                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 36396

MICHAEL DAVID MURPHY,                            )      2010 Unpublished Opinion No. 556
                                                 )
       Petitioner-Appellant,                     )      Filed: July 22, 2010
                                                 )
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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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. Darla S. Williamson, District Judge.

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

       Michael David Murphy, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                  ______________________________________________
MELANSON, Judge
       Michael David Murphy appeals from the district court’s order summarily dismissing his
successive application for post-conviction relief. For the reasons set forth below, we affirm.
       Murphy pled guilty to three counts of rape and one count of robbery and was sentenced in
1992. In exchange for his guilty plea, additional charges were dismissed. Pursuant to his
binding plea agreement, Murphy waived the right to appeal. However, Murphy did file an
appeal, which the Idaho Supreme Court dismissed. State v. Murphy, 125 Idaho 456, 872 P.2d
719 (1994). Murphy filed an application for post-conviction relief, which the district court
denied in 1997.
       In 2008, Murphy filed a successive application for post-conviction relief, alleging various
claims of error. The district court granted Murphy’s request for the appointment of counsel, and
the state filed a motion to summarily dismiss the successive application as untimely. Murphy




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argued, among other things, that Estrada1 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 Murphy’s application without addressing the issue of
timeliness. Murphy 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, Murphy filed his successive application for post-conviction relief over
fifteen years after his judgment of conviction became final. Therefore, his application is clearly
untimely. The state may waive the issue of timeliness when it fails to raise the bar as an
affirmative defense. See Kirkland v. State, 143 Idaho 544, 546, 149 P.3d 819, 821 (2006)
(holding that the statute of limitations for post-conviction relief is not jurisdictional, but an
affirmative defense that is waived if not pleaded by the defendant). However, in this case the
state raised the issue of timeliness through its motion to summarily dismiss Murphy’s
application. Therefore, the issue was not waived. An appellate court may affirm a lower court’s
decision on a legal theory different from the one applied by that court. Matter of Estate of
Bagley, 117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct. App. 1990). Because Murphy’s
successive application was clearly untimely, we affirm the district court’s order on this
alternative basis.
        Murphy 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. 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).



1
        Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006).

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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, Murphy argues that Estrada should be applied retroactively in his case. However,
this Court’s holding in Kriebel is controlling precedent in the absence of any Idaho Supreme
Court holding to the contrary. Accordingly, the district court’s order summarily dismissing
Murphy’s application for post-conviction relief is affirmed.   No costs or attorney fees are
awarded on appeal.
       Judge GUTIERREZ, CONCURS.
       Chief Judge LANSING, CONCURS IN THE RESULT.




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