dissenting.
I respectfully dissent from the Court’s opinion.
State v. Wolfe, 99 Idaho 382, 387, 582 P.2d 728, 733 (1978) established that a prisoner in whose case the district court has retained jurisdiction is entitled to due process of law in the development of a recommendation by the correctional authorities. Buffington’s petition for post-conviction review alleges:
1. Upon notice of the date for the Jurisdictional Review Board meeting, the petitioner was placed in confinement and was not permitted access to potential witnesses. ...
8. The petitioner was not permitted to contact his legal counsel to prepare for his rebuttal.
9. The petitioner was not permitted to have his staff representative assist him with his rebuttal.
12. The petitioner was not permitted to have his staff representative present and was not permitted a continuance until his staff representative could be present.
In my view, these allegations state a violation of due process that is not covered in Wolfe. Therefore, the statute of limitations on which the district court relied in dismissing Buffington’s petition should have been extended to allow this assertion of protection under a “new rule.” Application of Gafford, 127 Idaho 472, 476, 903 P.2d 61, 65 (1995) (applying a new rule on collateral review where it requires the observance of procedure implicit in the concept of ordered liberty).
I could agree with the Court’s rationale that the hearing in district court cured this constitutional deficiency, except for the fact that the record does not indicate that the district court gave no weight to the recommendation of the jurisdictional review committee. The only information in the record before us concerning the hearing is the following statement made by the district court in dismissing Buffington’s application for post-conviction relief:
The jurisdictional review committee recommended that the jurisdiction be dropped. Before making a ruling, the court held a hearing on September 25, 1992, at which Buffington and his attorney were present and given an opportunity to present evidence and argument. Buffing-ton and another person testified on his behalf. Later on September 25th the *511court entered a written memorandum and order dropping jurisdiction.
This statement by the district court leaves me in doubt whether the court considered the recommendation of the jurisdictional review committee in reaching its decision to drop jurisdiction. If it did, and if Buffing-ton’s allegations were true, this would have violated Buffington’s right to due process because of the failure of NICI during the formulation of the recommendation. If this were true, the district court should have treated the recommendation as a nullity and given it no weight.
I would remand the case to the district court for a new hearing to determine the truth of Buffington’s allegations. If they are true, the district court should conduct a new hearing to determine whether Buffington should be granted probation. In doing so, the district court should exlude any consideration of the recommendation of the jurisdictional review committee.
McDEVITT, J., concurs.