Two COA Opinions Re Equitable Tolling of the SOL for Post-Conviction Petitions (Whatever You Do, Don't Be Late!)

In Judd v. State, http://www.isc.idaho.gov/opinions/Judd,%20John.pdf, a post-conviction petitioner argued that the district court should have ruled on his motion for appointment of counsel before summarily denying petition. The COA agreed, writing that "a district court presented with a request for appointed counsel in a post-conviction action must address that request before ruling on the substantive issues in the case and errs if it denies a petition on the merits before ruling on the applicant’s request for counsel."

No harm done, however, because the petition was not timely filed. None of the two stated bases for equitable tolling of the statute of limitations (e.g., "where the applicant was incarcerated in an out-of-state facility without legal representation or access to Idaho legal materials" and "where mental disease and/or psychotropic medication rendered the applicant incompetent and prevented him from pursuing earlier challenges to the conviction) applied. Moreover the discovery exception applied in Charbonneau v. State did not apply because Mr. Judd was aware of the facts underlying his claim (ineffective assistance of counsel) within the statute of limitations period. The fact that he didn't know those actions were ineffective until he spoke to another attorney after the one year period had already expired didn't matter. "A discovery exception to a statute of limitation applies only to the discovery of facts not discovery of the law."

And in Leer v. State, the COA held that the district court erred in granting Mr. Leer an equitable tolling of the one-year statute of limitations for a post-conviction petition. http://www.isc.idaho.gov/opinions/Leer,%20William.pdf

Prior to the running of the post-conviction period, Mr. Leer filed a pro se motion with the district court seeking appointment of counsel to assist him in filing a petition. The district court granted the motion after the one year statute of limitations expired. So, the petition was filed approximately four months too late, but the district court held an equitable tolling should apply and heard, but then denied the petition.

The COA did not approve of this. First, the Court held that the state could challenge the grant of equitable tolling even though it did not file a cross-appeal because it was seeking, not affirmative relief, but affirmance of the district court's ultimate dismissal of the petition on alternative grounds. Then, the Court held that Mr. Leer's "well-crafted" motion for counsel and affidavit of indigency demonstrated that he could have filed a timely petition had he so wished even if he did need counsel to help him litigate the petition. Given he had shown no inability to file a timely petition, the grant of equitable tolling was wrong.