               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37829

DARRYL R. KUEHL,                                 )      2012 Unpublished Opinion No. 334
                                                 )
       Petitioner-Appellant,                     )      Filed: January 24, 2012
                                                 )
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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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,
       Bonner County. Hon. Steven C. Verby, District Judge.

       Judgment summarily dismissing post-conviction action, affirmed.

       Nevin, Benjamin, McKay & Bartlett LLP; Deborah A. Whipple, Boise, for
       appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Darryl R. Kuehl appeals from the summary dismissal of his successive petition for post-
conviction relief. We affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Kuehl was convicted in 1997 for first degree murder, Idaho Code §§ 18-4001, 18-4003,
grand theft, I.C. §§ 18-2403(1), 18-2407(1)(b), and five counts of forgery, I.C. § 18-3601. His
convictions stemmed from the shooting death of Paul Gruber in 1994 and the theft of his
property. Kuehl appealed from his judgment of conviction. This Court affirmed the convictions.
State v. Kuehl, Docket No. 24755 (Ct. App. May 6, 2002) (unpublished).
        Thereafter, Kuehl filed a petition for post-conviction relief, asserting ten instances of
ineffective assistance of his trial counsel. Counsel was appointed to represent Kuehl in that post-
conviction proceeding. The district court summarily dismissed the petition and Kuehl appealed.

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This Court affirmed the dismissal in Kuehl v. State, 145 Idaho 607, 181 P.3d 533 (Ct. App.
2008).
         While his first post-conviction appeal was still pending, Kuehl filed the present
successive action for post-conviction relief. He asserted a number of claims of ineffective
assistance of his direct appeal counsel for failure to raise issues in that appeal as well as a
number of other claims for relief. Counsel was eventually appointed to represent Kuehl, and a
supplemental petition was filed. The State filed a motion for summary dismissal which was
granted by the district court. Kuehl filed an Idaho Rule of Civil Procedure 60(b) motion for
relief from the dismissal. The district court denied the motion and Kuehl appeals.
                                                 II.
                                            ANALYSIS
         Successive petitions for post-conviction relief are allowed only in limited circumstances.
An individual may file a timely successive petition 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. See also Charboneau v. State, 144
Idaho 900, 904, 174 P.3d 870, 874 (2007); Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400,
403 (Ct. App. 2008). The petitioner bears the burden of providing the district court with facts
establishing a “sufficient reason.” Hooper v. State, 127 Idaho 945, 948, 908 P.2d 1252, 1255
(Ct. App. 1995).
         In Kuehl’s successive petition he asserted that after filing his pro se initial petition for
post-conviction relief, he met with his appointed post-conviction counsel and discussed with him
additional “trial evidence” that Kuehl had not referenced in the initial petition but that now
provides the basis for the claims asserted in his successive petition. He alleged that his initial
post-conviction counsel told him that this information should have been used in his direct appeal,
but that his post-conviction counsel failed to inform him, at a time when he could still have
amended his petition, that he could assert additional claims of ineffective assistance of his direct
appeal counsel for failing to raise certain claims of error in that appeal based upon this
information. Kuehl said that he had only recently learned that a claim of ineffective assistance of
direct appeal counsel may be presented in a post-conviction action, and that he filed his
successive petition shortly thereafter.




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        The State moved for summary dismissal on a number of grounds, including that Kuehl
had failed to establish a sufficient reason to allow a successive petition. After receiving Kuehl’s
response, the district court granted the motion. On appeal, Kuehl first argues that this case must
be remanded for findings because, he says, the order of dismissal does not make clear whether
the district court overlooked his asserted sufficient reasons or simply found them legally
insufficient.
        We do not find remand to be necessary, for it is clear that the district court here
recognized and considered Kuehl’s alleged sufficient reasons. Although the district court’s order
of dismissal does not discuss the detail of Kuehl’s asserted sufficient reason, the court’s
disposition of the various claims shows that it did consider and rule upon these assertions. The
claims alleged in Kuehl’s successive petition are not entirely clear or cohesively written, but
some of the claims appear to be asserted as independent constitutional violations or wrongs in
that they make no reference to ineffectiveness of direct appeal counsel for failure to raise them as
claims of error on appeal.      The district court summarily dismissed all claims not alleging
ineffective assistance of direct appeal counsel for lack of a showing of sufficient reason, and
summarily dismissed the claims alleging ineffective assistance of direct appeal counsel on a
different basis, namely the statute of limitations. Thus, it appears that the court recognized, and
even accepted, Kuehl’s asserted sufficient reason with respect to the claims of ineffective
assistance of appellate counsel.
        On appeal Kuehl takes a more expansive view of his asserted sufficient reason than did
the district court. Referencing averments he made in an unsworn brief, he argues that his
sufficient reason was that his original post-conviction counsel “incorrectly told him that none of
the claims he raised in the successive petition could be raised in the original petition.” In other
words, his asserted sufficient reason applied to all of his newly-pled claims and not just those
asserting ineffective assistance of direct appeal counsel. In addition, Kuehl directly challenges
the propriety of the district court’s dismissal of his ineffective assistance of direct appeal counsel
claims on statute of limitations grounds. 1




1
        The district court also dismissed one claim, that Kuehl was unlawfully deprived of his
right to testify in his defense, on the ground that the claim had been raised and fully litigated
through appeal in Kuehl’s first post-conviction action, see Kuehl, 145 Idaho at 609-11, 181 P.3d

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         We need not address whether the district court erred in its application of the statute of
limitations to part of Kuehl’s claims, for we conclude that Kuehl did not demonstrate a sufficient
reason for failing to include all of his current claims in his original post-conviction petition.
Where the lower court reaches the correct result by an erroneous theory, this Court may affirm
the order if the same result would be proper under another theory that was presented below.
Fields v. State, 151 Idaho 18, 22, 253 P.3d 692, 696 (2011); Baker v. State, 142 Idaho 411, 420,
128 P.3d 948, 957 (Ct. App. 2005). As explained below, Kuehl’s asserted sufficient reason for
not including his current claims in his original petition is insufficient as a matter of law as to all
of his claims for relief, and his successive petition was subject to dismissal for that reason.
       While Idaho courts have recognized that ineffective assistance of prior post-conviction
counsel may supply a sufficient reason authorizing the filing of a successive petition, this has
been recognized only in the limited circumstance where claims for relief prepared and filed by
the petitioner pro se were not adequately addressed on the merits because of counsel’s
subsequent deficient performance, see Palmer v. Dermitt, 102 Idaho 591, 596, 635 P.2d 955, 960
(1981); Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 2008); Griffin v.
State, 142 Idaho 438, 441, 128 P.3d 975, 978 (Ct. App. 2006); Wolfe v. State, 113 Idaho 337,
339, 743 P.2d 990, 992 (Ct. App. 1987), or where counsel prepared a legally insufficient petition
and failed to amend it after the court gave notice of the deficiencies. See Hernandez v. State, 133
Idaho 794, 798, 992 P.2d 789, 793 (Ct. App. 1999). These circumstances were deemed a
justification to allow a successive petition because failing to provide a meaningful opportunity to
have post-conviction claims heard may be violative of due process. Schwartz, 145 Idaho at 189,
177 P.3d at 403.
       These precedents are not applicable to Kuehl’s circumstance, however, for Kuehl
personally filed his original petition for post-conviction relief pro se. All of the facts underlying
his present successive claims were known to him at that time, but he did not include them in his
original petition. No act or deficiency of his subsequently appointed counsel prevented Kuehl
from including these claims in his original pro se petition or caused claims in his original petition
to be dismissed. Rather, Kuehl’s stated reason for not alleging these claims is that he was




at 535-37, and was thus barred on res judicata grounds.             Kuehl asserts no error in this
determination.

                                                  4
unaware that the asserted facts could give rise to a legal claim for post-conviction relief when he
filed his initial petition.
        We have long held, however, that this type of mistake of law does not excuse
noncompliance with the statute of limitations for post-conviction actions. Judd v. State, 148
Idaho 22, 26, 218 P.3d 1, 5 (Ct. App. 2009); Chapman v. State, 128 Idaho 733, 735, 918 P.2d
602, 604 (Ct. App. 1996); Swisher v. State, 129 Idaho 467, 470, 926 P.2d 1314, 1317 (Ct. App.
1996). In Judd we explained:
        It is apparent from Judd’s allegations that the facts giving rise to his claims--the
        acts and omissions of his attorney--were known to him many years before this
        action was filed. It was only the legal theory that these facts might create a right
        to post-conviction relief that was allegedly discovered shortly before the petition
        was filed. A discovery exception to a statute of limitation applies only to the
        discovery of facts not discovery of the law.

Judd, 148 Idaho at 26, 218 P.3d at 5. The same rationale applies to Kuehl’s contention that he
has shown a sufficient reason for omission of his present claims from his original post-conviction
petition. Therefore, we will affirm the dismissal of all of Kuehl’s claims because he did not
demonstrate a sufficient reason to allow a successive post-conviction action. 2
        Having concluded that Kuehl’s successive petition was properly dismissed for failure to
allege a sufficient reason for the omission of the present claims from his original post-conviction
petition, we need not separately address Kuehl’s claim of error in the district court’s denial of his
Rule 60(b) motion. For the foregoing reasons, the district court’s judgment of dismissal is
affirmed.
        Chief Judge GRATTON and Judge MELANSON CONCUR.

2
        This disposition of Kuehl’s successive action makes it unnecessary for this Court to
consider the merits of his claims. Nevertheless, the invalidity of at least one of his claims is so
stark that we take a moment to remark upon it. Kuehl alleges, inter alia, that the attorney
representing him in the direct appeal from his judgment of conviction was deficient in failing to
raise as an issue on appeal that the trial evidence was insufficient to support the jury’s finding
that Kuehl was guilty of murder. This contention is entirely refuted by this Court’s unpublished
opinion in that appeal. We there held that even assuming that the admission of certain trial
evidence was error, there was no reasonable possibility that the error contributed to Kuehl’s
conviction in light of the other compelling evidence of his guilt. Our opinion summarized some
of that compelling evidence, which we referred to as “substantial circumstantial evidence
connecting Kuehl to Gruber’s death.” In light of that ruling, it is apparent that an appellate claim
of insufficiency of the evidence would have been meritless, and Kuehl’s attorney cannot be
faulted for declining to present it.

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