Paz v. State

OPINION AND ORDER DENYING MOTION TO STAY EXECUTION AND DISMISSING APPEAL

McDEVITT, Chief Justice.

Petitioner, Federico Paz, was convicted of first degree murder and sentenced to death for the murder of Gerry Bright. A petition for post-conviction relief was denied by the district court. Thereafter, Paz appealed his conviction to this Court, which affirmed. State v. Paz, 118 Idaho 542, 798 P.2d 1 (1990), rehearing denied, September 25, 1990, cert. denied — U.S. —, 111 S.Ct. 2911, 115 L.Ed.2d 1074 (1991). A petition for a writ of habeas corpus was filed on behalf of Paz in federal district court on December 11, 1991. In an opinion filed November 20, 1992, the federal district court dismissed the petition without prejudice after concluding that Paz had failed to exhaust all of his state claims. Paz subsequently filed an second amended petition for post-conviction relief in state district court. On March 26, 1993, the district court dismissed the second amended petition for post-conviction relief, finding that the petition was barred under I.C. § 19-2719. Paz filed a motion to stay execution with this Court on March 26, 1993. Thereafter, this Court ordered the parties to simultaneously file briefs addressing the question of whether there are new grounds for a post-conviction review. Oral argument on the matter was heard on April 12, 1993.

Petitioner alleges the following grounds for relief in his amended second petition:

A. Petitioner was denied the effective assistance of counsel at trial and sentencing on the basis that:

1. Counsel failed to investigate and present mitigating evidence at sentencing.

2. Counsel failed to investigate petitioner’s possible mental deficiencies in defense or in mitigation.

3. Counsel failed to investigate petitioner’s competency to stand trial.

4. Counsel failed to request a standard jury instruction.

5. Counsel failed to object to prosecutorial misconduct during argument to the jury.

B. Petitioner was denied the effective assistance of counsel on appeal on the basis that:

1. Counsel failed to raise an issue regarding a voluntary intoxication instruction.

2. Counsel failed to raise an issue regarding an imperfect self-defense instruction.

3. Counsel failed to raise an issue regarding an instruction on I.C. § 18-114.

4. Counsel failed to challenge the trial court's reliance on the I.C. § 19-2515(g)(3) aggravating circumstance.

5. Counsel failed to investigate issues regarding ineffective assistance of counsel during trial.

C. Petitioner was denied the effective assistance of counsel in preparation of ‘ the post-conviction petition on the basis that independent counsel was not appointed to represent petitioner.

D. Petitioner was denied due process when he was prevented from calling a witness prior to petitioner’s testimony at trial and that witness was subsequently threatened and failed to return to court.

E. Petitioner was denied due process when the sentencing court relied on an aggravating circumstance not listed by the prosecution.

F. There was a conflict of interest between petitioner’s trial and appellate counsel in violation of the Sixth and Fourteenth Amendments.

G. Petitioner was denied due process in the handling of his original post-conviction petition because petitioner was not mentally competent during the presentation of this petition to the court.

H. Petitioner is suffering from a mental disease such that his execution is barred by the Eighth Amendment.

Idaho Code § 19-2719 requires that in capital cases, post-conviction relief must be requested within 42 days after the judgment is filed. I.C. § 19-2719 also requires that if the petitioner fails to apply for relief within this time limit, the petitioner “shall be deemed to have waived such claims for relief as were known'or reasonably should have been known.”

In State v. Rhoades, 120 Idaho 795, 820 P.2d 665 (1991), cert. denied, — U.S.—, 112 S.Ct. 2970, 119 L.Ed.2d 590 (1992), we interpreted I.C. § 19-2719 as follows:

I.C. § 19-2719 provides a defendant one opportunity to raise all challenges to the conviction and sentence in a petition for post-conviction relief except in those unusual cases where it can be demonstrated that the issues raised were not known and reasonably could not have been known within the time frame allowed by the statute.

120 Idaho at 807, 820 P.2d at 677.

In Fetterly v. State, 121 Idaho 417, 825 P.2d 1073 (1991), cert. denied, — U.S. -, 113 S.Ct. 607, 121 L.Ed.2d 542 (1992), we found petitioner’s claim for ineffective assistance of counsel, which was included in his second petition for post-conviction relief, to be waived, stating:

[T]his claim is one “that should be reasonably known immediately upon the completion of the trial and can be raised in a post-conviction petition.” [State v.] Rhoades, 120 Idaho at 807, 820 P.2d at 677. Because of the petitioner’s failure to raise this claim in the first petition, the claim has been waived.

121 Idaho at 419, 825 P.2d at 1075.

I.C. § 19-2719 places a heightened burden on a petitioner which requires a prima facie showing by petitioner that the issues raised were not known and could not reasonably have been known within 42 days of judgment. Upon review of petitioner’s claims, we have reviewed the record in State v. Paz, as well as the second amended petition for post-conviction relief and supporting documentation, and conclude that petitioner has failed to meet his burden under I.C. § 19-2719.

As to the ineffective assistance of counsel on appeal claims, I.C. § 19-2719, while not foreclosing those claims, implicitly establishes a framework for timeliness. Claims that were not known or could not have reasonably been known within 42 days of judgment must be asserted within a reasonable time after they are known or reasonably could have been known.

Petitioner’s brief on his direct appeal following his first petition for post-conviction relief was filed April 25, 1989. The issues raised or not raised by counsel were known at that time. These claims were not asserted until March 11, 1993. The lapse of four years is not a reasonable period of time. Idaho Code § 19-2719(5) requires that we conclude petitioner waived these claims.

The motion to stay is denied and the appeal is dismissed. It is so ordered.

JOHNSON, TROUT and SILAK, JJ., concur.