               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40089

RANDOLPH MARK SNOWBALL, aka                      )     2013 Unpublished Opinion No. 784
MARK C. SNOWBALL,                                )
                                                 )     Filed: December 10, 2013
       Petitioner-Appellant,                     )
                                                 )     Stephen W. Kenyon, Clerk
v.                                               )
                                                 )     THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                  )     OPINION AND SHALL NOT
                                                 )     BE CITED AS AUTHORITY
       Respondent.                               )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Lynn G. Norton, District Judge.

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

       Sara B. Thomas, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent. Russell J. Spencer argued.
                 ________________________________________________
GRATTON, Judge
       Randolph Mark Snowball, a.k.a. Mark C. Snowball, appeals from the district court’s
order summarily dismissing his post-conviction petition. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Snowball was convicted upon a jury verdict of intimidating a witness, Idaho Code § 18-
2604(3). The district court imposed a unified term of two and one-half years with one year
determinate, to run consecutive to a separate sentence he was already serving.          Snowball
appealed and his sentence and conviction were affirmed in State v. Snowball, Docket No. 36214
(Ct. App. Nov. 5, 2010) (unpublished). The Idaho Supreme Court denied Snowball’s petition for
review and a remittitur was entered on February 14, 2010.
       On February 15, 2011, Snowball filed a petition for post-conviction relief asserting, in
part, that he was actually innocent of the crime. The State filed a motion to dismiss the petition

                                                1
on the ground that the petition was untimely. Snowball objected to the State’s motion, arguing
that his claim of actual innocence should entitle him to equitable tolling. The district court,
noting that actual innocence had not been established as a ground for equitable tolling, granted
the State’s motion to dismiss the petition on the ground that it was untimely. Snowball timely
appeals.
                                                  II.
                                            ANALYSIS
       Snowball argues that this Court should adopt actual innocence as a ground for tolling and
remand this case to the district court for further proceedings. A petition for post-conviction relief
initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil
Procedure. I.C. § 19-4907; State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). See
also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Idaho Code § 19-4906
authorizes summary dismissal of a petition for post-conviction relief, either pursuant to motion
of a party or upon the court’s own initiative, if “it appears from the pleadings, depositions,
answers to interrogatories, and admissions and agreements of facts, together with any affidavits
submitted, that there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” I.C. § 19-4906(c). When considering summary dismissal, the
district court must construe disputed facts in the petitioner’s favor, but the court is not required to
accept either the petitioner’s mere conclusory allegations, unsupported by admissible evidence,
or the petitioner’s conclusions of law. State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136
(2008); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
       Our review of the district court’s construction and application of the limitations statute is
a matter of free review. Kriebel v. State, 148 Idaho 188, 190, 219 P.3d 1204, 1206 (Ct. App.
2009). The statute of limitations 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. Gonzalez v. State, 139 Idaho 384, 385, 79 P.3d 743, 744
(Ct. App. 2003). The failure to file a timely petition is a basis for dismissal of the petition.
Kriebel, 148 Idaho at 190, 219 P.3d at 1206.




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       Snowball first contends that this Court should recognize a substantive freestanding actual
innocence cause of action, which would not require the timely filing of a petition for post-
conviction relief. 1 Alternatively, he contends that this Court should adopt actual innocence as a
tolling mechanism to allow a procedurally-barred petition, such as an untimely petition, to be
litigated on its merits if the petitioner can show actual innocence. He asserts that an actual
innocence tolling exception to the statute of limitations is needed in order to prevent the injustice
that occurs when an innocent person is barred from litigating a claim simply because the petition
is filed late. The State first contends that even if a claim of actual innocence could give rise to
equitable tolling, the petitioner would still be required to demonstrate that the circumstances of
the actual innocence claim prevented the timely filing of the petition. The State also argues that
an actual innocence exception would not be applicable to Snowball’s petition because he is
unable to demonstrate a claim of actual innocence. We agree with the State.
       Idaho appellate courts have recognized equitable tolling in post-conviction relief cases
where the petitioner was incarcerated in an out-of-state facility without legal representation or
access to Idaho legal materials, and where mental disease or psychotropic medication renders the
petitioner incompetent and unable to timely file. Judd v. State, 148 Idaho 22, 25-26, 218 P.3d 1,
4-5 (Ct. App. 2009). In addition, in some circumstances commencement of the limitations
period may be delayed until the petitioner discovers the facts giving rise to the claim. Schultz v.
State, 151 Idaho 383, 386, 256 P.3d 791, 794 (Ct. App. 2011). “In Charboneau v. State, 144
Idaho 900, 904-05, 174 P.3d 870, 874-75 (2007), the Idaho Supreme Court recognized that, at
least where the post-conviction claim raises important due process issues, the limitations period
may be postponed until the petitioner has discovered the factual basis for the claim.” Judd, 148
Idaho at 26, 218 P.3d at 5. The appellate courts, however, “have not permitted equitable tolling



1
        Snowball points to Schlup v. Delo, 513 U.S. 298 (1995), to support his request for a
freestanding actual innocence claim. However, Schlup, referring to federal habeas corpus
proceedings, specifically states that a “claim of innocence does not by itself provide a basis for
relief.” Id. at 315. Further, in House v. Bell, 547 U.S. 518, 554-55, (2006) the United States
Supreme Court declined to address whether a freestanding actual innocence claim was possible
in a federal habeas corpus proceeding. Likewise, the Idaho Supreme Court and this Court have
never held that a freestanding actual innocence claim exists in Idaho. Indeed, when presented
with this issue in Rhoades v. State, 148 Idaho 247, 220 P.3d 1066 (2009), the Idaho Supreme
Court declined to address it. Id. at 253, 220 P.3d at 1072. Accordingly, we do not address the
possibility of a substantive freestanding actual innocence claim in post-conviction proceedings.

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where the post-conviction petitioner’s own lack of diligence caused or contributed to the
untimeliness of the petition. Rather, in cases where equitable tolling was allowed, the petitioner
was alleged to have been unable to timely file a petition due to extraordinary circumstances
beyond his effective control, or the facts underlying the claim were hidden from the petitioner by
unlawful state action.” Amboh v. State, 149 Idaho 650, 653, 239 P.3d 448, 451 (Ct. App. 2010)
(citations omitted).
       In regard to Snowball’s contention that this Court should hold that an actual innocence
claim will toll the statute of limitations, Snowball points to Schlup v. Delo, 513 U.S. 298 (1995)
for guidance. In Schlup, the United States Supreme Court stated that, in federal habeas corpus
proceedings, an actual innocence claim could allow the litigation of a procedurally-barred
constitutional claim. 2 Id. at 314-15. The Idaho Supreme Court recognized Schlup’s procedural
exception in Fields v. State, 151 Idaho 18, 253 P.3d 692 (2011), yet the Court stated it was error
to rely on the exception in a state post-conviction claim:
               The Supreme Court in Schlup and House [v. Bell, 547 U.S. 518, 554-55,
       (2006)] was addressing the showing required for a federal habeas petitioner to
       avoid a procedural bar to the consideration of his constitutional claims. The Court
       was not setting forth a requirement applicable to state claims for post-conviction
       relief. Neither case has any application to these proceedings, and the district court
       erred in relying upon them.

Fields, 151 Idaho at 22, 252 P.3d at 696.
       Moreover, we decline to determine whether a claim of actual innocence may toll the
statute of limitations in Idaho. Under any proposed standard suggested by Snowball, his claim of
actual innocence would fail. Snowball points to Schlup to support his contention that a prima
facie showing of actual innocence is accomplished if the petitioner shows that it is more likely
than not that no reasonable juror would have convicted the petitioner in light of the new
evidence. Schlup, 513 U.S. at 327. For clarity, no Idaho court has determined the standard for
establishing actual innocence; indeed, no Idaho court has even established the existence of an



2
        Specifically, the Supreme Court stated that a procedurally-barred habeas corpus petition
alleging a constitutional violation could be litigated if the petitioner provided new reliable
evidence not presented at trial that met the required standard of proof demonstrating the
petitioner’s innocence, and if the constitutional violation resulted in the conviction of the
petitioner. Schlup, 513 U.S. at 322-24.


                                                 4
actual innocence exception. 3 Nonetheless, even if the Schlup standard were to be applied as
Snowball proposes, he would still be unable to establish his claim.
       In the underlying criminal case, Snowball was convicted of intimidating a witness based
on a letter he sent to the victim of his pending domestic battery charge. The letter stated, in
pertinent part:
       They are also putting out a subpoena for you to come testify at court. However,
       they MUST hand serve you with the subpoena. If they cannot hand serve you
       then the charges will get dropped. If they do hand serve you with a copy of that
       subpoena then you will have to come to court and testify or they will put a
       warrant out for your arrest. The best two options you have are to not answer thier
       [sic] calls so they cannot hand serve you, OR if they do hand serve you, come to
       court and testify to the fact that I didn’t do anything. You will have to tell them
       that I did not assault you, and that you wrote that statement against me because
       you were angry. My public defender said you didn’t want anything to do with
       me. I had to prove her wrong so I told her that you have been comming [sic] to
       visit me. I thought it was wierd [sic] you didn’t come visit me this week so I
       thought I would write you this letter. If they force you to come to court I hope
       you do the right thing and tell them I didn’t do anything, otherwise we will
       probably not be seeing each other anymore.

In his petition, Snowball claimed that he is actually innocent of intimidating a witness because
his letter was only responding to questions the victim asked him and he was not trying to
influence her in any way.        Thus, Snowball argues his letter was instructive rather than
intimidating. To support his claim, Snowball submitted to the district court his own affidavit, the
affidavit of the victim, and the affidavit of an inmate. In his own affidavit, Snowball stated that
the victim repeatedly visited him in jail and wrote him letters. The affidavit also stated that the
victim asked Snowball “how to avoid having to come to court” because she was “afraid and did
not want to get in trouble for lying.” In the victim’s affidavit, the victim stated that she falsely
accused Snowball of domestic battery; that she visited and wrote letters to Snowball while he
was in jail; that she was afraid to testify in court because she had lied to police officers; that she
asked Snowball how to avoid testifying at court; and that the letter Snowball sent her was at her
request and did not influence or intimidate her. The inmate stated in his affidavit that Snowball

3
       We note that the Rhoades Court quoted the actual innocence standard enunciated in
Schlup, nonetheless, the Court did not hold that that standard would be applicable if an actual
innocence exception were ever adopted in Idaho. Additionally, the issue in Rhoades was
whether a freestanding actual innocence exception should be adopted, not whether to apply a
procedural tolling actual innocence exception.

                                                  5
told him that the victim wanted to know how to avoid going to court; that the inmate told
Snowball to instruct the victim on how to avoid her subpoena; that he read the letter Snowball
sent to the victim; and that the letter was limited to answering the victim’s questions and did not
intend to intimidate her. Based on the foregoing, Snowball claims on appeal that his petition
should be tolled because he established a prima facie showing of actual innocence by proving
that there was a noncriminal reason to send the letter.
        The State asserts that, even if the information in the affidavits were accepted as truth,
Snowball still failed to establish actual innocence because the crime of intimidating a witness
does not require a defendant to prevent a witness from testifying by subjectively intimidating that
witness. The district court, although dismissing the petition because it was untimely, stated that,
“The court has reviewed the affidavits of Mark Snowball and [the victim]. The court is not
convinced that any juror, acting reasonably and considering the testimony in these new
affidavits, could not still find him guilty beyond a reasonable doubt.”
        Pursuant to Idaho Code § 18-2604(3), the crime of intimidating a witness is accomplished
when:
                Any person who, by direct or indirect force, or by any threats to person or
        property, or by any manner wilfully intimidates, influences, impedes, deters,
        threatens, harasses, obstructs or prevents, a witness, including a child witness, or
        any person who may be called as a witness or any person he believes may be
        called as a witness in any criminal proceeding or juvenile evidentiary hearing
        from testifying freely, fully and truthfully in that criminal proceeding or juvenile
        evidentiary hearing is guilty of a felony.

Snowball’s letter contained two instructions. 4 First, the letter instructed the victim to avoid
being served with the subpoena so she would not be required to testify. Second, the letter
instructed her that if she did testify, she should testify that he did not do anything to her and that
she wrote the statements against him because she was angry. Certainly, it could be found that
the instructions in Snowball’s letter sought to “deter” or “prevent” the victim from testifying, or
in the alternative, to “influence” the content of the victim’s testimony. Even if the victim truly
asked Snowball how to avoid testifying against him, Snowball willfully responded in a manner



4
        Snowball does not contest that he was the author of the letter. Indeed, Snowball admitted
to prison authorities that he wrote the letter.


                                                  6
that violated I.C. § 18-2604. 5 Additionally, whether the letter actually prevented the victim’s
testimony or influenced the victim’s testimony is irrelevant. State v. Mercer, 143 Idaho 108,
109-10, 138 P.3d 308, 309-10 (2006) (“it is unnecessary for the defendant’s threats to have an
actual effect on the witness’s testimony”).      Therefore, even considering the affidavits of
Snowball, the victim, and the inmate as truth, Snowball has failed to establish a prima facie
showing of actual innocence. 6
         Therefore, we need not address whether due process requires an actual innocence claim
to toll the statute of limitations, I.C. § 19-4902, because Snowball failed to establish a prima
facie showing that he is actually innocent under any proposed standard. 7 Snowball has failed to
articulate any other justification for equitably tolling his petition for post-conviction relief.
Accordingly, his petition was untimely and the district court did not err in summarily dismissing
it.
                                               III.
                                         CONCLUSION
         Snowball has failed to demonstrate reversible error. Accordingly, the district court’s
order summarily dismissing his petition for post-conviction relief is affirmed.
         Judge LANSING and Judge MELANSON CONCUR.




5
         We note that Snowball’s contact with the victim was also in violation of a no-contact
order.
6
        Further, even if the statute of limitations were tolled pursuant to an actual innocence
claim, there is no indication that the Idaho Supreme Court or this Court would abandon the long-
standing rule that a claim must be diligently pursued in order to be entitled to equitable tolling.
Snowball asserts that he was unable to timely file his petition because he was employed, lived
for six months in a halfway house, and he had no access to the law library and only limited
access to the Internet. However, those facts are not sufficient to demonstrate diligence or an
inability to timely file. In fact, Snowball can make no demonstration of diligent pursuit as all of
the alleged facts upon which he claims innocence were known and available prior to trial, let
alone within one year of the completion of his direct appeal. Snowball makes no assertion that
the evidence allegedly supporting his innocence claim was unknown or unavailable so as to in
any way impede or prevent the timely filing of his petition.
7
       Further, we do not hold that the UPCPA provides for a cause of action based on actual
innocence.

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