360 P.3d 289
Idaho2015Background
- In 1991 Timothy Dunlap pled guilty to first-degree murder for killing bank teller Tonya Crane; he was later sentenced to death after jury resentencing in 2006 following Ring-based remand.
- Dunlap filed multiple post-conviction petitions over years; after resentencing he filed a 2008 petition (summarily dismissed) and a successive petition in 2011 (challenging additional substantive matters and alleging ineffective assistance of appellate counsel for omitting those claims).
- The district court summarily dismissed the 2011 successive petition as untimely under Idaho Code § 19-2719 for substantive claims and found the corresponding ineffective-assistance-of-appellate-counsel claims deficient or nonprejudicial; Dunlap appealed.
- The Idaho Supreme Court analyzed (1) timeliness under § 19-2719 and (2) the Strickland ineffective-assistance standard as applied to appellate counsel’s omission of claims concerning three jury instructions and voir dire/P-I-3.
- The Court held the substantive claims were waived as untimely and rejected all ineffective-assistance-of-appellate-counsel claims either because the omitted issues lacked merit or there was no reasonable probability of a different outcome on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of successive substantive claims under I.C. § 19-2719 | Dunlap: new substantive claims (jury instructions; voir dire) were effectively unraiseable earlier because this Court limited his appellate brief length | State: claims were known or reasonably knowable within 42 days of judgment and were not pleaded within a reasonable time; procedural requirements of § 19-2719 were not met | Court: substantive claims waived as untimely under § 19-2719; page-limit argument not properly pleaded or timely raised |
| Ineffective assistance of appellate counsel — propensity aggravator (J.I. 11) | Dunlap: J.I. 11 vague (e.g., “less than the normal amount of provocation”) and counsel was ineffective for not raising it on appeal | State: J.I. 11 tracked Idaho case law narrowing propensity; counsel reasonably omitted meritless/weaker claims | Court: no prejudice — instruction consistent with Creech and prior precedent; summary dismissal proper |
| Ineffective assistance of appellate counsel — aggravating/mitigating instruction (J.I. 14) & ex post facto claim | Dunlap: jury was instructed under the 2006 statutory language rather than 1991 law, lowering State burden and violating ex post facto/due process | State: amendments were procedural (did not lessen State’s burden to prove aggravators); counsel reasonably litigated related language | Court: change was procedural and not more onerous; no Strickland prejudice from omission |
| Ineffective assistance of appellate counsel — juror impartiality/voir dire (including Juror 263 and P.I. 3) | Dunlap: SAPD should have raised that several seated jurors (incl. Juror 263) were biased or that P.I.3 favored exclusion of jurors opposed to death, causing an impartiality violation | State: record shows jurors’ answers as a whole supported impartiality determinations; Juror 263 was properly excused; trial counsel’s voir dire was reasonable tactical work | Court: trial judge’s removal/excusal decisions entitled to deference; no actual biased juror shown; trial counsel’s voir dire not deficient; appellate omission not prejudicial |
Key Cases Cited
- Ring v. Arizona, 536 U.S. 584 (2002) (jury must find aggravating circumstances necessary for death sentence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Witherspoon v. Illinois, 391 U.S. 510 (1968) (exclusion of veniremen for general objections to death penalty limits state’s ability to empanel juries for capital cases)
- Wainwright v. Witt, 469 U.S. 412 (1985) (standard for excusing jurors for cause due to views on capital punishment)
- Morgan v. Illinois, 504 U.S. 719 (1992) (automatic-death jurors who refuse to consider mitigating evidence must be disqualified)
- Robbins v. Smith (Smith v. Robbins), 528 U.S. 259 (2000) (appellate counsel not ineffective for omitting issues that are not clearly stronger than those pressed)
- Arave v. Creech, 507 U.S. 463 (1993) (Eighth Amendment requires guidance limiting sentencer’s discretion in capital cases)