               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38409

DEWAYNE NOBLE BANKS,                              )       2012 Unpublished Opinion No. 594
                                                  )
       Petitioner-Appellant,                      )       Filed: August 17, 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STATE OF IDAHO,                                   )       THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho,
       Canyon County. Hon. Thomas J. Ryan, District Judge.

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

       Stephen D. Thompson, Ketchum, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Dewayne Noble Banks appeals from the district court’s order summarily dismissing his
successive petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Banks was found guilty of robbery and admitted to being a persistent violator. Banks
was sentenced to a unified term of life imprisonment, with a minimum period of confinement of
ten years. Banks filed a notice of appeal and an I.C.R. 35 motion for reduction of his sentence.
After the district court denied Banks’ Rule 35 motion, he filed a notice of appeal. In an
unpublished opinion, this Court affirmed Banks’ judgment of conviction and sentence and the
denial of his Rule 35 motion. State v. Banks, Docket Nos. 27207 and 27629 (Ct. App. June 4,
2002). A remittitur was issued in August 2002.



                                                 1
       Banks filed a federal petition for writ of habeas corpus. The action was stayed so Banks
could exhaust his state court remedies. Banks filed a petition for post-conviction relief, which
was dismissed in October 2003. Following the dismissal of Banks’ appeal from the post-
conviction action, Banks was permitted to reopen his federal habeas corpus case and filed an
amended petition, which was dismissed. Attempts to appeal to the Ninth Circuit Court of
Appeals were unsuccessful. In April 2009, a letter was sent to Banks stating that his petition for
writ of certiorari to the United Sates Supreme Court had been denied.
       In June 2009, Banks filed a successive petition for post-conviction relief alleging
ineffective assistance of trial counsel. The state filed an answer and a motion for summary
dismissal, asserting that Banks’ petition was untimely pursuant to the one-year statute of
limitation set forth in I.C. § 19-4902(a) and was an improper successive petition pursuant to I.C.
§ 19-4908. The district court entered an order granting the state’s motion on those grounds.
Banks filed a motion to alter or amend the judgment on post-conviction relief. 1 Banks alleged
that his petition was timely because it was filed within one year of the April 2009 denial of his
petition for writ of certiorari to the United States Supreme Court and was a proper successive
petition. Banks alleged that his initial post-conviction counsel was ineffective because counsel
did nothing on Banks’ behalf.
       In its memorandum decision upon Banks’ motion, the district court determined that
Banks’ federal habeas corpus proceeding did not qualify as a proceeding following an appeal
and, therefore, the time in which to file a petition for post-conviction relief began in August 2002
when this Court’s opinion affirming Banks’ judgment of conviction and sentence and the denial
of his Rule 35 motion became final. Thus, because Banks’ petition was filed in June 2009, the
district court concluded that the petition was untimely pursuant to I.C. § 19-4902(a). The district
court also concluded that it was unnecessary to engage in an analysis of why Banks’ petition
represented an improper successive petition.         Thereafter, the district court entered a final
judgment dismissing Banks’ successive petition for post-conviction relief. Banks appeals.




1
       In its memorandum decision upon Banks’ motion, the district court determined that,
because no final judgment had been entered, the motion would be considered as one for
reconsideration pursuant to I.R.C.P. 11(a)(2)(B).

                                                 2
                                                II.
                                           ANALYSIS
       Banks argues that the district court erred by dismissing his successive petition for post-
conviction relief. Specifically, Banks asserts that his petition was timely because it was filed
within one year of the April 2009 denial of his petition for writ of certiorari to the United States
Supreme Court and was a proper successive petition.           Banks asserts that his initial post-
conviction counsel was ineffective for preventing Banks from properly presenting his arguments.
       A petition for post-conviction relief initiates a proceeding that is civil in nature. Rhoades
v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104 Idaho 676,
678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.
App. 1992). All claims for post-conviction relief must be raised in an original, supplemental, or
amended petition. I.C. § 19-4908. An original petition 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(a). 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).
       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). There is no constitutionally protected right to the effective assistance
of counsel in post-conviction relief proceedings and such an allegation, in and of itself, is not
among the permissible grounds for post-conviction relief. See Follinus v. State, 127 Idaho 897,
902, 908 P.2d 590, 595 (Ct. App. 1995); Wolfe v. State, 113 Idaho 337, 339, 743 P.2d 990, 992
(Ct. App. 1987). Ineffective assistance of prior post-conviction counsel may, however, provide
sufficient reason for permitting newly asserted allegations or allegations inadequately raised in
the initial petition to be raised in a subsequent post-conviction petition. Schwartz v. State, 145
Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 2008). 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. Charboneau, 144 Idaho at 905, 174 P.3d at 875. In




                                                 3
determining what a reasonable time is for filing a successive petition, we will consider it on a
case-by-case basis. Id.
       While the district court here determined that Banks’ successive petition for post-
conviction relief was untimely pursuant to I.C. § 19-4902(a), the time requirement for filing a
successive petition is not the one-year limit provided by I.C. § 19-4902(a). Instead, the correct
standard to measure the timeliness of a successive petition is 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
       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.

Therefore, the question is whether Banks filed a successive petition asserting a claim, which was
not known when his initial petition was filed, within a reasonable time after the claim was known
or should have been known.
       As noted above, Banks asserts that his petition was timely pursuant to I.C. § 19-4902(a)
because it was filed within one year of the April 2009 denial of his petition for writ of certiorari
to the United States Supreme Court and was a proper successive petition. 2 Banks asserts that his
initial post-conviction counsel was ineffective for preventing him from properly presenting his
arguments. However, as just explained, the time requirement for filing a successive petition is
not the one-year limit provided by I.C. § 19-4902(a). Further, ineffective assistance of counsel



2
        Banks cites Atkinson v. State, 131 Idaho 222, 953 P.2d 662 (Ct. App. 1998), arguing that
his petition for certiorari to the United States Supreme Court following dismissal of his federal
habeas corpus case was a “proceeding following an appeal” and that his petition in this case was
filed within one year of that denial and was, therefore, timely under I.C. § 19-4902(a). In
Atkinson, we held that the one-year limitation period in I.C. § 19-4902 begins to run when the
United States Supreme Court denies certiorari from a decision of a state appellate court in the
underlying criminal case. Atkinson, 131 Idaho at 225, 953 P.2d at 655. We defined a
“proceeding following an appeal” as “any proceeding that is an extension of the underlying
criminal action, and is part of the continuous stream of events which lead to the finality of the
judgment of conviction.” Atkinson, 131 Idaho at 224, 953 P.2d at 654. However, we also noted
that such a proceeding does not encompass a separately filed post-conviction proceeding or one
for relief such as by way of a writ of habeas corpus subsequent to the judgment of conviction.
Id. Thus, Banks’ reliance on Atkinson is misplaced.


                                                 4
claims are presumed to be known when they occur. Rhoades, 148 Idaho at 253, 220 P.3d at
1072. Thus, Banks knew or should have known about the alleged ineffective assistance of his
initial post-conviction counsel for preventing Banks from properly presenting his arguments at
the time of his initial post-conviction action. Banks did not file his successive petition for post-
conviction relief until June 2009--over five and a half years after the dismissal of his initial post-
conviction action.    We conclude that Banks did not file his successive petition within a
reasonable time. Therefore, the district court did not err by summarily dismissing Banks’
successive petition because such petition was untimely. Having concluded that Banks’ petition
was properly dismissed as untimely, we need not separately address whether Banks’ petition
represented a proper successive petition.
                                                 III.
                                          CONCLUSION
       Banks’ successive petition for post-conviction relief was untimely. Therefore, the district
court’s order summarily dismissing Banks’ successive petition for post-conviction relief is
affirmed. No costs or attorney fees awarded on appeal.
       Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.




                                                  5
