               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 36292

RICHARD J. HIBBERT,                              )      2011 Unpublished Opinion No. 359
                                                 )
       Petitioner-Appellant,                     )      Filed: February 11, 2011
                                                 )
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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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,
       Minidoka County. Hon. R. Barry Wood, District Judge.

       Order summarily dismissing successive application for post-conviction relief,
       affirmed.

       Richard J. Hibbert, Orofino, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Richard J. Hibbert appeals the district court’s dismissal of his successive application for
post-conviction relief. We affirm.
                                                I.
                     PROCEDURAL AND FACTUAL BACKGROUND
       In June of 1994, Hibbert pled guilty to one count of lewd and lascivious conduct with a
minor under the age of sixteen. Idaho Code § 18-1508. He repeatedly, forcibly raped his
fourteen-year-old daughter. The sentencing court found him to be a high risk to re-offend or to
possibly kill his daughter. Hibbert was sentenced to a determinate life sentence. This Court
affirmed the sentence. State v. Hibbert, 127 Idaho 277, 899 P.2d 987 (Ct. App. 1995). On
March 24, 1998, Hibbert’s initial application for post-conviction relief was denied. He did not
appeal. Hibbert states that he filed a second application for post-conviction relief in March 2000,




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but did not receive a response. The document which Hibbert contends was filed in March 2000
does not bear a court file stamp.
       On February 27, 2008, Hibbert filed this successive application for post-conviction relief
with a number of allegations. The State filed a motion to dismiss the successive application as
untimely. Hibbert, through his appointed counsel, argued that his successive application was
timely because he was claiming: (1) ineffective assistance of earlier post-conviction counsel;
and (2) that his Fifth Amendment right as it pertains to psychosexual evaluations was violated, as
articulated in Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006), which he alleged was a new
rule. The district court found the successive application to be untimely and granted the State’s
motion to dismiss. Hibbert appeals.
                                                II.
                                          DISCUSSION
       On appeal, Hibbert, pro se, asks this Court to review his claims that his due process and
constitutional rights were violated because of prosecutorial misconduct during his initial criminal
conviction, and ineffective assistance of his trial counsel in 1994 for not obtaining a fifteen-year
sentence for him. Hibbert requests this Court to appoint new counsel and remand for a new trial
with a change of venue. These claims for relief were not directly addressed below because the
district court determined that the successive application was untimely. Generally, issues not
raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192,
195, 824 P.2d 123, 126 (1992). While Hibbert does not affirmatively claim the district court
erred in dismissing his successive application as untimely, this Court will evaluate the claims
made in the district court in support of the propriety and timeliness of his successive application,
namely: (1) ineffective assistance of earlier post-conviction counsel in failing to raise and
support the substantive issues of prosecutorial misconduct and ineffective assistance of trial
counsel; and (2) Fifth Amendment right as it pertains to psychosexual evaluations, under
Estrada.
       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


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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
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 application 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 application, we will simply consider it on a case-by-case basis. Id. Therefore,
the question is whether the applicant in the present case filed the successive application alleging
ineffective assistance of prior post-conviction counsel within a reasonable period of time.
       Hibbert’s first claimed basis for this successive application is ineffective assistance of
prior post-conviction counsel. His initial application for post-conviction relief was denied on
March 24, 1998. There is no indication that counsel assisted him with his application in March
2000. Even assuming his post-conviction counsel was ineffective in failing to raise substantive
issues now advanced, Hibbert failed to demonstrate that he had sufficient reason for delaying this
successive application for post-conviction relief for almost ten years.
       The second claim, and the primary focus of Hibbert’s challenge to the State’s motion to
dismiss, was that Estrada, 143 Idaho 558, 149 P.3d 833, announced a new rule. Hibbert
therefore contends he was justified in not raising the claim in his initial application and had


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sufficient reason to raise the claim in a successive application. The district court ruled that
Estrada did not establish a new rule and that Hibbert should have raised his claim in his initial
application. This Court ruled similarly in Kriebel v. State, 148 Idaho 188, 191, 219 P.3d 1204,
1207 (Ct. App. 2009). Further, the district court found that the thirteen-month delay between the
issuance of Estrada and Hibbert’s successive application was unreasonable and, therefore,
untimely. Hibbert does not challenge either of the district court’s determinations on appeal.
Therefore, this Court will not disturb the district court’s rulings.
                                                 III.
                                          CONCLUSION
       Hibbert has failed to demonstrate that the district court erred in determining that his
successive application was untimely.        The district court’s summary dismissal of Hibbert’s
successive application for post-conviction relief is affirmed.
       Judge LANSING and Judge GUTIERREZ CONCUR.




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