IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 35340
RICHARD W. KRIEBEL, ) 2009 Opinion No. 62
)
Petitioner-Appellant, ) Filed: September 4, 2009
)
v. ) Stephen W. Kenyon, Clerk
)
STATE OF IDAHO, )
)
Respondent. )
)
Appeal from the District Court of the Second Judicial District, State of Idaho, Nez
Perce County. Hon. Carl B. Kerrick, District Judge.
Order summarily dismissing petition for post-conviction relief, affirmed.
Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
Appellate Public Defender, Boise, for appellant. Diane M. Walker argued.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
______________________________________________
SCHWARTZMAN, Judge Pro Tem
Richard W. Kriebel appeals from the district court’s summary dismissal of his petition for
post-conviction relief. We affirm.
I.
FACTS AND PROCEDURE
On September 2, 2005, the district court imposed a unified twenty-five-year sentence,
with ten years determinate, following Kriebel’s conviction for lewd conduct with a child under
sixteen years old. He did not directly appeal the conviction or sentence, resulting in his
conviction becoming final on October 14, 2005.
On November 29, 2007, Kriebel filed a pro se petition for post-conviction relief, relying
on the Supreme Court’s holding in Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006),
regarding the right against self-incrimination and the right to counsel under a “critical stage”
analysis relative to psychosexual evaluations. Specifically, Kriebel argued that his attorney had
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been deficient for failing to move to suppress his court-ordered psychosexual sentencing
evaluation. He was subsequently appointed counsel. The state moved for summary dismissal of
the petition, contending, among other things, that it was untimely.
Kriebel filed an affidavit stating that he had been incarcerated in Washington from some
time in September 2005 until some time in December 2005. He also averred that in January
2006 his defense counsel below had advised him that he did not have “good prospects” for a
post-conviction case and had failed to advise him of the “time-frames and the legal grounds to
bring such cases.” His post-conviction counsel filed a brief arguing that the statute of limitations
period should be tolled to account for the period that Kriebel was without access to Idaho courts
and because the Supreme Court’s decision in Estrada should be applied retroactively.
A hearing was held on the timeliness of Kriebel’s petition, and the district court
summarily dismissed Kriebel’s post-conviction claim, deciding that it had been filed untimely
and that Estrada should not be given retroactive application. Kriebel now appeals.
II.
ANALYSIS
Kriebel asserts that the district court erred in granting the state’s motion for summary
dismissal on the grounds that his petition was untimely. Specifically, he contends that the statute
of limitations on filing a post-conviction petition should have been tolled in his case because a
retroactive rule was announced in Estrada, he had been housed out of state for approximately
three months, and because his attorney had discouraged him from filing a post-conviction
petition.
Idaho Code Section 19-4902 provides that “[a]n application may be filed at any time
within one (1) year from the expiration of the time for appeal or from the determination of a
proceeding following an appeal, whichever is later.” Absent a showing by the petitioner that the
one-year limitation should be tolled, the failure to file a timely petition for post-conviction relief
is a basis for dismissal of the petition. Evensiosky v. State, 136 Idaho 189, 190, 30 P.3d 967, 968
(2001); Sayas v. State, 139 Idaho 957, 959, 88 P.3d 776, 778 (Ct. App. 2003). However, the
time limitation may be enlarged if the defendant has been effectively denied access to the courts.
Sayas, 139 Idaho at 959, 88 P.3d at 778; Anderson v. State, 133 Idaho 788, 792, 992 P.2d 783,
787 (Ct. App. 1999). The right of access to courts has been grounded in the Due Process Clause
of the United States Constitution. Evensiosky, 136 Idaho at 191, 30 P.3d at 969. In Idaho,
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equitable tolling of the statute of limitations for filing a post-conviction relief petition has been
recognized: (1) where the petitioner was incarcerated in an out-of-state facility on an in-state
conviction without legal representation or access to Idaho legal materials; and (2) where mental
disease and/or psychotropic medication renders a petitioner incompetent and prevents petitioner
from earlier pursuing challenges to his conviction. Sayas, 139 Idaho at 960, 88 P.3d at 779. See
also Isaak v. State, 132 Idaho 369, 370 n.1, 972 P.2d 1097, 1098 n.1 (Ct. App. 1999). Our
review of the district court’s construction and application of the time limitations aspects of the
Uniform Post-Conviction Procedure Act is a matter of free review. Martinez v. State, 130 Idaho
530, 532, 944 P.2d 127, 129 (Ct. App. 1997).
In denying his petition for post-conviction relief, the district court decided there was no
basis to toll the statute of limitations due to lack of access to the courts, concluding that Kriebel’s
brief out-of-state incarceration would not have made a difference even if the limitation period
tolled during that time and that the letter he received from his trial counsel assessing his
prospects for succeeding in a post-conviction petition did not unconstitutionally violate his
access to the court. Finally, utilizing the Teague1 doctrine, the court concluded that Estrada does
not apply retroactively because it did not announce a “new” rule, and even if it did, it did not
constitute a “watershed” rule of criminal procedure.
We first conclude that neither Kriebel’s brief out-of-state incarceration, nor his attorney’s
discouragement from filing a post-conviction petition, warrant tolling of the statute of
limitations. Not only did Kriebel fail to allege that while incarcerated out of state he did not
have legal representation familiar with Idaho law or access to Idaho legal materials, he was out
of state for less than four months--until December 2005. So, even if we assume that he did not
have adequate access to Idaho courts during this period, he had adequate time (approximately
nine and a half months until the deadline of October 14, 2006) after being transferred back to
Idaho to file a petition for post-conviction relief. See Evensiosky, 136 Idaho at 191, 30 P.3d at
969 (holding that even assuming the petitioner did not have access to the district court after being
transferred to a Louisiana facility, he had adequate time prior to the transfer to file the petition).
Nor do we accept Kriebel’s assertion that the statute of limitations should be tolled
because he was discouraged by his attorney in January 2006 from filing a post-conviction
1
Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion).
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petition. Idaho courts have not recognized discouragement by counsel as a valid basis for
equitably tolling the UPCA statute of limitations. Notably, at the time counsel informed Kriebel
that he did not have good prospects for filing a post-conviction petition, Estrada--the sole basis
of Kriebel’s current post-conviction action--had not yet been decided. To hold that a statute of
limitations may be tolled when an attorney assesses a would-be petitioner’s chance at success is
simply not tenable.
Finally, we conclude that Kriebel was not entitled to equitable tolling due to his
contention that the Supreme Court’s decision in Estrada announced a new, retroactively
applicable rule, thus tolling the statute of limitations until at least November 2007. For a
constitutional rule to apply retroactively, it must first be determined that the rule is “new.”
Whorton v. Bockting, 549 U.S. 406, 416 (2007); Teague v. Lane, 489 U.S. 288, 301 (1989)
(plurality opinion). A new rule is one not dictated by precedent existing at the time a judgment
became final. Whorton, 549 U.S. at 416; Butler v. McKellar, 494 U.S. 407 (1990); Teague, 489
U.S. at 311; In re Gafford, 127 Idaho 472, 476 n.1, 903 P.3d 61, 65 n.1 (1995). A case will be
deemed to have announced a new rule if its outcome “was susceptible to debate among
reasonable minds.” Butler, 494 U.S. at 415; Gafford, 127 Idaho at 476 n.1, 903 P.3d at 65 n.1.
The explicit overruling of an earlier holding no doubt creates a new rule. Whorton, 549 U.S. at
416.
If a case is deemed to have announced a new rule, it will apply retroactively in a
collateral proceeding only if (1) the rule is substantive or (2) the rule is a “watershed rule of
criminal procedure” implicating the fundamental fairness and accuracy of the criminal
proceeding. Whorton, 549 U.S. at 416 (citing Teague, 489 U.S. at 311). See also Gafford, 127
Idaho at 476, 903 P.3d at 65 (citing Penry v. Lynaugh, 492 U.S. 302 (1989)).
While Kriebel argues that Estrada announced a new, retroactively applicable rule,
recently the Idaho Supreme Court stated, in dicta, that Estrada did not announce a “new” rule.
Valvold v. State, ____ Idaho ___, ___ P.3d ___ (2009). The court, while affirming the
appellant’s petition for post-conviction relief on appellate procedural grounds, provided the
following guidance:
[W]e note, admittedly by way of dicta, that we agree with the district court’s
conclusion that Estrada did not announce a new rule of law. As the district court
observed, we stated in Estrada that our earlier “decisions clearly indicate that
both at the point of sentencing and earlier, for purposes of a psychological
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evaluation, a defendant’s Fifth Amendment privilege against self-incrimination
applies.” 143 Idaho at 563, 149 P.3d at 838 (emphasis added). It is our view,
therefore, that Estrada did not announce a new rule of law entitled to retroactive
effect.
Valvold,____ Idaho at ___, ___ P.3d at ___.
Thus, given this clear direction from our Supreme Court, we conclude that Kriebel’s
post-conviction petition was untimely, because the post-conviction statute of limitations could
not have been tolled on the basis that Estrada announced a new, retroactively applicable rule.
III.
CONCLUSION
The district court did not err in dismissing Kriebel’s petition for post-conviction relief as
being untimely. He did not show that the statute of limitations for filing a post-conviction
petition should be tolled for any reason that Idaho courts have previously recognized. In
addition, given that the Idaho Supreme Court recently stated that Estrada did not announce a
“new” constitutional rule, Kriebel was not entitled to have the statute of limitations tolled on the
basis of his contention that Estrada announced a retroactively applicable rule. Accordingly, we
affirm the district court’s order dismissing Kriebel’s petition for post-conviction relief.
Judge PERRY and Judge GRATTON CONCUR.
Judge Pro Tem SCHWARTZMAN ALSO SPECIALLY CONCURRING
I write separately to note, admittedly by way of dicta, that I also agree with the district
court’s conclusion that Estrada did not announce a watershed rule of criminal procedure.1
A new constitutional rule is not applied retroactively unless it is a “watershed rule of
criminal procedure implicating the fundamental fairness and accuracy of the criminal
proceeding.” Whorton, 549 U.S. at 417 (citations omitted). The exception is “extremely
narrow” and in order to qualify, a rule must meet two requirements. Id. at 417-18. First, the rule
must be necessary to prevent “an impermissibly large risk of an inaccurate conviction.” Id. at
1
Such dicta might become relevant if Estrada were ever deemed to have announced a new
rule of law. See State v. Curless, 137 Idaho 138, 142-145, 44 P.3d 1193, 1197-1200 (Ct. App.
2002) (holding that failure to assert Fifth Amendment privilege against self-incrimination during
psychosexual evaluation waives protections of privilege and that the evaluation process does not
constitute a critical stage for Sixth Amendment purposes).
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418. Second, the rule must “alter our understanding of the bedrock procedural elements essential
to the fairness of a proceeding.” Id.
In order for a new rule to meet the accuracy requirement at issue here, it is not enough to
say that the rule is aimed at improving the accuracy of trial or that the rule is directed toward the
enhancement of reliability and accuracy in some sense. Sawyer v. Smith, 497 U.S. 227, 242-43
(1990). Instead, the question is whether the new rule remedied an “impermissibly large risk” of
an inaccurate conviction. Whorton, 549 U.S. at 418; see also Schriro v. Summerlin, 542 U.S.
348, 352-56 (2004). Estrada does not reduce the risk of inaccurate convictions since it applies
after a conviction has been procured, nor does it seriously diminish the accuracy of fact finding
in sentencing. Likewise, having the advice of counsel to remain silent for all or part of a
psychosexual evaluation simply does not alter our understanding of the bedrock procedural
elements essential to the fairness of a sentencing proceeding to be classified as “watershed.” It is
my view, therefore, that even if Estrada could be categorized as a new rule, it would not meet
either prong of Whorton and therefore would not be entitled to retroactive effect.
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