specially concurring.
I concur in the foregoing opinion, but I write separately to comment on the issue of ineffective assistance of counsel. The real thrust of Mellinger’s argument, as I understand it, is that his first two applications for post-conviction relief, filed within the five-year period which the Court today says was available to him under I.C. § 19-4902, were summarily dismissed because he did not have effective assistance of counsel in establishing grounds for relief. Thus, the argument goes, his third application — filed after the five-year period had elapsed — “relates back” to the prior applications and should not have been dismissed as untimely filed. Our lead opinion does not squarely meet this contention.
In a proper case, I believe a relation-back argument might well have merit. An applicant for post-conviction relief who cannot pay for private counsel is entitled under I.C. § 19-4904 to representation by a court-appointed attorney. If he is denied effective assistance of counsel, and as a result he inadequately raises grounds for relief in his application to the court, he may file a subsequent application reasserting the grounds more fully. See I.C. § 19-4908. Thus, if a prisoner filed a timely application but it was dismissed due to ineffective assistance of counsel, I believe the prisoner would be entitled to file a subsequent application asserting his grounds for relief more fully even though the five-year period of limitation under I.C. § 19-4902 had elapsed in the meantime. To hold otherwise would leave the prisoner with no alternative than to sue the attorney for malpractice — a distasteful and onerous undertaking — or to seek a writ of habeas corpus from a federal court,1 producing the very kind of outside interference in state judicial processes that the Post-Conviction Procedure Act was intended to avoid.
Unfortunately for Mellinger, this does not appear to be a proper case to invoke the relation-back doctrine. Mellinger’s second application was filed in September, 1983, and was dismissed in February, 1984. More than one and one-half years elapsed before he filed his third application in November, 1985. This, in my view, exceeds a reasonable period for filing a subsequent application under I.C. § 19-4908 and relating that application back to an earlier application upon the asserted ground of ineffective assistance of counsel. Moreover, Mel-linger’s third application, unlike his argument on appeal, did not even mention prior ineffective assistance of counsel. It simply attacked the validity of the statute under which he was originally prosecuted for assault with a deadly weapon, and it alleged that the sentence he received was “excessive.”2 Using what appears to be boilerplate language in post-conviction relief ap*36plications prepared at the Idaho State Correctional Institution, Mellinger characterized these grounds for relief as matters “not previously presented and heard____” Because the. issue of ineffective assistance of counsel was not framed by Mellinger’s application, it is not surprising that the record now before us contains no showing of how the results obtained on the first two applications would have been different if effective counsel had been furnished. Because the relation-back argument is made for the first time on appeal, and is not supported by a factual predicate in the record, I am constrained to reject it in this case. On this narrow basis, I concur in the Court’s opinion today.
. Federal intervention might also be invited by a prisoner who is barred under the literal terms of I.C. § 19-4902 from seeking post-conviction relief upon a ground that was unknown during the five-year limitation period. This problem could be alleviated in part by subjecting I.C. § 19-4902 to a "discovery” exception similar to that found in other civil statutes of limitation. However it would not resolve the broader conceptual problem of attempting to impose a time limit upon a prisoner's right to challenge a continuing, illegal deprivation of his liberty. Indeed, where the claim for relief is based upon the deprivation of a constitutional right, it is far from self-evident that the claim can be barred by a statutory time limit.
. Mellinger’s assertion that his sentence was excessive might well have been subject to summary dismissal even if it had been timely made. The excessiveness of a sentence, as opposed to its legality, is not among the grounds for post-conviction relief enumerated in I.C. § 19-4901, unless the claim of excessiveness is based upon "evidence of material facts, not previously presented and heard, that requires vacation of the ... sentence in the interest of justice----”