               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41249

WILLIAM ALLEN OSER,                               )       2014 Unpublished Opinion No. 450
                                                  )
       Petitioner-Appellant,                      )       Filed: April 15, 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STATE OF IDAHO,                                   )       THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
       County. Hon. Ronald J. Wilper, District Judge.

       Order summarily         dismissing    successive     petition   for   post-conviction
       relief, affirmed.

       Deborah Whipple of Nevin, Benjamin, McKay & Bartlett, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       William Allen Oser appeals from the district court’s summary dismissal of his second
successive petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Oser was found guilty of trafficking in methamphetamine, I.C. § 37-2732B(a), and
delivery of a controlled substance, I.C. § 37-2732(a). He was sentenced to concurrent unified
terms of twenty years, with minimum periods of confinement of six years. Oser appealed his
judgment of conviction, which was affirmed by this Court in an unpublished opinion. See State
v. Oser, Docket No. 35228 (Ct. App. Feb. 18, 2009). On July 20, 2009, Oser filed a pro se
petition for post-conviction relief. Oser was appointed counsel, who filed an amended petition.
The state filed a motion for summary dismissal, which the district court granted after a hearing




                                                 1
on June 23, 2010. Oser appealed the dismissal and later voluntarily withdrew that appeal in
April 2011.
        On May 16, 2011, Oser filed a pro se successive petition for post-conviction relief and
requested the appointment of counsel. In his petition, Oser alleged that his post-conviction
counsel was ineffective in three respects:        (1) failure to adequately address the issue of
ineffective assistance of trial counsel on the basis of relevance, foundation, and admissibility of
certain specific statements on a recording; (2) failure to raise the issue of trial counsel’s failure to
impeach the state’s witnesses; and (3) failure to raise the issue of trial counsel’s failure to call
certain witnesses. Oser’s petition also raised new claims, pursuant to I.C. § 19-4901(a)(4), that
the affidavit of probable cause in support of the search warrant was missing or never existed, was
intentionally withheld from the defense, or was obtained as a result of police misconduct. The
state moved for summary dismissal of the successive petition. The district court subsequently
denied Oser’s request for appointment of counsel and granted the state’s motion, finding Oser’s
petition untimely and the claims made in the petition could have been raised in his original
petition for post-conviction relief. Oser appealed and we affirmed in an unpublished opinion,
rejecting Oser’s claim that his successive petition was timely under our decision in Hernandez v.
State, 133 Idaho 794, 992 P.2d 789 (Ct. App. 1999). See Oser v. State, Docket No. 39001 (Ct.
App. Sept. 5, 2012). Instead, we held that Hernandez did not apply because, as a result of Oser’s
voluntary withdrawal of his appeal, there was no appellate court order affirming dismissal.
Moreover, we held that Oser had not asserted any reason for the almost one-year delay in filing
following summary dismissal of his initial petition for post-conviction relief.
        Oser filed his second successive petition for post-conviction relief approximately seven
months later on April 8, 2013. More accurately, he refiled the same petition (other than the
signature page) as was used in his first successive petition and attached affidavits from two State
Appellate Public Defender’s office (SAPD) attorneys. These affidavits purported to explain why
Oser’s first successive petition was, in fact, timely. Specifically, these affidavits allege that Oser
was advised by the SAPD to withdraw his appeal of the summary dismissal of his initial petition
for post-conviction relief because his claims of ineffective assistance of post-conviction counsel
and newly found evidence could properly be brought only in a successive petition for post-
conviction relief. Moreover, the SAPD advised him that he could file within a reasonable time
of withdrawing his appeal. Oser made no argument as to why his second successive petition was


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timely. The district court gave notice of its intent to dismiss Oser’s second successive petition as
being time-barred and gave Oser twenty days to amend his petition to avoid dismissal. The next
day, the state filed a motion for summary dismissal. The district court appointed counsel to
represent Oser on the limited issue of the timeliness of the second successive petition. After a
hearing, the district court granted the state’s motion for summary dismissal, finding that Oser’s
second successive petition was untimely. Oser appeals.
                                                 II.
                                           ANALYSIS
       Oser argues that the district court erred in determining that his second successive petition
for post-conviction relief was not filed within a reasonable time.         More specifically, Oser
contends that the newly presented affidavits of the two SAPD attorneys raise a genuine issue of
material fact as to whether the failure to file his first successive petition in a timely manner was
the result of incorrect advice from one of those attorneys, thereby precluding summary dismissal
and entitling him to an evidentiary hearing. However, Oser misunderstands the standard for
consideration of a successive petition for post-conviction relief. Why the first successive petition
was not timely filed is irrelevant to this appeal. The question on summary dismissal of a second
successive petition is not whether there is a genuine issue of material fact as to why the first
successive petition was untimely. 1 Instead, a second successive petition is subject to the same
threshold requirements as a first successive petition. Thus, 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;


1
        Indeed, a second successive petition for post-conviction relief is not a forum to appeal
alleged errors of the district court or appellate court in disposing of prior petitions for post-
conviction relief; that type of a challenge must be done in a direct appeal or petition for rehearing
or review. See I.C. § 19-4909 (providing that the review of final judgments entered in post-
conviction proceedings is through appeal to the Idaho Supreme Court); I.A.R. 2(a) (providing
that the Idaho Appellate Rules “shall govern all appeals and petitions for special writs or
proceedings in the Supreme Court”); I.A.R. 108 (providing for assignment of appellate cases to
the Court of Appeals); I.A.R. 116 (providing procedure for a petition for rehearing before the
Court of Appeals); I.A.R. 118 (providing procedure for a petition for review by the Supreme
Court of a decision of the Court of Appeals). The issue of whether the first successive petition
for post-conviction relief was timely was resolved on appeal, see Oser v. State, Docket No.
39001 (Ct. App. Sept. 5, 2012), and thus cannot be relitigated here.

                                                 3
Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007). However, the petition is
subject to summary dismissal unless the petitioner can show such a sufficient reason for bringing
a successive petition. See Hooper v. State, 127 Idaho 945, 948, 908 P.2d 1252, 1255 (Ct. App.
1995) (stating that, to avoid summary dismissal, a petitioner has the burden of providing the
district court with factual reasons upon which it could conclude there was a sufficient reason for
bringing the successive petition).    Analysis of sufficient reason permitting the filing of a
successive petition includes an analysis of whether the claims being made were asserted within a
reasonable period of time “once those claims are known.” Charboneau, 144 Idaho at 905, 174
P.3d at 875. We determine what a reasonable time is for filing a successive petition on a case-
by-case basis. Id.
        Oser argues that the seven months which elapsed between the disposition of his failed
appeal of the summary dismissal of his first successive petition and the filing of his second
successive petition was reasonable because the second successive petition was filed within one
year. Oser cites to Hernandez and Charboneau for support of this proposition. However, in
Hernandez we did not establish a rule that successive petitions for post-conviction relief are per
se timely if filed within one year of the determination of an appeal in the most recent prior post-
conviction action.   Instead, we determined only that, under the circumstances specific to
Hernandez, one year was a reasonable time for filing a successive petition where the initial
action was dismissed due to alleged ineffective assistance of post-conviction counsel.
Hernandez, 133 Idaho at 799, 992 P.2d 794. As previously noted, we consider what a reasonable
time is for filing a successive petition for post-conviction relief on a case-by-case basis.
Charboneau, 144 Idaho at 905, 174 P.3d at 875. The timeframe at issue when determining a
reasonable time begins “from the date of notice” that new claims potentially exist. Id. In
Charboneau, the Court determined that a thirteen-month delay from discovery of potential
claims was an unreasonable delay in the filing of a second successive petition for post-conviction
relief. Id.
        In Oser’s appeal from the summary dismissal of his first successive petition for post-
conviction relief, we concluded that his first successive petition, which was filed in May 2011,
was untimely. See Oser, Docket No. 39001. This was because Oser knew, or should have
known, about his post-conviction counsel’s alleged ineffectiveness when the district court
granted the state’s motion for summary dismissal of Oser’s ineffective assistance of trial counsel


                                                4
claims on June 23, 2010, yet he provided no reason for the nearly one-year delay in filing these
claims. Id. See also Rhoades v. State, 148 Idaho 247, 253, 220 P.3d 1066, 1072 (2009) (stating
that ineffective assistance of counsel is presumed to be known when it occurs). Additionally, we
determined that Oser knew, or should have known, about his newly raised claims regarding the
affidavit of probable cause for the search warrant at least by the time Oser’s judgment of
conviction was affirmed on February 18, 2009. Oser, Docket No. 39001. Again, Oser provided
no explanation for why these claims were not raised in his initial petition for post-conviction
relief, which was filed on July 20, 2009. Id.
       Here, we conclude that Oser’s claims from his first successive petition filed in May 2011,
which we previously determined to be untimely, are no less untimely when resubmitted in a
virtually identical successive petition in April 2013. 2 Because Oser failed to file his second
successive petition within a reasonable time after he knew, or should have known, about the
claims contained therein, Oser has failed to provide a sufficient reason for bringing a successive
petition under I.C. § 19-4908. 3
                                                III.
                                         CONCLUSION
       Oser’s second successive petition for post-conviction relief, which raised the identical
claims made in his first successive petition for post-conviction relief, was not filed within a
reasonable time after discovering the claims contained in that petition. Accordingly, we affirm
the district court’s order summarily dismissing Oser’s second successive petition for post-
conviction relief. No costs or attorney fees are awarded on appeal.
       Judge LANSING and Judge GRATTON, CONCUR.



2
        Moreover, even assuming that the timeliness of Oser’s second successive petition should
be determined from the resolution of his appeal from the dismissal of his first successive petition
in September 2012, Oser fails to provide any explanation for the approximately seven month
delay in filing this second successive petition. This delay is particularly unreasonable given that
his second successive petition is a virtual verbatim copy of his first successive petition with
exception of the title, signature pages, and attached affidavits.
3
       We note that Oser’s claims of ineffective assistance of post-conviction counsel would fail
under the Idaho Supreme Court’s recent decision in Murphy v. State, ___ Idaho, ___, ___ P.3d
___ (2014), pet. reh’g. pending. Because that decision is not yet final, we do not rely upon it
here.

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