               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37147

STEVEN KIM ANDERSON,                             )      2012 Unpublished Opinion No. 497
                                                 )
       Petitioner-Appellant,                     )      Filed: May 30, 2012
                                                 )
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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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. G. Richard Bevan, District Judge.

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

       Steven Kim Anderson, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Steven Kim Anderson appeals from the summary dismissal of his successive petition for
post-conviction relief. He asserts that the district court erred by dismissing the petition without
giving him sufficient notice and without first ruling on his motion for appointment of counsel,
and that the district court erroneously concluded that his successive petition was procedurally
barred. We affirm.
                                                I.
                                        BACKGROUND
       Anderson was convicted of aggravated battery after a jury trial, and sentenced to a
unified term of fifteen years with seven years determinate. The judgment of conviction and
sentence were affirmed in an unpublished decision. State v. Anderson, Docket No. 25632 (Ct.
App. Feb. 27, 2001). Anderson later filed a petition for post-conviction relief raising a number
of issues, including ineffective assistance of counsel and prosecutorial misconduct. The district

                                                1
court granted summary dismissal, and this Court affirmed in an unpublished decision. Anderson
v. State, Docket Nos. 30079, 30080, 30625 (Ct. App. June 2, 2006).
       On August 26, 2006, Anderson filed a successive petition for post-conviction relief
asserting: (1) that the prosecutor committed misconduct at trial by knowingly eliciting testimony
from a witness, C.B., that was different from C.B.’s prior out-of-court statements; and (2) that
trial counsel was ineffective for failing to address the prosecutor’s misconduct. The district court
appointed counsel and, on September 13, issued notice of intent to dismiss the petition for
several reasons, including that the successive petition was untimely because the claims were not
raised within a reasonable time of their discovery. Anderson filed an amended petition with the
assistance of counsel, asserting that his attorney’s failure to raise the claims in his original
petition was ineffective assistance of counsel, and the court scheduled an evidentiary hearing. At
the hearing--which was not held until March 26, 2009, as the result of multiple continuances--
Anderson’s attorney requested to withdraw the amended petition pursuant to her obligations
under Idaho Rule of Civil Procedure 11. 1 The court deemed the amended petition withdrawn
and reinstated the original petition. Anderson’s attorney then stated that she could not continue
to represent Anderson because of a breakdown of communication. The Court allowed her to
withdraw and stayed the proceedings. The court subsequently appointed new counsel and, on
June 9, reissued notice of its intent to dismiss the original petition on the same grounds stated in
the original notice. Anderson’s new attorney also was permitted to withdraw because of a
breakdown of attorney-client communication. Upon permitting Anderson’s second attorney to
withdraw, the court ruled that “the petition as stated is frivolous, [and] does not warrant
appointment of additional counsel.”         Nevertheless, Anderson filed another motion for




1
       Idaho Rule of Civil Procedure 11(a)(1) provides, in part:

       The signature of an attorney or party constitutes a certificate that the attorney or
       party has read the pleading, motion or other paper; that to the best of the signer’s
       knowledge, information, and belief after reasonable inquiry it is well grounded in
       fact and is warranted by existing law or a good faith argument for the extension,
       modification, or reversal of existing law, and that it is not interposed for any
       improper purpose, such as to harass or to cause unnecessary delay or needless
       increase in the cost of litigation.


                                                 2
appointment of counsel, which the court denied. On November 18, the court again issued notice
of intent to dismiss the petition on the same grounds stated in previous two notices.
       On May 5, 2010, Anderson refiled a handwritten copy of the amended petition for post-
conviction relief which had been filed and withdrawn by Anderson’s first counsel, and the court
scheduled an evidentiary hearing for August 3. Anderson also filed a renewed motion for
appointment of counsel, and the State filed a motion for summary dismissal, asserting that
Anderson’s successive petition was untimely. The district court granted the State’s motion for
summary dismissal. Anderson appeals.
                                                  II.
                                            ANALYSIS
A.     Standard of Review
       A petition for post-conviction relief under the Uniform Post Conviction Procedure Act
(UPCPA) is civil in nature. Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007).
The petitioner must prove the claims upon which the petition is based by a preponderance of the
evidence. Id. When the alleged facts, even if true, would not entitle the applicant to relief, the
trial court may dismiss the application without holding an evidentiary hearing. Idaho Code § 19-
4906(b), (c); Charboneau, 144 Idaho at 903, 174 P.3d at 873; Stuart v. State, 118 Idaho 865,
869, 801 P.2d 1216, 1220 (1990); Cooper v. State, 96 Idaho 542, 545, 531 P.2d 1187, 1190
(1975). If the petitioner’s evidence raises a genuine issue of material fact which, if resolved in
his favor, would demonstrate entitlement to relief, summary disposition is not appropriate.
Charboneau, 144 Idaho at 903, 174 P.3d at 873. Therefore, on review of a dismissal of a post-
conviction relief application without an evidentiary hearing, we determine whether a genuine
issue of material fact exists based on the pleadings, depositions, and admissions together with
any affidavits on file, and whether the petitioner’s allegations, if true, show a right to relief. Id.;
Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Ricca v. State, 124 Idaho
894, 896, 865 P.2d 985, 987 (Ct. App. 1993).
       All claims for post-conviction relief must be raised in an original, supplemental, or
amended application. I.C. § 19-4908. An original application must be filed within one year
from the expiration of the time for appeal or from the determination of an appeal or from the
determination of a proceeding following an appeal, whichever is later.               I.C. § 19-4902.
Successive petitions are impermissible “unless the court finds a ground for relief asserted which


                                                  3
for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or
amended application.” I.C. § 19-4908. While Section 19-4908 sets forth no fixed time within
which successive petitions may be filed, the “sufficient reason” language in the statute
necessarily provides “a reasonable time within which such claims [may be] asserted in a
successive post-conviction petition, once those claims are known.” Charboneau, 144 Idaho at
905, 174 P.3d at 875. The determination of what is a reasonable time is considered on a case-by-
case basis. Id.
B.     Consideration of the State’s Motion
       We first address Anderson’s assertion that the court erred by considering the State’s
motion to dismiss, which was filed six days before the scheduled evidentiary hearing. Anderson
asserts that motion was untimely because it did not comply with the court’s scheduling order or
applicable rules of civil procedure. 2 Anderson relies on Wolfe v. State, 117 Idaho 645, 649, 791
P.2d 26, 30 (Ct. App. 1990). In Wolfe, this Court stated:
               A motion for summary disposition is the procedural equivalent of a
       motion for summary judgment. See Ramirez v. State, 113 Idaho 87, 741 P.2d 374
       (Ct. App. 1987). Rules and statutes applicable in civil proceedings generally are
       available to parties involved in post-conviction applications. I.C. § 19-4907(a).
       Motions for summary judgment must be filed at least sixty days before trial or
       within seven days of the order setting the case for trial, whichever date comes
       later. I.R.C.P. 56(a), (b). The motion, together with supporting affidavits and
       brief, must be served on the opposing party at least twenty-eight days before the
       time set for hearing. I.R.C.P. 56(c). The purposes of the time requirements in
       Rule 56 are twofold: to give the opposing party an adequate opportunity to
       respond and to give the court an adequate opportunity to make a reasoned
       decision.

       Here, the district court entered an order on May 24, 2010, scheduling the evidentiary
hearing for August 3, 2010. The State’s motion for summary judgment was not filed until
July 28. Thus, the motion was not filed at least sixty days before the evidentiary hearing or
within seven days of the scheduling order. Additionally, Anderson did not receive at least
twenty-eight days’ notice before the hearing on the motion, which in this case was scheduled for
August 3--the same day as the evidentiary hearing. Noncompliance with scheduling or notice



2
        The court entered scheduling orders each time the evidentiary hearing was rescheduled,
but none of the orders appear in the record. However, it appears from the transcripts that the
court’s scheduling orders mirrored I.R.C.P. 56.

                                                4
requirements of Rule 56 does not require reversal, however, absent a showing of prejudice. See
I.R.C.P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.”). Thus, in Ponderosa
Paint Mfg., Inc. v. Yack, 125 Idaho 310, 317, 870 P.2d 663, 670 (Ct. App. 1994), we declined to
reverse a summary judgment merely because the summary judgment motion and supporting
documents were not mailed to the opposing party at least thirty-one days in advance of the
hearing as required by I.R.C.P. 56(c) and 6(e)(1). We held that the technical error did not require
reversal because the appellants had not demonstrated that, if given additional time, they could
have submitted evidence or legal argument that would have prevented the summary judgment
against them. Ponderosa, 125 Idaho at 317, 870 P.2d at 670. See also McClure Eng’g, Inc. v.
Channel 5 KIDA, 143 Idaho 950, 955, 155 P.3d 1189, 1194 (Ct. App. 2006); In re Estate of
Keeven, 126 Idaho 290, 298, 882 P.2d 457, 465 (Ct. App. 1994). Despite the short notice,
Anderson was able to file an eight-page response to the State’s motion, replete with numerous
citations to authority, before the hearing.    Anderson has not asserted that he could have
submitted any additional evidence or legal argument if given additional time.           Therefore,
Anderson has not demonstrated reversible error.
       Anderson also asserts that reversal is required because he was not afforded a twenty-day
opportunity to reply to the State’s motion. When a court issues notice of intent to dismiss a
petition, the petitioner “shall be given an opportunity to reply within 20 days to the proposed
dismissal.” I.C. § 19-4906(b). The purpose of the twenty days’ notice is to ensure that the
applicant will have an opportunity to challenge an adverse decision before it becomes final.
Baruth v. Gardner, 110 Idaho 156, 158-59, 715 P.2d 369, 371-72 (Ct. App. 1986); Gibbs v.
State, 103 Idaho 758, 760, 653 P.2d 813, 815 (Ct. App. 1982). When the State files a motion to
dismiss, the petitioner is entitled to a like twenty-day period of time to respond. State v.
Christensen, 102 Idaho 487, 489, 632 P.2d 676, 678 (1981). Ordinarily, the failure to provide a
petitioner with twenty days’ notice before entering an order of summary dismissal is ground for
reversal. See Saykhamchone v. State, 127 Idaho 319, 321-22, 900 P.2d 795, 797-98 (1995); Buss
v. State, 147 Idaho 514, 518-19, 211 P.3d 123, 127-28 (Ct. App. 2009).            Here, however,
Anderson actually filed a response to the State’s motion before the hearing. Thus, the court did
not err when it considered the State’s motion during the time scheduled for an evidentiary
hearing. Furthermore, Anderson had received notice on numerous occasions that his successive


                                                5
petition was not timely, and therefore was subject to dismissal. The issue of timeliness was
raised in each of the district court’s three notices of intent to dismiss the petition, as well as the
State’s answer. Therefore, Anderson was well aware of this challenge to his petition and had
abundant time to prepare a response to this asserted ground for dismissal. In these unique
circumstances, even if we deemed the failure to provide the full twenty-day-notice period after
the State’s motion for summary disposition to be erroneous, it was not prejudicial, and therefore
would not call for reversal.
C.     Timeliness of Anderson’s Successive Petition
       Having concluded that the district court’s consideration of the State’s motion for
summary disposition on shortened notice did not constitute reversible error, we next consider
whether the district court correctly concluded that the successive petition was untimely. 3
Anderson asserts that his petition was timely because it was filed within one year of discovering
the claims, and alternatively, because it was filed within a reasonable time. Initially, we note that
the parties dispute when Anderson first became aware of the claims raised in his successive
petition for post-conviction relief.    Anderson asserts that he first learned of C.B.’s prior
inconsistent statements on August 15, 2005, when he watched a recording of a police interview
with C.B.    The State contends that Anderson knew or should have known of the prior
inconsistent statements well before August 2005. The district court concluded that Anderson
knew of, and even previously litigated, the claims contained in Anderson’s successive petition



3
        Anderson also asserts that the district court erred by raising the issue of timeliness of the
successive petition sua sponte in the notices of the court’s intent to dismiss. Our conclusion here
makes it unnecessary to address Anderson’s alternative arguments. We note, however, that
Anderson fails to recognize that Idaho Code § 19-4906(b) allows a court to issue notice of intent
to dismiss on its own initiative. Thus, we have previously held:
                The trial court, in determining whether the applicant is not entitled to post-
        conviction relief, is not limited to defenses pled by the State. The trial court may
        issue a notice of its intent to dismiss before the State has filed any response
        whatsoever to the application. Accordingly, it is proper for the district court to
        consider the statute of limitations even if this defense is not raised by the State.
        While the statute of limitations can be raised as an affirmative defense by the
        State pursuant to I.C. § 19-4906(b), it can also be raised sua sponte by the court.
        Therefore, the district court acted properly when it sua sponte raised the statute of
        limitations in regard to Ochieng’s application for post-conviction relief.
State v. Ochieng, 147 Idaho 621, 625, 213 P.3d 406, 410 (Ct. App. 2009) (citations omitted).


                                                  6
well before 2005, and accordingly dismissed on several grounds including on principles of res
judicata, and because Anderson’s successive petition was untimely.         On appeal, Anderson
asserts that the claims previously raised in his direct appeal and original post-conviction action
involved different witness statements, and that he did not learn of the witness statements
discussed in his successive petition until August 2005. From our review of our decisions from
Anderson’s direct appeal and appeal from the dismissal of his first post-conviction petition, we
are unable to determine whether he knew of or previously litigated the precise claims he now
raises. In order to fully address whether the claims were known or litigated, it would be
necessary to review records from Anderson’s trial, direct appeal, and original post-conviction
action.        However, while the necessary records were apparently before the district court,
Anderson has not presented them for review on appeal. 4 Missing portions of an appellate record
are presumed to support the decision of the trial court. Esquivel v. State, 149 Idaho 255, 258,
233 P.3d 186, 189 (Ct. App. 2010); State v. Sulez, 141 Idaho 253, 255, 108 P.3d 400, 402 (Ct.
App. 2004); State v. Longoria, 133 Idaho 819, 823, 992 P.2d 1219, 1223 (Ct. App. 1999).
Applying this presumption, we cannot conclude that the district court incorrectly found that
Anderson knew of the claims prior to August 2005, perhaps as early as trial in 1999, or that he
previously litigated the claims in his original post-conviction action. However, we need not rest
our decision on this presumption alone, because the district court also ruled that even if
Anderson did not know of the claims until August 15, 2005, his successive petition was still
untimely.
          1.       Within one year
          Anderson asserts that his petition was timely because it was filed within one year of
August 15, 2005. However, the time requirement for filing a successive petition is not the one-
year limit provided by Idaho Code § 19-4902(a). Instead, the correct standard to measure the
timeliness of a successive petition was articulated in Charboneau, 144 Idaho at 905, 174 P.3d at
875:
          [T]here should be a reasonable time within which such claims [which were not
          known when the original petition was filed] are asserted in a successive post-
          conviction petition, once those claims are known. . . . In determining what a

4
        Anderson did file a motion to augment the record, but it did not include a request to
attach records from his trial, direct appeal, or first post-conviction action.


                                                 7
       reasonable time is for filing a successive petition, we will simply consider it on a
       case-by-case basis, as has been done in capital cases.

Thus, the issue is not whether Anderson filed the petition within one year of the discovery of
new claims, but whether he filed “within a reasonable time after the claims were known or
should have been known.” Pizzuto v. State, 134 Idaho 793, 797-98, 10 P.3d 742, 747-48 (2000);
accord Fields v. State, 151 Idaho 18, 25, 253 P.3d 692, 699 (2011); Stuart v. State, 149 Idaho 35,
41, 232 P.3d 813, 819 (2010); Paradis v. State, 128 Idaho 223, 227, 912 P.2d 110, 114 (1996);
Paz v. State, 123 Idaho 758, 760, 852 P.2d 1355, 1357 (1993). The district court correctly
applied the reasonable time standard, and concluded that even if Anderson did not discover the
claims until he actually viewed the tape on August 15, 2005, his delay of nearly one year was
unreasonable.
       2.       Reasonable time
       Anderson alternatively argues that his petition was filed within a reasonable time because
it was filed approximately two months after this Court released a decision affirming the dismissal
of his first post-conviction petition on June 6, 2006, and before the remittitur was issued on
March 13, 2007. See Anderson v. State, Docket Nos. 30079, 30080, 30625 (Ct. App. June 2,
2006). Anderson asserts that we should measure the timeliness of his successive petition from
the conclusion of his prior appeal because petitioners are barred from filing successive petitions
until the completion of the appeal from a previous post-conviction action. Anderson draws this
proposition from Schwartz v. State, 145 Idaho 186, 177 P.3d 400 (Ct. App. 2008), in which this
Court stated:
       [I]f an initial post-conviction action was timely filed and has been concluded, an
       inmate may file a subsequent application 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
       application.”

Id. at 189, 177 P.3d at 403 (emphasis added). Anderson incorrectly interprets this statement to
mean that a petitioner cannot file a successive petition until the appeal from a prior post-
conviction has been concluded. That issue was not addressed in Schwartz. The quoted language
from Schwartz means only that before a petition has been decided by the district court, any
modification to the petition or additional claim should be addressed through an amended or
supplemental petition, instead of a successive petition. See id. (citing I.C. § 19-4908). Once the


                                                8
district court has issued a final judgment, however, additional claims can be brought only in a
successive petition. See id. (citing Charboneau, 144 Idaho at 904, 174 P.3d at 874). We have
never adopted a rule that petitioners are barred from filing a successive petition until the appeal
on a prior petition has been concluded, or that the timeliness of a successive petition should be
measured from the conclusion of the prior appeal. As discussed above, the correct standard for
the timeliness of a successive petition was set forth in Charboneau, 144 Idaho at 905, 174 P.3d at
875.
       Anderson similarly asserts that as part of our analysis under the reasonable time standard,
we should consider that a paralegal at the prison informed him that he could not file a successive
petition during the pendency of an appeal from an earlier petition. Anderson made the same
argument before the district court during a hearing on March 26, 2009. At that time, the court
informed Anderson that it intended to issue notice of intent to dismiss his petition, and informed
him:
       [Y]ou’ll have the 20-day time to review it, analyze it, and submit additional facts.
               Now you need to be aware that what you have told me in court is
       argument. It’s not an affidavit. It’s not sworn testimony. And so, if you wish to
       have that considered, it has to be done in oath, under oath, at some future time,
       like an affidavit.

Despite the court’s explicit instructions, which repeated the requirements of Idaho Code § 19-
4903 that a petition must be supported by evidence, Anderson did not file an affidavit or provide
other evidence to support the allegation that he had been told he could not file a successive
petition during the pendency of the appeal of his previous petition. Because Anderson never
provided evidentiary support for this assertion, the district court correctly declined to consider it.
       Anderson has not shown a justifiable reason for the approximately one-year delay
between his discovery of C.B.’s allegedly inconsistent statements and the filing of his successive
petition. We agree with the district court’s conclusion that the claims made in Anderson’s
successive petition for post-conviction relief are barred for failure to bring them within a
reasonable time after they were allegedly discovered. 5




5
       It is thus unnecessary to address Anderson’s additional argument that the district court
erred by concluding that he voluntarily dismissed the ineffective assistance of counsel claim.

                                                  9
D.     Appointment of Counsel
       Next, Anderson asserts that the district court erred by failing to address his renewed
motion for appointment of counsel before dismissing his petition. Idaho Code § 19-4904 gives
courts discretion to appoint an attorney for post-conviction petitioners who are unable to pay for
the expenses of representation. Hust v. State, 147 Idaho 682, 683, 214 P.3d 668, 669 (Ct. App.
2009); Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). Counsel should be
appointed if the petitioner qualifies financially and alleges facts to raise the possibility of a valid
claim, and a request for counsel may be denied only if all the alleged claims raised in the petition
are frivolous. Charboneau v. State, 140 Idaho 789, 792-93, 102 P.3d 1108, 1111-12 (2004);
Hust, 147 Idaho at 684, 214 P.3d at 670. “[A]ny time a district court dismisses a petition for
post-conviction relief on either substantive or procedural grounds without first addressing the
petitioner’s request for post-conviction counsel (assuming the petitioner made such a request),
the court commits an abuse of discretion.” Hust, 147 Idaho at 685, 214 P.3d at 671 (emphasis in
original); accord Fox, 129 Idaho at 885, 934 P.2d at 951; Swisher v. State, 129 Idaho 467, 469,
926 P.2d 1314, 1316 (Ct. App. 1996).           However, such an abuse of discretion constitutes
reversible error only if a petitioner “presents any colorably meritorious claim, the presentation of
which might have been enhanced by the assistance of counsel.” Swisher, 129 Idaho at 469, 926
P.2d at 1316 (holding that failure to address request for counsel on claims unquestionably barred
by the statute of limitation is harmless error).
       At the hearing, on August 3, 2006, before ruling on the State’s motion for summary
dismissal, the court effectively denied Anderson’s renewed motion for appointment of counsel as
follows:
                 With respect to the lawyer question, what I would hold is that there have
       been two lawyers appointed in this case. Both withdrew, were allowed to
       withdraw for the reasons already expressed in the record. An additional
       appointment of counsel would not change any of the past--or the facts in this case.
       The new, or this amended petition, Mr. Anderson has told us, is a handwritten
       copy of the petition filed by his [first appointed] counsel . . . . So in effect, it was
       filed . . . with the assistance of counsel.

To the extent that the district court reasoned that Anderson was represented by counsel even
though his counsel was permitted to withdraw, we disagree.             However, Anderson has not
demonstrated that the district court abused its discretion by declining to appoint a third attorney.
The district court considered that claims presented in Anderson’s petition were procedurally

                                                   10
barred, and thus concluded that even with the assistance of counsel, Anderson could not develop
the claims to merit relief. Thus, we find no error.
E.     Prosecutorial Misconduct and Ineffective Assistance of Counsel
       Anderson has also argued on appeal the merits of his claims of prosecutorial misconduct
and ineffective assistance of counsel, both of which are predicated on alleged inconsistencies
between C.B.’s testimony at trial and her prior out-of-court statements. While we do not rest our
decision on this ground, we take the opportunity to inform Anderson that we discern no merit in
his claims. Even accepting as true Anderson’s assertions that C.B. originally told police that
Anderson broke her jaw during a physical altercation in the driveway, instead of in the house as
she testified at trial, such an inconsistency does not demonstrate that C.B. perjured herself, that
the prosecutor elicited false testimony, or that Anderson’s trial attorney was ineffective because
he did not object to the testimony. First, Anderson incorrectly assumes that we must presume
that C.B.’s earlier statements to the police were true and any later inconsistent statements were
false. We know of no authority to support such a presumption. While the existence of a prior
inconsistent statement may provide fertile ground for the impeachment of a witness, see
I.R.E. 801(d)(1)(A), it does not necessarily preclude a party from eliciting subsequent contrary
testimony. C.B.’s trial testimony may have been slightly different than her earlier statements to
the police, but Anderson has not demonstrated that it was false. Second, whether Anderson
broke the victim’s jaw in the driveway, as she told the police, or in the house, as she testified at
trial, is of little importance as the specific location is not an element of the offense. The victim
consistently stated that Anderson took her glasses, that she argued with Anderson in the
driveway as she attempted to recover her glasses, and that Anderson hit her in the face, breaking
her jaw. Third, even if defense counsel could have prevented the admission of C.B.’s testimony
that was inconsistent with prior statements, this deficiency was not prejudicial. On direct appeal
from his conviction, Anderson asserted that the district court erred by ruling that he could not
impeach C.B. with unrelated prior inconsistent statements without opening the door to the
admission of his previous criminal history. This Court affirmed, holding that even if the district
court’s ruling was erroneous, “any such error could not have contributed to the verdict.” See
State v. Anderson, Docket No. 25632 (Ct. App. Feb. 27, 2001). The reasoning for the conclusion
of harmlessness is equally applicable to Anderson’s post-conviction claims, and thus bears
repeating here:


                                                11
       The evidence of Anderson’s guilt was overwhelming and was not based merely
       upon C.B.’s testimony. Witnesses observed Anderson and C.B. in a heated
       argument immediately before the battery and saw him enter the room where the
       injury occurred. Witnesses who entered the room immediately thereafter saw
       C.B. lying on the floor, crying and holding her face in pain. Both C.B. and
       another witness testified that Anderson was wearing some type of fingerless glove
       on his right hand a few days after the incident. C.B. also testified that Anderson’s
       right hand was swollen, that he complained that her face had injured his hand, and
       that in a subsequent argument Anderson threatened to break her jaw again if she
       did not stop screaming. Dr. Mark A. Plant, the surgeon who operated on C.B.’s
       broken jaw, testified that the injury could not have been caused by a fall on the
       chin or cheek, and that she must have been struck with a great deal of force by a
       blunt object, such as a human fist, right below the cheekbone. Finally, there was
       testimony from witnesses who heard Anderson brag that he had broken C.B.’s
       jaw.

Id. In short, even if C.B. had not been allowed to testify at all, there is no reasonable probability
that Anderson would have been acquitted of the aggravated battery charge because the State
possessed independent and overwhelming evidence of his guilt.
                                                III.
                                         CONCLUSION
       Anderson has not demonstrated that his successive petition was filed within a reasonable
time. Because Anderson’s successive petition was time-barred, the district court acted within its
decision when it denied Anderson’s renewed motion for appointment of counsel. We therefore
affirm the dismissal of Anderson’s successive petition for post-conviction relief.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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