               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 41056

CHRISTOPHER CONLEY TAPP,                          )     2014 Unpublished Opinion No. 691
                                                  )
       Petitioner-Appellant,                      )     Filed: August 22, 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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Seventh Judicial District, State of Idaho,
       Bonneville County. Hon. Joel E. Tingey, District Judge.

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

       Dennis Benjamin of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for
       appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Christopher C. Tapp appeals from the district court’s summary dismissal of his
successive petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       This Court summarized the facts of this case in State v. Tapp, 136 Idaho 354, 33 P.3d 828
(Ct. App. 2001) as follows:
               Early in the morning of June 13, 1996, Angie Dodge was raped and
       stabbed to death in her apartment in Idaho Falls. On January 7, 1997, twenty-
       year-old Christopher Tapp voluntarily submitted to police questioning about this
       crime at the Law Enforcement Building (LEB) in Idaho Falls. Tapp again
       voluntarily went to the LEB for questioning on January 10. After this interview,
       Tapp’s parents retained private counsel for their son. When Tapp did not appear
       at the LEB for another scheduled interview on January 11, police officers went to
       his home to find him. They were informed by Tapp’s mother that an attorney had
       been retained and that Tapp would appear on January 13, with counsel, to answer
       more questions. Approximately an hour later, the Idaho Falls chief of police
       arrived at the Tapp home and attempted to convince Tapp’s mother to change her
       mind about her son’s refusal to be interviewed without assistance of counsel. She
       refused. Rather than waiting for a voluntary interview on January 13, law
       enforcement officials obtained a warrant to arrest Tapp on a charge of accessory
       to a felony, Idaho Code §§ 18-205, -206, and he was arrested on January 11.
                After making the arrest, an officer put Tapp in an interview room and
       called Tapp’s attorney. Before the attorney’s arrival, the officer initiated a
       discussion with Tapp about the type of information the police wanted to obtain
       from him. 1 On January 13, another attorney joined in Tapp’s representation as
       co-counsel. Thereafter, Tapp was interviewed, while under arrest and in police
       custody, on January 15 and 17. During all interviews at the LEB from January 15
       forward, Tapp was separated from his attorneys. The attorneys were placed in a
       nearby office in the LEB where they were allowed to observe the interviews on a
       closed-circuit television. Tapp’s only contact with his attorneys was during
       breaks in the interviews. His attorneys apparently made no objection to this
       arrangement.
                In the first few interviews Tapp denied having any knowledge of the
       crime, then claimed that Ben Hobbs had confessed to killing Dodge and had asked
       Tapp to help him with an alibi. Tapp denied having ever been at the crime scene.
       By January 15 and 17, however, Tapp’s story was changing, and he admitted that
       he had accompanied Hobbs to Dodge’s apartment on the night of the murder.
       Tapp told police that Hobbs wanted to confront Dodge because Hobbs believed
       that she had convinced Hobbs’s wife to leave him. Tapp claimed that Hobbs and
       Dodge started fighting and that Hobbs punched Dodge and then stabbed her
       twice. Tapp asserted that he ran from the apartment at that point. He admitted
       that he returned later and found Dodge dead and no one else present. Tapp also
       implicated a man named Jeremy Sargis in the crime. Tapp said he believed that
       the murder weapon belonged to Sargis, but he initially claimed that Sargis was not
       in the apartment that night. Eventually, however, Tapp accused Sargis of helping
       to rape and murder Dodge.
                On January 15, Tapp and the State entered into a “limited use immunity”
       agreement, and on January 17 they entered into a “cooperation and settlement
       agreement.” These agreements (hereinafter referred to collectively as the
       “immunity agreements”) required Tapp to cooperate with the police investigation
       of Dodge’s death and to provide the police with truthful information about the
       crime. Tapp also agreed to plead guilty to aiding and abetting an aggravated
       battery, a felony, I.C. §§ 18-903, -907, and the State agreed not to file any other
       charge against Tapp related to Dodge’s death. The State also promised to
       recommend at the sentencing hearing that the district court retain jurisdiction for a
       limited period pursuant to I.C. § 19-2601(4), and to allow withdrawal of the guilty
       plea if the judge did not follow the recommendation. The State also agreed not to
       use any of Tapp’s statements against him except for impeachment purposes. As a

1
       Tapp’s statements made during this interview before the arrival of his counsel were later
suppressed by the district court.
       consequence of the immunity agreements, the pending charge against Tapp for
       accessory to a felony was dismissed on January 17 and he was released from
       custody.
               Tapp was again questioned on January 18 and 29. Before the January 29
       interview began, the prosecutor informed Tapp and his attorney that the
       prosecutor considered the immunity agreements with Tapp to be void because
       Tapp had not been truthful in describing the crime. The prosecutor explained that
       Tapp’s contention that Hobbs and Sargis were the rapists was contradicted by
       DNA tests showing that semen found on Dodge’s body and clothing did not come
       from either of those men (or from Tapp). Despite this declaration from the
       prosecutor, Tapp and one of his attorneys continued with the January 29
       interview. On that date, Tapp was given a polygraph test, during which he asked
       to be taken to the apartment where the murder occurred. Tapp’s attorney agreed
       that the police could take Tapp to the crime scene for further questioning, but the
       attorney declined to accompany Tapp and the officers. Once at the crime scene,
       Tapp made statements implicating himself in the crimes. At the crime scene and
       later the same day at the LEB, Tapp admitted that he had held Dodge’s arms and
       shoulders down throughout the rape and stabbing. In his new account of the
       events, Jeremy Sargis was replaced by a different male whose name Tapp could
       not remember. Some details of his story about how Dodge was raped and details
       of other events of that night changed during this and two subsequent interviews.
               Tapp was rearrested after the January 29 interview. The next day, he was
       again charged with being an accessory to a felony. Tapp was further interviewed
       on January 30 and 31. On February 3, 1997, charges of rape, I.C. § 18-6101(3),
       (4), and first degree murder, I.C. §§ 18-4001, -4002, -4003(a), replaced the
       accessory charge.

Tapp, 136 Idaho at 357-58, 33 P.3d at 831-32. Tapp was found guilty by a jury. Id. at 358, 33
P.3d at 832.
       On appeal, this Court ruled that the January 15, 17, 30, and 31 interviews violated Tapp’s
right to counsel and should have been suppressed. Id. at 362, 33 P.3d at 836. However, this
Court held that the statements made on January 7, 10, 18, and 29 were not subject to suppression,
specifically upholding the district court’s finding that the statements were not the product of
coercion or involuntary and that Tapp’s Miranda 2 rights were not violated on January 29 because
he was not in custody at the time of the January 29 statements. Tapp, 136 Idaho at 362-65, 33
P.3d at 836-39. Tapp’s judgment of conviction was affirmed because this Court held that,
beyond a reasonable doubt, the verdict would have been the same in light of his detailed
confession on January 29. Id. at 366, 33 P.3d at 840.



2
       See Miranda v. Arizona, 384 U.S. 436 (1966).
       Tapp filed a petition for post-conviction relief claiming both his trial and appellate
counsel provided ineffective assistance. The district court summarily dismissed all of Tapp’s
claims. On appeal, in an unpublished opinion, this Court reversed and remanded for further
proceedings on whether Tapp’s trial counsel was ineffective during the suppression hearing for
failing to present evidence that Tapp was in custody during the January 29 interview and failing
to present evidence of Tapp’s diminished mental capacity to show the confession was
involuntary. This Court also affirmed the dismissal of Tapp’s claims of ineffective assistance of
trial counsel for failure to call Tapp to testify, claims of error for failure to consider ineffective
assistance of counsel as a direct violation of the right to testify, and claims of ineffective
assistance of appellate counsel for failure to argue the fruit of the poisonous tree doctrine. Tapp
v. State, Docket No. 35536 (Ct. App. Mar. 31, 2010). Upon remand, the state moved for
summary dismissal on different grounds. The district court granted the motion, and this Court
affirmed in an unpublished opinion. Tapp v. State, Docket No. 40197 (Ct. App. Nov. 21, 2013).
       Tapp filed the instant, successive petition while the initial appeal in the first
post-conviction case was pending. This petition alleged Tapp was deprived of his right to testify.
In contrast to Tapp’s first petition, Tapp alleged a direct violation of his Sixth Amendment right,
as opposed to the ineffective assistance claim brought previously. The petition asserted Tapp’s
counsel on his first petition provided ineffective assistance. The state filed a motion to dismiss.
Tapp responded to the motion and filed an affidavit supporting his petition. This affidavit
indicated Tapp would have testified that his confessions were not true and that police
manipulated him into confessing.       The district court denied the state’s motion to dismiss.
However, the district court, sua sponte, allowed the parties to address whether Tapp’s
deprivation of the right to testify claim should be dismissed under a Chapman v. California, 386
U.S. 18 (1967) harmless error analysis. Tapp responded to the notice and filed an additional
affidavit. This affidavit indicated Tapp also would have testified in support of an alibi defense.
       The state responded to the district court’s notice and argued that, even if Tapp was denied
the right to testify, such error was harmless beyond a reasonable doubt. The state also contended
that Tapp failed to meet his initial burden of demonstrating a constitutional violation. Tapp
objected to the state’s latter argument, contending it was procedurally improper and not raised in
the district court’s notice of intent to dismiss. The district court summarily dismissed the
successive petition, holding Tapp voluntarily waived his right to testify. Alternatively, the
district court held, even assuming a violation of Tapp’s right to testify, any error was harmless
beyond a reasonable doubt. Tapp appeals.
       We need not address the merits of these arguments because the justification asserted by
Tapp for allowing him to file a successive petition for post-conviction relief is that he received
ineffective assistance of counsel in his first post-conviction proceeding. The Idaho Supreme
Court recently determined that ineffective assistance of post-conviction counsel is no longer a
sufficient reason for filing a successive petition for post-conviction relief. Murphy v. State, 156
Idaho 389, 327 P.3d 365 (2014). In Murphy, the petitioner attempted to file a successive petition
for post-conviction relief, asserting that her claims of ineffective assistance of trial counsel were
properly before the district court because her previous post-conviction attorneys had failed to
properly present the claims in her initial petition for post-conviction relief or raise them in an
amended petition. Murphy’s argument relied on the Court’s prior holding in Palmer v. Dermitt,
102 Idaho 591, 635 P.2d 955 (1981). In Palmer, the Court had held that alleging ineffective
assistance of prior post-conviction counsel may 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. Id. at 596, 635 P.2d at 960. The Court in Murphy
determined that this was not in accord with subsequent United States Supreme Court and Idaho
Supreme Court precedent and overruled Palmer. The Court reasoned that there is no right,
statutory or otherwise, to post-conviction counsel. Murphy, 156 Idaho at 394-95, 327 P.3d at
370-71. See also Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987); Fields v. State, 135
Idaho 286, 291, 17 P.3d 230, 235 (2000). Without a right to post-conviction counsel, there can
be no deprivation of effective assistance of counsel. Murphy, 156 Idaho at 395, 327 P.3d at
371. See also Coleman v. Thompson, 501 U.S. 722, 752 (1991). As a result, a petitioner cannot
demonstrate sufficient reason for filing a successive petition based on ineffectiveness of prior
post-conviction counsel. Murphy, 156 Idaho at 395, 327 P.3d at 371.
       In this case, Tapp failed to assert any sufficient reason for filing a successive post-
conviction petition. Accordingly, the district court did not err in summarily dismissing Tapp’s
successive petition for post-conviction relief. No costs or attorney fees are awarded on appeal.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.
