               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 38865

MARCO ANTONIO RIOS-LOPEZ,                        )      2012 Unpublished Opinion No. 550
                                                 )
       Petitioner-Appellant,                     )      Filed: July 5, 2012
                                                 )
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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Blaine
       County. Hon. Robert J. Elgee, District Judge.

       Judgment summarily dismissing successive petition for post-conviction relief,
       affirmed.

       Marco Antonio Rios-Lopez, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Marco Antonio Rios-Lopez appeals from the judgment summarily dismissing his
successive petition for post-conviction relief. He asserts the district court erred in finding that
his successive petition was untimely. We affirm.
                                                I.
                                        BACKGROUND
       Rios-Lopez was convicted of three counts of trafficking in cocaine and three counts of
failure to affix a drug tax stamp. He was sentenced to consecutive unified terms of fourteen
years, with seven years determinative, for each of the three counts of trafficking, and unified
terms of two years, with one year determinate, for each count of failing to affix tax stamps, for a
total unified term of forty-eight years, with twenty-four years determinate. This Court affirmed
the judgment of conviction and sentences in an unpublished decision. State v. Rios-Lopez,
Docket No. 28142 (Ct. App. Aug. 12, 2003). Rios-Lopez filed a petition for post-conviction



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relief on September 24, 2003, asserting numerous claims, including that his counsel was
ineffective for failing to present an alibi defense at trial and omitting mitigating evidence at
sentencing.    The district court granted the State’s motion for summary disposition on
November 15, 2004, determining Rios-Lopez did not raise a material issue of fact to be entitled
to post-conviction relief because his allegations were unsupported by facts contained in
affidavits, records, or other evidence.       This Court affirmed in an unpublished decision.
Rios-Lopez v. State, Docket No. 31421 (Ct. App. Oct. 28, 2005). Rios-Lopez then filed for
habeas corpus relief in the federal district court. The federal district court denied his petition for
writ of habeas corpus on March 30, 2009.
       On March 11, 2010, Rios-Lopez filed a successive petition for post-conviction relief
asserting ineffective assistance of post-conviction counsel.              Rios-Lopez alleged his
post-conviction counsel was ineffective in pursuing his initial post-conviction petition by failing
to provide the district court with the required evidence as set forth in Idaho Code § 19-4903. The
district court granted the State’s motion for summary disposition finding Rios-Lopez’s petition,
filed over five years from the date of dismissal of his initial petition for post-conviction relief,
when Rios-Lopez knew or should have known of the claims, was not filed within a reasonable
period of time. Rios-Lopez 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). All
claims for post-conviction relief must be raised in an original, supplemental, or amended
petition. I.C. § 19-4908. An original petition must be filed within one year from the expiration
of the time for appeal or from the determination of an appeal or from the determination of a
proceeding following an appeal, whichever is later.            I.C. § 19-4902(a).       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 that for sufficient reason
was not asserted or was inadequately raised in the original, supplemental, or amended petition.
I.C. § 19-4908; Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007). While


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section 19-4908 sets forth no fixed time within which successive petitions may be filed, the
“sufficient reason” language in the statute necessarily provides “a reasonable time within which
such claims [may be] asserted in a successive post-conviction petition, once those claims are
known.” Charboneau, 144 Idaho at 905, 174 P.3d at 875.
       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); Mellinger v. State, 113 Idaho 31, 35, 740 P.2d 73, 77
(Ct. App. 1987) (Burnett, J., concurring). 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.
       B.      Timeliness of Rios-Lopez’s Successive Petition
       Rios-Lopez asserts that his petition was timely because he has been “diligently pursuing
his rights.” Rios-Lopez first argues that pursuing the action in federal court tolled the one-year
statute of limitations. The limitation period provided in Idaho Code § 19-4902 may be tolled


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when the petitioner was prevented from timely filing his action. Chico-Rodriguez v. State, 141
Idaho 579, 582, 114 P.3d 137, 140 (Ct. App. 2005). We have held, in numerous cases, that “the
bar for equitable tolling for post-conviction actions is high.” Id. This Court has only allowed
tolling in limited circumstances, including where the petitioner was prevented from timely filing
his action by incapacitating mental illness and where the petitioner was incarcerated in an
out-of-state facility without legal representation or access to Idaho legal materials. Leer v. State,
148 Idaho 112, 115, 218 P.3d 1173, 1176 (Ct. App. 2009); Martinez v. State, 130 Idaho 530,
536, 944 P.2d 127, 133 (Ct. App. 1997); Abbott, 129 Idaho at 385, 924 P.2d at 1229. Here,
Lopez does not claim he was prevented from timely filing his successive petition due to mental
illness or incarceration at an out-of-state facility.
        Alternatively, Rios-Lopez argues he was “prevented from pursuing challenges to his
conviction” because of language barriers. His argument is similar to the petitioner’s argument in
Sayas v. State, 139 Idaho 957, 88 P.3d 776 (Ct. App. 2003), where the Sayas argued that a
language barrier should permit equitable tolling.       Id. at 960, 88 P.3d at 779.      This Court
concluded that although the assertion was that Sayas was unable to speak, read, or write English,
Sayas offered no “cogent argument as to why his petition was filed two and one-half years
beyond the statutory time limit.” Id. Similarly here, Rios-Lopez argues his language barrier
should toll the statute of limitations, but provides no justifiable argument explaining why his
petition was delayed over five years. Accordingly, Rios-Lopez has not established a basis for
applying the equitable tolling doctrine.
        Moreover, the time requirement for filing a successive petition is not the one-year limit
provided by Idaho Code § 19-4902(a). Instead, the correct standard to measure the timeliness of
a successive petition is articulated in Charboneau, 144 Idaho at 905, 174 P.3d at 875:
        [T]here should be a reasonable time within which such claims [which were not
        known when the original petition was filed] are asserted in a successive
        post-conviction petition, once those claims are known. . . . 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.

Thus, the issue is not whether Rios-Lopez filed the petition within one year of the discovery of
new claims, but whether he filed “within a reasonable time after the claims were known or
should have been known.” Pizzuto, 134 Idaho at 798, 10 P.3d at 748; accord Fields v. State, 151
Idaho 18, 25, 253 P.3d 692, 699 (2011); Stuart v. State, 149 Idaho 35, 41, 232 P.3d 813, 819


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(2010); Paradis v. State, 128 Idaho 223, 227, 912 P.2d 110, 114 (1996); Paz v. State, 123 Idaho
758, 760, 852 P.2d 1355, 1357 (1993).
       Rios-Lopez does not specifically address the issue of whether his successive
post-conviction petition was filed within a reasonable time, only that he has been “diligently
pursuing his rights.” We construe his argument to be that any reason suffices to meet the
“sufficient reason” standard. Rios-Lopez draws this proposition from Schwartz, 145 Idaho 186,
177 P.3d 400, in which this Court stated:
       [I]f an initial post-conviction action was timely filed and has been concluded, 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
       application.”

Id. at 189, 177 P.3d at 403 (quoting I.C. § 19-4908). Rios-Lopez incorrectly interprets this
statement to mean that there is an unlimited amount of time to file a successive petition as long
as there is “sufficient reason.” He argues that he was diligent in pursuing his successive petition
and it was, therefore, timely. He points to the fact that he appealed the summary dismissal of his
original petition to this Court, then filed a petition for writ of habeas corpus in federal district
court, and then filed this successive petition for post-conviction relief. In Freeman v. State, 122
Idaho 627, 629, 836 P.2d 1088, 1090 (Ct. App. 1992), this Court explained:
       [A]lthough a UPCPA proceeding may be commenced after the “determination of
       a proceeding following an appeal” the time limit to file [a petition] under the
       UPCPA is not renewed or extended by any other collateral post-judgment
       proceeding.

See also Loman v. State, 138 Idaho 1, 2, 56 P.3d 158, 159 (Ct. App. 2002) (explaining that if one
could file an untimely notice of appeal from the judgment of conviction to restart the limitation
period, the statute of limitations for post-conviction actions would be rendered meaningless).
The filing of Rios-Lopez’s petition for writ of habeas corpus in the federal court did not act to
restart or extend the limitation period.     The reasonable time limitation for the successive
post-conviction petition began to run at the conclusion of his initial post-conviction action. The
record shows that it was reasonable to conclude that Rios-Lopez knew or should have known
about the alleged ineffective assistance of his post-conviction counsel at the time of the initial
post-conviction action when the court explained that to withstand summary disposition counsel



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must provide sufficient evidence to require a hearing. At that point, the alleged insufficient
evidence claim was known or should have been known. However, the ineffective assistance of
his post-conviction counsel claim was not asserted until he filed his successive petition for
post-conviction relief on March 11, 2010--over five years after the dismissal of his initial
post-conviction action. The district court correctly determined that on this record the successive
petition was not filed within a reasonable time. See Charboneau, 144 Idaho at 905, 174 P.3d at
875 (concluding the thirteen-month delay in filing the petition, without explanation, was “simply
too long a period of time to be reasonable”); Paz, 123 Idaho at 760, 852 P.2d at 1357
(concluding that the petitioner knew or should have known at completion of trial that issues were
not raised and waiting four years to file his petition was not a reasonable period of time);
Schwartz, 145 Idaho at 191-192, 177 P.3d at 405-406 (concluding that almost twelve months
from the date Schwartz was aware of the claims was too long a period to be reasonable);
cf. Dunlap v. State, 131 Idaho 576, 577, 961 P.2d 1179, 1180 (1998) (concluding it was
reasonable for the petitioner to file the post-conviction petition almost two years after the
statutory period because the petitioner “did not know and could not reasonably have known that
no post-conviction relief [petition] had been filed on his behalf before the appointment of his
current counsel to represent him”).
                                               III.
                                        CONCLUSION
          We conclude Rios-Lopez’s delay of over five years to file his successive petition was
unreasonable. Accordingly, Rios-Lopez’s successive petition was time-barred. We, therefore,
affirm the judgment summarily dismissing Rios-Lopez’s successive petition for post-conviction
relief.
          Judge LANSING and Judge MELANSON CONCUR.




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