               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39553

MAXWELL HOFFMAN,                                 )      2013 Unpublished Opinion No. 517
                                                 )
       Petitioner-Appellant,                     )      Filed: May 30, 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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho,
       Owyhee County. Hon. Gregory M. Culet, District Judge.

       Order dismissing petition for post-conviction relief, affirmed.

       Silvy Law Office, Ltd.; Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; L. Lamont Anderson, Deputy
       Attorney General, Boise, for respondent. L. Lamont Anderson argued.
                 ________________________________________________
GRATTON, Judge
       Maxwell Hoffman appeals from the district court’s summary dismissal of his petition for
post-conviction relief. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       The facts leading to Hoffman’s conviction for first degree murder are summarized in
State v. Hoffman, 123 Idaho 638, 851 P.2d 934 (1993):
       [O]n September 10, 1987, Denise Williams (Williams), a confidential informant
       working for Nampa narcotic officers, made a controlled drug buy from Richard
       Holmes (Holmes) which resulted in the arrest of Holmes. During the arrest it
       became apparent that Williams was working for the police. Holmes was
       subsequently released from custody on bail.
              Upon Holmes’ release, Sam Longstreet, Jr. (Longstreet) and James
       Slawson (Slawson) arranged for a meeting with Holmes. Longstreet and
       Slawson, who were responsible for introducing Williams to Holmes for the
       purpose of purchasing drugs, testified that they met with Holmes in an effort to
       assure him that they had nothing to do with his arrest. They further testified that


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when they arrived at Holmes’ residence, two other men, defendant Hoffman and
Ronald Wages (Wages), were present. Both Wages and Hoffman worked for
Holmes as part of his drug operation, and both men were heavy drug users
themselves. During this meeting, outside the presence of Hoffman and Wages,
Holmes asked Longstreet and Slawson if they would kill Williams for her
involvement in his arrest and to prevent her from testifying at Holmes’
preliminary hearing on the drug charges. Longstreet and Slawson stated that they
were incapable of killing Williams but would help in other ways. In response,
Holmes’ stated that if it were up to him he would cut Williams’ throat and “let her
bleed like an animal.”
        The next day, Longstreet and Slawson returned to Holmes’ house.
Hoffman and Wages were again present. Holmes had Hoffman conduct a strip
search of Longstreet and Slawson to ensure that they were not wired and working
for the police. During this meeting, an agreement was reached between Holmes,
Longstreet and Slawson wherein Longstreet and Slawson were to kidnap
Williams and take her to a spot in Owyhee County known as the Boy Scout
Camp. Holmes, Wages, Longstreet and Slawson then drove to the Boy Scout
Camp where they planned the details of the kidnapping. It was agreed that
Longstreet and Slawson would call Holmes once they had kidnapped Williams
and that Wages would be waiting at the camp when they arrived. It was also
agreed that Williams was to be tied up to a tree in the area until Holmes arrived.
        The following evening, Holmes and Hoffman took Wages to the Boy
Scout Camp where they all ingested drugs. Holmes and Hoffman then left,
leaving Wages at the [c]amp. Longstreet and Slawson arrived at the camp
sometime later with Williams. Longstreet testified that he and Slawson tricked
Williams into going with them by telling her that they would take her to buy
alcohol. The three drove around drinking and ingesting drugs, stopping only once
to allow Longstreet to call Holmes and leave a message that he had Williams.
Longstreet and Slawson then pretended to get lost and eventually made their way
to the Boy Scout Camp as was earlier planned. Upon their arrival at the camp,
Wages, who was wearing a bandanna and carrying a sawed off shotgun, ordered
Longstreet and Slawson to strip Williams of her clothes and to tie her up. The
two men complied with Wages’ order. Longstreet and Slawson then left the
camp, leaving Williams with Wages.
        Hoffman arrived at the camp a short time later. Hoffman and Wages
loaded Williams into a car and met Holmes at the old ION highway cutoff.
Holmes kicked Williams in the head and told her she was “a dead bitch.” Holmes
left and subsequently returned in a brown Nissan four-wheel drive and told
Hoffman and Wages, “You know what to do.” Holmes then left again.
        Hoffman and Wages then took Williams in the Nissan. After driving
around for several hours, they stopped the vehicle in Delamar, Idaho. Wages and
Hoffman instructed Williams to write two letters to the press, which were
intended to exonerate Holmes of the drug charges. After the letters were written,
Williams was taken to a cave outside of Silver City, Idaho. Hoffman took
Williams into the cave and slashed her throat with a knife. As Hoffman was
returning to the vehicle, Wages spotted Williams crawling up an embankment


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       near the cave. Wages then pursued Williams and stabbed her under the arm with
       Hoffman’s knife. Thinking Williams was dead, both men buried her with rocks.
       It would later be determined that the cause of death was a crushing blow by a rock
       to [Williams’] head.
               Upon [Williams’] disappearance, a police investigation ensued.
       Eventually, Longstreet and Slawson agreed to provide the police with information
       regarding [Williams’] disappearance in exchange for a recommendation of a year
       in jail for kidnapping. Based on this information, Holmes and Wages were
       indicted on charges of conspiracy to commit murder. In an effort to secure a plea
       agreement, Holmes led the police to Williams’ body. The conspiracy charges
       against Holmes were vacated, but Holmes was subsequently charged with aiding
       and abetting first degree murder on August 22, 1988.
               After Williams’ body was found, Wages confessed to the killing and
       became a cooperative witness for the state and agreed to give a full account of
       how it occurred. Wages and Hoffman were then charged with first degree murder
       in Owyhee County. Hoffman went to preliminary hearing on September 14,
       1988, where Wages was the principal witness for the State. Hoffman called
       Holmes as a witness, but Holmes refused to testify, claiming the fifth amendment
       right against self-incrimination.
               Hoffman’s case proceeded to trial where a jury found him guilty of first
       degree murder.

Id. at 639-41, 851 P.2d at 935-37 (footnote omitted). Hoffman was sentenced to death. He filed
a petition for post-conviction relief, which the district court denied. The Idaho Supreme Court
affirmed Hoffman’s conviction, death sentence, and the denial of post-conviction relief.
Thereafter, Hoffman filed successive petitions for post-conviction relief in 1995, 2001, and 2002.
Each petition was dismissed.
       Hoffman also commenced federal habeas corpus proceedings. Hoffman’s federal court
proceedings transpired from 1994 to 2008 and resulted in the federal district court granting
Hoffman sentencing relief. In 2008, pursuant to a federal court order, the district court held a
new sentencing hearing in which Hoffman called Wages as a witness.               Wages recanted
statements he previously gave to police officers and recanted his prior testimony.          Wages
testified that he and Holmes killed Williams while Hoffman was home babysitting. The district
court found that Wages’ testimony was not “remotely credible or believable.” The district court
imposed a determinate life sentence without the right to parole. Hoffman then filed an Idaho
Criminal Rule 35 motion which the district court denied. Hoffman appealed his sentence and the
denial of his Rule 35 motion. This Court affirmed the decision of the district court in State v.




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Hoffman, Docket No. 35941 (Ct. App. 2009) (unpublished), and issued the remittitur on
February 2, 2010.
       On September 30, 2010, Hoffman filed a pro se petition for post-conviction relief. He
was appointed counsel and his counsel filed an amended petition for post-conviction relief. The
petition claimed that Hoffman was innocent and that Wages’ recanted testimony constituted new
evidence of material facts that had not previously been presented and heard by the jury. The
district court dismissed the petition, finding that the petition was not timely filed. Hoffman
timely appeals.
                                                II.
                                           ANALYSIS
A.      Standard of Review
        A petition for post-conviction relief initiates a civil, rather than criminal, proceeding,
governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d
476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like
plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the
allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Stuart v.
State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Goodwin v. State, 138 Idaho 269, 271,
61 P.3d 626, 628 (Ct. App. 2002). A petition for post-conviction relief differs from a complaint
in an ordinary civil action, however, in that it must contain more than “a short and plain
statement of the claim” that would suffice for a complaint under I.R.C.P. 8(a)(1). State v. Payne,
146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The
petition must be verified with respect to facts within the personal knowledge of the petitioner,
and affidavits, records or other evidence supporting its allegations must be attached, or the
petition must state why such supporting evidence is not included. I.C. § 19-4903. In other
words, the petition must present or be accompanied by admissible evidence supporting its
allegations, or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169,
1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
       Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction
relief, either pursuant to motion of a party or upon the court’s own initiative, if “it appears from
the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts,
together with any affidavits submitted, that there is no genuine issue of material fact and the


                                                 4
moving party is entitled to judgment as a matter of law.” I.C. § 19-4906(c). When considering
summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but
the court is not required to accept either the petitioner’s mere conclusory allegations,
unsupported by admissible evidence, or the petitioner’s conclusions of law. Payne, 146 Idaho at
561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district
court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district
court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the
most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at
483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712,
714 (Ct. App. 2008). Such inferences will not be disturbed on appeal if the uncontroverted
evidence is sufficient to justify them. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036,
1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen’s Creamery
Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).
       Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven
by the record of the criminal proceedings, if the petitioner has not presented evidence making a
prima facie case as to each essential element of the claims, or if the petitioner’s allegations do
not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281
(2010); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146
Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d
870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State,
143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924
P.2d 622, 630 (Ct. App. 1996). Thus, summary dismissal of a claim for post-conviction relief is
appropriate when the court can conclude, as a matter of law, that the petitioner is not entitled to
relief even with all disputed facts construed in the petitioner’s favor. For this reason, summary
dismissal of a post-conviction petition may be appropriate even when the State does not
controvert the petitioner’s evidence. See Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125
Idaho at 647, 873 P.2d at 901.
       Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283,


                                                  5
1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman,
125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary
hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at
1281; Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at 629.
       On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925,
929 (2010); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at
923; Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of law, we exercise free review.
Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho
367, 370, 33 P.3d 841, 844 (Ct. App. 2001); Martinez v. State, 130 Idaho 530, 532, 944 P.2d
127, 129 (Ct. App. 1997).
B.     Successive Petition
       Hoffman claims that the district court erred when it denied his successive petition for
post-conviction relief on the grounds of timeliness. If an initial post-conviction action was
timely filed, an inmate may file a 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, 144 Idaho at 904, 174 P.3d at 874. 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 petition to be raised in a subsequent post-conviction
petition. 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 petitioner
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);


                                                 6
Mellinger v. State, 113 Idaho 31, 35, 740 P.2d 73, 77 (Ct. App. 1987). Thus, when a second or
successive petition alleging ineffectiveness of the initial 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.
       Analysis of “sufficient reason” permitting the filing of a successive petition includes an
analysis of whether the claims being made were asserted within a reasonable period of time.
Charboneau, 144 Idaho at 905, 174 P.3d at 875. In determining what a reasonable time is for
filing a successive petition, we will simply consider it on a case-by-case basis. Id. Therefore,
the question is whether the petitioner in the present case filed the successive petition alleging
ineffective assistance of prior post-conviction counsel within a reasonable period of time.
       In the instant case, pursuant to I.C. § 19-4901(a)(4) and (6), Hoffman’s successive
petition raised two new claims: (1) that there exists evidence of material facts not previously
presented and heard by the jury; and (2) that Hoffman is innocent of the offense. 1 Hoffman’s
claims are based on Wages’ recanted testimony. Hoffman first learned of Wages’ recanted
testimony through the affidavit of an investigator. The investigator, a member of the capital
habeas unit of the Federal Defenders, signed an affidavit dated September 19, 2000, stating that
he interviewed Wages and Wages recanted his testimony. The affidavit also stated that the
investigator interviewed other individuals who claimed that Wages told them that Hoffman was
not involved with the murder.      The affidavit also claimed that Wages signed an affidavit
recanting his statements and testimony regarding Hoffman. In 2008, Wages again recanted his
testimony at Hoffman’s new sentencing hearing.
       In dismissing Hoffman’s successive petition, the district court found that Hoffman’s
petition was not timely filed. The court found that Hoffman first knew of Wages’ recantation in
2000. Therefore, Hoffman should have brought the issue before the court in his 2001 or 2002
post-conviction petitions. Since he did not raise the issue in those petitions, the district court
concluded that Hoffman’s attempt to raise the claim in his 2010 petition was not timely. 2


1
        Hoffman’s successive petition raised several other claims that were summarily dismissed
by the district court. Hoffman does not challenge the dismissal of those claims in this appeal.
2
        The State requests that this Court modify the “reasonable time” standard for filing
successive post-conviction petitions in noncapital cases and adopt the forty-two-day standard
established by the Idaho Supreme Court for filing successive petitions in capital cases. The

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       Hoffman contends that he filed his successive post-conviction petition within a
reasonable time because he was prevented from filing earlier due to ineffective assistance from
his prior post-conviction counsel. Hoffman also contends that he thought his claim of actual
innocence would be addressed by the Ninth Circuit Court of Appeals or at his new sentencing
hearing. Further, Hoffman contends that he filed his petition claiming actual innocence “as soon
as he could have given his mental retardation and limited abilities.”
       The record demonstrates that Hoffman had notice of Wages’ recantation in 2000.
Timeliness is measured “from the date of notice, not from the date a petitioner assembles a
complete cache of evidence.” Charboneau, 144 Idaho at 905, 174 P.3d at 875. Therefore,
Hoffman could have filed a successive petition claiming actual innocence as early as 2000.
Further, Hoffman allegedly asked his prior post-conviction counsel to raise the claim of actual
innocence in his 2001 and 2002 petitions, but his counsel allegedly refused.            Ineffective
assistance of counsel claims are presumed to be known when they occur. State v. Rhoades, 120
Idaho 795, 807, 820 P.2d 665, 677 (1991). Therefore, Hoffman knew, or should have known,




“reasonable time” standard applicable in noncapital cases was established by the Idaho Supreme
Court in Charboneau v. State, 144 Idaho 900, 174 P.3d 870 (2007):

       [W]e agree with the district court that there should be a reasonable time within
       which such claims are asserted in a successive post-conviction petition, once
       those claims are known. The trial court’s analysis of “sufficient reason”
       permitting the filing of a successive petition must necessarily include an analysis
       of whether the claims being made were asserted within a reasonable period of
       time. In determining what a reasonable time is for filing a successive petition, we
       will simply consider it on a case-by-case basis, as has been done in capital cases.”

Id. at 905, 174 P.3d at 875. Following Charboneau, the Idaho Supreme Court clarified the
“reasonable time” standard as it relates to capital cases. In Pizzuto v. State, 146 Idaho 720, 202
P.3d 642 (2008), the Idaho Supreme Court held “that a reasonable time for filing a successive
petition for post-conviction relief 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.” Id. at 727, 202 P.3d at
649. The State argues that the “reasonable time” standard in noncapital cases was modeled after
the “reasonable time” standard in capital cases; therefore, the standard in noncapital cases should
be modified to reflect the forty-two-day standard that was subsequently established in capital
cases. However, these standards were established by the Idaho Supreme Court; accordingly, we
have no authority to overrule Idaho Supreme Court precedent.

                                                 8
about the alleged ineffective assistance of his post-conviction counsel immediately following his
2001 and 2002 post-conviction petitions. The Idaho Supreme Court dismissed Hoffman’s 2002
post-conviction petition in 2005. See Hoffman v. State, 142 Idaho 27, 121 P.3d 958 (2005).
Therefore, even if we assume that Hoffman was not aware of his ineffective assistance of post-
conviction counsel claim until after the Idaho Supreme Court’s decision, Hoffman could have
filed a successive petition in 2005. However, Hoffman failed to file a successive post-conviction
petition raising his actual innocence until 2010.     Even in 2008, after Wages recanted his
testimony at Hoffman’s new sentencing hearing, Hoffman failed to file a post-conviction petition
asserting actual innocence. Instead, he waited two years to assert the claim.
       Hoffman’s mental limitations do not provide reason to wait ten years to file a successive
petition. Hoffman’s pro se petition for post-conviction relief demonstrates that he had the
knowledge and ability to file a successive petition. Further, Hoffman’s request to prior post-
conviction counsel that a claim of actual innocence be included in his prior petitions
demonstrates that Hoffman had the mental acuity to know that a claim existed and could have
been raised at those times.     Additionally, Hoffman’s assumption that his claim of actual
innocence would be addressed in his federal court proceedings or during his resentencing did not
entitle him to equitable tolling and did not extend the reasonable time requirement. Therefore,
Hoffman has not established sufficient reason for the ten-year delay in filing his successive
petition. Thus, we conclude that under the circumstances of this case, Hoffman’s successive
petition was not brought within a reasonable time.
                                               III.
                                        CONCLUSION
       The district court did not err by dismissing Hoffman’s successive petition for post-
conviction relief. Therefore, the order dismissing Hoffman’s petition for post-conviction relief is
affirmed.
       Chief Judge GUTIERREZ and Judge LANSING CONCUR.




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