               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40194

JOHN THOMAS RAINEY,                             )     2013 Unpublished Opinion No. 399
                                                )
       Petitioner-Appellant,                    )     Filed: March 13, 2013
                                                )
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STATE OF IDAHO,                                 )     THIS IS AN UNPUBLISHED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. Cheri C. Copsey, District Judge.

       Order summarily dismissing successive petition for post-conviction relief,
       affirmed; order denying motion for appointment of counsel, affirmed.

       John Thomas Rainey, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       John Thomas Rainey, appearing pro se, appeals from the district court’s order summarily
dismissing his successive petition for post-conviction relief and its denial of his motion for
appointment of counsel. For the reasons set forth below, we affirm.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Rainey pled guilty to sexual battery of a minor child sixteen or seventeen years of age,
and the district court imposed a unified sentence of life with twenty-five years determinate,
pursuant to Idaho Code § 18-1508A(4). The conviction and sentence were affirmed on appeal.
Rainey timely filed a pro se post-conviction petition alleging ineffective assistance of counsel.
The district court denied his motion for appointment of counsel and dismissed the petition.
Rainey appealed but later filed a motion to dismiss the appeal, which the Idaho Supreme Court
granted.



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       On April 26, 2012, Rainey filed a successive pro se petition for post-conviction relief.
Rainey reasserted the ineffective assistance of counsel claim, and alleged his sentence
constituted cruel and unusual punishment by being imposed without regard for the presentence
investigator’s recommendations, and that the district court violated his Sixth Amendment right
when it denied his request for appointment of counsel in his first post-conviction petition. The
district court denied Rainey’s request for appointment of counsel in his successive petition. The
court then entered an order conditionally dismissing the successive petition and gave Rainey
twenty days to file a response. Rainey filed a motion for reconsideration of the denial of
counsel, which the district court denied and entered an order dismissing the successive petition
on June 26, 2012. Rainey timely appealed.
                                                 II.
                                          DISCUSSION
       On appeal, Rainey assigns no specific error to the district court’s order denying his
request for appointment of counsel or summary dismissal of his successive post-conviction
petition, but rather reasserts the arguments he made in the district court on his successive petition
for post-conviction relief.     Rainey alleges that his sentence amounts to cruel and unusual
punishment, that the district court did not follow the recommendations of the presentence
investigator in his criminal case, and that the district court ignored his defense of
“somnambulism.” Further, Rainey asserts that he was denied his constitutional right to counsel
in his first post-conviction petition, and then asserts various grounds for ineffective assistance of
counsel in his criminal case.
       If a post-conviction petitioner is unable to pay for the expenses of representation, the trial
court may appoint counsel to represent the petitioner in preparing the petition in the trial court
and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed
counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792,
102 P.3d 1108, 1111 (2004). When a district court is presented with a request for appointed
counsel, the court must address this request before ruling on the substantive issues in the case.
Id; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The district court
abuses its discretion where it fails to determine whether a petitioner for post-conviction relief is
entitled to court-appointed counsel before denying the petition on the merits. See Charboneau,
140 Idaho at 793, 102 P.3d at 1112.


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       In determining whether to appoint counsel pursuant to I.C. § 19-4904, the district court
should determine if the petitioner is able to afford counsel and whether the situation is one in
which counsel should be appointed to assist petitioner. Charboneau, 140 Idaho at 793, 102 P.3d
at 1112. In its analysis, the district court should consider that petitions filed by a pro se
petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts
sufficient to state a claim may not be alleged because they do not exist or because the pro se
petitioner does not know the essential elements of a claim. Id. Some claims are so patently
frivolous that they could not be developed into viable claims even with the assistance of counsel.
Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a
petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint
counsel in order to give petitioner an opportunity to work with counsel and properly allege the
necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
       If an initial post-conviction action was timely filed and has been concluded, an inmate
may file a subsequent application 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 application. 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 application to be raised in a subsequent post-
conviction application. Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct. App.
2008). See also Palmer v. Dermitt, 102 Idaho 591, 596, 635 P.2d 955, 960 (1981); Hernandez v.
State, 133 Idaho 794, 798, 992 P.2d 789, 793 (Ct. App. 1999). Failing to provide a post-
conviction applicant with a meaningful opportunity to have his or her claims presented may be
violative of due process. Schwartz, 145 Idaho at 189, 177 P.3d at 403; Hernandez, 133 Idaho at
799, 992 P.2d at 794. See also Abbott v. State, 129 Idaho 381, 385, 924 P.2d 1225, 1229 (Ct.
App. 1996); Mellinger v. State, 113 Idaho 31, 35, 740 P.2d 73, 77 (Ct. App. 1987) (Burnett, J.,
concurring). Thus, when a second or successive application alleging ineffectiveness of the initial


                                                  3
post-conviction counsel is filed outside of the initial one-year limitation period, application of the
relation-back doctrine may be appropriate. See Hernandez, 133 Idaho at 799, 992 P.2d at 794.
          The district court denied Rainey’s request for counsel and dismissed his successive
petition; first, because Rainey’s claim that his sentence was unduly harsh afforded no basis for
post-conviction relief because the sentence was legal. The court also reasoned that the record did
not support the allegations Rainey made in his petition and that since the court’s original
decision had been upheld on appeal, Rainey’s attempt to collaterally attack it was barred by res
judicata.
          Second, the district court denied appointment of counsel and dismissed the petition
because Rainey did not raise any new contentions in his successive petition, and to the extent
that he did, he gave no reason why they were not raised in his original petition. The district court
then set forth its reasoning for dismissing the identical arguments from Rainey’s original
petition. Third and finally, the district court denied appointment of counsel and dismissed
Rainey’s petition because it amounted to an appeal from the court’s decision and denial of
appointment of counsel in Rainey’s initial petition, and was barred by res judicata.
          As the district court correctly noted, Rainey did not allege any facts to raise the
possibility of a valid claim in support of his assertion that his sentence was unduly harsh. Rainey
incorrectly asserted that the statute under which he was sentenced allowed only a fifteen-year
sentence. Idaho Code § 18-1508A(4) allows any person convicted under I.C. § 18-1508A(1)(a)
to be sentenced to life imprisonment. Therefore, his sentence was legal and the district court was
correct in stating that his claim of an unduly harsh sentence affords no basis for post-conviction
relief.
          Rainey claims that the denial of his request for appointment of counsel in his initial
petition for post-conviction relief was a constitutional violation. As noted by the district court,
this claim could and should have been addressed on direct appeal from that denial; it was not.
Thus, this claim is barred.
          The remainder of Rainey’s claims amount to repetitions of the claims from his previous
petition for post-conviction relief. They do not set out any grounds for substantive relief from
his sentence. To the extent that any of his claims can be construed as new, he has not explained
why those claims were not made in his previous petition and, therefore, they are also
procedurally barred.


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                                                III.
                                         CONCLUSION
       Rainey has failed to allege or show that the district court erred by denying his request for
counsel or by summarily dismissing his successive application for post-conviction relief. The
district court’s denial of appointment of counsel and order summarily dismissing Rainey’s
successive petition for post-conviction relief are affirmed.
       Chief Judge GUTIERREZ and Judge LANSING CONCUR.




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