               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 36380

DUB D. TUNSTALL,                                  )     2010 Unpublished Opinion No. 503
                                                  )
       Petitioner-Appellant,                      )     Filed: June 8, 2010
                                                  )
v.                                                )     Stephen W. Kenyon, Clerk
                                                  )
STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED
                                                  )     OPINION AND SHALL NOT
       Defendant-Appellant.                       )     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.

       Order summarily dismissing application for post-conviction relief, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                   ______________________________________________
MELANSON, Judge
       Dub D. Tunstall appeals from the district court’s order summarily dismissing his
application for post-conviction relief. For the reasons set forth below, we affirm.
       Tunstall pled guilty to rape and was sentenced in 2004. Tunstall appealed, and this Court
affirmed Tunstall’s judgment of conviction and sentence in and unpublished opinion in 2005.
State v. Tunstall, Docket N. 31271 (Ct. App. Dec. 29, 2005). Tunstall filed an application for
post-conviction relief, which the district court denied. Tunstall appealed, and the Idaho Supreme
Court dismissed the appeal as untimely and issued a remittitur in 2006.
       In 2008, Tunstall filed a pro se application for post-conviction relief, alleging various
errors surrounding the psychosexual evaluation prepared for sentencing.         The district court
granted Tunstall’s request for the appointment of counsel, and the state filed a motion to
summarily dismiss the application because it was untimely. Tunstall argued that Estrada1


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       Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006).
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announced a new rule that should be applied retroactively in his case making his application
timely.     The district court granted the state’s motion for summary dismissal of Tunstall’s
application because it was barred by the one-year statute of limitation. Tunstall appeals.
          Our review of the district court’s construction and application of the limitation statute is a
matter of free review. Freeman v. State, 122 Idaho 627, 628, 836 P.2d 1088, 1089 (Ct. App.
1992). The statute of limitation for post-conviction actions provides that an application for post-
conviction relief may be filed at any time within one year from the expiration of the time for
appeal or from the determination of appeal or from the determination of a proceeding following
an appeal, whichever is later. I.C. § 19-4902(a). The appeal referenced in that section means the
appeal in the underlying criminal case. Freeman, 122 Idaho at 628, 836 P.2d at 1089. The
failure to file a timely application is a basis for dismissal of the application. Sayas v. State, 139
Idaho 957, 959, 88 P.3d 776, 778 (Ct. App. 2003).
          In this case, Tunstall filed his application for post-conviction relief over two years after
his judgment of conviction became final.            Therefore, his application is clearly untimely.
However, Tunstall argues that his application should be deemed timely because the Idaho
Supreme Court announced a new rule of law in Estrada that should be applied retroactively.
Tunstall acknowledges that the Idaho Supreme Court has said, by way of dicta, that Estrada did
not announce a new rule of law to be given retroactive application. See Vavold v. State, 148
Idaho 44, 46, 218 P.3d 388, 390 (2009). Tunstall also acknowledges that this Court has held that
Estrada did not announce a new rule of law to be given retroactive application. See Kriebel v.
State, 148 Idaho 188, 191, 219 P.3d 1204, 1207 (Ct. App. 2009). Nonetheless, Tunstall argues
that Estrada should be applied retroactively in his case because there is no controlling Idaho
Supreme Court precedent on the issue. However, this Court’s holding in Kriebel is controlling
precedent in the absence of any Idaho Supreme Court holding to the contrary. Tunstall makes a
lengthy argument as to why Estrada announced a new rule of law and why it should be applied
retroactively. We need not further address this issue, as we have already done so. Accordingly,
the district court’s order summarily dismissing Tunstall’s application for post-conviction relief is
affirmed. No costs or attorney fees are awarded on appeal.
          Judge GUTIERREZ and Judge GRATTON, CONCUR.




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