               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 36258

JOSE MARTINEZ,                                    )     2010 Unpublished Opinion No. 500
                                                  )
       Petitioner-Appellant,                      )     Filed: June 7, 2010
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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,
       Bingham County. Hon. Jon J. Shindurling, District Judge.

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

       Molly J. Huskey, State Appellate Public Defender; Diane M. Walker, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

                      Before LANSING, Chief Judge, GUTIERREZ, Judge
                                 and MELANSON, Judge



PER CURIAM
       Jose Martinez appeals from the district court’s order summarily dismissing his
application for post-conviction relief. For the reasons set forth below, we affirm.
       Martinez was convicted of battery with intent to commit lewd conduct with a minor
under sixteen and sentenced in February 2001. According to the district court’s order dismissing
the present post-conviction action, Martinez appealed from the judgment of conviction, and a
remittitur on that appeal was issued on January 27, 2006. This Court’s records, however,
indicate that Martinez’s appeal was dismissed, and a remittitur issued, in May 2002. This
discrepancy in the remittitur date is not of consequence, however, in the disposition of the
present post-conviction action.

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       In February 2002, Martinez filed an application for post-conviction relief. The district
court summarily dismissed the application.       Martinez appealed, and the Court of Appeals
affirmed the order dismissing the application for post-conviction relief and issued a remittitur in
November 2003. Martinez filed a successive petition for post-conviction relief in November
2007, alleging various claims, including ineffective assistance of counsel related to the
psychosexual evaluation prepared for sentencing. Martinez argued that Estrada v. State, 143
Idaho 558, 149 P.3d 833 (2006) announced a new rule that should be applied retroactively in his
case, making his application timely. The district court dismissed the application because it was
barred by the one-year statute of limitation. Martinez appeals.
       Our review of the district court’s construction and application of the limitation statute is a
matter of free review. Freeman v. State, 122 Idaho 627, 628, 836 P.2d 1088, 1089 (Ct. App.
1992). The statute of limitation for post-conviction actions provides that an application for post-
conviction relief may be filed at any time 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). The appeal referenced in that section
means the appeal in the underlying criminal case. Freeman, 122 Idaho at 628, 836 P.2d at 1089.
The failure to file a timely application is a basis for dismissal of the application for post-
conviction relief. Sayas v. State, 139 Idaho 957, 959, 88 P.3d 776, 778 (Ct. App. 2003).
       Assuming, arguendo, that the remittitur in Martinez’s appeal from his judgment of
conviction was issued in January 2006 as the district court indicated, Martinez filed his
application for post-conviction relief one year and ten months after the determination of his
appeal in the criminal case, well beyond the one-year statute of limitation. However, Martinez
argues that his application should be deemed timely because the Idaho Supreme Court
announced a new rule of law in Estrada that should be applied retroactively.               Martinez
acknowledges that the Idaho Supreme Court has held, by way of dicta, that Estrada did not
announce a new rule of law, Vavold v. State, 148 Idaho 44, 46, 218 P.3d 388, 390 (2009), and
that this Court has similarly held that the Estrada decision did not announce a new rule that
would be subject to retroactive application. See Kriebel v. State, 148 Idaho 188, 191, 219 P.3d
1204, 1207 (Ct. App. 2009). Nonetheless, Martinez argues that Estrada should be applied
retroactively in his case because there is no controlling Idaho Supreme Court precedent on the
issue. However, this Court’s holding in Kriebel is controlling precedent in the absence of any

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Idaho Supreme Court holding to the contrary. Martinez makes a lengthy argument as to why
Estrada should be viewed as announcing a new rule of law and why it should be given
retroactive application. We need not further address these contentions, as we have already done
so.
       Martinez argues that the statute of limitation should be tolled. However, the only basis
he provides to equitably toll the statute of limitation is based upon his contention that Estrada
announced a new rule of law. This argument is without merit. Accordingly, the district court’s
order summarily dismissing Martinez’s application for post-conviction relief is affirmed. No
costs or attorney fees are awarded on appeal.




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