                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 41022

DWIGHT EARL REBER,                                 )      2014 Unpublished Opinion No. 714
                                                   )
        Petitioner-Appellant,                      )      Filed: September 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STATE OF IDAHO,                                    )      THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho,
       Kootenai County. Hon. Benjamin R. Simpson, District Judge.

       Order of the district court summarily dismissing successive post-conviction
       petition, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Dwight Earl Reber appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. He asserts that the district court erred by failing to rule on his
motion to appoint conflict counsel.
                                                  I.
                         FACTUAL AND PROCEDURAL HISTORY
       In 2001, Reber was found guilty by a jury verdict of one count of lewd conduct with a
minor under sixteen, Idaho Code § 18-1508. The court imposed a unified term of sixteen years
with four years determinate.
       Reber appealed and this Court affirmed his judgment of conviction and sentence.
Thereafter, Reber filed a petition for post-conviction relief asserting prosecutorial misconduct,
errors of fact the district court would not allow him to challenge on cross-examination, and
ineffective assistance of counsel. The district court dismissed his petition for post-conviction

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relief and also denied his subsequent motion to reconsider, which was affirmed by this Court. In
addition, Reber filed a federal habeas corpus petition, which was dismissed.
        Reber filed a successive petition for post-conviction relief, which the district court
summarily dismissed for being untimely. It considered Reber’s argument that the limitation
period to file his claim was tolled, but held that it did not apply in this case. The district court
further held that even if the time limitation tolled, his petition should be dismissed because his
claim of ineffective assistance of counsel was previously adjudicated and he failed to establish a
prima facie case of actual innocence.
        Reber timely appeals the order summarily dismissing his successive petition for post-
conviction relief. He asserts the district court erred in failing to rule on his motion for conflict
counsel.
                                                   II.
                                             ANALYSIS
        The district court summarily dismissed Reber’s successive petition for post-conviction
relief, concluding he failed to provide a sufficient reason that would allow him to file a
successive petition pursuant to I.C. § 19-4908 and it was time barred under I.C. § 19-4902(a).
Idaho Code sets forth the parameters for filing successive petitions for post-conviction relief. It
provides:
                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.

Idaho Code § 19-4908.
        Reber argues the district court had a duty to inquire into a potential conflict of interest
when he filed a motion to dismiss the public defender and appoint conflict-free counsel after the
district court filed a notice of intent to dismiss his successive petition. He contends that he had a
due process right to non-conflicted counsel and a right to have his motion decided. Thus, he
asserts that the district court erred in failing to rule on the motion.




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       In his opening brief, Reber acknowledged that he did not have a Sixth Amendment right
to counsel in his successive petition for post-conviction relief. Instead, he asserted that he had a
statutory right to counsel. In his reply brief, Reber acknowledged that the recent Idaho Supreme
Court case of Murphy v. State, 156 Idaho 389, 327 P.3d 365 (2014) “forecloses his claim that he
had a statutory right to effective assistance of counsel.” 1 Thus, his claim that the duty of inquiry
applies to his previously asserted statutory right to counsel fails.
       In his opening brief, Reber cited to Palmer v. Dermitt, 102 Idaho 591, 635 P.2d 955
(1981), for the proposition that his claim of ineffective assistance of post-conviction counsel can
present a sufficient reason to file a successive petition for post-conviction relief. From the
holding in Palmer, Reber concluded that “the appointment of counsel carries with it the
appointment of constitutionally adequate, conflict-free counsel.” However, the Idaho Supreme
Court expressly overruled Palmer in Murphy, holding:
               Where there is no right to counsel, there can be no deprivation of effective
       assistance of counsel. Therefore, we overrule Palmer and hold that because
       [petitioner] has no statutory or constitutional right to effective assistance of post-
       conviction counsel, [petitioner] cannot demonstrate “sufficient reason” for filing a
       successive petition based on ineffectiveness of post-conviction counsel.

Murphy, 156 Idaho at 395, 327 P.3d at 371. Reber concedes this holding precludes his claim to
effective assistance of counsel.
       Despite the holding in Murphy, Reber contends that once he was appointed counsel he
was “entitled to conflict-free counsel.” Reber argues:
               Finally, even if there is no statutory right to counsel in non-death penalty
       post-conviction actions, once the court appointed counsel, Mr. Reber was entitled
       to conflict-free counsel because, as set forth above, the appointment of counsel
       with a conflict of interest violates due process. 2 The United States Supreme Court
       has held that once a state creates a right that implicates a person’s liberty, the
       individual possessing this right is entitled to “those minimum procedures
       appropriate under the circumstances and required by the Due Process Clause to
       insure that the state-created right is not arbitrarily abrogated.” Wolff v.
       McDonnell, 418 U.S. 539, 557 (1974). Therefore, once the district court
       appointed counsel, that appointment was required to possess minimum procedures



1
        Reber filed his briefs while a petition for rehearing in Murphy was pending. The petition
for rehearing has since been denied by the Idaho Supreme Court.
2
       The cases referencing a due process right are Sixth Amendment cases.

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       to insure that the right is not [arbitrarily] abrogated. Among those procedures is
       an inquiry to determine whether appointed counsel has a conflict of interest.

In his reply brief, Reber claims that “[b]y ignoring Mr. Reber’s request completely, the district
court denied the minimum protections afforded by the due process clause.”
       Reber argues that Sixth Amendment principles, which impose a duty to inquire by the
court when the record demonstrates the possibility of a conflict of interest, should be applied in
reviewing his claim of a conflict of interest, even though “this duty has not been expressly
extended to post-conviction proceedings.” While it may be that the appointment of conflicted
counsel implicates due process or other abuse of discretion concerns, we need not reach the issue
here. The Sixth Amendment is implicated only when the representation of counsel is adversely
affected by an actual conflict of interest. An inquiry is only required “when ‘the trial court
knows or reasonably should know that a particular conflict exists,’ which is not to be confused
with when the trial court is aware of a vague, unspecified possibility of conflict.” Hall v. State,
155 Idaho 610, 619, 315 P.3d 798, 807 (2013), (citing Mickens v. Taylor, 535 U.S. 162, 168-69
(2002)). In this case, Reber’s allegations do not meet this threshold. Reber alleged only that his
counsel “failed to communicate with him, failed to amend the petition, and failed to present
additional evidence to support his claims.” We note that these allegations do not suggest his
counsel had an actual conflict of interest; rather, they allege ineffective assistance of counsel.
This is supported by his argument in support of his own motion to withdraw and appoint conflict
counsel in which he states he was “deprived of . . . effective assistance of counsel” by his
attorney’s deficient performance.
       While the district court erred in failing to rule on Reber’s motion, the error was harmless.
Reber’s motion did not assert any facts indicating that any conflict existed. The motion was,
therefore, wholly without merit.
                                               III.
                                        CONCLUSION
       The district court erred in failing to rule on Reber’s motion asserting that counsel had a
conflict of interest. However, the error was harmless, as Reber’s motion did not assert any facts
indicating any conflict of interest. The district court’s order summarily dismissing Reber’s
successive petition is affirmed.
       Judge LANSING and Judge MELANSON CONCUR.


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