Opinion
Docket No. 25250
December 23, 1999 Reversed by Cole v. State, Docket No. 26433, ___ Idaho ___, December 1, 2000 (Supreme Court affirmed District Court dismissal).
Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Gerald L. Weston, District Judge.
Order summarily dismissing application for post-conviction relief, reversed and remanded.
Ronaldo A. Coulter, Appellate Public Defender; Mary K. Patton, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Alan G. Lance, Attorney General; T. Paul Krueger, II, Deputy Attorney General, Boise, for respondent.
Charles Cole appeals from an order of the district court summarily dismissing his application for post-conviction relief. For the reasons set forth below, we reverse and remand.
I. BACKGROUND
Cole was sentenced to a unified ten-year term, with one year fixed, for first degree arson. I.C. § 18-802. On May 8, 1998, Cole filed a pro se application for post-conviction relief under the Uniform Post-Conviction Procedure Act (UPCPA) by filling out a preprinted form. Cole's application alleged that he was entitled to relief due to constitutional violations in the parole process. In his prayer for relief, Cole requested that the district court reconsider the sentence originally imposed and appoint counsel to represent him. Cole also requested leave of the court to amend his application at some future date if his court-appointed counsel deemed it appropriate.
The state argues on appeal that the district court lacked jurisdiction to consider Cole's post-conviction application on the basis that it was not filed within the limitation period. However, an applicant's failure to comply with the limitation period does not result in a jurisdictional defect. Anderson v. State, Docket No. 24879 (Ct.App. Nov. 3, 1999).
Thereafter, the district court appointed counsel to assist Cole in his post-conviction relief action. On August 11, the district court issued a notice of its intent to dismiss Cole's application for failure to set forth sufficient facts upon which relief could be granted. As required by statute, the district court granted Cole twenty days to respond to its proposed dismissal.
Cole did not respond within the twenty days permitted. However, on October 2, through counsel, Cole filed an unverified amended petition for post-conviction relief. On October 15, a verified amended petition for post-conviction relief was then filed. In these amended applications, Cole alleged, for the first time, that he was entitled to post-conviction relief due to the ineffective assistance of trial counsel. On December 3, the district court dismissed Cole's original application because Cole had failed to respond to the notice of intent to dismiss within the statutorily permitted twenty-day period. Cole appeals.
Cole's claims of ineffective assistance of counsel included allegations that: (1) trial counsel was informed that Cole was mentally ill and unable to form the requisite intent necessary for first degree arson; and (2) trial counsel was ineffective in advising Cole that such a condition was not a defense to a charge of first degree arson.
II. ANALYSIS
Cole argues that the district court improperly dismissed his application for post- conviction relief because it failed to consider Cole's amended application before dismissing the matter. Cole asserts that, because his amended application set forth genuine issues of material fact, summary dismissal was improper.
An application for post-conviction relief initiates a proceeding which is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App. 1992). Summary dismissal of an application pursuant to Idaho Code Section 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App. 1990). An application for post-conviction relief differs from a complaint in an ordinary civil action, however, for an 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). Rather, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.
Idaho Code Section 19-4906 authorizes summary disposition of an application for post- conviction relief; either pursuant to motion of a party or upon the court's own initiative. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact which, 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, 89, 741 P.2d 374, 376 (Ct.App. 1987). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the state does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct.App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct.App. 1986).
On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions and admissions together with any affidavits on file; moreover, the court liberally construes the facts and reasonable inferences in favor of the non-moving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App. 1993). In his initial post-conviction application, Cole contended that he was entitled to relief because of the actions of the Department of Pardons and Parole in denying him parole. However, the proper mechanism for challenging an unlawful confinement in this context is a petition for habeas corpus, not an action for post-conviction relief. See Stillwell v. State, 124 Idaho 366, 371, 859 P.2d 964, 969 (Ct. App. 1993). Thus, the allegations set forth in Cole's initial application did not state a claim upon which post-conviction relief could have been granted. Therefore, the district court's issuance of its notice of intent to dismiss the application, on the ground that Cole failed to set forth facts upon which relief could be granted, was proper.
The district court issued its notice of intent to dismiss Cole's application on August 11, 1998, and, thus, Cole was required to respond to that notice by August 31. The purpose of the twenty-day notice required by I.C. § 19-4906(b) is to ensure that the applicant will have an opportunity to challenge an adverse decision before it becomes final. Sabin v. State, 129 Idaho 257, 258, 923 P.2d 502, 503 (Ct.App. 1996). It also serves the purpose of allowing the petitioned court the opportunity to correct any error brought to its attention by the applicant's reply to the notice. Id.
In this case, Cole did not respond to the district court's notice of intent to dismiss his post-conviction relief application. Instead, he filed an unverified amended application on October 2, and a subsequent verified amended application on October 15. This Court has previously held that, in cases where the trial court issues a notice of intent to dismiss under Section 19-4906(b), setting forth the grounds and giving the applicant twenty days to respond, the failure of the applicant to file a responsive pleading waives any challenge to that order on appeal. Sabin, 129 Idaho at 258, 923 P.2d at 503. In his initial application, Cole claimed he was entitled to post-conviction relief based upon the actions of the Commission of Pardons and Parole in denying him parole. The district court properly concluded the claims contained within the initial application failed to state a cause of action upon which relief could be granted pursuant to the UPCPA. Thus, it was impossible for Cole to file a responsive pleading to the district court's notice that would bring his original application within the purview of the UPCPA.
The UPCPA requires that, when an applicant does not respond to the district court's notice of intent to dismiss and is thus in default, the applicant must seek leave of the court before an amended application may be filed. See I.C. § 19-4906(b) (after the district court issues its notice of intent to dismiss, and an applicant defaults, the district court may grant leave to file an amended application, or direct that the proceedings otherwise continue). To allow an applicant to submit amended applications without leave of the court would conceivably permit new allegations to be raised at an applicant's pleasure, up until the district court's order dismissing the application is issued. Thus, the post-conviction relief process could be extended indefinitely. Accordingly, we hold that, in the event an applicant fails to respond to a district court's notice of its intent to dismiss a post-conviction application and is in default, the applicant must seek leave of the district court before filing an amended application.
An action under the UPCPA is civil in nature and, thus, the decision whether to grant leave to amend a post-conviction application rests in the sound discretion of the trial court. See Stonewall Surplus Lines Ins. Co. v. Farmers Ins. Co. of Idaho, 132 Idaho 318, 324, 971 P.2d 1142, 1148 (1998); Hinkle v. Winey, 126 Idaho 993, 997, 895 P.2d 594, 598 (Ct.App. 1995). Such leave should be freely granted by the district court. I.R.C.P. 15(a); Wickstrom v. North Idaho College, 111 Idaho 450, 453, 725 P.2d 155, 158 (1986).
In his initial application for post-conviction relief, Cole sought leave to file an amended application if his court-appointed counsel deemed it appropriate. In the order dismissing Cole's post-conviction application, the district court recognized that it could grant Cole leave to file an amended application. However, the facts recited in the district court's order dismissing Cole's application indicate that the initial application was the only issue under consideration. The district court made no reference to Cole's amended application in its order dismissing the initial application. The sole reason given by the district court for its dismissal was Cole's failure to respond within the twenty days to the court's notice. Thus, based on the record before us, we cannot conclude that the district court exercised its discretion with regard to Cole's request for leave to file an amended application for post-conviction relief if his court-appointed attorney deemed it appropriate.
Cole argues that because he did not respond to the district court's notice but, rather, raised new allegations in his amended application, his filing of an amended application was procedurally proper. Cole relies on this Court's holding in Cowger v. State, 132 Idaho 681, 978 P.2d 241 (Ct.App. 1999), in support of his contention. In Cowger, this Court addressed the proper procedure for raising a new post-conviction relief claim after the district court has issued its notice of intent to dismiss the initial application. We concluded that the "procedure contemplated by the Uniform Post-Conviction Procedure Act does not permit new allegations to be raised in response to a notice of intent to dismiss." Id. at 686-87, 978 P.2d at 246-47. If new allegations were raised in response to a district court's notice of intent to dismiss, that court would be required to issue a further notice as to those claims and, thus, conceivably, the post- conviction process could go on indefinitely. Therefore, we held that the language of I.C. § 19- 4906(b) requires that "an applicant must file an amended application when he or she desires to raise additional issues in a post-conviction case." Id. at 687, 978 P.2d at 247. However, in Cowger, this Court did not address the procedure required when an applicant, who is in default pursuant to the court's notice, wishes to raise new post-conviction issues in an amended application for relief.
As discussed above, the plain language of I.C. § 19-4906(b) requires that an applicant first seek leave of the district court before an amended application will be permitted. The Court's decision in Cowger in no way altered the statutorily defined procedural requirements of Section 19-4902. In this case, Cole's initial application did contain a request for leave to file an amended application for post-conviction relief in the event his court-appointed attorney so advised. The district court appointed counsel to assist Cole with his post-conviction relief action, and the appointed attorney submitted an amended application for filing. However, the district court failed to rule on Cole's request, or even address the issue, although it recognized that it could do so.
Moreover, because the initial application did not state grounds upon which UPCPA relief could have been granted, Cole's counsel recognized that it was not possible to file a responsive pleading to the district court's notice. Thus, counsel filed an amended application following this Court's decision in Cowger. As indicated above, the district court also failed to consider the issues raised in Cole's amended application before dismissing Cole's UPCPA cause of action. We recognize that the better practice under the facts of this case would have been for Cole's court-appointed counsel to file another separate motion for leave to file an amended application. However, we cannot say that Cole's failure to follow that procedure warrants the summary dismissal of his application without the district court considering either Cole's request for leave to file an amended application or the issues raised therein.
Additionally, we note that the district court's failure to consider Cole's request for leave to amend may result in Cole forever being barred from asserting his ineffective assistance of counsel claim. Cole's initial application for post-conviction relief was summarily dismissed. Pursuant to I.C. § 19-4908, Cole could assert his ineffective assistance of counsel claims in a successive application only if he was able to demonstrate "sufficient reason" for not asserting those claims in his initial application. However, Cole's ineffective assistance of counsel claim, as set forth in his amended application, arose out of trial counsel's actions prior to, and during, trial. Thus, Cole knew, or should have known, of these actions when he filed his initial application.
III. CONCLUSION
We hold that the district court erred when it summarily dismissed Cole's initial application for post-conviction relief without addressing either the request for leave to file an amended application, or the amended application submitted by Cole's court-appointed post- conviction counsel. Therefore, the order of the district court, summarily dismissing Cole's application for post-conviction relief, is reversed, and the case is remanded to permit the district court to consider Cole's request for leave to file an amended application, and thereafter, Cole's amended application for post-conviction relief. If the district court, upon its review of the amended application, considers summary dismissal appropriate, it must again comply with the procedure set forth in I.C. § 19-4906.
Judge LANSING, and Judge SCHWARTZMAN, CONCUR.