                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 40570

JEREMY TODD HILL,                                  )       2014 Unpublished Opinion No. 426
                                                   )
       Petitioner-Appellant,                       )       Filed: March 24, 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STATE OF IDAHO,                                    )       THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

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

       Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Jeremy Todd Hill filed a petition for post-conviction relief after the statute of limitations
had run. In the district court, he asserted that his late filing should be excused under the principle
of equitable tolling.    He argued that the untimeliness of his petition was caused by the
inadequacy of the legal resources available to him while in jail and prison and that these
inadequacies amounted to a denial of his right to access the courts. The district court held that
the statute of limitations was not equitably tolled because prison resources were adequate. As an
alternative basis for its ruling, the district court found that even if the resources were inadequate,
any inadequacy was not the cause of Hill’s late filing. On this basis, the district court dismissed
Hill’s post-conviction action. Hill appeals and continues to assert his argument that the statute of
limitations for his petition should be equitably tolled.




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                                                  I.
                                         BACKGROUND
       Hill was convicted of trafficking in methamphetamine in violation of Idaho Code § 37-
2732B(a)(4). On March 28, 2011, he was sentenced to a fixed term of six years and six months
of imprisonment. No direct appeal was filed.
       On July 17, 2012, Hill filed a petition for post-conviction relief. He raised two claims of
ineffective assistance of counsel and a claim that his guilty plea was not knowing and voluntary.
Along with his petition, he filed a motion requesting the appointment of counsel and a
memorandum of law.
       The court, sua sponte, filed a notice of its intent to dismiss the post-conviction action
because it was time-barred by the applicable statute of limitations. The notice explained that the
statute of limitations required that Hill’s petition be filed within a period of one year and forty-
two days of his judgment of conviction, a period that expired in May 2011. Hill responded,
pro se, by arguing that he was entitled to equitable tolling because he had been held without
access to legal materials. He asserted he was held in the county jail for several weeks, that he
was transferred to the Reception and Diagnostic Unit (RDU) when he first arrived in prison, and
that he was placed in Unit 8 or “the hole” for weeks. He claimed he was denied access to legal
resources in each of these locations. Furthermore, he asserted that even when held in other areas
of the prison, the resources available were deficient. He claimed that the prison paralegals
refused to offer legal advice and that the law library did not contain any case law. In response to
Hill’s pro se filing, the court appointed counsel for Hill and directed the State to respond to Hill’s
briefing.
       The court ordered a bifurcated evidentiary hearing. At the first hearing, the parties were
permitted to present evidence relating to equitable tolling. The second hearing was planned to
address the merits of Hill’s petition, but never occurred as the court decided the case on
timeliness grounds.
       At the hearing, Hill testified that he was denied access to legal materials in the county
jail, the RDU, and while in “the hole,” i.e., segregation. He also testified he could not recall
receiving any written information regarding legal resources, but did admit that he may have
signed a document indicating he went to an orientation at which he received a packet of written
material. Hill and another inmate also testified regarding the legal resources made available to


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them in prison. 1 They generally described the prison paralegals as unhelpful. They averred that
the prison’s legal resource center can only be used to make copies, mail documents, or get
documents notarized. They also testified that an inmate must have specific knowledge of the
precise materials he needs in order to get any particular resource from the prison law library.
Finally, they said that the library at the prison does not contain the case law reporters that publish
the decisions of this Court, the Idaho Supreme Court, and the relevant federal courts.
       Conversely, the State presented evidence showing that Hill had attended an orientation
meeting where he was given a packet of materials that notified him of the appropriate statute of
limitations for a post-conviction action and described the general nature of such an action. The
State also placed in evidence a packet containing additional materials regarding post-conviction
actions, which Hill ultimately received according to the State’s evidence. Prison staff testified
that prisoners in the RDU and “the hole” have access to legal materials. The State also presented
evidence that Hill had access to legal materials while in the RDU.
       After the hearing, the court issued a written decision dismissing Hill’s post-conviction
action. It concluded that Hill was not credible when he claimed to have been denied legal
materials in the RDU and in “the hole.” Instead, it credited a witness for the State who testified
that legal materials were made available to Hill. The court concluded that these legal materials
were sufficient to advise him of the nature of a post-conviction action and the applicable statute
of limitations. It also concluded that Hill was not prejudiced by any deficiency in the resources
made available to him. Rather than concluding that Hill was prejudiced by actions of the State,
the district court concluded that Hill’s delay in filing his petition while in State custody was
solely attributed to him. Therefore, even assuming that Hill was denied access to the courts
while in county jail and was entitled to equitable tolling for that time, his petition would still be
untimely and subject to dismissal.


1
        Also in the record is an offender concern form wherein Hill asked where he should look
to find information applicable to a post-conviction claim and “to find out what a post-conviction
is.” The import of this document is unclear as it was dated September 18, 2012, and Hill had
filed his post-conviction petition over two months earlier, on July 17, 2012. Moreover, the
exhibit appears to be missing critical context as the response indicates that the concern form is
duplicative, and we have no record of the contents of Hill’s prior request or the paralegal’s prior
response. For these reasons, we do not assume that the paralegal’s response was necessarily
deficient. It is entirely possible that the paralegal’s prior response adequately addressed Hill’s
concern and his new request was entirely duplicative.

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        On appeal, Hill argues that he is entitled to equitable tolling because he was denied
access to the courts. He claims that the materials he received were insufficient to alert him to the
nature of the claim he should file and the appropriate statute of limitations. He also argues, more
generally, that the resources available in the prison are constitutionally insufficient, that the
paralegals are insufficient because they cannot provide legal advice, and the prison libraries are
insufficient because they do not contain case reporters. For all these reasons, he requests that we
reverse the decision of the district court.
                                                 II.
                                              ANALYSIS
        In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
801 P.2d 1216 (1990). When reviewing a decision denying post-conviction relief after an
evidentiary hearing, an appellate court will not disturb the lower court’s factual findings unless
they are clearly erroneous. 2 I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656
(Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and
the inferences to be drawn from the evidence are all matters solely within the province of the
district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Nellsch v.
State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
        The statute of limitation for post-conviction actions provides that a petition 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 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 v. State, 122 Idaho 627, 628, 836 P.2d 1088,


2
        Hill argues that the standard of review for summary dismissals should be applied to this
appeal. We disagree. The district court held what it described as a bifurcated evidentiary
hearing. The first portion of that hearing focused on the statute of limitations and the access to
the courts issue. The second portion of the hearing would have focused on the merits of Hill’s
claim. The plan to hold a second hearing was obviated by the district court’s decision regarding
the access to the courts issue. Below, the parties submitted evidence and adduced testimony on
the issues relevant to this appeal. Accordingly, the standard of review applicable to decisions
rendered after an evidentiary hearing is appropriately applied to this case.


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1089 (Ct. App. 1982). The failure to file a timely petition is a basis for dismissal of the petition.
Sayas v. State, 139 Idaho 957, 959, 88 P.3d 776, 778 (Ct. App. 2003).
       Equitable tolling may excuse the untimely filing of a petition for post-conviction relief.
“Equitable tolling in a post-conviction action has been recognized by Idaho appellate courts in
two circumstances--where the petitioner was incarcerated in an out-of-state facility without legal
representation or access to Idaho legal materials, and where mental disease and/or psychotropic
medication prevented the petitioner from timely pursuing challenges to the conviction.” Leer v.
State, 148 Idaho 112, 115, 218 P.3d 1173, 1176 (Ct. App. 2009) (internal citations omitted).
“The bar for equitable tolling for post-conviction actions is high.” Id. (quoting Chico-Rodriguez
v. State, 141 Idaho 579, 582, 114 P.3d 137, 140 (Ct. App. 2005)). “American courts generally
have applied equitable tolling only in rare and exceptional circumstances beyond the petitioner’s
control that prevented him or her from filing a timely petition.” Leer, 148 Idaho at 115, 218 P.3d
at 1176.
       In Martinez v. State, 130 Idaho 530, 535, 944 P.2d 127, 132 (Ct. App. 1997), this Court
discussed the connection between equitable tolling and the constitutional requirement that
prisoners be afforded access to the courts. Under the federal constitution, prisoners must be
provided adequate access to courts so that they may challenge unlawful convictions and
vindicate constitutional rights. Id. We have interpreted the guarantee in Art. I, § 18, of the Idaho
Constitution, that “courts of justice shall be open to every person,” to similarly require the State
to provide prisoners access to the courts.       Martinez, 130 Idaho at 536, 944 P.2d at 133.
Moreover, we held that both the United States and Idaho Constitutions require that the State take
affirmative steps to provide inmates aid in accessing courts. Id. These requirements are set forth
in Bounds v. Smith, 430 U.S. 817 (1977). That decision states that the government may meet its
obligations by “providing prisoners with adequate law libraries or adequate assistance from
persons trained in the law.”        Id. at 828.       Alternatively, the Court encouraged “local
experimentation,” noting that “a legal access program need not include any particular element we
have discussed.” Id. at 832.
       However, to show an access to the courts violation, a prisoner must do more than show
that the resources available to him are deficient. Lewis v. Casey, 518 U.S. 343, 351 (1996).
“[P]rison law libraries and legal assistance programs are not ends in themselves . . . . Bounds did
not create an abstract, freestanding right to a law library or legal assistance.” Lewis, 518 U.S. at


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351. Therefore, a prisoner asserting an access to the courts claim cannot complain that the
“prison’s law library or legal assistance program is subpar in some theoretical sense.” Id.
Instead, “an inmate must show that the alleged inadequacies of a prison’s library facilities or
legal assistance program caused him ‘actual injury’--that is, actual prejudice with respect to
contemplated or existing litigation, such as the inability to meet a filing deadline or to present a
claim.” Id. (internal marks omitted).
       Taken together, Martinez, Bounds, and Lewis stand for the position that a party asserting
an access to the courts claim must make two factual showings. First, he must show that the
resources provided by the State are inadequate. Second he must show that he suffered an “actual
injury.”
       Hill contends that he has provided sufficient evidence to meet both prongs of the test set
forth in Lewis--he claims he has shown the inadequacy of the resources the State provided and
his “actual injury.” Hill attempted to show that the resources made available in the jail were
inadequate because they amounted to neither adequate law libraries nor adequate legal
assistance. Hill contends that the lack of case law reporters at the jail library would render the
law library deficient. The alternative of the State providing access to prison paralegals did not
amount to adequate assistance, he asserts, because they are unable or unwilling to provide any
legal advice. As to his “actual injury” or prejudice, Hill claims that he “had no way of knowing
that he had to file a post-conviction petition in order to raise the legal challenges he wished to
make.” He contends that because he did not know which action to file, “he did not know the
time constraints set by the relevant statutes of limitations.”
       The district court held that Hill failed to show he was denied access to the courts because
the resources offered were sufficient in that the State offered meaningful assistance in
completing post-conviction petitions. It also held that Hill failed to show any actual injury. On
appeal, this Court need not and does not decide if the resources the State provides to inmates are
generally adequate. Because we can affirm the judgment of the district court on narrow grounds,
“actual injury,” we need not reach the broader constitutional issue.
       The district court concluded that Hill did not show prejudice on the factual record
adduced at the evidentiary hearing. There is obviously no transcript of the orientation Hill
attended when he was first placed in State custody, but the district court could reasonably infer
the substance of that orientation from the testimony of prison staff and from later events. First,


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an exhibit indicates that Hill signed in to attend a briefing performed by jail legal staff. Second,
the prison paralegal responsible for overseeing the legal portion of the orientation testified
regarding the usual practice at these orientations. He testified that during orientation briefings,
inmates are given a packet that describes what resources the paralegal can provide to an inmate.
As relevant here, the packet indicates that materials related to post-conviction actions are made
available to prisoners. Third, the record contains an activity log. The first entry, dated April 15,
2011, indicates that Hill requested and received forms from the paralegal pertaining to Idaho
Criminal Rule 35. From these three factors, the court could reasonably infer that Hill attended
the orientation, that he received the packet stating what legal materials were available, and that
he read the packet or otherwise made use of the information contained therein. From these facts,
the court also reasonably inferred that Hill was provided the materials necessary to know when
his petition for post-conviction relief should be filed.
       Moreover, it is plain from the record that Hill received the same informational packet a
second time. After filing his Rule 35 motion, Hill again requested the aid of the paralegal. It is
not clear what Hill requested, but the paralegal responded by sending Hill the orientation packet
describing what materials were available and stating the statute of limitations for post-conviction
actions.
       Relying upon this evidence and the reasonable inferences drawn from the evidence, the
district court rejected many of Hill’s factual claims. It rejected the claim that no legal resources
were available while Hill was in the RDU. Indeed, the record shows that Hill requested and
received legal materials while in that unit. The court also concluded that Hill’s testimony that he
was denied legal documents while in administrative segregation was not credible. Because we
conclude that these findings are not clearly erroneous, we will not disturb them on appeal.
Russell, 118 Idaho at 67, 794 P.2d at 656.
       As stated in Lewis, a prisoner may demonstrate that he was denied access to the courts by
showing that the resources made available left him unable “to meet a filing deadline or to present
a claim.” Lewis, 518 U.S. at 348. The packet given to Hill at orientation contained three
relevant pieces of information. First, the packet described, albeit generally, the purpose of a
post-conviction action. It explained that such a petition “is a means to attain a relief for the
individual who believes he/she is incarcerated in violation of the Constitution of the United
States or the Constitution or the laws of the State of Idaho.” Second, it also set forth the statute


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of limitations that applies to a post-conviction action. Finally, it unambiguously indicated what
steps a prisoner should take if he wants to learn more: a prisoner who wanted “more detailed
information” should “consult the instruction section” of the specific packet made available for
each of the “qualified legal claims.”
          The post-conviction packet, which was also submitted as an exhibit in this case, contains
even more detail. As is most relevant here, the form states the deadline for filing a post-
conviction action. It also contains a list of statutes and rules relevant to bringing a post-
conviction action. For example, the packet lists the permissible grounds for a post-conviction
action as set forth in I.C. § 19-4901 and also common claims for relief set forth in laymen’s
terms. Moreover, the packet contains a list of helpful notes regarding discovery, the distinction
between a direct appeal and a post-conviction action, and information regarding affidavits.
Finally, the post-conviction packet contains pre-printed forms on which a prisoner may
handwrite his petition.
          We conclude that the initial packet provided Hill with information sufficient to inform
him that a petition for post-conviction relief might be an appropriate means of raising his claims.
It also informed him that there was a deadline. However, instead of making use of these prison
resources, Hill may have failed to request the post-conviction packet until after the statute of
limitations had run.
          If Hill had requested and read the post-conviction packet, he would have been informed
that the claims he wished to bring were properly brought through a post-conviction action. In his
petition, Hill raised three claims for relief. He claimed his attorney was ineffective when he
failed to object to immediate sentencing and when he failed to file an appeal. He also claimed
that his guilty plea should be set aside because it was not knowing and voluntary. The post-
conviction packet lists common grounds for post-conviction relief. Included on the list are
claims that one’s plea was invalid and claims of ineffective assistance of counsel at trial and on
appeal.     All of the substantive claims Hill pursued were explicitly discussed in the post-
conviction packet.
          For all of these reasons, we, like the district court, conclude that Hill’s failure to timely
file his petition was caused by his own inaction. The prison informed Hill of the general nature
of the causes of action he might pursue and that the clock was running. It made clear that more
resources were available if Hill asked. Hill apparently did not ask until it was too late. We


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conclude that Hill’s claim is implicitly predicated on the assertion that the resources offered by
the State, if used, are inadequate.      But, here, where Hill failed to use the resources as a
reasonable person would, he cannot show that the inadequacy, if any, of the resources provided
caused his injury. In our view, Hill has sought relief where the United States Supreme Court has
held that none is available; he has asserted a claim for relief essentially arguing that the resources
the State offered are “subpar in some theoretical sense.” Therefore, we conclude that Hill has
failed to show that the district court erred.
                                                    III.
                                           CONCLUSION
        Hill claims that he was denied access to the courts and is, therefore, entitled to equitable
tolling. We need not and do not decide whether the resources made available in Idaho prisons
are sufficient for all purposes. Instead, we conclude the district court was correct in finding that
Hill’s failure to timely file was his own doing. Therefore, he was not prejudiced and is not
entitled to equitable tolling. For these reasons, the judgment of the district court dismissing
Hill’s post-conviction relief action is affirmed.
        Chief Judge GUTIERREZ and Judge GRATTON CONCUR.




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