Rhoades v. State

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 35021

PAUL RHOADES, )

)

Petitioner-Appellant, ) Boise, September 2009 Term

)

v. ) 2009 Opinion No. 134

)

STATE OF IDAHO, and TOM ) Filed: October 26, 2009

BEAUCLAIR, Director, Idaho Department )

of Correction, and GREG FISHER, Warden, ) Stephen Kenyon, Clerk

Idaho Maximum Security Institution, )

)

Respondents. )

Appeal from the District Court of the Seventh Judicial District of the State of

Idaho, Bonneville County. Hon. Jon J. Shindurling, District Judge.

The decision of the district court is affirmed.

Federal Defender Services of Idaho, Boise, and Nevin, Benjamin, McKay &

Bartlett, LLP, Boise, for appellant. Oliver Loewy argued. Dennis Benjamin

appeared.

Hon. Lawrence G. Wasden, Attorney General, Boise, for respondents. Lamont

Anderson argued.

_______________________________________________

HORTON, Justice

Petitioner Paul Ezra Rhoades appeals the district court‟s summary dismissal of his

petition for post-conviction relief. He argues that the district court erred in finding that his

claims are time-barred under I.C. § 19-4902.

In 1987, Rhoades entered a conditional plea of guilty for the murder and robbery of

Nolan Haddon. In 2005, Rhoades petitioned the district court for post-conviction relief alleging

prosecutorial misconduct, actual innocence, ineffective assistance of counsel, and seeking to test

biological evidence for DNA. The district court found that these claims were not raised in a

timely manner and summarily dismissed the petition pursuant to I.C. § 19-4906.

Three main issues are presented on appeal: First, whether the grounds raised by Rhoades

allow for equitable tolling of the limitation provided by I.C. § 19-4902; second, for grounds that

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would entitle him to equitable tolling, whether Rhoades has met his burden of pleading facts that

would entitle him to that equitable tolling; and finally, whether this appeal was frivolous and

whether, as a result, the state is entitled to an award of attorney fees. We affirm and award costs

to the state.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1987, Paul Ezra Rhoades was charged with the rape and murder of Susan

Michelbacher as well as the murder and robbery of Nolan Haddon. Rhoades pleaded not guilty

to all charges and filed a motion to sever the charges, which was subsequently granted. Rhoades

was tried, convicted, and sentenced to death on the charges relating to the Michelbacher rape and

murder. The parties subsequently entered into a plea agreement relating to the Haddon

murder/robbery wherein Rhoades entered an “Alford”1 plea, maintaining his innocence in the

case but conceding that “a conviction may be had on the charges as presently filed.” Rhoades

was sentenced to serve concurrent indeterminate life sentences for the Haddon murder and

robbery.

The evidence that would have been introduced at a trial for the Haddon murder included

the gun used to kill Haddon found in the vicinity of a green car abandoned by Rhoades,

statements made by Rhoades at the time of his arrest, and statements allegedly made to a

jailhouse informer. State v. Rhoades, 119 Idaho 594, 600-604, 809 P.2d 455, 461-465 (1991).

Further evidence would have included witness testimony placing a car matching the description

of the car in which Rhoades was found at the scene of the Haddon murder, law enforcement

officers‟ testimony that items found in Rhoades‟ possession were similar to the items taken at the

time of the Haddon robbery, and testimony regarding Rhoades‟ purchase of bullets matching the

caliber of those used in Haddon‟s murder. The gun is notable in the present case as the same gun

was presented as the murder weapon in the case relating to the rape and murder of Susan

Michelbacher. Based upon an affidavit of Dr. Greg Hampikian, Rhoades now claims that PGM

(phosphoglucomutase enzyme) testing conducted by the FBI prior to the trial exonerates him of

the Michelbacher murder and, by virtue of that exoneration, the Haddon murder as well.

In 2005, Rhoades filed the present petition for post-conviction relief, alleging

prosecutorial misconduct, actual innocence, ineffective assistance of counsel, and requesting

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North Carolina v. Alford, 400 U.S. 25 (1970).

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DNA testing. These were similar to the 2002 petition and 2005 amendments to the petition for

post-conviction relief made in connection with the Michelbacher case.

The state moved for summary dismissal of Rhoades‟ claims on August 24, 2007,

claiming that Rhoades‟ claims were time-barred by I.C. § 19-4902. On November 26, 2007, the

district court granted the motion to dismiss. Rhoades appeals that decision.

II. STANDARD OF REVIEW

Post-conviction proceedings are governed by I.C. § 19-4901 et seq. (the Uniform Post-

Conviction Procedure Act). A petition for post-conviction relief is a civil proceeding, governed

by the Idaho Rules of Civil Procedure. Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646

(2008). However, “[t]he „application must contain much more than a short and plain statement

of the claim that would suffice for a complaint under I.R.C.P. 8(a)(1).‟” State v. Payne, 146

Idaho 548, 560, 199 P.3d 123, 135 (2008) (quoting Goodwin v. State, 138 Idaho 269, 271, 61

P.3d 626, 628 (Ct. App. 2002)). Instead, the application must be supported by a statement that

“specifically set[s] forth the grounds upon which the application is based.” Payne, 146 Idaho at

561, 199 P.3d at 136 (citing I.C. § 19-4903). “The application must present or be accompanied

by admissible evidence supporting its allegations, or the application will be subject to dismissal.”

Id.

This Court has free review of questions of law. Hopper v. Hopper, 144 Idaho 624, 626,

167 P.3d 761, 763 (2007). On review of a dismissal of a post-conviction relief application

without an evidentiary hearing, this Court determines whether a genuine issue of fact exists

based on the pleadings, depositions and admissions together with any affidavits on file and will

liberally construe the facts and reasonable inferences in favor of the non-moving party.

Hauschulz v. State, 144 Idaho 834, 838, 172 P.3d 1109, 1113 (2007) (citing Gilpin-Grubb v.

State, 138 Idaho 76, 80, 57 P.3d 787, 791 (2002)). However, “while the underlying facts must

be regarded as true, the petitioner‟s conclusions need not be so accepted.” Phillips v. State, 108

Idaho 405, 407, 700 P.2d 27, 29 (1985). “[W]here the evidentiary facts are not disputed and the

trial court rather than a jury will be the trier of fact, summary judgment is appropriate, despite

the possibility of conflicting inferences because the court alone will be responsible for resolving

the conflict between those inferences.” State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482

(2008). These standards apply equally to questions regarding the accrual of actions and the

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passage of the statute of limitations. Harris v. State, ex rel. Kempthorne, 147 Idaho 401, 405,

210 P.3d 86, 90 (2009).

III. ANALYSIS

1. Rhoades did not plead facts sufficient to trigger equitable tolling and avoid

summary dismissal.

The Uniform Post-Conviction Procedure Act provides three separate limitations periods.

The first, contained in I.C. § 19-4902(a), states 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 an

appeal or from the determination of a proceeding following an appeal, whichever is later.” The

second, addressing only DNA testing, is contained in I.C. § 19-4902(b). It states that a “petition

must be filed by July 1, 2002, or within one (1) year after the filing of the judgment of

conviction, whichever is later.” I.C. § 19-4902(b). Finally, I.C. § 19-4908 states that a court

may grant a supplemental or additional petition where the “court finds a ground for relief

asserted which for sufficient reason was not asserted or was inadequately raised in the original,

supplemental, or amended application.”

The state, the trial judge and Rhoades all agree that the standards required for I.C. § 19-

4902 have not been met. Remittitur in Rhoades‟ case was issued March 8, 1991. In 1993, the

period designated in I.C. § 19-4902, previously a five-year period, was amended to a one-year

limitation period. 1993 Idaho Sess. Laws, ch. 265, § 1, p. 898. Dating the one-year period from

the July 1, 1993 amendment to I.C. § 19-4902, the petition was untimely under I.C. § 19-4902, as

the present motion was filed on July 29, 2005. Esquivel v. State, 128 Idaho 390, 392, 913 P.2d

1160, 1162 (1996). Rhoades does not dispute this but argues that he is entitled to equitable

tolling by operation of I.C. §§ 19-4901 and 19-4908.2

In Charboneau v. State, we considered the relationship of I.C § 19-4902 and I.C. § 19-

4908. 144 Idaho 900, 174 P.3d 870 (2007). In Charboneau, this Court recognized that rigid

application of I.C. § 19-4902 would preclude courts from considering “claims which simply are

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Rhoades cites I.C. § 19-4901(b) for the proposition that “a successive postconviction petition is timely if

(1) it was not reasonable to expect the petitioner to have known of its underlying facts at the time of his first petition

and (2) if the successor petition was filed within a reasonable amount of time of his discovering the underlying

facts.” I.C. § 19-4901(b), however, does not address when or whether specific facts may overcome the one-year

statute of limitations for post-conviction petitions. Rather, I.C. § 19-4901 merely addresses the relation between

issues that might have been raised on direct appeal and issues raised in a petition for post-conviction relief.

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not known to the defendant within the time limit, yet raise important due process issues.” Id. at

904, 174 P.3d at 874. According to this Court‟s decision in State v. Rhoades,

[p]rocedural due process issues are raised whenever a person risks being deprived

of life, liberty, or property interests because of governmental action. The

requirement is that there must be some process to ensure that the individual is not

arbitrarily deprived of his rights in violation of the state or federal constitutions.

This requirement is met when the defendant is provided with notice and an

opportunity to be heard.

120 Idaho 795, 806, 820 P.2d 665, 676 (1991). The Court then used the three-part balancing test

enunciated by the U.S. Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), to

determine whether due process had been afforded, balancing (1) the interest at stake; (2) the risk

of erroneous deprivation of the interest and the probable value of additional or substitute

safeguards; and (3) the government‟s interest. Rhoades, 120 Idaho at 806-07, 820 P.2d at 676-

77.

In Charboneau, we noted that, in instances of a Brady violation,3 “there may be a tolling

of the one year statute of limitations until discovery of the Brady violation.” Charboneau, 144

Idaho at 904, 174 P.3d at 874. The Court applied the same “reasonable time” standard that

governs its examination of post-conviction petitions in capital cases. Id. at 905, 174 P.3d at 875.

For claims that do not meet the required timeliness standard, a petitioner “shall be deemed to

have waived such claims for relief as were known or reasonably should have been known.” I.C.

§ 19-2719. “In determining what a reasonable time is for filing a successive petition, we will

simply consider it on a case-by-case basis, as has been done in capital cases.” Charboneau, 144

Idaho at 905, 174 P.3d at 875.

The district court, in finding that Rhoades was not entitled to equitable tolling, cited the

court of appeals‟ decision in Chico-Rodriguez v. State for the proposition that “the bar for

equitable tolling in post-conviction actions is high.” 141 Idaho 579, 582, 114 P.3d 137, 140 (Ct.

App. 2005). The Idaho Court of Appeals has recognized instances of equitable tolling

“(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; (2) and where mental disease

and/or psychotropic medication renders a petitioner incompetent and prevents petitioner from

earlier pursuing challenges to his conviction.” Sayas v. State, 139 Idaho 957, 960, 88 P.3d 776,

779 (Ct. App. 2003). This Court has never explicitly addressed when a case would raise an

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Brady v. Maryland, 373 U.S. 83 (1963).

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important due process issue. However, the serious due process concerns enunciated in

Charboneau encompass cases involving access to courts claims. Martinez v. State, 130 Idaho

530, 535-36, 944 P.2d 127, 132-33 (Ct. App. 1997). It would similarly cover claims of

incompetency. Chico-Rodriguez, 141 Idaho at 582-83, 114 P.3d at 140-41. We therefore

reaffirm the standard expressed in Charboneau in order to determine whether equitable tolling is

appropriate.

Applying this structure, the first question is whether Rhoades‟ asserted claims

(prosecutorial misconduct, actual innocence, ineffective assistance of counsel, and a request for

DNA testing) “raise important due process issues” sufficient to trigger equitable tolling. The

second question is whether any claims that would be entitled to equitable tolling have been

adequately supported by the facts and claims in the pleadings.

a. Prosecutorial Misconduct

With regard to the allegations of prosecutorial misconduct, Charboneau answers the first

question in the affirmative, citing claims of “state misconduct” involved in a Brady violation.

Charboneau, 144 Idaho at 904, 174 P.3d at 874. While it must still be pursued in a timely

fashion, state misconduct implicates core due process considerations that may trigger equitable

tolling. The district court acknowledged this, stating that “there is no doubt but that deliberate

deception in a criminal prosecution would likely entitle a petitioner to equitable tolling for I.C. §

19-4902 purposes.” The court then rejected the prosecutorial misconduct argument as

unsupported by the facts alleged.

Rhoades identifies four pieces of evidence in support of his claim that prosecutorial

misconduct occurred. First, Rhoades refers to the existence of the FBI document recounting the

results of PGM testing upon which Dr. Hampikian relied. Second, Rhoades relies on Dr.

Hampikian‟s affidavit stating that the FBI tests excluded Rhoades as a contributor of the semen

that was the subject of the FBI‟s PGM testing. Third, Rhoades cites testimony at the

Michelbacher trial by Don Wyckoff, the state‟s expert witness, that he could not address the

results of the FBI tests because he did not do the analysis. Finally, Rhoades refers to statements

by the prosecutor in the closing arguments of the Michelbacher trial that Rhoades “alone of the

persons who had access, matches” the semen samples found.

While facts supported by admissible evidence must be accepted, the judge reviewing

those facts need not draw inferences drawn from those facts that are not supported by the

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evidence. Hauschulz v. State, 144 Idaho 834, 838, 172 P.3d 1109, 1113 (2007). Rhoades is

correct in asserting that Mr. Wyckoff, the state‟s expert, would be considered an agent of the

prosecution for purposes of Brady disclosures. State v. Avelar, 132 Idaho 775, 781, 979 P.2d

648, 654 (1999) (“The duty of disclosure enunciated in Brady is an obligation of not just the

individual prosecutor assigned to the case, but of all the government agents having a significant

role in investigating and prosecuting the offense.”) (internal quotations omitted). Rhoades‟

argument relies on Wyckoff‟s role as state agent, combined with the apparently obvious import

of the PGM testing and the fact that the PGM report had been made available to the state.

Nevertheless, even assuming these facts, Rhoades effectively asked the district court to

make, not one, but four inferences in his favor. One must first infer from the mailing of the FBI

report to the state investigatory office that Wyckoff received the report.4 Second, one must infer

that Wyckoff actually reviewed the report. Third, one must further infer that Wyckoff

interpreted the report and reached the same conclusion as Rhoades‟ expert. Finally, in order to

show that the prosecutor suborned perjury, one must further infer that Wyckoff shared the

exculpatory interpretation of the FBI report with the prosecutor. Although the district court is

required to draw inferences in favor of the non-moving party, those inferences must be

reasonable. The required series of inferences here simply does not meet the reasonableness

standard. Whether by virtue of oversight, misunderstanding the data, or, as the district court

suggested, simply a different interpretation, there are a variety of explanations which are equally,

if not more plausible than one of deliberate concealment.5

Nor does Banks v. Dretke, upon which Rhoades relies, suggest a different result. 540

U.S. 668 (2004). Banks involved a case in which the prosecution had asserted that it had turned

over all material required by Brady but had, in fact, failed to disclose information known to the

state. Although Rhoades argues that “concealment and misrepresentation” has occurred here, he

acknowledges that “the prosecution did provide defense counsel with a copy of the FBI‟s PGM

test results.” We conclude that the district court did not err in finding that Rhoades failed to

plead facts adequate to support his claim of prosecutorial misconduct and dismissing this claim.

b. Actual Innocence

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The FBI report was directed to “Ms. Pamela J. Marcum, Senior Criminalist.”

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The FBI report was disclosed to Rhoades‟ attorney who had the assistance of a court-appointed expert.

Rhoades‟ claims of a Brady violation and subornation of perjury are based upon the facially exculpatory value of the

report. Rhoades does not explain why the state would suborn perjury when evidence of such exculpatory import had

been disclosed to the defense.

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Rhoades argues that Sivak v. State supports his argument that a claim of actual innocence

provides a basis for equitable tolling. 134 Idaho 641, 8 P.3d 636 (2000). However, Sivak,

unlike Rhoades, was making a claim of actual innocence to support overriding a time-bar and

reach the merits of an otherwise-barred constitutional claim. Id. at 644, 8 P.3d at 639 (“[Sivak]

asserted that the state denied his due process rights by withholding evidence of an agreement

between Leytham and the prosecution.”). We need not and do not decide today whether due

process requires a free-standing actual innocence exception to the application of I.C. § 19-4902.

Even if actual innocence provides a basis for equitable tolling, the facts alleged by

Rhoades do not establish a prima facie case of actual innocence. Under the standard for “actual

innocence” as enunciated by the U.S. Supreme Court in Schlup v. Delo, “the petitioner must

show that it is more likely than not that no reasonable juror would have convicted him in the

light of the new evidence.” 513 U.S. 298, 327 (1995). As the state correctly observes, even if

the results of the FBI‟s PGM tests were accepted as unambiguously exculpating Rhoades of

responsibility for the rape and murder of Michelbacher, that does not mean that Rhoades did not

murder Haddon. Rhoades alleges facts only related to the Michelbacher case, not the Haddon

charges. In light of the facts set forth in Part I of this opinion supra, that link Rhoades to the

murder of Mr. Haddon, and given that there is no suggestion that the PGM tests would have been

part of the Haddon prosecution, we conclude that Rhoades has failed to establish a prima facie

case of actual innocence and this claim was properly dismissed as untimely.

c. Ineffective Assistance of Counsel

We have repeatedly held that ineffective assistance of counsel claims can or should be

known after trial. In addressing one of Rhoades‟ previous appeals, we squarely addressed this

issue. “Ineffective assistance of counsel is one of those claims that should be reasonably known

immediately upon the completion of the trial and can be raised in a post-conviction petition.”

Rhoades, 120 Idaho at 807, 820 P.2d at 677. The facts of the case, being particularly within the

knowledge of the defendant should be sufficient to alert a defendant to the presence of

ineffective assistance of counsel. In this case, Rhoades had access to the material related to his

case, including the PGM testing results. Rhoades has further alleged that he is innocent.

Assuming his claim of innocence to be true, even if Rhoades did not know that the PGM testing

exculpated him, he would have been on notice that it may have done so. Accordingly, we

conclude that the district court properly dismissed this claim as untimely.

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d. Requests for DNA Testing under I.C. § 19-4902(b)

Rhoades has not argued that the district court‟s finding that his claim was brought outside

of the July 1, 2002 limit created by I.C. § 19-4902(b) was incorrect. Rather, Rhoades simply

argues that “he should be allowed to conduct deoxyribonucleic acid (“DNA”) testing on any and

all biological evidence collected by the state in the investigation of the murder which gave rise to

the instant case.” The U.S. Supreme Court recently rejected the argument that the due process

clause provides a freestanding right to DNA testing. Dist. Att’y’s Office for Third Jud. Dist. v.

Osborne, 557 U.S. ___ , 129 S.Ct. 2308 (2009). “In due process cases involving the deprivation

of a liberty interest, this Court has applied the United States Supreme Court's standard for

interpreting the due process clause of the United States Constitution, to art. I, § 13 of the Idaho

Constitution.” Smith v. Idaho Dep’t of Corr., 128 Idaho 768, 771, 918 P.2d 1213, 1216 (1996).

Therefore, we conclude that the denial of DNA testing does not implicate a specific due process

concern. Accordingly, we affirm the district court‟s conclusion that Rhoades‟ claim for DNA

testing was time-barred.

2. We will not award the state attorney fees under I.C. § 12-121; however, we award

costs to the state under I.A.R. 40.

The state requests an award of costs and attorney fees incurred in connection with this

appeal. The request for attorney fees is based upon I.C. § 12-121. “Reasonable attorney‟s fees

will only be awarded to the prevailing party under I.C. § 12-121 when the court is left with the

abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably and

without foundation.” Balderson v. Balderson, 127 Idaho 48, 54, 896 P.2d 956, 962 (1995)

(internal quotation omitted). We conclude that Rhoades‟ arguments, although unsuccessful, are

not so wholly without merit as to warrant an award of fees. As discussed above, the standard for

equitable tolling has never been clearly spelled out and its application to many of the issues

raised by Rhoades is a matter of first impression for this Court.

Idaho Appellate Rule 40 provides that “[c]osts shall be allowed as a matter of course to

the prevailing party unless otherwise provided by law or order of the Court.” As a petition for

post-conviction relief is a civil matter and because the state is the prevailing party on appeal, we

award costs to the state.

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IV. CONCLUSION

We affirm the district court‟s dismissal of Rhoades‟ petition for post-conviction relief as

Rhoades‟ prosecutorial misconduct claims are unsupported by the facts presented and Rhoades‟

alternative grounds are time-barred under I.C. § 19-4202(a) and (b). Costs to the state.

Chief Justice EISMANN, Justices BURDICK, W. JONES and Justice Pro Tem

WALTERS CONCUR.

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