                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41108

EUGENE RAY COBELL,                               )      2014 Unpublished Opinion No. 604
                                                 )
        Petitioner-Appellant,                    )      Filed: July 2, 2014
                                                 )
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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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. Michael E. Wetherell, District Judge.

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

       Eugene R. Cobell, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Eugene Ray Cobell appeals from the district court’s summary dismissal of his successive
petition for post-conviction relief.
                                                I.
                          FACTUAL AND PROCEDURAL HISTORY
       Cobell was convicted by a jury of rape, Idaho Code § 18-6101, and forcible sexual
penetration by use of a foreign object, I.C. § 18-6608. He was sentenced to a unified life term
with ten years determinate for each charge. Cobell directly appealed and his convictions and
sentences were affirmed.
       Cobell filed a petition for post-conviction relief and a motion for appointment of counsel.
The district court denied his motion and dismissed his petition. He did not appeal the denial of
his motion for appointment of counsel or the dismissal of his petition.




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       Subsequently, Cobell filed a successive pro se petition for post-conviction relief. 1 Cobell
asserted that he was impotent and that trial counsel was ineffective in investigating and
presenting evidence of such to establish his innocence.           The State moved to dismiss the
successive petition, arguing that Cobell failed to allege any reason why his claims were not
raised in his original petition. After giving notice, the district court granted summary dismissal.
Cobell appealed, and this Court vacated the district court’s judgment summarily dismissing
Cobell’s successive petition because it found the notice to dismiss was inadequate and the case
was remanded back to the district court for further proceedings.            Cobell v. State, Docket
No. 39321 (Ct. App. March 14, 2013) (unpublished).
       Thereafter, the district court appointed counsel to represent Cobell and issued a more
specific notice of intent to dismiss stating that the petition would be dismissed unless Cobell
showed a sufficient reason why the claims contained in his successive petition were not raised in
his initial petition. Cobell filed a response and objection to the district court’s notice of intent to
dismiss, arguing the failure to raise the issues in his initial petition was due to ineffective
assistance of prior post-conviction counsel, or alternatively, the district court’s decision not to
appoint counsel to assist in his original petition led to his failure to raise the allegations in his
initial petition. Again, the district court summarily dismissed Cobell’s successive petition for
failing to provide a sufficient reason that would allow him to file a successive petition.
       Cobell, appearing pro se, 2 timely appeals.
                                                  II.
                                            ANALYSIS
        The district court summarily dismissed Cobell’s successive petition following remand,
concluding Cobell had failed to provide a sufficient reason that would allow him to file a
successive petition.      Idaho Code § 19-4908 sets forth the parameters for filing successive
petitions. It provides:

1
         The successive petition was actually styled as a request for prefiling review and an order
to allow filing of the successive petition. The district court and this Court, on the prior appeal,
treated it as a successive petition. Cobell now claims that it should have been treated as a motion
to file. However, either way, the sufficiency of the allegations to permit a successive petition is
being reviewed.
2
      The district court appointed counsel to represent Cobell on matters related to the appeal;
however, the SAPD’s request to withdraw was granted.

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               All grounds for relief available to an applicant under this act must be
       raised in his original, supplemental or amended application. Any ground finally
       adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in
       the proceeding that resulted in the conviction or sentence or in any other
       proceeding the applicant has taken to secure relief may not be the basis for a
       subsequent application, unless 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.

The district court dismissed the successive petition as failing to satisfy the criteria for successive
petitions as set forth in I.C. § 19-4908, namely, failing to set forth sufficient reason why the
claims were not previously asserted.
       In his objection to the court’s notice of intent to dismiss upon remittitur, Cobell (through
his counsel) argued that Idaho law supports the position that ineffective assistance of prior post-
conviction counsel may provide sufficient reason for permitting newly asserted allegations or
allegations inadequately raised in the initial petition to be raised in a subsequent petition. Cobell
states he is “in the rather awkward position of claiming ineffective assistance of counsel in his
successive petition as to himself, since his request for appointed counsel was denied.” Because
Cobell was not represented by counsel when he filed his initial petition, he cannot argue that
ineffective assistance of counsel prevented him from raising the issues in his initial petition.
       Cobell appears to make the alternative argument that I.C. § 19-4908 allows him to file a
successive petition due to the district court’s decision to deny him post-conviction counsel in
regard to the first petition. He asserts this decision was erroneous and is the reason he failed to
raise issues in his original petition. Idaho Code § 19-852 allows an indigent person to be
represented by an attorney “in any other post-conviction or post-commitment proceeding that the
attorney or the indigent person considers appropriate, unless the court in which the proceeding is
brought determines that it is not a proceeding that a reasonable person with adequate means
would be willing to bring at his own expense and is therefore a frivolous proceeding.”
(Emphasis added.) Cobell argues he is indigent and lacks legal training. Therefore, the district
court’s refusal to grant him counsel, incident to the first petition, caused his failure to assert his
present claim, presuming counsel would have done so.            However, in its decision to deny
appointment of counsel, the district court specifically noted that while Cobell was indigent and
lacked legal training, its denial of counsel was based on the finding that his claims were “plainly
frivolous and could not be developed into viability even with the assistance of counsel.” The


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district court added that a “frivolous claim is frivolous whether it is stated by a pro se litigant or
his attorney.” Cobell did not appeal the district court’s decision to deny appointment of counsel
as to the first petition. In addition, Cobell makes no argument that he was unaware of the facts
regarding his impotence defense before his first petition. The ineffectiveness of defense counsel
in failing to investigate and present the claim should reasonably have been known upon its
occurrence. See Rhoades v. State, 148 Idaho 247, 253, 220 P.3d 1066, 1072 (2009).
       In sum, Cobell cannot argue he received ineffective assistance of prior post-conviction
counsel since he was not appointed counsel to assist in his initial petition. Additionally, he fails
to show how the absence of counsel in his previous petition prevented him from raising the
claims in his present petition. The district court correctly found that Cobell failed to establish
sufficient reason to file a successive petition and therefore, the summary dismissal is affirmed.
                                                 III.
                                          CONCLUSION
       Cobell failed to show that summary dismissal of his successive petition was erroneous.
Therefore, the district court’s order summarily dismissing his successive petition is affirmed.
       Chief Judge GUTIERREZ and Judge LANSING CONCUR.




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