Andy Gene Gallegos v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 42009

ANDY GENE GALLEGOS, 2015 Unpublished Opinion No. 481

Petitioner-Appellant, Filed: May 6,2015

Stephen W. Kenyon, Clerk

STATE OF IDAHO, THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
Respondent. BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State ofldaho, Cassia
County. Hon. Michael R. Crabtree, District Judge.

Summary dismissal of successive petition for post-conviction relief, affirmed.

Andy Gene Gallegos, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attomey General; Ted S. Tollefson, Deputy Attorney
General, Boise, for respondent.

GRATTON, Judge
Andy Gene Gallegos appeals from the district court's summary dismissal of his
successive petition for post-conviction relief. We affirm.

L
FACTUAL AND PROCEDURAL BACKGROUND
Gallegos was found guilty by a jury of two counts of sexual abuse of a child under the
age of sixteen years, and he pled guilty to the persistent violator enhancement. Idaho
code
$$ 18-1506 and 19'2514. The district court imposed a unified sentence of thiny years with ten
years determinate for the first count of sexual abuse ofa child under the age
of sixteen years with
the enhancement, and a concurrent unified sentence of twenty-five years with ten years
determinate for the second count of sexual abuse ofa child under the age of sixteen years. This
court afhrmed Gallegos' judgment of conviction and sentences on direct appeal. state v.
Gallegos, Docket No. 35324 (Ct. App. Sept. 18,2009) (unpublished).
Gallegos filed his initial petition for post-conviction relief in 2010, asserting multiple
claims of ineffective assistance of trial and appellate counsel. The State filed a motion for
summary dismissal, which the district court granted. Gallegos' appeal of this order was later
dismissed.
In 2013, Gallegos filed the instant, successive petition for post-conviction relief.
Gallegos again asserted ineffective assistance oftrial and appellate counsel, and also claimed that
his prior post-conviction counsel failed to adequately raise his ineffective assistance of counsel
claims. After providing notice, the district court summarily dismissed the petition on the ground
that Gallegos failed to demonstrate a sufficient reason for filing a successive petition pursuant to
I.c. s 19-4908. The district court also denied Gallegos' motion for appointment of post-
conviction counsel, finding that the allegations in Gallegos' petition were frivolous and did not
raise the possibility of valid claims. Gallegos timely appeals.

II.
ANALYSIS
Idaho Code $ 19-4906 autlorizes summary dismissal of a petition for postconviction
relief, either pursuant to a motion by a party or upon the court's own initiative, if ..it appears
from the pleadings, depositions, answers to intenogatories, and admissions and agreements of
fact, together with any affidavits submitted, that there is no genuine issue of material fact
and the
moving party is entitled to judgment as a matter of law." I.c. $ 19-4906(c). Generally, all
allegations relating to a request for post-conviction relief must be asserted in one petition.
I.C.
li l9-4908. A successive petition for post-conviction relief may be summarily dismisse6 ..if the
grounds for relief were finally adjudicated or waived in the previous post-conviction
proceeding." Grffin v. state, t42ldaho 438, 441, l2g p.3d 975, 978 (Ct. App. 2006) (citing
I.c.
$ 19-4e08).
A post-conviction action may not be summarily dismissed unless the petitioner has been
given twenty days' notice, either by the court or by motion of the State, and an opportunity
to
respond before dismissal is ordered. LC. $ l9-4906(b); state v. Christensen,l02 Idaho 4g7,48g.
632 P.2d 67 6, 67 8 (1981).
Idaho code $ l9-4902(a) requires that a post-conviction proceeding be commenced by
filing a petition "any time within one (l) year from the expiration ofthe time for appeal or from
the determination of an appeal or from t}te determination of a proceeding following an appeal,
whichever is later." If an initial post-conviction action was timely filed, an inmate may file a
subsequent petition outside ofthe one-year limitation period if 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 petition. I.c. g 19-4908; Charboneau v. state, 144 Idaho 900, 904.
17 4 P.3 d, 87 0, 87 4 (2007).
In the instant petition, Gallegos avers his appointed post-conviction counsel provided
ineffective assistance. Specifically, Gallegos contends that his "sufficient reason for successive
petition for post-conviction relief is due to ineffective assistance of post-conviction relief counsel
for failure to raise all cognizable claims of ineffective assistance of trial counsel.,' When
Gallegos' successive petition was filed, Idaho case law held that allegations of ineffective
assistance of prior post-conviction counsel could provide a sufficient reason to permit a
successive post-conviction petition. Palmer v. Dermi , 1 02 Idaho 591, 596, 635 p.2d,955, 960
(1981). However, that case has recently been ovemrled in Murphy v. state, 156ld,aho 3g9,327
P.3d 365 (2014). As a result, a petitioner cannot demonstrate sufficient reason for filing a
successive petition based on alleged ineffectiveness ofprior post-conviction counsel. Id. at395,
327 P .3d' at 371 . Thus, in light of Murphy, Gallegos cannot provide a sufficient reason for
failing to raise or adequately assert these claims in his initial petition for post-conviction relief.,
Furthermore, Gallegos' claims of inefilective assistance of trial and appellate counsel have
been
waived, as they should have been raised, and in fact were raised, in his first petition. s'ee I.c.

$ 19-4908.
on appeal, Gallegos also relies on I.c. $ l9-g52 to argue that there is a statutory right to
the appointment of counsel during post-conviction proceedings.2 Howe.,rer, the Idaho Supreme

' In his objection to the district court's notice of intent to dismiss his successive petition,
Gallegos argued that the holding in Murphy "is contrary to clearly established Federai law as
determined by the U.S. Supreme court and the Ninth circuit.', In dismissing his petition,
the
district court conectly determined that the cases Gallegos relied on have no -application to his
state law claim. Gallegos does not challenge this determination on appeal.

' rt,upp.ars that Gallegos is relying on section (2)(c), which provides that an indigent
person who is entitled to be represented by an attomey is entitled:
To be represented in any other post-conviction or post-commitment proceedinp
that the attomey or the indigent person considers appropriate, znles.r tire court ii
which the proceeding is brought determines that it is not a proceeding that a
Court has repeatedly held that there is no statutory right to post-conviction counsel; rather, the
district court has discretion to grant or deny a request for court-appointed counsel. Murphy, 156
Idaho at 395,327 P.3d at 371; Eby v. State, 148 Idaho 731,738,228 P.3d 998, 1005 (2010);
,l,l08,
Charbonequ v. State, 140 Idaho 789, 792, 102 P.3d 1111 (2004); Fields v. State, 135
Idaho, 286, 291, 17 P .3d 230, 235 (2000); see I.C. $ 19-4908. In this case, the district court, in
its discretion, denied Gallegos' request for the appointment of post-conviction counsel, finding
that the allegations in Gallegos' petition were frivolous and did not raise the possibility of valid
claims.
III.
CONCLUSION
The district court did not err in summarily dismissing Gallegos' successive petition for
post-conviction relief, having determined that he has failed to demonstrate a sufficient reason for
filing a successive petition. Further, the district court did not en in denying Gallegos' motion for
appointment of counsel. Accordingly, we affirm the district court's order summarily dismissing
Gallegos' petition for post-conviction relief.
Chief Judge MELANSON and Judge LANSING CONCUR.

reasonable person with adequate means would be willing to bring at his own
expense and is therefore a frivolous proceeding.
I.C. $ 19-852(2)(c) (emphasis added).