The Court of Appeals has held that a district court may sua sponte raise the affirmative defense of statute of limitations during post-conviction summary dismissal proceedings.
Oschieng v. State, http://www.isc.idaho.gov/opinions/ochieng%20opinion.pdf
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This has been the law since 1997 which I now all too well as I lost the Martinez case in state court. In federal court, I got around procedural default on the basis that this was a new rule; then lost on the merits after evidentiary hearing.
ReplyDeleteAndy Parnes
Even more problematic is the court's finding that if you have 4 months to file your post-conviction action before you are denied access to the courts through transfer to an out-of-state facility with no access to Idaho law, there is no tolling of the UPCPA statute of limitations. Evensiosky approved this when the petitioner had eleven months before being transferred, but the four month limit goes well beyond that. So how long is long enough to prevent tolling? It seems that the Idaho legislature's policy determination that one year is adequate time to file a petition is being ignored by the Idaho courts.
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