                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                    Docket Nos. 42182/42331

DALE CARTER SHACKELFORD,                )
                                        )
                                                             Boise, May 2016 Term
    Petitioner-Appellant,               )
                                        )
                                                             2016 Opinion No. 60
v.                                      )
                                        )
                                                             Filed: May 27, 2016
STATE OF IDAHO,                         )
                                        )
                                                             Stephen W. Kenyon, Clerk
    Respondent.                         )
_______________________________________ )

       Appeal from the District Court of the Second Judicial District of the State of
       Idaho, Latah County. Hon. John R. Stegner, District Judge.

       The orders of the district court are affirmed.

       Dale C. Shackelford, appellant pro se.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.

                                    _____________________

J. JONES, Chief Justice
       Appellant Dale Carter Shackelford was sentenced to death after being convicted of two
counts of first-degree murder and other crimes. He appealed and sought post-conviction relief,
and his death sentence was set aside. At resentencing, Shackelford was sentenced to two
consecutive fixed life sentences. Shackelford petitioned for post-conviction relief based on the
resentencing proceeding. He also petitioned again for post-conviction relief based on the original
criminal trial. The district court summarily dismissed both petitions and Shackelford appealed
each. The appeals have been consolidated in this case.
                                      I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       The facts leading to Shackelford’s convictions were summarized in State v. Shackelford
(“Shackelford I”):
              Dale Shackelford was convicted of the murders of his ex-wife, Donna
       Fontaine, and her boyfriend, Fred Palahniuk, which occurred near the Latah


                                                 1
       County town of Kendrick, Idaho, in May 1999. The State alleged that Shackelford
       conspired with Martha Millar, Bernadette Lasater, Mary Abitz, Sonja Abitz, and,
       John Abitz. Millar and Lasater worked for Shackelford’s trucking business,
       Shackelford Enterprises, in Missouri. The Abitz family lived near the residence
       where the bodies of Donna and Fred were found. Sonja Abitz was Shackelford’s
       fiancée at the time of the murders, and John and Mary Abitz are Sonja’s parents.
       The alleged conspirators eventually pled guilty to charges related to the murders.
                Shackelford and Donna married in Missouri in December 1995 and the
       relationship ended in the summer of 1997, with the couple divorcing in November
       of that year. Donna accused Shackelford of raping her in July 1997, and charges
       were filed in 1998. In the spring of 1999, Donna developed a relationship with
       Fred and, on May 28, 1999, the two visited Donna’s brother, Gary Fontaine, at the
       home Gary and Donna’s daughter owned together outside of Kendrick. The
       morning of May 29, Donna, Fred, and Gary went to the Locust Blossom Festival
       in Kendrick, where they met John, Mary, and Sonja Abitz.
                After leaving the festival, Gary went to the Abitz’s house, but he left
       around dark, returned home, noticed Donna’s pickup in the driveway, and smelled
       smoke. Gary called the Abitz’s house and reported that his two-story garage was
       on fire. Mary, Sonja, Ted Meske (Mary’s brother), and Shackelford arrived at the
       fire and various individuals tried to extinguish it, but were unsuccessful.
                At 7:40 p.m., Latah County Sheriff Patrol Deputy Richard Skiles was
       called to investigate the fire at 2168 Three Bear Road. When Skiles arrived at the
       scene, nearly an hour later, he observed several persons—including Gary
       Fontaine, Mary Abitz, Sonja Abitz, Brian Abitz (Sonja’s brother), Ted Meske,
       and Shackelford—standing near the garage that was completely engulfed in
       flames. Based upon information obtained from Ted and Shackelford, Deputy
       Skiles contacted dispatch to have an on-call detective sent “because there was a
       possibility there could be a suicide victim in the fire.” By the time the fire
       department arrived, the garage had been utterly destroyed. Several hours later,
       after the fire had been extinguished, two bodies were found in the rubble. The
       bodies were subsequently identified as the remains of Donna and Fred. At trial, a
       state fire investigator testified as to his opinion that the fire was arson.
                Doctor Robert Cihak conducted autopsies of the remains, which were
       severely burned. Shotgun pellets were found in Donna’s right chest region and a
       bullet was found in the back of her neck. Dr. Cihak opined that the bullet wound
       was fatal and was inflicted when Donna was still alive. A bullet was also found in
       Fred’s body behind the upper breastbone, which Dr. Cihak concluded was the
       cause of death. Dr. Cihak offered his opinion that Donna and Fred were dead at
       the time of the fire.
150 Idaho 355, 361–362, 247 P.3d 582, 588–589 (2010) (footnote omitted).
       Shackelford was charged with, and a jury convicted him of, two counts of first-degree
murder, first-degree arson, conspiracy to commit first-degree murder, conspiracy to commit first-
degree arson, and preparing false evidence. Id. at 362, 247 P.3d at 589. The trial court, rather
than the jury, sentenced Shackelford to death for the murders. Id. Based on Ring v. Arizona, 536


                                               2
U.S. 584 (2002), Shackelford argued in a petition for post-conviction relief that the death
sentences violated the mandate that the jury and not the court weigh aggravating and mitigating
factors in death penalty cases. Shackelford I, 150 Idaho at 363, 247 P.3d at 590. The district court
set aside the death sentences, and we affirmed in Shackelford I. Id. at 386–388, 247 P.3d at 613–
615. We also remanded Shackelford I for resentencing. Id. at 388, 247 P.3d at 615.
       On March 18, 2011, Shackelford filed a “[Successive] Petition for Post Conviction Relief
Capital Case” (“Successive Petition”) and a “Motion for Appointment of Counsel Capital Case.”
The State filed an answer and a motion for summary disposition. On July 8, 2011, the district
court denied all pending motions and suspended the Successive Petition pending the outcome of
Shackelford’s resentencing.
       In Shackelford’s criminal case, the State filed a Notice of State’s Decision to Not Seek
Death Penalty on Resentencing on June 20, 2011. In response, Shackelford contended that the
court could not impose a sentence of fixed life absent a jury finding of a statutory aggravating
circumstance, citing Idaho Code section 19-2515(7)(b). The district court rejected Shackelford’s
argument and sentenced him to fixed life for each murder, to be served consecutive with each
other and the other sentences. On appeal, we affirmed Shackelford’s fixed life sentences. State v.
Shackelford (“Shackelford II”), 155 Idaho 454, 314 P.3d 136 (2013).
       Thereafter, Shackelford filed pro se motions to amend his Successive Petition, to appoint
counsel, and to petition for post-conviction relief based on his resentencing (“Resentencing
Petition”). After conducting a consolidated hearing on the pending motions in both cases, and
permitting Shackelford to amend his Successive Petition (“Amended Successive Petition”), the
district court granted the State’s motion for summary dismissal and denied Shackelford’s motion
for counsel. Shackelford immediately appealed the district court’s orders in both cases and later
timely filed amended notices of appeal after the court had entered a final judgment in each case.
       Shackelford was appointed appellate counsel in both cases, but counsel moved to
withdraw in each after determining that he could not file an opening brief complying with I.A.R.
11.2(a). Counsel’s motions were granted and Shackelford proceeded pro se. The appeals were
consolidated by this Court.
                                           II.
                              ISSUES PRESENTED ON APPEAL
1. Whether the district court erred in summarily dismissing Shackelford’s Amended Successive
   Petition.


                                                 3
2. Whether the district court erred in summarily dismissing Shackelford’s Resentencing
   Petition.
3. Whether the district court committed reversible error in denying Shackelford’s Motion for
   Appointment of Counsel related to his Amended Successive Petition.
                                          III.
                                   STANDARD OF REVIEW
       An application for post-conviction relief initiates an action that is civil rather than
criminal. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). It is an entirely new
proceeding, distinct from the criminal action which led to the conviction. State v. Beam, 115
Idaho 208, 210, 766 P.2d 678, 680 (1988).
       The doctrine of res judicata applies to post-conviction relief cases. It bars defendants
from raising issues decided on direct appeal in a subsequent post-conviction relief proceeding.
State v. Creech, 132 Idaho 1, 9, n.1, 966 P.2d 1, 9 n.1 (1998). Any issue which could have been
raised on direct appeal, but was not, is forfeited and may not be considered in post-conviction
proceedings. I.C. § 19-4901(b); Beam, 115 Idaho at 210, 766 P.2d at 680. “Whether claim
preclusion or issue preclusion bars relitigation between the same parties of a prior litigation is a
question of law upon which this Court exercises free review.” Ticor Title Co. v. Stanion, 144
Idaho 119, 122, 157 P.3d 613, 616 (2007).
       “Summary dismissal of a petition for post conviction relief is the procedural equivalent of
summary judgment under I.R.C.P. 56 and this Court must determine whether a genuine issue of
material fact exists, with inferences liberally construed in favor of the petitioner.” Charboneau v.
State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004).
                                              IV.
                                           ANALYSIS
A. The district court did not err in summarily dismissing Shackelford’s Amended
   Successive Petition.
       The district court summarily dismissed Shackelford’s Amended Successive Petition on a
variety of grounds, holding that none of Shackelford’s claims could succeed as a matter of law.
Shackelford raises several claims that the district court erred in summarily dismissing his
Amended Successive Petition, each of which will be examined in turn. Because Shackelford’s
claims are all procedurally barred for at least one reason, the merits of each will not be discussed
in detail. First, Shackelford contends that dismissing the claim regarding alleged due process
violations related to jury Instruction No. 33 was error. The district court dismissed this claim on


                                                 4
three alternative bases, concluding that Shackelford had not shown a due process violation and
that the claim was barred both by res judicata and by Idaho Code section 19-4901(b).
Shackelford offers no argument or authority suggesting that res judicata does not apply to bar
this claim, other than to assert that “[w]hile this court did indeed rule on matters related to jury
Instruction No. 33 [on direct appeal] . . . the specific issues raised on [direct] appeal and in the
[instant] pro se petition . . . are distinctly different.” Nor does Shackelford argue why Idaho Code
section 19-4901(b) should not bar this claim, or any of his other claims.
       The claim preclusion aspect of res judicata under Idaho law “bars a subsequent action
between the same parties upon the same claim or upon claims relating to the same cause of
action . . . which might have been made.” Ticor Title Co., 144 Idaho at 123, 157 P.3d at 617
(quotation marks omitted). It requires “(1) same parties; (2) same claim; and (3) final judgment.”
Id. at 124, 157 P.3d at 618. “Claim preclusion bars adjudication not only on the matters offered
and received to defeat the claim, but also as to every matter which might and should have been
litigated in the first suit.” Id. at 126, 157 P.3d at 620 (quotation marks omitted).
       Shackelford concedes that the Court has previously ruled on matters related to Instruction
No. 33. Accordingly, subsequent challenges claiming error related to that jury instruction are res
judicata and the district court here did not err in so holding.
       Further, Idaho Code section 19-4901(b) provides in relevant part that
       Any issue which could have been raised on direct appeal, but was not, is forfeited
       and may not be considered in post-conviction proceedings, unless it appears to the
       court, on the basis of a substantial factual showing by affidavit, deposition or
       otherwise, that the asserted basis for relief raises a substantial doubt about the
       reliability of the finding of guilt and could not, in the exercise of due diligence,
       have been presented earlier.
“[W]here a trial court grants summary judgment on two independent grounds and the appellant
challenges only one of those grounds on appeal, the judgment must be affirmed.” Brown v.
Greenheart, 157 Idaho 156, 165, 335 P.3d 1, 10 (2014) (quotation marks omitted). Shackelford
did not challenge the district court’s conclusion that summary dismissal was appropriate because
the claim was barred under Idaho Code section 19-4901(b). Thus, we also affirm on that ground.
       Second, Shackelford argues that the district court did not reference or otherwise rule on
Claim B of the Amended Successive Petition, which alleged ineffective assistance of trial
counsel for failure to adequately argue that jury Instruction No. 33 was deficient. But the district
court did expressly reference the claim. Although the court did not independently examine this


                                                  5
claim in minute detail, it did address issues related to Instruction No. 33 and to the allegedly
ineffective assistance of trial counsel, concluding that res judicata barred each claim. The court
ruled that “[n]one of Shackelford’s claims can succeed as a matter of law.” The entire basis of
Shackelford’s appeal on this claim appears to rely on the incorrect assertion that the district court
did not rule on the claim. We affirm the district court’s summary dismissal because the district
court’s holding clearly specifies that “[n]one of Shackelford’s claims can succeed as a matter of
law.” (emphasis added).
         Third, Shackelford asserts that the district court erred in summarily dismissing his claim
related to an alleged Brady1 violation. Shackelford acknowledged that the district court had
previously addressed and ruled on other Brady claims on direct appeal, but insists that the
present claim is distinct from those claims. Shackelford alleges that the State committed a Brady
violation by failing to turn over evidence tending to undermine the consistency of the State’s
case. Specifically, Shackelford avers that on January 1, 1999, a radiologist x-rayed victim Donna
Fontaine’s corpse and generated a report of the findings, and that the State did not disclose the
report or x-ray to Shackelford until late in 2004. Attached to Shackelford’s Amended Successive
Petition is a sworn affidavit from radiologist Dr. Roderick Saxey, opining that the bullet that
allegedly killed Donna Fontaine appeared to have been sheared off, suggesting that it had
ricocheted prior to entering her neck. Shackelford makes much of the apparent fact that the bullet
retrieved from Fontaine’s body weighs less than it should. He appears to suggest that more than
one third of the mass is missing because the bullet ricocheted before entering Fontaine’s body
and that this supposition necessitates a finding that the murder could not have been premeditated.
Shackelford offers vague argument that the prima facie requirements of a reversible Brady
violation are present, but does not even attempt to explain why he did not raise this issue in his
original petition for post-conviction relief, which was decided after Shackelford allegedly
became aware of the evidence at issue.2 The district court summarily dismissed this claim both
on the merits and because Shackelford’s claims regarding this evidence could previously have


1
  Brady v. Maryland, 373 U.S. 83, 87 (1963), provides that “the suppression by the prosecution of evidence
favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment.”
2
  Shackelford also failed to bring an ineffective assistance of counsel claim based on counsel’s failure to raise this
Brady issue in his original petition for post-conviction relief. A subsequent claim on this issue is likely to be barred
by Idaho Code section 19-4908. That section requires a petitioner to raise all grounds for relief in an original,
supplemental, or amended application, and it provides that failure to do so results in waiver unless there is a
“sufficient reason” for the failure.


                                                           6
been raised on appeal, but were not. Because Shackelford did not challenge the district court’s
alternate basis for summary dismissal of this claim, we affirm its summary dismissal. Brown,
157 Idaho at 165, 335 P.3d at 10.
        Fourth, Shackelford contends that the district court erred in summarily dismissing his
claim alleging ineffective assistance of trial counsel for failure to investigate ballistic data related
to the bullet that killed Donna Fontaine. The district court summarily dismissed this claim
because Shackelford had the opportunity to raise this issue on his prior appeal but failed to do so.
Shackelford offers no explanation or excuse for not bringing this claim in his original post-
conviction petition for relief. Nor does he challenge the legal basis of the district court’s
adjudication of this claim. His briefing merely reiterates the perceived merits of the substantive
claim. Because Shackelford did not challenge the district court’s legal basis for summary
dismissal of this claim, we affirm its summary dismissal.
        Fifth, Shackelford argues that the district court erred in summarily dismissing his claim
of prosecutorial misconduct based on the prosecutor allegedly vouching for the credibility of
State witnesses. Shackelford concedes that his trial counsel failed to object to the alleged
prosecutorial misconduct. However, Shackelford contends that he personally undertook repeated
and vehement attempts to have counsel make the objections and that his efforts somehow
preserved the objections for appellate review. The district court summarily dismissed this claim
both on the merits and based on a procedural bar arising from Shackelford’s failure to raise this
issue on the prior appeal. Again, Shackelford fails to offer explanation or excuse for not bringing
this claim in his original post-conviction action. Shackelford alleges that counsel would not
permit him to raise the issue at trial, but fails to allege—let alone provide any evidence—that
counsel was ineffective for failing to raise this issue on appeal or in his original petition for post-
conviction relief. Because Shackelford did not challenge the district court’s alternate basis for
summary dismissal of this claim, we affirm its summary dismissal. Brown, 157 Idaho at 165, 335
P.3d at 10.
        The district court’s order as to each of the five issues related to the summary dismissal of
Shackelford’s Amended Successive Petition was correct, either because he failed to challenge
alternative bases relied upon by the district court or because a procedural bar provided by res
judicata or Idaho Code section 19-4901(b) applies. For this reason, we affirm the district court’s
order summarily dismissing Shackelford’s Amended Successive Petition.



                                                   7
B. The district court did not err in summarily dismissing Shackelford’s Resentencing
   Petition.
       Shackelford argues that the district court erred by sentencing him to a fixed life term for
first-degree murder without a jury having found any aggravating factors. He insists that absent
such a jury determination, the maximum legal sentence is indeterminate life imprisonment. The
only authority he cites for this proposition is Idaho Code section 19-2515(7)(c), which provides:
       If the jury does not find the existence of a statutory aggravating circumstance or if
       the jury cannot unanimously agree on the existence of a statutory aggravating
       circumstance, the defendant will be sentenced by the court to a term of life
       imprisonment with a fixed term of not less than ten (10) years.
Section 19-2515 applies in special sentencing proceedings where the death penalty is sought and
is inapplicable here because the State did not pursue the death penalty on resentencing. Further,
subsection (7)(c) sets out the information to be provided to the jury in a special sentencing
proceeding and does not set the penalty that may be imposed by the court where the death
penalty is not sought.
       Idaho Code section 18-4004 provides the statutory punishment for murder. The statute
provides that “if the death penalty is not sought, the court shall impose a life sentence with a
minimum period of confinement of not less than ten (10) years.” Shackelford does not explain
how a term of fixed life imposed by a judge violates the statutory minimum of “not less than ten
(10) years.” On its face, the statute imposes no maximum term of fixed imprisonment. A
sentence of fixed life, therefore, does not exceed statutory sentencing limits.
       Shackelford also asserts that the fixed life sentence he received for conspiracy to commit
first-degree murder exceeded the maximum allowed by law. However, as the district court noted,
conspiracy to commit first-degree murder carries the same sentencing possibilities as first-degree
murder. I.C. § 18-1701. This Court has previously upheld a fixed life sentence for first-degree
murder. State v. Adamcik, 152 Idaho 445, 272 P.3d 417 (2010). The district court further noted
that even a second-degree murder conviction allows for a fixed life term to be imposed. State v.
Windom, 150 Idaho 873, 253 P.3d 310 (2010).
       Finally, the State points out that the claims in Shackelford’s Resentencing Petition are
barred by Idaho Code section 19-4901(b) because they could have been raised on direct appeal.
The State accurately notes that Shackelford raised these issues at his resentencing but failed to
raise them on direct appeal. Shackelford offers no reason for not bringing the claims in his direct
appeal. Therefore, section 19-4901(b) also bars the claims.


                                                 8
        Because the claims are barred by Idaho Code section 19-4901(b) and because, even were
they not barred, Shackelford has failed to show that the sentences exceeded the statutory
maximum, we affirm the district court’s order summarily dismissing Shackelford’s Resentencing
Petition.
C. The district court did not commit reversible error in denying Shackelford’s Motion for
   Appointment of Counsel.
        The district court denied Shackelford’s Motion for Appointment of Counsel, citing Idaho
Code section 19-852(2)(c). The court also concluded that none of Shackelford’s claims can
succeed as a matter of law. Shackelford contends that the district court erred in denying him
post-conviction counsel because: (1) the court did not rule on his motion prior to summarily
dismissing his Amended Successive Petition, (2) the court failed to give advance notice of its
reasons for denying counsel, (3) the court improperly relied upon Idaho Code section 19-
852(2)(c), and (4) Shackelford alleged facts that would lead to the possibility of a valid claim.
The State refutes each of these contentions and argues that any error was harmless.
        A decision to grant or deny a request for counsel in post-conviction cases is reviewed for
an abuse of discretion. Murphy v. State, 156 Idaho 389, 393, 327 P.3d 365, 369 (2014). “A
request for appointment of counsel in a post-conviction proceeding is governed by I.C. § 19-
4904, which provides that in proceedings under the UPCPA, a court-appointed attorney ‘may be
made available’ to an applicant who is unable to pay the costs of representation.” Id. at 392–393,
327 P.3d at 368–369 (quoting I.C. § 19-4904). “The standard for determining whether to appoint
counsel for an indigent petitioner in a post-conviction proceeding is whether the petition alleges
facts showing the possibility of a valid claim.” Id. at 393, 327 P.3d at 369 (citing Workman v.
State, 144 Idaho 518, 529, 164 P.3d 798, 809 (2007)). “In determining whether the appointment
of counsel would be appropriate, every inference must run in the petitioner’s favor where the
petitioner is unrepresented at that time and cannot be expected to know how to properly allege
the necessary facts.” Melton v. State, 148 Idaho 339, 342, 223 P.3d 281, 284 (2009) (quotation
marks omitted).
        Shackelford asserts that it is reversible error for a district court to deny a petition for post-
conviction relief prior to deciding a motion to appoint counsel, citing several Idaho Court of
Appeals cases. That proposition is indeed supported by Idaho Court of Appeals precedent.
Swisher v. State, 129 Idaho 467, 469, 926 P.2d 1314, 1316 (Ct. App. 1996) (“When a request for



                                                   9
appointed counsel is presented . . . the court must act upon that request before ruling upon the
substantive issues in the case.”).
        This Court has held at least twice that it is error for a district court to dismiss a petition
for post-conviction relief without first determining whether the petitioner is entitled to court-
appointed counsel. In Charboneau v. State, we held that the district court in such a circumstance
abused its discretion by dismissing the petition without ruling on the motion to appoint counsel.
140 Idaho 789, 793, 102, P.3d 1098, 1112 (2004). We vacated the dismissal of the petition after
having concluded that the appellant had raised the possibility of a valid claim. Id. In Melton,
contrastingly, we affirmed the district court’s dismissal of a petition for post-conviction relief
even though the court had failed to first address the petitioner’s motion for appointment of
counsel. 148 Idaho at 342, 223 P.3d at 284. We held that “the district court erred in not
specifically addressing Melton’s motion for appointment of counsel before it addressed the
substantive merits of his petition. However, . . . such error did not affect Melton’s substantial
rights because Melton’s successive petition for post-conviction relief did not raise the possibility
of a valid claim.” Id. The Court relied on Idaho Rule of Civil Procedure 61, which provides in
relevant part that “[t]he court at every stage of the proceeding must disregard any error or defect
in the proceeding which does not affect the substantial rights of the parties.” Melton, 148 Idaho
at 342, 223 P.3d at 284. Because the petitioner had not raised the possibility of a valid claim,
denying his motion for the appointment of counsel in the same order summarily dismissing his
petition did not affect his substantial rights. Id.
        Here, even drawing inferences in Shackelford’s favor, his argument fails. Each of
Shackelford’s claims is procedurally barred by res judicata or Idaho Code section 19-4901(b).3
Because none of his claims can succeed, he has failed to raise the possibility of a valid claim
sufficient to warrant reversal for the district court’s premature summary dismissal. Accordingly,
we reject Shackelford’s argument for reversal on this basis.
        We resolve Shackelford’s remaining arguments on this issue in the same manner.
Shackelford asserts that the district court failed to give him advance notice of the reasons it
denied counsel and that it improperly relied upon Idaho Code section 19-852(2)(c). Assuming
arguendo that these arguments have merit, there is nonetheless no basis for overturning the


3
 Some or all of Shackelford’s instant claims may also be barred by Idaho Code section 19-4908. At this time,
however, we express no opinion on the applicability of section 19-4908 to any of Shackelford’s instant claims.


                                                      10
district court’s denial. None of the claims in Shackelford’s petition can succeed because they are
procedurally barred.4 He failed to raise the possibility of a valid claim, so any error by the district
court could not have been significant enough to warrant reversal. Shackelford’s substantial rights
were not violated by any alleged error so I.R.C.P. 61 requires the Court to disregard the error.
        Because Shackelford failed to raise the possibility of a valid claim, his substantial rights
were not affected by the district court’s error in denying his motion for the appointment of
counsel. Accordingly, we affirm the district court’s order denying that motion.
                                                   V.
                                               CONCLUSION
        We affirm the district court’s orders summarily dismissing Shackelford’s Amended
Successive Petition and Resentencing Petition and denying Shackelford’s Motion for
Appointment of Counsel. Costs to Respondent.


        Justices EISMANN, BURDICK, W. JONES and HORTON CONCUR.




4
  Separately, Shackelford seems to argue that he has alleged facts leading to the possibility of an ineffective
assistance of appellate counsel claim. This argument need not be analyzed because Shackelford failed to actually
include such a claim in either his Amended Successive Petition or his Resentencing Petition. Thus, even if there
were merit to the argument, Shackelford cannot pursue it now because he made no such claim in either of the instant
petitions. Further, it is apparent that he will be barred by Idaho Code section 19-4908 from bringing it in a
successive petition.


                                                        11
