                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 42061

TERRENCE JAMES MATTHEWS,                           )    2015 Unpublished Opinion No. 600
                                                   )
          Petitioner-Appellant,                    )    Filed: August 27, 2015
                                                   )
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STATE OF IDAHO,                                    )    THIS IS AN UNPUBLISHED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, Gem
          County. Hon. Molly J. Huskey, District Judge.

          Order of the district court summarily dismissing third successive petition for post-
          conviction relief, affirmed.

          Terrence James Matthews, Boise, pro se appellant.

          Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________

GUTIERREZ, Judge
          Terrence James Matthews appeals from the district court’s order summarily dismissing
his third successive petition for post-conviction relief. For the reasons set forth below, we
affirm.
                                                   I.
                        FACTUAL AND PROCEDURAL BACKGROUND
          Matthews was found guilty of lewd conduct with a minor and sexual abuse of a minor.
Matthews filed a petition for post-conviction relief, which was summarily dismissed. He then
filed a successive petition for post-conviction relief, which was also dismissed.          Matthews
appealed that dismissal, but this Court affirmed the district court’s decision. Matthews v. State,
130 Idaho 39, 936 P.2d 682 (Ct. App. 1997). Matthews next filed a second successive petition in
2009, which was also summarily dismissed.


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       In 2013, Matthews filed the present petition for post-conviction relief, pro se, alleging a
variety of claims. The district court appointed a public defender to represent Matthews. The
court then issued a notice of intent to dismiss the petition, explaining that it was not timely and
that Matthews had not provided evidence to support his successive petition. The public defender
filed a notice of conflict, after which the district court appointed conflict counsel to represent
Matthews. Matthews’ conflict counsel filed an objection to the court’s notice of intent to
dismiss. The court then issued an amended notice, citing the same grounds for dismissal as in
the initial notice of intent to dismiss, and gave Matthews thirty days to respond. Thirty-seven
days later, Matthews’ conflict counsel filed an amended objection to the court’s notice. The
district court entered an order dismissing Matthews’ third successive petition for post-conviction
relief, concluding that Matthews’ claims in his petition were untimely and subject to summary
dismissal. Matthews appeals.
                                                 II.
                                            ANALYSIS
       Matthews argues that the district court improperly dismissed his third successive petition
for post-conviction relief. Specifically, Matthews claims that he is entitled to relief as a matter of
law based upon the ineffective assistance of post-conviction counsel and his claims of actual
innocence.
       A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 19-4907; 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). Like a plaintiff in a civil action, the petitioner must prove
by a preponderance of evidence the allegations upon which the request for post-conviction relief
is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). In other
words, the petition must present or be accompanied by admissible evidence supporting its
allegations or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d
1169, 1172 (Ct. App. 2011).
       The Uniform Post-Conviction Procedure Act states that “an application may be filed at
any time within one (1) 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). Or, if an initial post-conviction action was timely filed, an inmate may file a

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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). Such equitable tolling is appropriate in cases that implicate important
due process concerns, provided the claims have been adequately supported by the facts and
claims in the pleadings. Rhoades, 148 Idaho at 251, 220 P.3d at 1070.
          Matthews’ present post-conviction petition is premised upon twelve claims for relief. We
need not address the bulk of those claims, as they were either raised in a prior petition or could
have been previously raised. 1 See I.C. § 19-4908. However, he alleges two issues that warrant
our consideration: the ineffective assistance of his 2009 post-conviction counsel and actual
innocence based upon a 1997 polygraph examination. Because these claims were not filed
within the one-year statutory limitation pursuant to I.C. § 19-4902(a), these claims are not
timely. Therefore, we first determine whether there is sufficient reason to justify equitable
tolling to allow Matthews to file his third successive petition outside of the one-year limitation
period.
A.        Ineffective Assistance of Post-Conviction Counsel
          Matthews contends that because his post-conviction counsel did not inform him of the
dismissal of his second successive post-conviction petition, he was unable to file an appeal and is
now prejudiced in his attempt to gain habeas corpus relief. Because this petition was filed more
than one year after the dismissal became appealable, we first decide whether this claim
constitutes a sufficient reason for equitable tolling of the one-year limitation.
          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).     While Matthews’ post-conviction petition was pending, the Idaho Supreme Court
determined that ineffective assistance of post-conviction counsel is no longer sufficient grounds
for filing a successive petition for relief. Murphy v. State, 156 Idaho 389, 391, 327 P.3d 365,

1
         Matthews included claims 1, 2, 3, 4, 6, and 8 in his 2009 petition. Claims 9 and 10 arise
from the 2005 revocation of his parole and could have been raised in the 2009 petition. Claims 7
and 12 form the basis of his ineffective assistance of counsel claim; and claims 5 and 11 form the
basis of his actual innocence claim.
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367 (2014). Because there is no right, statutory or otherwise, to post-conviction counsel, there
can be no deprivation of effective assistance of counsel. Id. at 394-95, 327 P.3d at 370-71.
Therefore, a petitioner cannot establish sufficient reason for filing a successive petition based on
ineffectiveness of prior post-conviction counsel. Id.
           Matthews’ claim of prejudice is premised on the performance of his post-conviction
counsel. And, his claim of ineffective assistance comes in a third successive petition for post-
conviction relief. In light of Murphy, Matthews simply cannot rely on claims of ineffective
assistance of post-conviction counsel to establish sufficient reason to justify his successive
petition.     Therefore, we conclude that Matthews’ claim of ineffective assistance of post-
conviction counsel is without merit and does not constitute sufficient reason to justify equitable
tolling.
B.         Actual Innocence
           Matthews next contends that his claim of actual innocence is not subject to the procedural
time limitation for his successive petition. Matthews cites Schlup v. Delo, 513 U.S. 298 (1995),
arguing that successive petitions should be allowed where a constitutional violation has resulted
in the conviction of one who is actually innocent. In Schlup, the United States Supreme Court
stated that a procedurally-barred habeas corpus petition alleging a constitutional violation could
be litigated if the petitioner provided new reliable evidence and could “show that it is more likely
than not that no reasonable juror would have convicted him in the light of the new evidence.” Id.
at 322-27.
           Matthews argues that his 1997 polygraph constitutes the new reliable evidence necessary
to demonstrate his innocence. However, the Idaho Supreme Court has held that the exception set
forth in Schlup is not applicable to state claims for post-conviction relief. Fields v. State, 151
Idaho 18, 22, 252 P.3d 692, 696 (2011). Further, Idaho has not established that an exception for
actual innocence exists.       See Rhoades, 148 Idaho at 253, 220 P.3d at 1072 (examining,
hypothetically, that even if a prima facie case of actual innocence provided a sufficient reason to
justify equitable tolling, the petitioner had not met that burden).
           Even if actual innocence provided sufficient reason to justify equitable tolling, the facts
alleged by Matthews do not establish a prima facie case for his claim of actual innocence. See
Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010) (holding that petitioner must
present evidence making a prima facie case as to each essential element of the claim). Matthews

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does not provide this Court with any reliable evidence as to the contents of the alleged
exculpatory polygraph examination report for us to conclude that, more likely than not, no
reasonable juror would have convicted him in light of that polygraph.
       In his briefing, Matthews provides what appear to be excerpts from the polygraph
examination report. It is unclear whether these excerpts were taken verbatim from the report or
whether they are merely recitations taken from Matthews’ memory. Matthews lists seventeen
questions paired with his responses that were allegedly reflected in the polygraph examination
report, but he first disclaims, “Don’t have the pages available for real interesting information.”
The assertions of what is contained within the report are out-of-court statements offered by
Matthews to substantiate his claim of innocence, and thus constitute inadmissible hearsay. State
v. Fodge, 121 Idaho 192, 194-95, 824 P.2d 123, 126 (1992).
       We need not search outside the record on appeal, as it is the responsibility of the
appellant to provide a sufficient record to substantiate the claims on appeal. State v. Murinko,
108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985). Matthews has not provided any
admissible evidence to establish a prima facie case of actual innocence. Without admissible
evidence to support his allegations, Matthews’ petition is subject to dismissal. Therefore, we
decline to address whether a claim of actual innocence warrants equitable tolling, and we
conclude that this claim was properly dismissed as untimely.
                                                III.
                                         CONCLUSION
        Because Matthews’ petition was not timely and did not support a sufficient reason to
justify its consideration, the district court did not err in summarily dismissing Matthews’ petition
for post-conviction relief. Thus, we affirm the district court’s order summarily dismissing
Matthews’ third successive petition for post-conviction relief. No costs or attorney fees are
awarded on appeal.
       Chief Judge MELANSON and Judge GRATTON CONCUR.




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