The dicta in Vavold v. State (issued 8-21-09) that Estrada is not retroactive does not end the debate over the effect of the Estrada case. First, of course, it's dicta. And, as is often the case with dicta, it turns out not to be correct or correct in all circumstances.
Second, it isn't clear, to me at least, that Estrada is merely the application of previously established law. The Estrada Court does not mention State v. Curless, 137 Idaho 138, 145, 44 P.3d 1193, 1200 (Ct. App. 2002), where the Court of Appeals held that the psychosexual evaluation was not a critical stage under the Sixth Amendment. So until Estrada overruled Curless sub silentio, a petitioner could not have known there was a Sixth Amendment claim even though Estrada relies upon older cases to reach that conclusion.
This wrinkle may be resolved in Kriebel v. State which is being argued before the COA today. That case also presents the question of whether the statute of limitations should have been equitably tolled.
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