               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 36507

PAUL DRUMMOND,                                    )     2010 Unpublished Opinion No. 537
                                                  )
       Petitioner-Appellant,                      )     Filed: June 29, 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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
       County. Hon. Thomas F. Neville, District Judge.

       Order of the district court denying appointment of counsel in action for post-
       conviction relief, affirmed.

       Paul Drummond, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Paul Drummond appeals from the district court’s summary dismissal of his petition for
post-conviction relief on the basis that it was not timely filed. We affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Drummond had been incarcerated for an unrelated crime in Oregon when he was
extradited to Idaho where he pled guilty to robbery and was sentenced in February 1996, to
fifteen years imprisonment, with five years determinate, to run concurrently with his Oregon
sentence. There is no indication that Drummond appealed either the conviction or sentence. In
2003, he completed his Oregon sentence and was returned to Idaho to complete his robbery
sentence.
       On August 26, 2008, Drummond filed a petition for post-conviction relief alleging that
the state had failed to uphold its contractual agreement to dispose of the charges against him

                                                 1
within 180 days and that he pled guilty because of “trickery, deceit, and misrepresentations” of
his trial counsel. He also claimed that because of his “long-standing reliance on appointed
counsel’s legal advice” and because he had no access to Idaho legal materials while incarcerated
in Oregon, equitable tolling of the one-year statute of limitations on post-conviction petitions
should apply. He also filed a motion for appointment of counsel.
       The state filed a motion for summary dismissal, requesting that the petition be dismissed
as untimely. Drummond filed a response, reasserting the same two equitable tolling claims
presented in his initial petition. On October 15, 2008, the district court denied Drummond’s
motion for appointed counsel based on its finding that no one would spend their own money to
hire an attorney to represent them on such a claim because it was untimely. The same day, the
district court issued a notice of intent to dismiss Drummond’s petition for post-conviction relief
as untimely and gave Drummond twenty days to respond.
       On February 9, 2009, Drummond filed a “Motion for Relief of Judgment [sic] and/or
Order,” in which, for the first time, he claimed that mental impairments coupled with his use of
psychotropic medications rendered him incompetent such that the statute of limitations should be
equitably tolled. On May 5, 2009, the district court entered a memorandum decision and order
summarily dismissing Drummond’s post-conviction petition on the grounds that it was not
timely filed, there were no grounds to toll the statute of limitations, and Drummond had failed to
present any additional information allowing the court to find the existence of any genuine issue
of material fact.   Drummond appeals, raising only the issue of denial of his motion for
appointment of counsel.
                                                 II.
                                           ANALYSIS
       Drummond argues that the district court erred in denying his request for appointment of
counsel. If a post-conviction applicant is unable to pay for the expenses of representation, the
trial court may appoint counsel to represent the applicant in preparing the application, in the trial
court and on appeal. Idaho Code § 19-4904. The decision to grant or deny a request for court-
appointed counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho
789, 792, 102 P.3d 1108, 1111 (2004). When a trial court’s discretionary decision is reviewed
on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the
lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted

                                                 2
within the boundaries of such discretion and consistently with any legal standards applicable to
the specific choices before it; and (3) whether the court reached its decision by an exercise of
reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993,
1000 (1991).
          In determining whether to appoint counsel pursuant to Idaho Code Section 19-4904, the
district court should determine if the applicant is able to afford counsel and whether the situation
is one in which counsel should be appointed to assist the applicant. Charboneau, 140 Idaho at
793, 102 P.3d at 1112. In its analysis, the district court should consider that applications filed by
a pro se applicant may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12.
Facts sufficient to state a claim may not be alleged because they do not exist or because the pro
se applicant does not know the essential elements of a claim. Id. Some claims are so patently
frivolous that they could not be developed into viable claims even with the assistance of counsel.
Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if an
applicant alleges facts that raise the possibility of a valid claim, the district court should appoint
counsel in order to give the applicant an opportunity to work with counsel and properly allege
the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112. As our
Supreme Court discussed in Swader v. State, 143 Idaho 651, 654, 152 P.3d 12, 15 (2007), a
petitioner may fail to allege facts supporting a valid claim because they do not exist, or because
he is unable to conduct an adequate investigation while incarcerated. Therefore, the trial court
should consider whether the facts alleged are such that a reasonable person with adequate means
would be willing to retain counsel to conduct a further investigation into the claims.             Id.
Although the petitioner is not entitled to have counsel appointed in order to search the record for
possible non-frivolous claims, the court should appoint counsel if the facts alleged raise the
possibility of a valid claim. Id. See also Brown v. State, 135 Idaho 676, 679, 23 P.3d 138, 141
(2001).
          While the district court did not elaborate on its ruling that no one would pursue the claim
with their own money, we glean that the district court denied Drummond’s request for counsel
largely on the basis that Drummond did not present the possibility of a valid claim because his
petition was untimely and equitable tolling did not apply.
          On appeal, Drummond does not dispute that his petition was untimely but contends that
the statute of limitations applicable to the filing of post-conviction petitions should have been

                                                   3
tolled due to the fact that he did not have access to Idaho legal authority while incarcerated in
Oregon, he had relied on appointed counsel’s erroneous advice, and he was incompetent due to
mental impairments and the administration of psychiatric medications. Our review of the district
court’s construction and application of the time limitation aspects of the Uniform Post-
Conviction Procedure Act is a matter of free review. Kriebel v. State, 148 Idaho 188, 190, 219
P.3d 1204, 1206 (Ct. App. 2009); Martinez v. State, 130 Idaho 530, 532, 944 P.2d 127, 129 (Ct.
App. 1997).
       Idaho Code Section 19-4902 provides that “[a]n application may be filed at any time
within one (1) year from the expiration of the time for appeal or from the determination of a
proceeding following an appeal, whichever is later.” Absent a showing by the petitioner that the
one-year limitation should be tolled, the failure to file a timely petition for post-conviction relief
is a basis for dismissal of the petition. Evensiosky v. State, 136 Idaho 189, 190, 30 P.3d 967, 968
(2001); Kriebel, 148 Idaho at 190, 219 P.3d at 1206; Sayas v. State, 139 Idaho 957, 959, 88 P.3d
776, 778 (Ct. App. 2003). However, the time limitation may be enlarged if the defendant has
been effectively denied access to the courts. Kriebel, 148 Idaho at 190, 219 P.3d at 1206; Sayas,
139 Idaho at 959, 88 P.3d at 778; Anderson v. State, 133 Idaho 788, 792, 992 P.2d 783, 787 (Ct.
App. 1999). The right of access to courts has been grounded in the Due Process Clause of the
United States Constitution. Evensiosky, 136 Idaho at 191, 30 P.3d at 969; Kriebel, 148 Idaho at
190, 219 P.3d at 1206. In Idaho, equitable tolling of the statute of limitations for filing a post-
conviction relief petition has been recognized: (1) where the petitioner was incarcerated in an
out-of-state facility on an in-state conviction without legal representation or access to Idaho legal
materials; and (2) where mental disease and/or psychotropic medication renders a petitioner
incompetent and prevents petitioner from earlier pursuing challenges to his conviction. Kriebel,
148 Idaho at 190, 219 P.3d at 1206; Sayas, 139 Idaho at 960, 88 P.3d at 779. See also Isaak v.
State, 132 Idaho 369, 370 n.1, 972 P.2d 1097, 1098 n.1 (Ct. App. 1999). In addition, at least in
some circumstances, the commencement of the limitation period may be delayed until the
petitioner has discovered the facts giving rise to the claim. Judd v. State, 148 Idaho 22, 26, 218
P.3d 1, 5 (Ct. App. 2009). 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 limitation period may be postponed until the petitioner has
discovered the factual basis for the claim. However, as we noted in Chico-Rodriguez v. State,

                                                  4
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. Therefore, “the bar for equitable tolling for
post-conviction actions is high.” Id.
        We first conclude that even if we were to apply equitable tolling due to Drummond’s
out-of-state incarceration, his petition would still not be timely.      As we indicated above,
Drummond did not file his post-conviction petition until August 2008, over eleven years after his
underlying conviction became final. However, Drummond was only imprisoned in Oregon until
2003, at which point he was returned to Idaho to complete his sentence here. Thus, even if we
were to assume that while imprisoned in Oregon he did not have access to Idaho legal materials
or legal representation familiar with Idaho law, and thus tolling would be appropriate, he still did
not file his petition for approximately five more years after returning to Idaho. This Court has
noted that where an inmate is denied access to Idaho courts, the limitation period for filing a
UPCPA may be tolled until the inmate gains ability to access the court. See Martinez v. State,
130 Idaho 530, 536, 944 P.2d 127, 133 (Ct. App. 1997). Thus, once he was transferred back to
Idaho, Drummond would have regained access to Idaho courts and five years is well past any
tolling period that would be added to the UPCPA’s statute of limitation. Accord Evensiosky, 136
Idaho at 191, 30 P.3d at 969 (holding that equitable tolling did not apply where even if petitioner
did not have access to Idaho legal materials after his transfer out of state, he had adequate time
while in Idaho prior to the transfer to file a post-conviction petition); Kriebel, 148 Idaho at 190,
219 P.3d at 1206 (holding that even assuming Kriebel did not have access to Idaho legal
authority while briefly incarcerated out of state, he still had over nine months after returning to
Idaho in which to file his post-conviction petition).
       Drummond also contends that he was entitled to equitable tolling of the statute of
limitations due to mental impairment. In order for the statute of limitations under the UPCPA to
be tolled on account of a mental illness, an unrepresented petitioner must show that he suffered
from a serious mental illness which rendered him incompetent to understand his legal right to
bring an action within a year or otherwise rendered him incapable of taking necessary steps to
pursue that right. Chico-Rodriguez, 141 Idaho at 582, 114 P.3d at 140. Equitable tolling will
apply only during the period in which the petitioner’s mental illness actually prevented him from



                                                  5
filing a post-conviction action; any period following conviction during which the petitioner fails
to meet the equitable tolling criteria will count toward the limitation period. Id.
       Drummond raised the issue of equitable tolling due to his mental illness in a “Motion for
Relief of Judgment”1 filed in response to the district court’s notice of intent to dismiss his post-
conviction petition. Specifically, he stated that he had been diagnosed by the “V.A. with being
Bi-polar [sic], having P.T.S.D. . . . and with extreme psychosis.” He claimed that his “mental
impairment, coupled with psychotropic medications rendered him incompetent, preventing him
from pursuing a timely challenge to his conviction and from timely filing the Notice of Appeal.”
In an accompanying affidavit, Drummond averred that at the time he was convicted and
sentenced in the underlying case, his attorney had been aware of his mental impairments and
need for prescription medications. He stated that “during all times relevant hereto I have been
taking medication to include but not limited to, Prozac, Welbutrin, Xanax, Valium, and
Clonazapam.” (Footnotes omitted.) In a second affidavit, Drummond alleged that at the time of
his guilty plea he was being denied Prozac by the jail administration, resulting in him engaging
in a hunger strike, both of which “had a direct [e]ffect on [his] ability to enter a knowing and
intelligent plea . . . .” He also averred that when he was released from prison in 2007-08, he
“was being heavily medicated, and at one point attempted suicide and was civilly committed by a
District Court in Ada County . . . .”
       In its memorandum decision and order of dismissal of Drummond’s post-conviction
petition, the district court did not address the issue of whether Drummond had presented the
possibility of a viable claim by asserting that equitable tolling should apply due to his mental
health issues--likely because Drummond had not filed his response within the twenty-day period
allowed for response to the court’s notice of intent to dismiss.2 However, even if we assume that
the issue was properly raised, we conclude that this was not a valid basis for tolling the
applicable statute of limitations.



1
       Drummond apparently mistakenly believed that the court had already dismissed his post-
conviction petition.
2
       The district court seemed to address Drummond’s mental health argument merely in
context of Drummond’s claim as to why he had not responded to the court’s notice of intent to
dismiss.


                                                  6
       As we stated in Chico-Rodriguez, the bar for proving that equitable tolling is appropriate
is high, and specifically in regard to mental health-based claims, a petitioner must show that he
suffered from a serious mental illness that rendered him unable to pursue his post-conviction
claims and that equitable tolling only applies to those times while a petitioner is mentally
incompetent. We conclude that Drummond did not present evidence that he could sustain a
viable claim in this instance. In his first affidavit filed with the district court he claimed that he
suffered mental impairment at “all times relevant hereto” and had been on a variety of
psychiatric medications. Thus, the implication is that he has suffered, and continues to suffer
from mental impairment that prevented him from filing a post-conviction petition at an earlier
date. However, the fact that he filed the instant petition belies this claim, cf. Abbott v. State, 129
Idaho 381, 385, 924 P.2d 1225, 1229 (Ct. App. 1996) (holding that the district court erred in not
considering Abbott’s claim that the statute of limitations should have been tolled due to his
mental condition, noting that Abbott alleged he had been under the influence of psychotropic
medication which kept him impaired and that he had only just recently been taken off those
drugs), as does the fact that he apparently provided a fellow inmate, Melvin A. McCabe, with a
detailed account of his criminal case, as asserted by McCabe in an affidavit submitted by
Drummond.3 See Leer v. State, 148 Idaho 112, 115, 218 P.3d 1173, 1176 (Ct. App. 2009) (in
rejecting petitioner’s argument that equitable tolling should apply due to his mental illness, the
court noted that the petitioner demonstrated, by submitting coherent filings to the court, that he
had the capacity to file a petition before the statute of limitations ran). We also note that the
statements made in the second affidavit are not helpful in supporting Drummond’s assertion
here--the majority of the affidavit refers to Drummond’s alleged mental state at the time he
entered his plea, which does not speak to his mental state in the eleven years between his
conviction and the filing of his post-conviction petition.       Similarly, Drummond’s assertion
regarding his mental health at the time he was released from prison (in 2007 and 2008), does not



3
        McCabe apparently assisted Drummond in the preparation of his legal documents. In the
affidavit submitted by Drummond, McCabe stated that in July 2008, Drummond provided
McCabe a “breakdown of the circumstances that lead up to and through the entry of his plea of
guilty . . .” and explained to McCabe “how his court appointed counsel advised him that
violations of the Interstate Agreement of Detainers 180 day speedy trial warranted dismissal of
the charges, but that any dismissal would not work to prevent the prosecution from re-filing the
charges at a later date . . . .”
                                                  7
account for the previous nine years after his conviction (or four years after he was returned to
Idaho). For these reasons, we conclude that Drummond did not present a viable claim that his
petition would be rendered timely due to equitable tolling based on his mental health status.
       Drummond also asserts that the statute of limitations should be tolled based on his
“reliance on the erroneous advice from his court-appointed attorney when counsel lead [sic] him
to believe that the prosecution could refile criminal charges once dismissed under the Interstate
Agreement on Detainers.” He also seems to characterize this issue as an assertion that “his
attorney lied and manipulated him into pleading guilty while acting in collusion and as an agent
of the prosecution . . . .”    Drummond does not explain how his allegation that counsel’s
ineffective assistance at trial should toll the statute of limitations for filing a post-conviction
appeal nor is such an issue clear to us. It is well-settled that a party waives an issue on appeal if
either argument or authority is lacking. Murillo v. State, 144 Idaho 449, 453 n.3, 163 P.3d 238,
242 n.3 (Ct. App. 2007); Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App.
1997). Thus, we will not reach the merits of Drummond’s argument in this regard.
       We conclude that the district court did not err in denying Drummond’s request for
appointment of post-conviction counsel because Drummond’s claim for equitable tolling clearly
could not be developed into a viable claim, even with the assistance of counsel. The district
court’s order summarily dismissing Drummond’s petition for post-conviction relief is affirmed.
       Chief Judge LANSING and Judge MELANSON, CONCUR.




                                                 8
