Sanchez v. State

               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46179

BYRON LEE SANCHEZ,                             )
                                               )       Filed: October 28, 2020
       Petitioner-Appellant,                   )
                                               )       Melanie Gagnepain, 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                                               )       THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho, Gem
       County. Hon. Susan E. Wiebe, District Judge.

       Order dismissing second amended petition for post-conviction relief, affirmed.

       Byron L. Sanchez, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kacey L. Jones, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Chief Judge
       Byron Lee Sanchez appeals from the district court’s order dismissing his second amended
petition for post-conviction relief. Sanchez alleges the district court erred because: (1) the time
for filing a petition for post-conviction relief should have been tolled as to his untimely claims;
(2) the trial court’s relinquishment of jurisdiction violated his due process rights; (3) the trial
court’s relinquishment of jurisdiction violated his Sixth Amendment rights; (4) his Idaho
Criminal Rule 35 counsel provided ineffective assistance during the Idaho Criminal Rule 35
proceedings; and (5) the district court wrongly prohibited him from raising a claim of actual
innocence and declined to consider evidence to support this claim during the evidentiary hearing.
For the reasons asserted below, we affirm the district court’s order dismissing Sanchez’s second
amended petition for post-conviction relief.




                                                   1
                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       After challenging his son to a duel with two loaded guns, the State charged Sanchez with
aggravated assault with a deadly weapon enhancement, possession of a controlled substance with
the intent to deliver, and possession of drug paraphernalia. Pursuant to a plea agreement,
Sanchez pled guilty to an amended charge of felony injury to a child and the State agreed to
dismiss the other charges.
       On May 27, 2014, the district court accepted Sanchez’s guilty plea and on July 28, 2014,
sentenced him to a unified sentence of ten years, with two years determinate, and retained
jurisdiction. Sanchez was placed in the Therapeutic Community program during the period of
retained jurisdiction. Based on Sanchez’s failure to successfully participate in and complete the
program, the Idaho Department of Correction (Department) filed an amended presentence
investigation report (APSI) recommending the district court relinquish jurisdiction over Sanchez.
On March 18, 2015, the district court relinquished jurisdiction.1 Sanchez filed a Rule 35 motion
to reduce his sentence, and the district court denied the motion. Sanchez did not appeal from his
judgment of conviction or from the district court’s denial of his Rule 35 motion.
       On March 18, 2016, Sanchez filed a pro se petition for post-conviction relief, seeking to
withdraw his guilty plea. Sanchez asserted: (1) his guilty plea was obtained under duress and
was based upon a false premise; (2) he did not commit felony injury to a child because he did not
injure a child; and (3) his trial counsel rendered ineffective assistance.         The district court
appointed Sanchez post-conviction counsel.         Through counsel, Sanchez filed an amended
petition for post-conviction relief which reiterated his original claims and expanded his
ineffective assistance claim, asserting that his trial counsel had a conflict of interest and failed to
provide Sanchez with discovery, assert proper defenses, file a motion to suppress, advise
Sanchez of the consequences of pleading guilty, and present exculpatory evidence. Sanchez



1
        Sanchez’s presentence investigation report and amended presentence investigation report
are not included in the record on appeal. It is the responsibility of the appellant to provide a
sufficient record to substantiate his or her claims on appeal. Powell v. Sellers, 

130 Idaho 122

,
127, 

937 P.2d 434

, 439 (Ct. App. 1997). In the absence of an adequate record on appeal to
support the appellant’s claims, we will not presume error.

Id. 2

alleged that but for trial counsel’s errors, Sanchez would have been “acquitted” of the injury to
child charge.
       Subsequently, Sanchez’s post-conviction counsel filed a second amended petition for
post-conviction relief, which incorporated by reference the claims Sanchez asserted in his pro se
petition and asserted additional claims of ineffective assistance of counsel during the Rule 35
proceedings and due process violations relating to the relinquishment of jurisdiction.2 The State
filed a motion to dismiss and a motion to strike Sanchez’s second amended petition. The district
court denied the motion to dismiss, but granted the motion to strike the portions of Sanchez’s
second amended petition that incorporated by reference each of the claims from Sanchez’s first
pro se petition for post-conviction relief. The district court gave Sanchez additional time to file a
new amended petition, but Sanchez did not do so. The State answered Sanchez’s second
amended petition and moved for summary dismissal.
       Throughout the course of the post-conviction proceedings, Sanchez filed multiple pro se
motions.   The district court declined to consider Sanchez’s motions because Sanchez was
represented by post-conviction counsel.
       The district court held an evidentiary hearing on Sanchez’s second amended petition for
post-conviction relief. Sanchez represented himself, but his appointed post-conviction counsel
remained as stand-by counsel in the event Sanchez needed assistance with procedural issues.
During the hearing, the district court reminded Sanchez that the only petition before the court
was Sanchez’s second amended petition for post-conviction relief and the claims raised in his
first pro se petition were no longer properly before the district court and thus, were beyond the
scope of the hearing.
       After the presentation of evidence, the district court made oral findings of fact and
conclusions of law. The district found that Sanchez’s claims relating to ineffective assistance of
trial counsel were not timely filed as Sanchez filed his first petition for post-conviction relief 599
days after the judgment of conviction, well beyond the one-year filing deadline. Nonetheless,
the district court found that, even if the claims were timely filed, they failed on the merits. First,
the district court found Sanchez did not demonstrate that he was prejudiced by his assertions of
ineffective assistance of trial counsel. Second, the district court found it was clear from the

2
        During the post-sentencing and post-conviction proceedings, Sanchez was represented by
a series of court-appointed conflict counsel.

                                                  3
change of plea advisory form and the transcript of the change of plea hearing that Sanchez knew
the trial court did not have to follow the plea agreement and Sanchez could not withdraw his plea
in the event he was not placed on probation and placed into a drug court program. Finally, the
district court found that Sanchez’s trial counsel did not have a conflict of interest with Sanchez
because counsel withdrew from the representation that may have caused a conflict once counsel
was aware of the potential issue.
       Additionally, the district court found that dismissal was also appropriate for Sanchez’s
timely claims. First, the district court found that Sanchez did not establish ineffective assistance
of Rule 35 counsel because Sanchez did not show that he was prejudiced by counsel’s actions.
Second, the district court found that Sanchez’s rights were not violated during the relinquishment
proceedings because Sanchez was given an opportunity to respond to the APSI, which satisfied
the due process requirements.       Accordingly, the district court dismissed Sanchez’s second
amended petition for post-conviction relief. Sanchez timely appeals.
                                                 II.
                                    STANDARD OF REVIEW
       In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 

118 Idaho 865

,
869, 

801 P.2d 1216

, 1220 (1990); Baxter v. State, 

149 Idaho 859

, 861, 

243 P.3d 675

, 677 (Ct.
App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary
hearing, an appellate court will not disturb the lower court’s factual findings unless they are
clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 

141 Idaho 50

, 56, 

106 P.3d 376

, 382 (2004);
Russell v. State, 

118 Idaho 65

, 67, 

794 P.2d 654

, 656 (Ct. App. 1990). The credibility of the
witnesses, the weight to be given to their testimony, and the inferences to be drawn from the
evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 

56, 106 P.3d at 382

; Larkin v. State, 

115 Idaho 72

, 73, 

764 P.2d 439

, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. 

Baxter, 149 Idaho at 862

, 243 P.3d at 678.
                                                 III.
                                            ANALYSIS
       Sanchez argues that the district court erred in dismissing his petition for post-conviction
relief. Specifically, Sanchez alleges that the district court erred because: (1) the time for filing a

                                                  4
petition for post-conviction relief should have been tolled as to his untimely claims; (2) the trial
court’s relinquishment of jurisdiction violated his Fourteenth Amendment due process rights;
(3) the trial court’s relinquishment of jurisdiction violated his Sixth Amendment rights; (4) his
Rule 35 counsel provided ineffective assistance during the Rule 35 proceedings; and (5) the
district court wrongly prohibited him from raising a claim of actual innocence and declined to
consider evidence to support this claim during the evidentiary hearing.
A.     Sanchez Waived His Claim That His Letter to His Attorney Equitably Tolled His
       Time to File Post-Conviction Claims Alleging Ineffective Assistance of Trial Counsel
       Sanchez argues the district court erred when it found his claims of ineffective assistance
of trial counsel were untimely because the time for filing his petition to allege such claims should
have been equitably tolled from the date he sent his trial counsel a letter requesting relief from
his judgment of conviction. Sanchez alleges Idaho courts are too restrictive in the application of
equitable tolling to the one-year statute of limitation for post-conviction and the federal doctrine
of equitable tolling, as it applies to federal habeas corpus proceedings, should apply instead.
Applying the federal standard, Sanchez argues the letter he sent to his trial counsel equitably
tolled the time for filing a timely post-conviction claim alleging ineffective assistance of trial
counsel because Sanchez requested relief from his judgment of conviction. Based on that
request, Sanchez alleges his trial counsel should have filed a post-conviction petition in addition
to the Rule 35 motion that counsel did file. In response, the State makes three arguments. First,
the State asserts the district court did not err by finding Sanchez’s claims related to ineffective
assistance of trial counsel were untimely. Second, the State contends that because Sanchez raises
his tolling argument for the first time on appeal, he has waived the argument. Finally, the State
contends that even if this Court considers the merits of Sanchez’s equitable tolling claim,
Sanchez is not entitled to equitable tolling under Idaho law.
       Our review of the district court’s construction and application of the limitation 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 limitation 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, 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


                                                 5
(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

.
       Generally, issues not raised below may not be considered for the first time on appeal.
Sanchez v. Arave, 

120 Idaho 321

, 322, 

815 P.2d 1061

, 1062 (1991). Pro se litigants are held to
the same standards as those litigants represented by counsel. Michalk v. Michalk, 

148 Idaho 224

,
229, 

220 P.3d 580

, 585 (2009). Pro se litigants are not excused from abiding by procedural rules
simply because they are appearing pro se and may not be aware of the applicable rules.

Id. Here, Sanchez did

not raise his claim related to equitable tolling to the district court. In
fact, at the evidentiary hearing, the only time Sanchez discussed the potential issues concerning
the statute of limitation, he did not put forth any argument:
       Court:     Did you want to respond to [the State’s assertion that the claims related
                  to ineffective assistance of trial counsel are untimely]?
       Sanchez:   Is it all right if I just ask a question, a clarifying question?
                  It’s my understanding that what we are talking about is that any issues
                  of whether or not I’m actually guilty, factual innocence are outside of
                  the statute of limitations? Is that what is going on here?
       Court:     Your allegations that your counsel, his performance was deficient
                  would start from the date of the judgment of conviction with regard to
                  his representation.
       Sanchez:   Okay. I see.
       Court:     Because you had another attorney, then, for the Rule 35.
       Sanchez:   Okay. Yes, I understand that.
                  All right. Thank you.
       Court:     Okay. Did you want to make any argument or just--
       Sanchez:   I’m not sure how to argue that.
       Court:     Okay. Why don’t we take a brief recess and I’ll come back.
Thus, Sanchez’s argument that his letter to counsel should have tolled the time for filing a
petition for post-conviction relief was not raised below. Accordingly, Sanchez waived the claim
on appeal.
       However, even if Sanchez did not waive the tolling argument by not raising it below, his
claim would fail. The time limitation of Idaho’s Uniform Post-Conviction Procedures Act
(UPCPA) may be enlarged if the petitioner has been effectively denied access to the courts,
undermining the petitioner’s due process rights. Kriebel v. State, 

148 Idaho 188

, 190, 

219 P.3d 1204

, 1206 (Ct. App. 2009). In Idaho, courts have recognized equitable tolling of the statute of
limitation for filing a post-conviction relief petition where: (1) the petitioner was incarcerated in
an out-of-state facility on an in-state conviction without legal representation or access to Idaho


                                                 6
legal materials; and (2) mental disease and/or psychotropic medication renders a petitioner
incompetent and prevents the petitioner from earlier pursuing challenges to his conviction.

Id. Sanchez appears to

acknowledge that he is not entitled to tolling of the post-conviction
statute of limitation under Idaho law. Rather, Sanchez alleges that because he wrote a letter to
trial counsel within the one-year timeframe advising trial counsel that he desired relief from the
judgment of conviction, his trial counsel should have recognized that this necessitated both the
filing of a Rule 35 motion and a petition for post-conviction relief. Therefore, his trial counsel’s
failure to file a post-conviction petition constituted ineffective assistance of counsel. Sanchez’s
argument is predicated entirely upon federal habeas corpus law, which is not applicable to a
decision that rests upon state law. See Holland v. Florida, 

560 U.S. 631

, 650 (2010) (holding
equitable tolling “asks whether federal courts may excuse a petitioner’s failure to comply with
federal timing rules, an inquiry that does not implicate a state court’s interpretation of state
law”). Instead, Idaho post-conviction claims are governed by the UPCPA. Charboneau v. State,

140 Idaho 789

, 792, 

102 P.3d 1108

, 1111 (2004). Idaho has articulated a one-year statute of
limitation for filing an appeal. I.C. § 19-4902(a). As a result, for Sanchez’s post-conviction
claims related to ineffective assistance of trial counsel to be timely, Sanchez must have filed his
petition within one year of the expiration of time to appeal from his criminal case. Because it is
uncontested that Sanchez did not, the district court did not err by finding Sanchez’s claims
related to ineffective assistance of trial counsel were procedurally barred by the statute of
limitation.
B.     The Trial Court’s Relinquishment of Jurisdiction Did Not Violate Sanchez’s Due
       Process Rights
       Sanchez alleges the district court erred in dismissing his claim that the trial court violated
his due process rights when it relinquished jurisdiction. Sanchez argues that he did not receive
adequate notice when the Department presented him with the APSI and he should have been
provided the opportunity to present evidence, rebut testimony, and call witnesses before the trial
court relinquished jurisdiction. In response, the State asserts that Sanchez was afforded the
process he was due before the relinquishment of jurisdiction and therefore the district court did
not err by dismissing this claim.
       Due process protections are implicated only where a government decision deprives an
individual of a liberty or property interest within the meaning of the Fourteenth Amendment’s
Due Process Clause. U.S. CONST. amend. XIV; State v. Rogers, 

144 Idaho 738

, 741, 

170 P.3d 7

881, 884 (2007). To determine whether an individual’s due process rights have been violated,
courts must engage in a two-step analysis. Bradbury v. Idaho Judicial Council, 

136 Idaho 63

,
72-73, 

28 P.3d 1006

, 1015-16 (2001). The Court must first decide whether the individual’s
threatened interest is a liberty or property interest under the Fourteenth Amendment.

Id. at

73,
28 
P.3d at 1016. Only after the court finds a liberty or property interest has been threatened will
the court reach the next step of analysis in which it determines what process is due.
 Id.
       To have a 
constitutionally protected liberty interest, a person must have more than an
abstract need, desire, or unilateral expectation of an outcome and, instead, must have a legitimate
claim of entitlement to it. State v. Coassolo, 
136 Idaho 138
, 143, 
30 P.3d 293
, 298 (2001). The
mere possibility that a sentence could be suspended or reduced is not a recognized protected
liberty interest because “[w]hen the state has not given back a liberty interest, no due process is
necessary to continue the denial of the liberty interest.”
 Id. Therefore, an inmate’s 
hope or
expectation of probation at the end of a retained jurisdiction period is not a liberty interest
protected by the Due Process Clause.
 Id.
       The decision to 
place a defendant on probation or whether, instead, to relinquish
jurisdiction over the defendant is a matter within the sound discretion of the district court and
will not be overturned on appeal absent an abuse of that discretion. State v. Hood, 
102 Idaho
711
, 712, 
639 P.2d 9
, 10 (1981); State v. Lee, 
117 Idaho 203
, 205-06, 
786 P.2d 594
, 596-97 (Ct.
App. 1990). The Department’s recommendation to relinquish jurisdiction or to grant probation
is purely advisory and is in no way binding upon the court’s decision. 
Coassolo, 136 Idaho at
143
, 30 P.3d at 298. Since a trial court need not follow the recommendation of the Department
and the ultimate decision is discretionary, the chance of probation based upon the Department’s
recommendation “is at most a mere possibility or a coveted goal.”
 Id. (internal quotations
removed). 
Moreover, “Coassolo unambiguously holds that a defendant is not entitled to an
opportunity to respond to information in an APSI upon a review of retained jurisdiction.” State
v. Goodlett, 
139 Idaho 262
, 265, 
77 P.3d 487
, 490 (Ct. App. 2003). Consequently, “inmates
have no due process right to any procedural safeguard in connection with the facility’s
recommendation or the court’s decision whether to grant probation or to relinquish jurisdiction.”

Id. Thus, inmates do 
not have a constitutionally protected liberty interest in the fairness or
accuracy of the Department’s report, in the opportunity to make a written response to the report,
or to a hearing before the trial court determines whether to relinquish jurisdiction.
 Id. This

                                                 8
applies 
even if an inmate does not receive a copy of the Department’s report in time to submit a
response in advance of the trial court’s decision to relinquish jurisdiction.
 Id. at 
265 
n.1, 77 P.3d
at 490 
n.1.
       As a result, Sanchez did not have a due process right to an opportunity to respond to the
Department’s report, present evidence, rebut testimony, and call witnesses before the trial court
relinquished jurisdiction. Even so, Sanchez was presented with the APSI, informed that he had
the right to submit a written response, signed the document, but did not submit a written
response.     Accordingly, the district court did not err in determining that the trial court’s
relinquishment of jurisdiction did not violate Sanchez’s due process rights.
C.     Sanchez Did Not Establish a Violation of His Sixth Amendment Rights During the
       Relinquishment Proceedings
       Sanchez argues the district court erred by dismissing his claim that the trial court violated
his Sixth Amendment rights during the relinquishment proceedings. Sanchez alleges that he was
entitled to have facts found beyond a reasonable doubt by a jury before the trial court could
relinquish jurisdiction, so the trial court erred when it independently determined, based on a
preponderance of the evidence, that Sanchez was not a suitable candidate for probation. In
response, the State contends the relinquishment proceeding did not implicate Sanchez’s right to a
jury trial because the trial court did not make factual findings that changed the legal range of
punishment already authorized by Sanchez’s earlier guilty plea.
       The Fifth and Sixth Amendments to the United States Constitution “ensure that the
government must prove to a jury every criminal charge beyond a reasonable doubt.” United
States v. Haymond, ___ U.S. ___, ___, 
139 S. Ct. 2369
, 2376 (2019). Therefore, courts have
consistently held that a jury must find beyond a reasonable doubt every fact which the law makes
essential to a punishment that a judge might later seek to impose.
 Id. This does not 
mean a jury
must find every fact that may affect the trial court’s exercise of discretion within the range of
punishments authorized by the jury’s verdict; but it does mean that a jury must find any facts that
expose the defendant to a greater punishment than that previously authorized.
 Id. at 
___, 139
S.Ct. at 2380.
       Generally, the constitutional protections required at sentencing are not applicable to the
retained jurisdiction program because sentencing occurs before the period of retained
jurisdiction, not when jurisdiction is relinquished. Coassolo, 136 Idaho at 
142-43, 30 P.3d at
297-98
. Because “termination of the retained jurisdiction is neither an imposition of sentence
                                                 9
nor revocation of a probation,” State v. Bell, 
119 Idaho 1015
, 1017, 
812 P.2d 322
, 324 (Ct. App.
1991), a court’s relinquishment of jurisdiction does not expose the defendant to greater
punishment, rather it imposes the sentence already ordered. See id. at 
1018, 812 P.2d at 325

(holding effect of order relinquishing jurisdiction was to execute sentence previously imposed);
see also State v. Ditmars, 
98 Idaho 472
, 474, 
567 P.2d 17
, 19 (1977) (holding retained
jurisdiction suspends execution of already imposed sentence and relinquishment of jurisdiction
effectuates execution of sentence).
        Sanchez incorrectly relies upon Haymond to support his proposition that the Sixth
Amendment requires a jury to find every fact used by the district court to support its decision to
relinquish jurisdiction. Haymond concerned a statute that mandated federal courts to impose an
additional prison term of at least five years and up to life, without regard to the length of the
prison term authorized for the defendant’s initial crime of conviction, for certain violations of
conditions of supervised release. Haymond, ___ U.S. at ___, 139 S.Ct. at 2374. The violation
needed only to be found by the court, not the jury, and be proven by a preponderance of the
evidence, not beyond a reasonable doubt.
 Id. Because of this 
statutory scheme, when Haymond
violated the conditions of his supervised release, he faced an enhancement of his previously
entered sentence beyond that previously authorized by the jury’s verdict.
 Id. at 
___, 139 S.Ct. at
2375. The Court held the statute was unconstitutional because the facts found by the trial court
to justify imposition of the enhanced sentence were facts that were not found by a jury and were
only established by a preponderance of the evidence, but increased the legally prescribed range
of allowable sentences in violation of the Fifth and Sixth Amendments.
 Id. at 
___, 139 S.Ct. at
2378. Nonetheless, the Court differentiated between this unconstitutional statute and the general
practice of imposing a previously lawfully ordered sentence; when a court imposes the term of
imprisonment already authorized by the jury’s verdict, this does “not usually implicate the
historic concerns of the Fifth and Sixth Amendments.”
 Id. at 
___, 139 S.Ct. at 2377.
       Here, because the trial court’s relinquishment of jurisdiction did not increase the
previously imposed sentence beyond its lawful limit, the Sixth Amendment right to have a jury
find facts beyond a reasonable doubt did not apply. The trial court did not err by exercising its
discretion to relinquish jurisdiction based on its determination that Sanchez was not a suitable
candidate for probation because of his failure to successfully complete the programing
requirements.

                                               10
D.      Sanchez Waived His Claim of Ineffective Assistance of Rule 35 Counsel
        Sanchez argues the district court erred in dismissing his claim that his Rule 35 counsel
rendered ineffective assistance by failing to submit an affidavit from Sanchez’s son in support of
the Rule 35 motion. Sanchez contends his son attested that he was not injured by Sanchez during
the underlying event and the affidavit was akin to a victim impact statement. In response, the
State argues Sanchez waived his claim regarding his Rule 35 counsel’s failure to file the affidavit
from Sanchez’s son by not raising this argument to the district court. Alternatively, the State
asserts the district court did not err by dismissing this claim because Sanchez did not establish
his counsel’s failure to include the affidavit prejudiced the outcome of the Rule 35 proceedings.
        In Sanchez’s second amended petition for post-conviction relief, Sanchez does not allege
his Rule 35 counsel rendered ineffective assistance of counsel for failing to include the affidavit
from his son. Instead, Sanchez asserted that his Rule 35 counsel’s advocacy fell below the
objective standard of reasonableness because counsel failed to attach evidence of Sanchez’s
medical issues that impacted Sanchez’s failure to complete his rider programming. Therefore,
Sanchez’s second amended petition did not raise a claim related to his Rule 35 counsel’s alleged
failure to submit an affidavit from Sanchez’s son asserting that he did not sustain any injury from
Sanchez. Moreover, the affidavit Sanchez attached to the petition contained no reference to an
affidavit from his son. At the evidentiary hearing on Sanchez’s petition for post-conviction
relief, Sanchez only alleged that his Rule 35 counsel filed a “boilerplate” Rule 35 motion, not
that Rule 35 counsel was ineffective for failing to file the affidavit from Sanchez’s son for
consideration in the Rule 35 motion. This is not surprising as the affidavit from Sanchez’s son
provided in the record on appeal postdates the Rule 35 hearing. Accordingly, Sanchez waived
the issue.
        Even if Sanchez had preserved his claim by raising it to the district court, he has not
shown that the district court erred in dismissing this claim. A claim of ineffective assistance of
counsel may properly be brought under the UPCPA. Barcella v. State, 
148 Idaho 469
, 477, 
224
P.3d 536
, 544 (Ct. App. 2009). To prevail on an ineffective assistance of counsel claim, the
petitioner must show that the attorney’s performance was deficient and that the petitioner was
prejudiced by the deficiency. Strickland v. Washington, 
466 U.S. 668
, 687-88 (1984); Self v.
State, 
145 Idaho 578
, 580, 
181 P.3d 504
, 506 (Ct. App. 2007). To establish a deficiency, the
petitioner has the burden of showing that the attorney’s representation fell below an objective

                                                11
standard of reasonableness. Aragon v. State, 
114 Idaho 758
, 760, 
760 P.2d 1174
, 1176 (1988);
Knutsen v. State, 
144 Idaho 433
, 442, 
163 P.3d 222
, 231 (Ct. App. 2007). A party waives an
issue on appeal if either argument or authority is lacking. Powell v. Sellers, 
130 Idaho 122
, 128,
937 P.2d 434
, 440 (Ct. App. 1997).
       Here, Sanchez only asserts that his Rule 35 “counsel’s failure to present this information
by affidavit fell below the objective standard of reasonableness necessary to sustain a claim of
ineffective assistance of counsel.” Sanchez does not establish he was prejudiced by the failure to
include the affidavit because he provides no allegation or argument that the inclusion of the
affidavit would have created a reasonable possibility that the outcome of the Rule 35 hearing
would have been different. Because Sanchez fails to provide argument or authority in support of
the prejudice prong, his claim fails on appeal. See
 id. at 128, 937 
P.2d at 440.
E.     The District Court Did Not Err by Prohibiting Sanchez From Raising A Claim of
       Actual Innocence
       Finally, Sanchez argues the district court erred in barring his claim of actual innocence
during the evidentiary hearing on his second amended petition for post-conviction relief.
Sanchez concedes that this claim was outside the statute of limitation. However, he alleges that
because a court may grant relief for claims filed outside the statute of limitation and manifest
injustice would result if he was not allowed to bring this claim, the district court erred in finding
this claim was time-barred.      Additionally, Sanchez asserts the district court erred by not
considering the affidavit from Sanchez’s son during the evidentiary hearing. Sanchez argues the
affidavit supported his claim of actual innocence and, pursuant to Marr v. State, 
163 Idaho 33
,
408 P.3d 31 
(2017), the district court may consider affidavits that are not admitted at the
evidentiary hearing. In response, the State contends the district court properly restricted its
consideration of claims and supporting evidence to the claims Sanchez raised in his second
amended petition for post-conviction relief. As Sanchez’s claim of actual innocence was not
before the district court during the evidentiary hearing, the State reasons the district court did not
err. Further, the State alleges Sanchez never properly presented his son’s affidavit to the district
court, so the court did not err by not considering it. Alternatively, the State argues that even if
the district court did err by not considering the affidavit, the error was harmless because the
claim to which the affidavit pertained, Sanchez’s actual innocence, was not before the court.




                                                 12
       1.      Sanchez waived his assertion that the district court erred in finding his claim
               of actual innocence was untimely
       “[A]lthough post-conviction relief actions emerge from a criminal case, they are new
actions, separate from the criminal prosecution, and are civil in nature.” Anderson v. State, 
133
Idaho 788
, 791, 
992 P.2d 783
, 786 (Ct. App. 1999). Idaho law does not preclude a court from
granting relief to a petitioner who files a petition beyond the one-year deadline for post-
conviction actions. Windom v. State, 
162 Idaho 417
, 422, 
398 P.3d 150
, 155 (2017). As
previously discussed, under certain circumstances the period for filing a post-conviction petition
may be tolled. Kriebel, 148 Idaho at 
190, 219 P.3d at 1206
. Additionally, because there may be
claims that are not known to the defendant within the time limit for filing post-conviction
petitions, courts have recognized that “there must be a reasonable time beyond that deadline
within which claims can be asserted once they are known.” 
Windom, 162 Idaho at 422
, 398 P.3d
at 155. However, as civil actions, post-conviction relief proceedings are generally governed by
the Idaho Rules of Civil Procedure. I.C.R. 39. “Under the civil rules, compliance with the
governing statute of limitations is not a requirement for subject matter jurisdiction; rather, the
time bar of the statute of limitations is an affirmative defense that may be waived if it is not
pleaded by the defendant.” 
Anderson, 133 Idaho at 791
, 992 P.2d at 786; see also I.R.C.P. 8(c).
In post-conviction actions, “compliance with the governing statute of limitations is not a
requirement for subject matter jurisdiction; rather, the time bar of the statute of limitations is an
affirmative defense that may be waived if it is not pleaded by the defendant.” Cole v. State, 
135
Idaho 107
, 110, 
15 P.3d 820
, 823 (2000). Thus, if the State fails to raise the statute of limitation
as an affirmative defense, the district court may properly consider the claims raised in the
petition despite the petitioner commencing the action outside the limitation period.
 Id.
       Here, however, the 
State timely asserted that the statute of limitation barred Sanchez’s
claim related to his actual innocence. On appeal, Sanchez does not dispute that his claim was
untimely but instead claims that this should not have precluded the district court from granting
relief. However, Sanchez does not provide any argument or authority for why the district court
should have granted him relief beyond that the substance of the claim pertains to his “actual
innocence” of the crime he pled guilty to. Without such argument and authority, Sanchez waives
consideration of the issue on appeal. Bach v. Bagley, 
148 Idaho 784
, 790, 
229 P.3d 1146
, 1152
(2010) (where appellant fails to assert assignments of error with particularity and support
position with sufficient authority, those assignments of error are too indefinite to be heard).
                                                 13
       2.      Even if Sanchez’s actual innocence claim was not untimely, the district court
               did not err by not considering the affidavit from Sanchez’s son to support
               Sanchez’s claim of actual innocence
       Even if Sanchez’s actual innocence claim was not untimely, the district court did not err
by not considering the affidavit from Sanchez’s son to support the claim. Sanchez’s actual
innocence claim was beyond the scope of the evidentiary hearing and was therefore not before
the district court for consideration. Sanchez raised this claim in his initial, pro se petition for
post-conviction relief, stating that “NO CHILD WAS INJURED” in the underlying events that
resulted in Sanchez’s guilty plea. Sanchez filed a second amended petition and attempted to
incorporate the claims asserted in his pro se petition by reference. However, the district court
struck the claims Sanchez attempted to incorporate by reference and gave him the opportunity to
file an additional amended petition. Sanchez did not challenge the district court’s decision to
strike the claims below and does not challenge it on appeal, nor did Sanchez file an additional
amended petition. Accordingly, at the evidentiary hearing on the second amended petition,
because Sanchez’s claims in his initial pro se petition were not incorporated by reference, no
claim of actual innocence was before the district court for consideration. Thus, the district court
did not err by not considering evidence in support of Sanchez’s claim.
                                                IV.
                                         CONCLUSION
       Sanchez has not established that the district court erred in dismissing his second amended
petition for post-conviction relief. First, Sanchez waived his claim that his letter to his attorney
should have tolled the time for filing a petition for post-conviction relief because he did not raise
the claim to the district court. Second, the trial court’s relinquishment of jurisdiction did not
violate Sanchez’s Due Process or Sixth Amendment rights. Third, Sanchez waived his claim of
ineffective assistance of Rule 35 counsel by not raising the claim to the district court. Finally,
the district court did not err by prohibiting Sanchez from raising a claim of actual innocence and
not considering evidence to support this claim. Accordingly, the district court’s order dismissing
Sanchez’s second amended petition for post-conviction relief is affirmed.
       Judge LORELLO and Judge BRAILSFORD CONCUR.




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