*1
likely
step
step
‘one
at a time’ when that
is drawn
pense.
contrary,
To the
it is
gender____”);
v.
provider
along
in some instances
the line of
O’Brien
health care
will
524,
740,
Skinner,
at issue
favored
classifications
414 U.S.
94 S.Ct.
be
here,
disfavored, and
(1974) (invalidating
in other instances be
absentee
L.Ed.2d 702
part
yet
be
and disfa
others
favored
voting
which did not extend to
do not
part.
vored in
Thesе circumstances
However,
in
these cases
jailed persons).
“clearly
legislative pur
suggest a
evinced
right to
and a
volved the fundamental
vote
Breed, 111 Idaho at
pose to discriminate.”
contrast,
gender-based classification.
206,
opin
the lead
725 P.2d at
Optical
and
Cream
Lee
Clover Leaf
correctly
the rational ba
today
aрplies
ion
regulations
ery
involved
cases
business
than
intermediate stan
sis test rather
subject
They
test.
are
to the rational basis
dard.
us. Where
more akin to
case before
is confined to a
equal protection
issue
However, the
are “under-
classifications
inquiry, greater deference
is,
rational basis
they
That
confer
benefit
inclusive.”
justified.
persons in a underinclusive classifications
burden
some
impose
or
I
the lead
legitimate public
qualification,
With this
concur
which furthers a
manner
attorney
same
purpose,
opinion’s
do not confer the
benefit
refusal
invalidate
but
persons
all
the same
impose
regulation.
or
burden
fee
Cantrell,
v.
similarly situated. See State
(1972).
94 Idaho Supreme upheld has
United States Court theory on the
underinclusive statutes legislaturе all agency or need address
perceived evils at the same or Rather, may implement a way.
same
program step by step, adopting measures
an evil while de
partially
ameliorate
ferring a solution Creamery Alfred E.g. Minnesota v. Clover MELLINGER Leaf , Co., 456, 101 Petitioner-Appellant, 66 L.Ed.2d 449 U.S. S.Ct. (1981); Optical, v. Lee Williamson L.Ed. 563 Idaho, Respondent. Here, STATE perceivеd evil drafters plan im appears Idaho Medicaid No. pact appeals, with their of administrative costs, upon the finite resources attendant Appeals of Idaho. The drafters’ for health care. available 26, 1987. June category response one has been to reduce fees, attorney and discour expense, 17,1987. Sept. for Rеview Denied Petition filed, age being by limit appeals from some Although recovery fees. debatable, I be this scheme is wisdom of constitutionally are
lieve its classifications despite underinclusive
permissible their
ness. not mean that
This does opinion, that an the lead
broad statement “does con
underinclusive classification equal protection problem.” Un
stitute an be, derinclusive schemes
been, down. West struck See Califano cott, 443 U.S. legislate (1979) (“Congress may not
32 application
An any be filed at (5) years within five expiration the appeal of the time for or from the deter- appeal mination of an or from the deter- proceeding mination of a following an appeal, whichever is later. Laws, 1979 Idaho Sess. ch. p. 428. § The district court held that the amendment applied Mellinger. to the statute court determined that had five (the years from July effective date amendment) applicatiоn of the to file his application for relief. Because the had expiration been filed after the of the five- year period, the district court dismissed the application.
Mellinger contends the court erred in
applying the
to his petition.
amendment
73-101,
on
Relying
provides
I.C.
§
Trimming,
Alan E.
Ada County Public
part
compiled
of these
laws
“[n]o
Defender, Boise, fоr petitioner-appellant.
retroactive,
declared,”
expressly
unless
so
Jones,
Gen.,
Minert,
Jim
Atty.
David R.
Mellinger asserts
amendment
Gen., Boise,
Deputy Atty.
respondent.
for
by
expression
I.C.
no
contains
§
legislature indicating
the amended stat
WALTERS,
Judge.
Chief
retrospective
given
ute should be
effect.
July
Effective
19-
legisla
It is well-settled that “unless the
provide
five-year
wаs
amended
expressions
ture in its
uses
enactments
limitation
clearly indicative of the intent that the stat
post-conviction
relief.
Previous
effect,
given retrospective
ute
be
will not
amendment,
of limitation was
Pahlke,
In re
be so construed.”
56 Idaho
prescribed
appeal
statute.
This
338, 341-42,
53 P.2d
presents
five-year
question
whether the
Mellinger posed
argumеnt—
same
this
ap
mandated
amendment
unsuccessfully
the district court. The
—to
plies to
a conviction entered before
court, citing University
Utah
district
We
effective date of the amendment.
hold
Pence,
Hospital v.
104 Idaho
657 P.2d
it does.
(1982),
legislative
held that
reductions
June, 1972,
Mellinger,
Alfred
statutory periods
may apply
of limitation
law,
persistent
found to be a
violator of the
action, provided
causes of
accrued
each of
received concurrent
life terms for
reasonable time is
within which to
allowed
deadly weap-
with a
counts
assault
Melling
assert the cause. The court noted
18, 1985,
on.
he filed an
On November
applications
previously
er
had filed
relief.
post-conviction relief in
limita-
аpplied
court
had
applications
Both of those
been dis
tion in
Mel-
I.C.
19-4902 and dismissed
§
The court ruled:
missed.
linger’s
petition
of untimeli-
argue
[Mellinger] cannot now
Mellinger appeals
ness.
from the dismissal
post-conviction rights
cut off
would
order.
application of I.C.
retroactive
enacted,
rights
those
pro-
when he has twice asserted
originally
As
the effective
the statute as
vided
after
date
that an
case law and
any
amended.
... Both Idaho
“may
be filed at
time.” In
support appli-
however,
stat-
considerations of fairness
legislature amended the
of limitations
5-year
provide
ute to
that:
tive
of the statute.
Justice
under I.C. 19-4902
[sic]
court,
year
the 5
before this
opinion
Bakes’
was based on his view that
1, 1979,
commencing
July
the effec-
plaintiffs
acquired
to file
of the statute.
tive date
*3
one-year period.
He also
benefits for a
by
argued
application
this case is controlled
that
of the amended
We
Supreme
ruling in
rely
Idaho
Court’s
Universi
ignored
plaintiff’s
statute
Pence,
Hospital
supra; and
ty
Utah
existing
law and caused them undue
hence,
correctly applied
the district court
Bistline,
hardship.
also con-
Justice
as amended in 1979. How
curred
Bakes on the retroac-
with Justice
ever,
ruling,
contrary
the district court's
issue,
tivity
additionally challenged wheth-
not decided
the retroactive
this case is
plaintiffs
“fair notice” of
er the
received
application of
but rather
amendment,
they
and whether
had had
The
prospective application of the statute.
opportunity
a
to file a claim
reasonable
court, faced with the same issue as
Pence
at-
under the amended statute. We draw
here, acknowledged
appli
that retroactive
carefully
tention to these
constructed dis-
such a time limitation would be
cation of
ruling
sents because we conclude that our
general principles
contrary to
of law and
present
case would be the same even
(which requires
express
taking
arguments.
into consideration their
application of a
declaration for retroactive
the amended statute
the Pence
statute).
“a
The Pence court stated that
changеd
filing period
one-year to
merely be
statute is not made retroactive
cause it draws
facts antecedent to its
forty-five days. The amendment here
174,
operation.”
at
enactment for
Id.
changed
the limitation
from no time
The Pence case dealt with an Pence, and the allowed indigent patient medical services. The lowed five hospi important was admitted and released from the here is an distinction. Under applicable tal at a time when the statute Mellinger’s interpretation party a convicted permitted one-year period filing an prior as to 1979 would never be restricted Subsequent pa for aid. to the filing post-conviction petition; release, tient’s the statute was amended to reasonable time limit on the applying reduce the allowable time for petition could ever be established. We con- forty-five days following aid to admission Mellinger’s interpretation does clude that hospital. Supreme The Idaho Court comport a consideration of the ruled that the amended version of the stat justice. administration of The applicable. ute was indicated appears to created here represented change in the amendment to at least be a reasonable time this Court law, procedural plaintiffs, although and the relief under Idaho’s Post-Con- within which statute, subject to thе amended were to be sought. Act viction Procedure forty-five day period afforded the full be Also, Mellinger peti- filed this at the time ginning from the date of the effective tion, existing case law and the amended amended statute. The Court noted clearly five-year limi- identified the plaintiffs had “fair notice” of the new time period. tation ruling limitation. Inherent in the Court’s Addressing Bistline’s concerns Justice forty-five days was that was a reasonable Pence, earlier which to file for aid. The note that within we questions posed to the Pence court and to after the effective date petitions were filed present court are the same. Therefore statute. Had of the amended we hold that of the amended hе filed statute at the time checked the proper. 19-4902 in this case was 1981, he would first even his We con- of the amendment. have known dissenting
We note that Pence drew two
was fair notice
clude that
there
argued
apply-
opinions.
Justice Bakes
change.
a retroac-
the new limitation
Mellinger suggests
the five-
(1981)).
resentencing of change the defendant for homicide. lation occurs if the in the law is argued The he merely procedural defendant was entitled to be does “not increasе punishment, change ingredi under law in the sentenced the effect at the nor the portion ents of time he his crime. The the offense or the committed ultimate facts guilt.” necessary Hopt to pen of that law which mandated the establish death unconstitutional; Utah, 202, 210, U.S. alty had 590 S.Ct. been held conse [4 original.] L.Ed. quently the defendant could been sen 262] [Italics — only tencеd to a term that life under law. at - - -, Id. U.S. at The Montana court ruled that the district 2452-2453. court, remand, correctly applied had the Here we conclude that no substantial subsequently sentencing enacted statute right materially has Al- been affected. which authorized—but did not mandate— though the amendment does reduce the penalty the a mitigation death after hеar filing for years, time to five such a ing. thoroughly court The Montana dis reduction, especially the of within context cussed what makes aof statute noted, this is material. As Mel- post ex facto. The court concluded that it linger petitions filed had within the was the will have the statute that effect allotted the amended statute. post determines ex facto nаture. The Therefore, Mellinger had notice and rea- against prohibition court noted that the ex sonable time within which to file his post laws roots in desire of facto has its the present petition relief. prevent of the framers the Constitution to (cid:127)We the district court Mel- with sovereign authority making from later an linger rights argue that cannot now his act criminal which innocent com was when would be cut off when he has twice assert- The the im mitted. court concluded that rights ed of those since the effective date portant question asked whether to be is the amendment. some substantial of the accused has Mellinger contends his earlier sec- materially Changes pro been affected. petition ond dismissed shоuld was affecting materially rights cedure not the against he not be “used him” because did not come defendant do within the not have effective assistance of counsel. prohibition against post ex facto laws. Id. filed, petition After had the second been giving judge an order recently, More the United States Su issued why preme implication Mellinger twenty days show cause addressed the post ex should not dismissed. The facto laws. The Court noted that public prohibition appointed court defender to post “central to the ex also facto Mellinger represent Mellinger. asserts concern for ‘the fair notice and lack do governmental legisla public that the defender’s office did when the restraint help has not punishment beyond anything what him. This Court ture increases pertaining records prescribed provided was con with the was when the crime been ” petitions post- Mellinger’s previous original] summated.’ Miller [Italics — Florida, U.S. -, -, what say Thus cannot convictionrelief. we 2446, 2451, (1987) proceedings. those exactly during (quoting occurred However, ruling today Graham, do our wе not base Weaver v. court, may file application to he proceedings with his those dealt whether reasserting subsequent important now same issues raised. fully. grounds more 19-4908. Mellinger peti- See filed two is that factor prisoner timely application if a filed a Thus amended. tions since the as- it was dismissed due to ineffective but significance. is of it is the act of counsel, prisoner I sistance of believe so, simply cannot Having done appli- subsequent entitled to file would be stat- application of amended argue that asserting relief more was unrea- utory five though fully five-year period even sonable or unfair. elapsed limitation under I.C. 19-4902had dismissing order of the district court To in the meantime. hold otherwise wоuld prisoner than leave the alternative relief is affirmed. attorney malpractice dis- sue the —a undertaking and onerous tasteful —or SWANSTROM,J., concurs. a federal corpus a writ of habeas seek BURNETT, concurring. Judge, specially court,1 producing very kind of outside foregoing opinion, but I concur processes judicial in state interference *5 separately to on the issue write comment in- Act was Post-Conviction Procedure of assistance of counsel. ineffective to avoid. tended Mellinger’s as I argument, of real thrust Unfortunately Mellinger, this does it, applica- is that his first two understand proper to a case to invoke appear not relief, filed within tions for Mellinger’s sec doctrine. the relation-back today five-year which the Court September, in application was filed ond him under says was available to February, 1984. and was dismissed 19-4902, be- summarily were dismissed elapsed and More than one one-half he did not have effective assistance cause in No he filed his third before re- establishing grounds of counsel This, vember, view, my exceeds a 1985. argument third goes, lief. subsequent a reasonable five-year after the —filed under 19-4908 and relat I.C. § prior elapsed back” —“relates appli an earlier back to should dis- applications and not have been ground ineffec upon the asserted of untimely opinion missed as filed. Our lead Moreover, Mel- of tive assistance counsel. squarely this contention. does not meet argu application, unlike his linger’s third prior did mention appeal, not even proper believe a relation-back ment a simply appli- counsel. It might well merit. An ineffective assistance of argument have validity the statute under cannot attacked the of cant for relief who as prosecuted originally under he was private сounsel is entitled pay for alleged deadly weapon, and representation by a court- sault with he “excess If effec- the sentence received was appointed attorney. he is denied counsel, Using appears what to be boiler a result assistance of and as ive.”2 tive ap- post-conviction relief language in grounds platе raises for relief in inadequately he can be barred might self-evident that the claim 1. also be invited from by Federal intervention prisoner statutory is barred literal terms under the time limit. a of I.C. seeking post-conviction during upon ground that was unknown relief his sentence ex- assertion that problem period. This the could be alleviated subject might summa- well have been cessive part by subjecting I.C. timely made. ry even if it had been dismissal "discovery” exception similar to to a § 19-4902 sentence, opposed of as excessiveness limitation. in other civil statutes of that found post- among grounds legality, is not con- broader it would resolve the However ceptual problem attempting in I.C. conviction enumerated impose а time upon based the claim excessiveness unless challenge prisoner's upon a con- limit tinuing, illegal deed, facts, previously of material "evidence liberty. deprivation In- of his heard, requires vacation of presented and is based where the claim for relief justice----” sentence in the interest the ... right, it is far deprivation of a constitutional pliсations prepared at the Idaho State Cor- for the appeal, first time on and is not Institution, Mellinger rectional character- supported by predicate a factual ized these for relief as record, matters I am reject constrained to it in this heard____” previously presented “not basis, case. On this narrow I concur in the Because issue of ineffective assistance opinion today. Court’s the. by Mellinger’s counsel was not framed application, surprising it is not showing
record now before us contains no
of how the results obtained the first two
applications would been if different
effective counsel had been Be- furnished. argument
cause the relation-back is made