Perry Wayne Cadue v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41001

PERRY WAYNE CADUE, ) 2014 Unpublished Opinion No. 699
)
Petitioner-Appellant, ) Filed: August 27, 2014
)
v. ) 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STATE OF IDAHO, ) THIS IS AN UNPUBLISHED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 of Idaho, Twin
Falls County. Hon. Randy J. Stoker, District Judge.

Judgment summarily dismissing successive petition for post-conviction
relief, affirmed; order denying request for appointment of counsel, affirmed.

Perry Wayne Cadue, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
Attorney General, Boise, for respondent.
________________________________________________
GUTIERREZ, Chief Judge
Perry Wayne Cadue appeals from the district court’s judgment summarily dismissing his
successive petition for post-conviction relief and denying his motion for appointment of post-
conviction counsel. For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Cadue was charged with aggravated battery, Idaho Code §§ 18-903 and 18-907, for his
involvement in a fight. Cadue did not testify at trial and was subsequently found guilty by a jury
of aggravated battery. Cadue appealed, asserting his sentence was excessive and we affirmed in
Cadue v. State, Docket No. 37227 (Ct. App. May 20, 2011) (unpublished). Thereafter, Cadue
filed a petition for post-conviction relief claiming his defense counsel provided ineffective
assistance. Upon the State’s motion, the district court summarily dismissed Cadue’s original
petition and we affirmed in Cadue v. State, Docket No. 40286 (Ct. App. Feb. 6, 2014)
(unpublished). While Cadue’s first post-conviction petition appeal was pending, he filed this

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successive petition for post-conviction relief raising numerous claims concerning his trial
counsel’s failure to adequately represent him. Furthermore, the petition alleged one claim of
ineffective assistance of appellate counsel and one claim of ineffective assistance of post-
conviction counsel. The district court issued an order denying appointment of post-conviction
counsel and dismissed the successive post-conviction petition, finding the petition was
improperly filed and therefore frivolous. Cadue responded. The district court entered a final
judgment summarily dismissing Cadue’s successive petition for post-conviction relief. Cadue
timely appealed.
II.
ANALYSIS
Cadue argues the district court erred when it summarily dismissed his successive petition
for post-conviction relief because he showed sufficient reason entitling him to file a successive
petition. Cadue asserts the district court concomitantly committed error by denying his request
for appointed post-conviction counsel.
A. Sufficient Reason for Filing a Successive Petition
In the instant petition, Cadue raises sixteen allegations concerning the ineffective
assistance of his defense counsel, one claim of ineffective assistance of appellate counsel, and
one claim of ineffective assistance of post-conviction counsel. It is Cadue’s contention that the
aforementioned claims of ineffective assistance of counsel are sufficient reasons entitling him to
file a successive petition for post-conviction relief. If an initial post-conviction action was
timely filed, an inmate may file a subsequent petition outside of the 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. § 19-4908;
Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007). Generally, Idaho Code
section 19-4908 requires that all allegations relating to a request for post-conviction relief be
asserted in one petition. Idaho Code section 19-4908 states:
All grounds for relief available to an applicant under this act must be
raised in his original, supplemental or amended application. Any ground finally
adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in
the proceeding that resulted in the conviction or sentence or in any other
proceeding the applicant has taken to secure relief may not be the basis for a
subsequent application, unless 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 application.

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In order to protect due process rights, Idaho recognizes an exception to the prohibition against
successive petitions for claims that were not known to the applicant at the time of the original
petition. Charboneau, 144 Idaho at 904-05, 174 P.3d at 874-75.
The district court was correct in determining that Cadue should have asserted his claims
of ineffective assistance of defense and appellate counsel in his original petition for post-
conviction relief. Cadue advances neither an excuse nor reason why his claims were not known
or could not have reasonably been known within the timeframe for filing an initial petition.
Therefore, these claims were not properly before the court in his successive petition, and
consequently, could not serve as a sufficient reason to file a successive petition.
Moreover, many of the claims in this petition are the same claims in his original petition.
Therefore, in the context of a successive petition for post-conviction relief, these claims were
known, raised and therefore could not possibly serve as a sufficient reason entitling Cadue to file
a successive petition under Idaho Code section 19-4908.
Finally, Cadue avers his appointed post-conviction counsel provided ineffective
assistance. Specifically, Cadue contends “[m]y post-conviction attorney refused to amend,
investigate and seek discovery, calls [sic] witnesses to prefect [sic] my petition.” In essence,
Cadues avers that a conclusory allegation of ineffective assistance of post-conviction counsel is a
sufficient reason under I.C. § 19-4908 to allow him to file a successive post-conviction petition.
In support of his contention, Cadue relies on Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955
(1981), in which the Court held that an allegation of ineffective assistance of prior post-
conviction counsel may provide sufficient reason under Idaho Code section 19-4908 to permit
allegations of error at trial not previously raised or inadequately raised in the initial application to
be raised in a subsequent post-conviction proceeding. However, the Idaho Supreme Court
recently overruled Palmer in Murphy v. State, 156 Idaho 389, 395, 327 P.3d 365, 376 (2014) and
held that because there is no statutory or constitutional right to effective assistance of post-
conviction counsel, an allegation of ineffective post-conviction counsel cannot demonstrate
sufficient reason for filing a successive petition. Id. Therefore, Cadue’s claim of ineffective
assistance of post-conviction counsel is not a sufficient reason entitling him to file a successive
petition.
B. Appointment of Successive Post-Conviction Counsel
Cadue argues that the district court erred by denying his request for appointment of
counsel to assist him with his successive petition. A request for appointment of counsel in a

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post-conviction proceeding is governed by I.C. § 19-4904, which provides that a court-appointed
attorney may be made available to an indigent applicant. Workman v. State, 144 Idaho 518, 529,
164 P.3d 798, 809 (2007); Gonzalez v. State, 151 Idaho 168, 171, 254 P.3d 69, 72 (Ct. App.
2011). The decision to grant or deny a request for court-appointed counsel lies within the
discretion of the district court. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111
(2004); Hust v. State, 147 Idaho 682, 683-84, 214 P.3d 668, 669-70 (Ct. App. 2009); Fox v.
State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The standard to be applied is
whether the petition alleges facts showing the possibility of a valid claim that would require
further investigation on the petitioner’s behalf. Workman, 144 Idaho at 529, 164 P.3d at 809;
Swader v. State, 143 Idaho 651, 654, 152 P.3d 12, 15 (2007); Charboneau, 140 Idaho at 793, 102
P.3d at 1112. Only if all of the claims alleged in the petition are frivolous may the court deny a
request for counsel. Charboneau, 140 Idaho at 792, 102 P.3d at 1111. On appellate review, we
will not set aside the trial court’s findings of fact unless they are clearly erroneous and will
exercise free review of questions of law. Id
A petitioner is not entitled to appointment of counsel on a petition for post-conviction
relief where the petitioner’s claims are frivolous and require no further investigation. Workman,
144 Idaho at 529, 164 P.3d at 809. The district court’s determination that Cadue’s claims were
frivolous and therefore required no further investigation aided by court-appointed counsel are
supported by the record because all of the claims are barred by I.C. § 19-4908.
III.
CONCLUSION
The district court did not err in summarily dismissing Cadue’s successive post-conviction
petition, having determined he has failed to allege facts raising the possibility of a valid claim
that would provide sufficient reason for filing a successive petition. As a result of the district
court’s determination that Cadue’s successive post-conviction petition was frivolous, the district
court acted within its discretion when it denied Cadue’s request for court-appointed counsel.
Accordingly, we affirm the district court’s judgment summarily dismissing Cadue’s successive
petition for post-conviction relief and denying his request for appointment of counsel.
Judge LANSING and Judge GRATTON CONCUR.

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