                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                              Docket No. 46665

JAMES HARVEY HAIRSTON,                               )
                                                     )
       Petitioner-Appellant,                         )           Boise, May 2020 Term
v.                                                   )
                                                     )           Opinion Filed: July 6, 2020
STATE OF IDAHO,                                      )
                                                     )           Melanie Gagnepain, Clerk
      Respondent.                                    )
____________________________________                 )

       Appeal from the District Court of the Sixth Judicial District of
       the State of Idaho, Bannock County. Robert C. Naftz, District Judge.

       The district court’s dismissal of Hairston’s petition for post-conviction
       relief is affirmed.

       Federal Public Defender Services of Idaho, Boise, attorneys for
       Appellants, Jonah Horwitz argued.

       Lawrence G Wasden, Idaho Attorney General, Boise, attorney for
       Respondent. Lamont Anderson argued.
                          _______________________________
BEVAN, Justice
                                     I. NATURE OF THE CASE
       This is a successive claim for post-conviction relief in a capital case. James Hairston was
sentenced to death after a jury convicted him of two counts of first-degree murder in connection
with the deaths of William and Dalma Fuhriman. Hairston was about nineteen and a half when
he killed the Fuhrimans. In this, his fourth post-conviction petition, Hairston argues his sentence
is unconstitutional because: (1) he was under the age of twenty-one at the time of the offense;
and (2) the trial court failed to give adequate consideration to the mitigating factors that must be
considered with youthful defendants. The district court dismissed Hairston’s first claim after
holding that he failed to show that evolving standards of decency prohibited imposing the death
penalty for offenders between the ages of eighteen and twenty-one. The court dismissed
Hairston’s second claim after finding that there was no basis to extend the special sentencing
considerations that have been specifically limited to juvenile defendants under eighteen to those
under twenty-one. We affirm.
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                         II. FACTUAL AND PROCEDURAL BACKGROUND
       This Court summarized the facts leading to Hairston’s conviction in State v. Hairston,
133 Idaho 496, 988 P.2d 1170 (1999) (Hairston I):

               On January 6, 1996, Hairston and a companion, Richard Klipfel, were
       driving from Grand Junction, Colorado, to Spokane, Washington. They stopped at
       the Fuhrimans’ ranch because they had run out of money and could not continue
       their journey. The Fuhrimans invited Hairston and Klipfel into their home and
       offered to help them find jobs. While Mr. Fuhriman was sitting at a kitchen table
       looking at a phone book, Hairston shot him in the head and then shot Mrs.
       Fuhriman. Hairston and Klipfel took $30 in cash, credit cards, and some personal
       property from the Fuhrimans’ home and continued their journey. Hairston and
       Klipfel pawned some of the Fuhrimans’ property. They purchased several items
       with the credit cards including toy remote control cars, tires, food, gas, and
       lodging. They also attempted to purchase a Harley Davidson motorcycle and
       $2500 worth of snowboarding equipment, but the credit card was rejected.
       Hairston and Klipfel were apprehended together near Clarkston, Washington,
       three days after the murders.
133 Idaho at 500–01, 988 P.2d at 1174–75. On September 6, 1996, a jury found Hairston guilty
of two counts of first-degree murder and one count of robbery. Id. at 501, 988 P.2d at 1175. The
district court imposed a death sentence for each of the two murders and life in prison for the
robbery. Id. Hairston was just over nineteen and a half years old at the time of the murders.
       1. Prior claims for post-conviction relief
       In 1996, Hairston brought his first petition for post-conviction relief, which was denied.
Hairston appealed his conviction and the district court’s denial of his post-conviction petition to
the Idaho Supreme Court. In 1999, this Court affirmed the district court’s denial of post-
conviction relief and upheld Hairston’s convictions and death sentences on direct appeal.
Hairston I, 133 Idaho at 518–19, 988 P.2d at 1192–93.
       In 2000, Hairston filed a federal habeas corpus petition, which the U.S. district court
dismissed. Hairston v. Blades, No. 1:00-CV-00303-BLW, 2011 WL 1219267, at *32 (D. Idaho
Mar. 30, 2011). In 2018, the Ninth Circuit vacated the district court’s order and remanded for the
court to apply Martinez v. Ryan, 566 U.S. 1 (2012), to Hairston’s claim that his trial counsel was
ineffective in investigating and presenting mitigation evidence at sentencing. Hairston v.
Ramirez, 746 F. App’x 633, 634 (9th Cir. 2018).
       In 2001, Hairston filed a second petition for post-conviction relief in state court, alleging
that he had been deprived of his constitutional right to the effective assistance of counsel on

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direct appeal and that he had been denied adequate resources during the sentencing hearing and
the first post-conviction proceeding. In 2002, Hairston filed a third petition for post-conviction
relief, alleging that his death sentence was unconstitutional under Ring v. Arizona, 536, U.S. 584
(2002), which concluded statutory aggravating factors must be found by a jury, rather than the
court. Hairston v. State, 144 Idaho 51, 54, 156 P.3d 552, 555 (2007) (Hairston II). The district
court dismissed both petitions as untimely under Idaho Code section 19-2719. Id. In a
consolidated appeal, this Court held that Hairston failed to raise his claims in a timely manner,
thus, the consolidated appeals were dismissed. Id. at 59, 156 P.3d at 560. The United States
Supreme Court vacated and remanded Hairston II because of Danforth v. Minnesota, 552 U.S.
264 (2008), but only as to the Ring claim. Hairston v. Idaho, 552 U.S. 1227 (2008). The district
court dismissed Hairston’s claim seeking to vacate his death sentence. Hairston’s case was
consolidated with several others for appeal, and this Court affirmed the district court after
concluding Ring is not retroactive. Rhoades et al. v. State, 149 Idaho 130, 140, 233 P.3d 61, 71
(2010).
          2. Current claim for post-conviction relief
          On March 16, 2018, Hairston filed a fourth post-conviction petition, contending: (1) it is
unconstitutional to execute someone who was under the age of twenty-one at the time of the
offense; and (2) the trial court failed to give adequate consideration to the mitigating factors that
must be considered with youthful defendants. The State filed an answer alleging, among other
affirmative defenses, that Hairston’s petition was barred by the statute of limitations in Idaho
Code section 19-4902(a). Later, the State moved for summary dismissal under Idaho Code
section 19-4906(c).
          Hairston later filed an amended petition for post-conviction relief, which raised the same
claims, but included additional evidentiary support for his assertion that the Idaho trial courts had
evolved beyond the practice of sentencing late-adolescent defendants to death. In part, Hairston
submitted an affidavit from Laurence Steinberg, Ph.D., an expert in adolescent development,
who concluded that the new, emerging medical and scientific consensus across the country is
that defendants between the ages of eighteen and twenty-one are just as deserving of
constitutional protection from the death penalty as those defendants eighteen and younger.
Hairston alleged that the basis for his petition arose from American Bar Association (ABA)
Resolution 111, adopted by its House of Delegates on February 5, 2018, which “urges each

                                                  3
jurisdiction that imposes capital punishment to prohibit the imposition of a death sentence on or
execution of any individual who was [twenty-one] years old or younger at the time of the
offense.” The district court took judicial notice of Hairston’s exhibits.
       After answering Hairston’s amended petition, the State again moved for summary
dismissal under Idaho Code section 19-4906(c). The State argued Hairston’s claims were time-
barred and that the authority he relied on was inapplicable to his claims because it only applied
to juvenile defendants and Hairston was nineteen at the time of his crimes.
       On December 17, 2018, the district court entered an order denying post-conviction relief.
The court declined to dismiss Hairston’s petition on the grounds that it was untimely, but
ultimately dismissed his claims on the merits. The district court dismissed Hairston’s first claim
after concluding he failed to show that his death sentence diverged from national and Idaho
evolving standards of decency. The court dismissed Hairston’s second claim after finding that
there was no basis to extend the special sentencing considerations that have been specifically
limited to juvenile defendants under eighteen to those under twenty-one. Hairston filed a timely
notice of appeal to this Court.

                                      III. ISSUES ON APPEAL
1.     Is Hairston’s successive petition for post-conviction relief time-barred?
2.     Is Hairston’s death sentence unconstitutional because he was under twenty-one at the
       time of the offense?
3.     Is Hairston’s sentence unconstitutional because the district court failed to give proper
       consideration to the mitigating factors associated with his youth?
                                    IV. STANDARD OF REVIEW
       The constitutionality of Idaho’s capital sentencing scheme is a question of law over
which this Court exercises free review. Rhoades v. State, 149 Idaho 130, 132, 233 P.3d 61, 63
(2010). Idaho Code section 19-4906 authorizes summary disposition of an application for post-
conviction relief, either pursuant to motion of a party or upon the court’s own initiative.
Summary dismissal is permissible only when the applicant’s evidence has raised no genuine
issue of material fact which, if resolved in the applicant’s favor, would entitle the applicant to the
requested relief. Cole v. State, 135 Idaho 107, 110, 15 P.3d 820, 823 (2000) (internal citation
omitted). Thus, “[s]ummary dismissal sought under the UPCPA [Uniform Post-Conviction
Procedure Act] is the procedural equivalent of a motion for summary judgment.” Charboneau v.
State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). In determining whether a motion for
                                            4
summary dismissal is properly granted, a court must review the facts in a light most favorable to
the petitioner, and determine whether they would entitle petitioner to relief if accepted as true.
Ferrier v. State, 135 Idaho 797, 799, 25 P.3d 110, 112 (2001) (internal citation omitted). “A
court is required to accept the petitioner’s unrebutted allegations as true, but need not accept the
petitioner’s conclusions.” Id.
                                           V. ANALYSIS
   A.      The State failed to adequately argue Hairston’s successive post-conviction
           petition was time-barred below; thus, its argument that Hairston’s petition is
           untimely will not be considered on appeal.
        Idaho Code section 19-2719 sets forth discrete post-conviction procedures that govern all
capital cases. Capital post-conviction proceedings, like non-capital post-conviction proceedings,
which are governed by the UPCPA, Idaho Code sections 19-4901–4911, are civil in nature and
except for discovery matters are governed by the Idaho Rules of Civil Procedure. I.C.R. 39(b);
I.C. § 19-4907(a). Idaho Rule of Civil Procedure 8(c)(1)(Q) provides that the statute of
limitations is an affirmative defense which must be “affirmatively state[d]” in a party’s answer.
“[T]he time bar of the statute of limitations is an affirmative defense that may be waived if it is
not pleaded by the defendant.” Cole v. State, 135 Idaho 107, 110, 15 P.3d 820, 823 (2000)
(internal citation omitted).
        The narrow and demanding statute of limitations set forth in Idaho Code section 19-
2719(3) and (5) require that “[a] petitioner bringing a successive petition for post-conviction
relief has a heightened burden and must make a prima facie showing that issues raised in that
petition fit within the narrow exception provided by the statute.” Pizzuto v. State, 127 Idaho 469,
471, 903 P.2d 58, 60 (1995) (Pizzuto II). We have held that the narrow exception requires
successive post-conviction petitions be filed within a “reasonable time,” which
        is forty-two days after the petitioner knew or reasonably should have known of
        the claim, unless the petitioner shows that there were extraordinary circumstances
        that prevented him or her from filing the claim within that time period. In that
        event, it still must be filed within a reasonable time after the claim was known or
        knowable.
Pizzuto v. State, 146 Idaho 720, 727, 202 P.3d 642, 649 (2008) (Pizzuto V). The State argues on
appeal that Hairston’s amended successive petition is untimely under Idaho Code section 19-
2719(5) and this authority. The State asserts generally that Hairston’s claims were known or
reasonably could have been known when he filed his first post-conviction petition.

                                                 5
         The difficulty for the State in raising this argument now is that the statute of limitations
argument it makes on appeal was asserted only in passing before the district court during oral
argument. No pleading filed by the State included section 19-2719 as a bar to Hairston’s petition.
In fact, the State raised the inapt general statute of limitations set forth in Idaho Code section 19-
4902(a), rather than the specific statute of limitations that is applicable to post-conviction actions
in capital cases.
         Beyond that, when moving for summary dismissal below, the extent of the State’s
timeliness argument was that Hairston’s “claims and allegations are moot and should be
procedurally foreclosed as [Hairston’s] application for post-conviction relief is time barred, is a
successive petition, and contains claims that were or could have been raised in previous
proceedings.” In making these generic statements, the State failed to cite to the specific statute
governing post-conviction procedures in capital cases, nor did it offer any support for its
conclusory claims. In its response memorandum, the State was required to state its defense “with
particularity[, including] the grounds for the relief sought [and] the number of the applicable
civil rule.” I.R.C.P. 7(b)(1)(B). In the same vein, the State made no specific argument below that
the newly discovered issues raised by Hairston were known or reasonably should have been
known outside the limited forty-two-day time limit for raising those successive post-conviction
claims. We thus affirm the district court’s determination that the State’s cursory statements and
lack of specific argument did not provide sufficient notice for summary disposition under Idaho
Code section 19-4906(c). We therefore reach the merits of Hairston’s argument on appeal.

    B.       Hairston’s death sentence is constitutional.
         Hairston’s primary argument is that the constitutional prohibition against executing
juvenile defendants under the age of eighteen announced in Roper v. Simmons, 543 U.S. 551
(2005), should be extended to defendants who were under the age of twenty-one when they
committed their crimes. In Roper, the U.S. Supreme Court extended the previous prohibition
against executing juveniles under the age of sixteen set forth in Thompson v. Oklahoma, 487
U.S. 815 (1988), to include juvenile offenders under the age of eighteen. The foundation for the
Court’s analysis, and for ours today, is grounded in the Eighth Amendment 1 – and by principles


1
 “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
U.S.Const., Amend. VIII
                                                        6
the U.S. Supreme Court articulated for the first time in 1958 in Trop v. Dulles, 356 U.S. 86
(1958). The Court there recognized that “the [Eighth] Amendment must draw its meaning from
the evolving standards of decency that mark the progress of a maturing society.” Id. at 101
(emphasis added). This standard has continued to inform the Supreme Court as it limited the
death penalty for juveniles in Thompson and Roper, as well as in more recent cases of Graham v.
Florida, 560 U.S. 48 (2010) (holding that the Eighth Amendment prohibits imposition of life
without parole sentence on juvenile offender who did not commit homicide) and Miller v.
Alabama, 567 U.S. 460 (2012) (holding that mandatory life imprisonment without parole for
those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition
on cruel and unusual punishment).
       Hairston argues that evolving standards of decency support his claim that the death
penalty is unconstitutional when imposed against an individual who is under twenty-one years of
age at the time of his crime. His arguments rely upon information from several fronts. First, he
relies heavily upon a report of Dr. Steinberg, which argues that there is a new emerging
consensus that many aspects of psychological and neurobiological immaturity characteristic of
early adolescents and middle adolescents are also characteristics of late adolescents aged
nineteen and twenty. Hairston also claims that his sentence is inconsistent with evolving
standards of decency, both nationally and in Idaho, which show that imposition of the death
penalty for adolescent offenders is disfavored. In addition, Hairston cites to the American Bar
Association House of Delegate’s recently passed Resolution 111, which advocates “each
jurisdiction that imposes capital punishment to prohibit the imposition of a death sentence on or
execution of any individual who was 21 years old or younger at the time of the offense.” The
Resolution, like Dr. Steinberg, advocates that the brains of those under twenty-one are so
immature that all individuals under twenty-one are undeserving of death sentences.
       Hairston adds that there are also emerging national, international, and state trends against
the imposition of the death penalty on defendants who were under the age of twenty-one at the
time of their offense. Hairston cites jurisdictions that have abolished the death penalty altogether,
suspended executions through moratoria, and those that no longer impose or carry out capital
sentences for offenders under twenty-one. Hairston also highlights several non-criminal statutes




                                                 7
that he claims support the idea that those under twenty-one do not have enough maturity to be
treated as adults. Beyond national statistics, Hairston also cites some international developments
to contend there is a strong trend against the death penalty worldwide, which is by definition a
trend against the execution of defendants in late adolescence as well.
        In addition, Hairston asserts there is Idaho-specific evidence that defendants who were
under twenty-one at the time of their crime should not be sentenced to death. Specifically, since
the time Hairston received his sentence, apparently no other defendant under twenty-one has
received the death penalty, while eleven defendants over the age of twenty were sentenced to
death. Hairston argues this results from decisions by several different actors, including
prosecutors, judges, and juries, that all reflect the sentiments of Idaho citizens opposing the death
penalty for late-adolescents.
        While we are not blind to the national and international trends, and even those Idaho-
centric cases which arguably show that offenders who were under the age of twenty-one at the
time of the offense are rarely given the death penalty, Hairston has provided no evidence that a
consensus exists among those states that continue to exercise the death penalty about this issue.
We have recognized “absent some legislative or executive action, a determination by this Court
that Idaho’s death penalty statute is unconstitutional based on evolving standards of decency and
public opinion is unsupported.” State v. Abdullah, 158 Idaho 386, 456, 348 P.3d 1, 71 (2015).
We continue to follow this view.
        Hairston has not cited to any legislative enactments or executive action since Roper that
have made executing nineteen and twenty-year-olds as a class by themselves unconstitutional. 2
We have in the past, and we continue to subscribe to the views of legislative bodies as the basis
for determining a national consensus; and no such consensus exists among those states that still
regard the death penalty itself as a valid form of punishment. Nor has Hairston cited to any case
that has extended Roper as he advocates we should do here. Indeed, there are none. See, e.g.,
People v. Harris, 120 N.E.3d 900, 914 (Ill. 2018) (noting that courts have repeatedly rejected
claims to extend Roper and its progeny to offenders over the age of 18). Like the Illinois
Supreme Court, “[w]e agree with those decisions . . . that, for sentencing purposes, the age of 18
marks the present line between juveniles and adults.” Id.

2
  We recognize some states have adopted statutes or executive branch moratoria against the death penalty in all its
forms since 2005 when Roper was decided.
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       Most importantly, we believe that the Supreme Court of the United States has definitively
spoken on this issue. Idaho courts have traditionally tracked the U.S. Supreme Court’s Eighth
Amendment jurisprudence. State v. Draper, 151 Idaho 576, 599, 261 P.3d 853, 876 (2011). In
Roper, the Court held that eighteen years is “the age at which the line for death eligibility ought
to rest.” 543 U.S. at 574. In the fifteen years since that time, the Supreme Court has not seen fit
to recognize that a national consensus exists sufficient to move the line to twenty-one years.
Neither do we.
       We understand that this view is not without its detractors in academia, the American Bar
Association, and other circles opposed to capital punishment. We also acknowledge, as has the
Supreme Court, the problem with drawing the line at the age of 18 years as a “categorical rule”:

       Drawing the line at 18 years of age is subject, of course, to the objections always
       raised against categorical rules. The qualities that distinguish juveniles from
       adults do not disappear when an individual turns 18. By the same token, some
       under 18 have already attained a level of maturity some adults will never reach.
       For the reasons we have discussed, however, a line must be drawn. The plurality
       opinion in Thompson drew the line at 16. In the intervening years the Thompson
       plurality’s conclusion that offenders under 16 may not be executed has not been
       challenged. The logic of Thompson extends to those who are under 18. The age of
       18 is the point where society draws the line for many purposes between childhood
       and adulthood. It is, we conclude, the age at which the line for death eligibility
       ought to rest.
Id. (Emphasis added).
       Since Roper was decided, the Supreme Court has continued to identify 18 years as the
critical age for purposes of Eighth Amendment jurisprudence. See Miller v. Alabama, 567 U.S.
460, 465 (2012) (prohibiting mandatory sentences of life without parole for homicide offenders
who committed their crimes before the age of eighteen); see also Graham v. Florida, 560 U.S.
48, 74–75 (2010) (prohibiting sentences of life without parole for nonhomicide offenders who
committed their crimes before the age of eighteen). We have done likewise. See State v.
Shanahan, 165 Idaho 343, 445 P.3d 152, cert. denied, 140 S. Ct. 545 (2019) (sentence of
indeterminate life with 35-years fixed does not violate the Eighth Amendment under Miller’s
rationale). Because the Supreme Court of the United States has not determined that the age of
eligibility for capital punishment should be moved, we will continue to adhere to Roper. Thus,
we hold that Hairston’s death sentence is constitutional.

                                                 9
       Although we have rejected a categorical exception for those under twenty-one who have
been sentenced to death, Hairston asks this Court to vacate his death sentence based on his
personal lack of maturity at the time of the murders. In support, Hairston cites to Dr. Steinberg’s
report, which analyzed his conduct before, during and after the offense and concludes it
demonstrated the hallmarks of adolescence and significant immaturity. However, in drawing the
line at eighteen the Supreme Court recognized “qualities that distinguish juveniles from adults do
not disappear when an individual turns 18.” 543 U.S. at 574. Hairston has failed to present any
legal authority to show the immaturity he exhibited as an adult provides him special immunity
from the bright-line rule excluding juveniles from the death penalty who were under the age of
eighteen at the time of the capital offense. Therefore, we affirm the district court’s rejection of
Hairston’s request for a special exemption from the categorical rule.
       Finally, Hairston asks this Court to remand the case because the district court applied an
incorrect legal standard in evaluating his claim. Hairston claims the district court erred by
employing “a presumption in favor of the State,” under which the court was “obligated to seek
an interpretation” that foreclosed the aggrieved party’s claims and only granted relief “in clear
cases.” Hairston also asserts that based on the vast body of uncontested evidence proving the
merits of his first claim, he is entitled to relief as a matter of law. Hairston’s arguments are
unconvincing.
       While “a court is required to accept the petitioner’s unrebutted allegations as true,” it
“need not accept the petitioner’s conclusions.” Ferrier v. State, 135 Idaho 797, 799, 25 P.3d 110,
112 (2001). The district court appropriately analyzed the facts presented and came to its own
conclusion as to the lack of a consensus in support of abolishing the death penalty for those
under the age 21 years based on evolving standards of decency. Further, even if the district court
applied the incorrect standard to reach this conclusion, remand is unnecessary because we have
reviewed the constitutional issues decided today under an independent, de novo standard of
review. State v. Sepulveda, 161 Idaho 79, 82, 383 P.3d 1249, 1252 (2016) (quoting Draper, 151
Idaho at 598, 261 P.3d at 875).
       We likewise reject Hairston’s request to remand the case for an evidentiary hearing.
Hairston argues that if we accept all of his allegations as true and draw all inferences liberally in
his favor, he has presented extensive information to suggest there is a consensus against
executing adolescents, which warrants an evidentiary hearing. Hairston’s argument ignores the
                                                 10
fact that the Court must “express its own independent determination” about what categories of
defendants are shielded from the death penalty by the evolving standards of decency. Hall v.
Florida, 572 U.S. 701, 710 (2014). This is a question of law, which is suitable for disposition on
the pleadings and the facts in the record. Matthews v. State, 113 Idaho 83, 85, 741, P.2d 370, 372
(1987) (citing Smith v. State, 94 Idaho 469, 491 P.2d 733 (1971)). As we held above, we
continue to follow the Supreme Court’s holding in Roper, that 18 years is the minimum age for a
person against whom the death penalty may be imposed.
   C.      Hairston had no right to consideration of the special sentencing factors
           applicable to juvenile offenders under the age of eighteen because he was
           nineteen at the time of his offense.
        As a second basis for relief, Hairston argues that because of his age he was
constitutionally entitled to probing consideration of the features associated with youthfulness
before he received his punishment. In support of his argument, Hairston relies on case law that
has been specifically limited to adolescent offenders under the age of eighteen. Mainly, Hairston
relies on Montgomery v. Louisiana, 136 S. Ct. 718 (2016), in which the U.S. Supreme Court set
forth specific factors the judge must consider when sentencing juvenile offenders under 18 years
of age to life without parole. Hairston acknowledges that Montgomery concerned offenders
under the age of 18 at the time of their offense, but reiterates his argument that the 18-year-old
cutoff for capital cases is no longer consistent with evolving standards of decency. We have
already rejected this claim on the merits. Hairston was 19 at the time of his offense, thus, the
sentencing factors specifically applicable to defendants under the age of 18 at the time of their
offense do not apply to Hairston’s case.

                                             VI. CONCLUSION
        We affirm the district court’s dismissal of Hairston’s petition for post-conviction relief.

        Chief Justice BURDICK and Justices BRODY, STEGNER and MOELLER, CONCUR.




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