
on his direct appeal. The Idaho Supreme Court issued a conditional order dismissing Amboh’s
appeal as untimely because the appeal was not filed within forty-two days after the judgment of
conviction as required by Idaho Appellate Rule 14(a). On September 25, 2007, the Court entered
a final dismissal order, and a remittitur was issued on September 28, 2007. The SAPD, however,
did not inform Amboh that his direct appeal had been dismissed, nor did it communicate with
him in any way. Amboh apparently made no inquiry about the status of the appeal until
February 2, 2009, when he contacted the SAPD and learned that his appeal had been dismissed
sixteen months earlier.
On March 11, 2009, Amboh, acting pro se, filed a petition for post-conviction relief
alleging that his defense counsel was ineffective for failing to file a timely notice of appeal from
his judgment of conviction. Apparently to excuse his late-filed petition, he also asserted lack of
communication by his appellate counsel, contending that he did not learn of the dismissal of his
direct appeal until January 26, 2009. The State moved for summary dismissal on the basis that
Amboh’s petition was not filed within the one-year statute of limitation, Idaho Code § 19-
4902(a). At a hearing, Amboh asserted that the time for filing his petition should be equitably
tolled until he discovered that his direct appeal had been dismissed, and that his petition was
timely because he filed it within a reasonable time thereafter. The district court rejected
Amboh’s claim of equitable tolling and summarily dismissed the action. Amboh appeals from
that order.
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II.
ANALYSIS
Summary dismissal of an application for post-conviction relief is permissible only when
the applicant’s evidence has raised no genuine issue of material fact that, if resolved in the
applicant’s favor, would entitle the applicant to the requested relief. If such a factual issue is
presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819
P.2d 1159, 1163 (Ct. App. 1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct.
App. 1988); Ramirez v. State, 113 Idaho 87, 88, 741 P.2d 374, 375 (Ct. App. 1987). In an appeal
from a summary dismissal, we independently review the district court’s application of law to
undisputed facts. Loman v. State, 138 Idaho 1, 2, 56 P.3d 158, 159 (Ct. App. 2002); Nellsch v.
State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
The district court’s dismissal of Amboh’s action was based upon the application of I.C.
§ 19-4902(a), which provides that an application for post-conviction relief must be filed within
one year from the expiration of the time for appeal from the applicant’s judgment of conviction
or from the determination of an appeal or of any proceeding following an appeal, whichever is
later.
Amboh argues that the time for filing his petition for post-conviction relief should have
been equitably tolled because of the deficient performance of his trial and appellate counsel. He
asserts that his trial counsel performed incompetently by omitting to file a timely notice of
appeal and that his appellate counsel was deficient for failing to inform Amboh that his appeal
was dismissed for untimely filing, which caused him to miss the statutory deadline for filing his
petition for post-conviction relief. Amboh argues that his loss of opportunity to appeal from the
judgment of conviction raises an important due process issue warranting tolling of the statute of
limitation for the filing of his post-conviction petition.
We begin by observing that the parties and the district court all erroneously assumed that
Amboh’s petition would have been timely under I.C. § 19-4902(a) if it had been filed within one
year from the “determination of [his] appeal” from the judgment of conviction, i.e., from the
remittitur following the dismissal of Amboh’s untimely appeal. Amboh’s argument is based on
the presumption that if his appellate counsel had informed him that his direct appeal had been
dismissed and a remittitur issued on September 28, 2007, Amboh would have had one year
thereafter within which to file his post-conviction action. This presumption is incorrect, for the
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Section 19-4902(a) period for filing a post-conviction action began when the time for appeal
from Amboh’s conviction lapsed. In Loman, 138 Idaho 1, 56 P.3d 158, the defendant’s late-filed
notice of appeal from his judgment of conviction was dismissed as untimely, and the defendant
filed a petition for post conviction relief within one year from the issuance of a remittitur on the
dismissal. The district court summarily dismissed the petition as untimely, and this Court
affirmed, stating:
The district court concluded that Loman’s application was untimely because the
limitation period began to run from December 7, 1998--the expiration of the time
for an appeal from his judgment of conviction pursuant to I.A.R. 14--and
therefore his post-conviction application filed on December 15, 1999 was eight
days late. On appeal, Loman disputes the district court’s interpretation of § 19-
4902(a). He argues that the limitations period began to run from the
“determination” of his untimely appeal on February 16, 1999, when the Supreme
Court issued its remittitur.
We conclude that the district court’s application of the statute was correct.
The reference in § 19-4902(a) to “the determination of an appeal” contemplates a
valid appeal that the appellate court possessed jurisdiction to consider. Loman’s
attempted appeal from his judgment of conviction was untimely, and its
untimeliness deprived the appellate courts of jurisdiction. I.A.R. 21; State v.
Payan, 128 Idaho 866, 867, 920 P.2d 82, 83 (Ct. App. 1996); State v. Fuller, 104
Idaho 891, 665 P.2d 190 (Ct. App. 1983). There was never a valid appeal for an
appellate court to “determine.” If Loman’s argument were accepted, one
convicted of a crime could restart the limitation period merely by filing an
untimely notice of appeal from the judgment of conviction; the statute of
limitation for post-conviction actions would be rendered meaningless. The
limitation period for Loman’s post-conviction action began to run from the
expiration of the time for his appeal in the criminal action. It could not be
restarted by the filing of an untimely notice of appeal on his behalf.
The district court was correct in its determination that Loman’s post-
conviction application was time-barred. Therefore, the order of dismissal is
affirmed.
Loman, 138 Idaho at 2, 56 P.3d at 159.
Because Amboh’s notice of appeal from the judgment of conviction was untimely, the
limitations period for his post-conviction action expired one year and forty-two days after the
entry of the judgment of conviction, not one year from the remittitur on dismissal of his time-
barred appeal.
This Court has held that the statute of limitation for a post-conviction action may be
equitably tolled where the applicant was incarcerated in an out-of-state facility without legal
representation or access to Idaho legal materials, Martinez v. State, 130 Idaho 530, 536, 944 P.2d
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127, 133 (Ct. App. 1997), and where mental disease and/or psychotropic medication rendered the
applicant incompetent to understand his legal right to bring an action or otherwise rendered him
incapable of earlier pursuing a challenge to the conviction. Chico-Rodriguez v. State, 141 Idaho
579, 582, 114 P.3d 137, 140 (Ct. App. 2005); Sayas v. State, 139 Idaho 957, 960, 88 P.3d 776,
779 (Ct. App. 2003); Abbott v. State, 129 Idaho 381, 385, 924 P.2d 1225, 1229 (Ct. App. 1996).
In addition, two decisions of our Supreme Court, Rhoades v. State, 148 Idaho 247, 250-51, 220
P.3d 1066, 1069-70 (2009), and Charboneau v. State, 144 Idaho 900, 904-05, 174 P.3d 870, 874-
75 (2007), indicate that where the post-conviction claim raises an important due process issue,
there may be a tolling of the statute of limitation until the petitioner knows or reasonably should
know of the factual basis of the claim.
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. See,
e.g., Kriebel v. State, 148 Idaho 188, 190, 219 P.3d 1204, 1206 (Ct. App. 2009) (even assuming
petitioner did not have access to Idaho legal materials while incarcerated out-of-state for less
than four months, he still had over nine months to file a timely petition but failed to do so); Leer
v. State, 148 Idaho 112, 115, 218 P.3d 1173, 1176 (Ct. App. 2009) (petitioner demonstrated the
ability to craft and file a petition, but failed to timely file one). 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, Abbott, 129 Idaho at 385, 924 P.2d at
1229; Martinez, 130 Idaho at 536, 944 P.2d at 133, or the facts underlying the claim were hidden
from the petitioner by unlawful state action, Charboneau, 144 Idaho at 904, 174 P.3d at 874.
None of these analogous circumstances are present in Amboh’s case. As of August 2007,
Amboh was informed in writing that his trial counsel had not filed a timely appeal from the
judgment of conviction. At that point, he was on notice that his opportunity for appeal had been
lost, and on notice of the deficient performance of counsel that he now alleges as his post-
conviction claim. Even though the defense attorney may have contributed confusion by
pointlessly filing an untimely notice of appeal, if Amboh had exercised reasonable diligence he
could have determined that the appeal was dismissed long before the limitation period for a post-
conviction action expired. Instead, despite having been notified that his appeal was filed after
the appeal deadline, Amboh waited for nearly one and a half years before he made any inquiry
about the disposition of the appeal and thereby learned of its dismissal. Neither the State nor
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anyone else concealed from Amboh the fact that this appeal was untimely or that it had been
dismissed. Amboh’s failure to file a timely petition raising his claim of ineffective assistance of
counsel was not due to an extraordinary circumstance beyond his control, but by his own lack of
diligence. In this circumstance, equitable tolling is not appropriate.
Therefore, the district court’s summary dismissal of Amboh’s petition is affirmed. No
costs or attorney fees are awarded to either party.
Judge GRATTON and Judge MELANSON CONCUR.
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