                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41154

RONALD L. MACIK,                                  )     2014 Unpublished Opinion No. 753
                                                  )
       Petitioner-Appellant,                      )     Filed: October 8, 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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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. Cheri C. Copsey, District Judge.

       Judgment of the district court summarily dismissing successive petition for post-
       conviction relief, affirmed.

       Ronald L. Macik, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Ronald L. Macik pleaded guilty to first degree murder and was sentenced in 1972. In
2011, nearly forty years after his conviction, Macik began initiating proceedings to challenge
that conviction. This appeal arises from the third case in the course of the litigation. Below, the
district court dismissed Macik’s successive petition for post-conviction relief because he failed to
show a sufficient reason that the claims were not raised in the original post-conviction action.
Macik largely fails to respond to the district court’s rationale and, instead, attempts to persuade
this Court that he is innocent.




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                                                I.
                                       BACKGROUND
       The factual and procedural background of this case may be gleaned from two prior
appeals. First, background concerning the offense may be found in State v. Powers, 96 Idaho
833, 835-36, 537 P.2d 1369, 1371-72 (1975): 1
               On the night of August 14, 1971, the body of William Butler, who had
       been an inmate at the Idaho State Penitentiary, was found by prison officials
       rolled up in a floor mat against the wall in the gymnasium area of the prison. An
       autopsy conducted on the following day, disclosed that the cause of death was
       multiple stab wounds with massive hemorrhage resulting from one stab wound to
       the heart and massive head injuries. [Powers] along with fifteen other inmates at
       the Idaho State Penitentiary, old site, was moved to the maximum security unit at
       the site of the new penitentiary the day after Butler’s body was found. The Ada
       County Sheriff’s office was called in to investigate the murder, and questioned the
       inmates who were confined to the maximum security unit in the course of its
       general investigation.
               On September 24, 1971, Paul W. Bright, Ada County Sheriff, received
       word that [Powers] wanted to talk to him. Sheriff Bright brought a tape recorder
       and visited [Powers] in his cell. Sheriff Bright testified that he asked [Powers]
       why he wanted to see him, and [Powers] said it was about the Butler murder. The
       Sheriff then said, “What about it?” and [Powers] replied, “Well, I done it.” This
       exchange took place before the tape recorder was turned on, and before [Powers]
       was afforded his Miranda warnings.
               Immediately thereafter, and before any other statements were made,
       [Powers] was apprised of his Miranda rights, which [Powers] stated that he
       understood. [Powers] still wished to talk to the Sheriff, and made a statement
       confessing to the commission of the murder. At [Powers’] request, he was
       removed from the Idaho State Penitentiary and brought to the Ada County
       Sheriff’s office the following day on September 25, 1971. [Powers] made another
       statement, which was an elaboration of his first statement given the previous day,
       after again being afforded his Miranda rights and waiving them.                 On
       September 26, 1971, [Powers] made a final statement to the Sheriff, after again
       being read the Miranda warnings, which [Powers] acknowledged that he
       understood.
               [Powers] was jointly charged along with Ronald Macik and William Burt,
       for the murder of William Butler.




1
       That appeal addressed claims raised by Macik’s co-defendant, Danny Ray Powers. The
complete record of that case is not before this Court. However, the facts cited above do appear
in our record because, in 1971, the lower court held a single preliminary hearing for Macik,
Powers, and a third co-defendant.

                                                2
       The procedural history of Macik’s recent attempts to obtain relief appears in Macik v.
State, Docket No. 40321 (Ct. App. Oct. 24, 2013) (unpublished):
                In 1972, Macik pled guilty to first degree murder and the district court
       imposed a life sentence. Macik did not appeal, or any appeal that he filed was
       dismissed, as there is no record of an appeal in his case. On March 14, 2011,
       Macik wrote a letter to the district court that was treated as a motion to withdraw
       his guilty plea and counsel was appointed to represent him. The district court
       concluded that it was without jurisdiction to consider the merits of Macik’s claim
       and denied the motion. This Court affirmed the district court’s decision in State v.
       Macik, Docket No. 39233 (Ct. App. 2012) (unpublished) and a remittitur was
       issued on June 28, 2012.
                On July 26, 2012, Macik filed a petition for post-conviction relief, alleging
       several claims related to the entry of his guilty plea in 1972. Macik also filed a
       motion for the appointment of counsel, which the district court denied on
       August 8, 2012. On August 22, 2012, the State filed a motion for summary
       dismissal of Macik’s petition. The district court granted the motion five days
       after its filing and summarily dismissed the petition on August 27, 2012.
                On August 29, 2012, Macik filed a motion for leave to amend his petition,
       requesting permission to submit evidence of his claims to the district court. On
       August 30, 2012, the district court denied his motion, finding that he failed to
       identify any new claims he might have.

       On appeal, this Court concluded that Macik was improperly denied “the mandatory
twenty-day period to respond” to the State’s motion for summary dismissal and remanded the
matter to the district court. Id. On remand, the post-conviction court dismissed the petition as
untimely. Macik appealed that ruling and the appeal is still ongoing.
       Before the appeals of the original petition were completed, Macik initiated the present
action. Through counsel, Macik filed a pleading titled “Petition for Post-conviction Relief.”
That document stated that Macik sought relief pursuant to Idaho Code § 19-4901 “based on the
attached Verified Motion to Re-Open Case Based on Newly Discovered Evidence.” 2 In that
motion, Macik contended that he was heavily medicated at the time of his guilty plea and was
pressured to plead guilty to avoid the death penalty. He stated that he had recently received
“crucial transcripts,” namely the transcript of his 1971 preliminary hearing. He argues that he is
actually innocent, that a manifest injustice has occurred in his case, and that evidence of these
assertions may be found in an affidavit sworn by Danny Powers, Macik’s co-defendant.

2
        The motion states that Macik is entitled to relief pursuant to Idaho Rule of Civil
Procedure 59(a)(4) and references the 1971 criminal case. We treat this matter as a successive
petition for post-conviction relief because the parties and the district court have all done so.

                                                 3
Alternatively, he claims that he received ineffective assistance of counsel because his attorney
failed to inform him that these documents existed. Likewise, he claims that the State violated
Brady v. Maryland, 373 U.S. 83 (1963) (discussing the State’s duty to disclose certain
exculpatory evidence). In addition, he raises a Miranda 3 claim. Finally, he claims that his
attorney was ineffective when he failed to file an appeal. Unfortunately, the exhibits Macik
references are not contained in our record on appeal. 4
       Macik acknowledges that his request for relief is not particularly timely. He explains the
considerable delay in seeking a remedy on three grounds. First, in approximately 1999, he was
too poor to pay the fees required to obtain the relevant transcripts. Second, he was paroled in
2001 and, at that point, he considered the issue moot. Then, in 2007, he had a “massive stroke”
which incapacitated him. For all of these reasons, he failed to seek relief until 2009, when he
had been returned to jail for a parole violation and his stroke symptoms had abated.
       The State argued that summary dismissal was proper on several grounds. First, the
petition was not timely as Macik was present at the preliminary hearing where Powers’
confession was discussed. Moreover, even if Macik was correct and he did not obtain any
documents until 2009, evidence that is discovered three years before one files a petition for post-
conviction relief is not “new.” Second, the State argued that the co-defendant’s confession did
not exculpate Macik. Third, the State urged that claims regarding Macik’s mental health should
be disregarded as Macik had been evaluated at the time of his plea and the court and the parties
were aware of the substance of that evaluation.
       The district court held that Macik did not present new evidence. On that basis, it
concluded that Macik had failed to show a sufficient reason for his claims to be raised in a
successive petition and, therefore, summarily dismissed the case.




3
       Miranda v. Arizona, 384 U.S. 436 (1966) (prior to initiating custodial interrogation, the
police must give a suspect certain warnings describing his right to remain silent and right to an
attorney).
4
       Below, the district court described these exhibits as excerpts from the preliminary
hearing. The full transcript of that hearing appears in our record.


                                                  4
       On appeal, Macik seeks to dispute “the factual findings of the state courts in this case,
and in all related cases assigned to the Appellant.” In particular, he contends that testimony at
the preliminary hearing demonstrates his innocence. 5
                                                 II.
                                           ANALYSIS
       A petition for post-conviction relief initiates a civil, rather than criminal, proceeding
governed by the Idaho Rules of Civil Procedure. I.C. § 19-4907; 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



5
        Because we affirm the summary dismissal of this case on procedural grounds, we need
not address the merits of Macik’s claims. However, we discuss the merits of Macik’s arguments
briefly, for the benefit of interested readers and to allay potential concerns that we are ignoring
credible evidence that Macik is actually innocent. Macik’s claims of actual innocence are based
upon two portions of the preliminary hearing.
        First, a prison guard testified about what he saw on the night of the murder. The guard
came upon a locked door to a gym in the old Idaho Penitentiary. When he knocked on the door,
Macik opened a curtain and indicated to fellow inmates that a guard was there. Minutes later,
Macik opened the door. Later that evening, a body was found, wrapped in wrestling mats in that
room. Macik contends that this testimony is exculpating because the guard observed him near
the door and observed other prisoners located closer to where the body was found. Evidence that
Macik was located in the same room as the body, on the night of the murder, behind a locked
door, is hardly exculpating. Nor would a reasonable person infer that Macik was innocent from
the fact that others (potentially including his co-defendants) were seen closer to the body.
Indeed, when these facts are considered along with the facts that Macik asserts on appeal, the
testimony tends to inculpate Macik. On appeal, Macik informs us that he went to the room
because he was upset with the victim, knowing that was where the victim would be, and knowing
that the door locked. Accordingly, we are not persuaded that this amounts to evidence of
innocence.
        Second, one of Macik’s co-defendants, Powers, confessed that he was involved with the
murder. At the preliminary hearing, a police officer testified that Powers told the officer “I’m
the one that done it.” Although the full text of the confession does not appear in our record, a
description of the confession in the record shows that Powers did not take full responsibility for
the murder. Although he admitted his involvement, he told officers that another person
(unspecified in our record) made the killing blows. Accordingly, Powers’ confession does not
exculpate Macik. Indeed, it is consistent with the State’s evidence tending to show that Macik,
Powers, and a third man acted in concert when they murdered the victim. See State v. Powers,
96 Idaho 833, 846, 537 P.2d 1369, 1382 (1975) (at Powers’ trial, the third co-defendant testified
that Macik planned the attack and helped gather the weapons used to kill the victim).
        Although this reasoning is not the basis for our disposition of the case, it is apparent that
Macik did not present even a colorable claim of actual innocence.

                                                 5
the evidence the allegations upon which the request for post-conviction relief is based. 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). Idaho Code Section 19-4906 authorizes summary dismissal of
a petition for post-conviction relief, either pursuant to a motion by a party or upon the court’s
own initiative, if “it appears from the pleadings, depositions, answers to interrogatories, and
admissions and agreements of fact, together with any affidavits submitted, that there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”
I.C. § 19-4906(c).
       Idaho Code § 19-4908 limits the availability of successive post-conviction actions:
               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.

Because Macik has filed a successive petition, it was properly dismissed unless he has
demonstrated “a ground for relief asserted which for sufficient reason was not asserted or was
inadequately raised in the original, supplemental, or amended application.”
       We conclude that Macik provided no evidence that there existed a “sufficient reason” that
the claims raised in his successive petition were not raised in the original petition for post-
conviction relief. Assuming that Macik’s timeline is correct, he received the preliminary hearing
transcript in 2009. Accordingly, he knew the “facts” supporting his claim years before his
original petition for post-conviction relief was filed. Other than complaints about prior counsel,
he provides no explanation for the delay. Ineffective assistance of prior post-conviction counsel
is not a “sufficient reason” for the purposes of I.C. § 19-4908. Murphy v. State, 156 Idaho 389,
391, 327 P.3d 365, 367 (2014) (overruling Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955
(1981)). Accordingly, summary dismissal was proper. Griffin v. State, 142 Idaho 438, 441, 128




                                                6
P.3d 975, 978 (Ct. App. 2006) (summary dismissal is proper when a petitioner fails to show that
there was a “sufficient reason” that a claim was not raised in the original petition). 6
                                                 III.
                                          CONCLUSION
       The district court dismissed this case because Macik failed to provide a sufficient reason
that his claims were not raised in his original petition. We find no error in that conclusion and
affirm the judgment of the district court on that basis.
       Chief Judge GUTIERREZ and Judge GRATTON CONCUR.




6
        Macik argues that we should ignore the applicable Idaho provisions and apply the
equitable tolling principles applicable to federal habeas corpus proceedings. Those provisions
are not applicable to proceedings in state courts. If Macik believes his claims will be subjected
to more favorable review in federal courts, he may seek relief in that forum. We also note,
primarily for Macik’s benefit, that the provisions he cites appear to discuss timeliness. This case
was not dismissed below for untimeliness; it was dismissed because Macik had waived his claim
by failing to raise it in his original post-conviction action. Accordingly, even if tolling applied,
his case would still be subject to dismissal.

                                                  7
