*1 635 P.2d PALMER, Francis C.
Petitioner-Appellant, DERMITT, Warden,
Ed and State of
Idaho, Respondents.
No. 13503.
Supreme Court of Idaho.
Oct. 1981.
the crime went the credibility to of the testimony, and defendant’s therefore was permissible use of the felony defendant’s record. pro petition
Palmer then filed a
se
under
the Uniform Post-Conviction Procedure
petitioner
et
The
seq.
Act.
I.C.
19—4901
peti-
thereafter
an
to
filed
amendment
the
petition
tion for
relief. The
following
and amendment raised the
issues:
(1)
propriety
prosecutor’s
of the
use of
prior felony
the defendant’s
conviction to
impeach
testimony; (2)
the constitution-
ality
impeachment
felony
rule
43(b)(6); (3)
embodied in I.R.C.P.
whether
testimony
investigat-
of the
one
two
police
perjured;
(4)
ing
officers
wheth-
was
investigating police
er the other
officer
to
attempt
manufactured evidence
defendant;
(5)
evi-
incriminate
whether
allegedly
dence
defendant’s favor
knowingly suppressed by
prosecu-
trial;
presented
tor
to the court at
(6)
at
the effectiveness of
counsel
failing
appeal
allegedly
to
trial and on
Thereafter,
raise these issues.
the district
pursuant
appointed
court
counsel
Palm-
request.
court-appointed
er’s
The
Palmer,
consulting
then
apparently
post-convic-
filed an
for
petition
amended
Alan
Trimming, Boise,
E.
petitioner-
for
petition
relief.1 The amended
tion
omitted
appellant.
petition
pro
all
the issues raised
se
the exception
amendment thereto with
Gen.,
Leroy, Atty.
David H.
Robert R.
felony-
concerning
issues
Gates,
Gen., Boise,
Deputy Atty.
for respon-
impeachment rule. Pursuant
the State’s
dents.
motion,
peti-
the district court dismissed the
McFADDEN,
prose-
tion on
the issue of
Justice.
prior felony
cutorial use of a defendant’s
Defendant,
Palmer,
Francis
was convict-
impeachment purposes
record for
had been
19,1976,
ed of
degree burglary
July
first
appeal,
Palmer
I.
addressed in
On
imprisonment
to a
sentenced
term of
petition
court affirmed the dismissal of the
not to
years.
exceed fourteen
This court
postconviction
for
relief. Palmer v.
Palmer,
affirmed his conviction in
(1980) (herein-
101 Idaho
P.2d
(1978), (herein-
II).
after Palmer
I), holding
prosecu-
after Palmer
tor’s use of the
During
pendency
defendant’s
prior felony
impeaching
II,
petition
conviction for
pro
what the defend-
filed a
se
Palmer
ant
doing
corpus.
testified he was
The
the scene
issuance of writ of habeas
Thereafter,
1. At
the time the
Ida-
counsel
defendant was returned to
petition,
imprisonment
complete
amended the
the defendant was in the
ho to
his term of
in this
custody of Nevada authorities to face outstand-
state.
ing charges against
jurisdiction.
him in that
purposes of
4901(a)(1). Accordingly, for
originally
petition
those issues
reasserted
for a writ of habeas
appeal,
presented
pro
in the defendant’s
se
if it
treated in effect as
corpus shall be
and amendment
thereto for
postconvic-
relief,
request
exception.
exception
were denominated
with one
*3
relief.
being
alleged-
of whether evidence
tion
issue
knowingly
ly in the defendant’s favor was
that
provides
19-4908
I.C. §
suppressed by
prosecutor
or not
to an
for relief available
grounds
“All
Instead,
presented to the court at trial.
must be raised
applicant under
act
petition for issuance of writ
habeas
ap
or amended
supplemental
original,
corpus
issue of whether the
raises the new
adjudicat
Any ground finally
plication.
support
was
his con-
evidence
sufficient to
raised,
knowingly, volun
or
ed or not so
Additionally,
al-
viction.2
the defendant
pro
in the
intelligently waived
tarily and
leged
attorney in
or
resulted in the conviction
ceeding that
proceeding
relief
acted
proceeding
other
sentence or
authority
amending
pro
se
may
relief
has taken to secure
applicant
action,
petition
during
in that
and that
applica
subsequent
be the basis for a
not
proceedings
fraudulently
those
he had been
tion,
ground
for
unless the court finds
custody
transferred to the
of Nevada au-
which for sufficient reason
relief asserted
thorities
fraudulently
and
returned to the
inadequately
was not asserted or was
custody of Idaho authorities under the In-
original, supplemental, or
raised in the
Agreement
(I.C.
terstate
on Detainers
application.”
amended
seq.)
19-5001 et
The
court
district
dis-
§
all
language
The
is clear:
intent of
petition
missed the
for the issuance of a
request
post-
to a
for
allegations relating
writ of
corpus, presumably
habeas
on the
asserted in one
conviction relief should be
ground that it need not entertain successive
However,
language
of I.C.
petition.
vacate,
aside,
petitions to
set
or correct a
peti-
successive
prohibit
19-4908 does not
§
sentence.
case,
every
relief in
postconviction
tions for
brings
appeal,
the instant
con-
rather,
peti-
prohibits successive
only
but
tending
particular
that under the
facts of
petitioner
where the
tions in those cases
this case the doctrine of waiver does not bar
intelligently”
voluntarily and
“knowingly,
asserting
him from
grounds for relief in his
for which he now seeks
grounds
waived the
petition for issuance of a writ of habeas
relief,
no “sufficient reason” for
or offers
corpus which
prior
were not raised in the
“origi-
grounds
of those
in his
the omission
postconviction
proceeding.
agree.
We
nal,
petition.”
supplemental or amended
Thus,
At the outset it
the trial court
necessary
is observed that
it is
235,
newly
the case of Dionne
asserted
v.
find the failure to include
237,
(1969),
postconvic-
grounds
prior
(c) applicant post- useful, Where an in a affirmatively expressed raises have been proceeding legal conviction a factual or polarities forum. The appropriate in the he and contention which knew of which clearly two of ‘waiver’ are types of these deliberately inexcusably he dissimilar, combinations of but different
(i) produce facts can blends that are not failed to in the raise conviction, waiver-foreclosure-by-judg- leading clearly the judgment to of waiver-voluntary-relinquish- ment or the (ii) having raised the contention in the ment. court, pursue trial to the matter failed appeal,
on between Essential to the difference one, a waiver is that the deny ground types court should relief on the these two of rule, process. application proce- of an abuse of If an is of the finality an attribute other, worthy judgments, otherwise indicates a claim of fur- while the dural law of consideration, rule, application ther the voluntary should is a relinquishment process not be dismissed for abuse of creating underly- corollary of law unless the state has raised the issue in its between these ing right. The distinction applicant op- answer and the has had an visible when a federal constitu- clearly is portunity, with the assistance of of right is considered in the context tional reply. to what post-conviction proceeding: a state waiver-voluntary-relinquish-
(d) special importance constitutes a Because of rights subject of federal constitution- post- question of to vindication in ment is a law; deter- question [postconviction proceeding] scope corpus al a prior judgment question pro- is a he is at this time from state mine whether barred cedural If allegations law. the state court denies raised asserting any or all of the grounds relief on the the applicant that therein.
intelligently
understanding^
waived
again
petition,
In
the instant
right
question,
has
it
rendered
fel
allegations concerning
several
raises
question
decision on a
federal
constitu-
ony impeachment
argument
rule. At oral
hand,
tional
law. On the
other
if
attorney con
new
Palmer’s
state court denies
on the
allegations
already
ceded that
these
have
the applicant
that
should
raised
adjudicated in both Palmer
been raised and
question
proceeding,
at some
it
earlier
II, I and Palmer
therefore have become
question
has rendered a
on
decision
See,
g.,
the law of
case.
e.
Otten
purely of state law.
it
Where
is found
Co.,
(8th
As
report,
used in this
‘waiver’ refers
voluntary relinquishment
to
rather
than
evi
alleges
Palmer also
that
foreclosure by judgment.
omit-
[Citation
support
dence was
to
his convic
insufficient
ted.]
allegation
tion. This
was neither raised in
post-conviction
Even the first
proceed-
petition
se
and
pro
Palmer’s
amendment
ing is an effort
to reopen
judgment,
postconviction
thereto for
relief nor
giving possible occasion
same abu-
subsequent
postcon
amended
by
ses believed
some
repetitive
to occur in
by
court-appointed
viction relief filed
application situations. A defendant at
proceeding.
counsel
that
Palmer asserts
might
his trial
deliberately fail to raise a
why
no excuse or reason
this issue was
defense which he intends later to
as a
use
pursued
appeal
on
from his
direct
convic
claim,
just
post-con-
as a
postconviction proceed
or in the prior
tion
applicant
viction
could intentionally raise
By failing
present
to
in the
ing.
the issue
only one of several claims in his first
excuse,
proceedings,
pe
earlier
without
application. Having raised such
de-
abuse
process
titioner has committed an
fense, the
may
defendant
deliberately de-
that
courts
this state need not toler
pursue
termine not
appellate
review of
States,
ate. See Sanders United
373 U.S.
an
judgment.
adverse
Where deliberate
(1963).
83 S.Ct.
L.Ed.2d 148
piecemeal
efforts to
litigation
cause
are
established, there is
process
an abuse of
Palmer asserts that
the reason he
that courts need not tolerate.
[Citation
concerning
failed to
the issues
raise
process
Abuse of
always
should
omitted.]
alleged perjured testimony and manufac
defense,
pleaded
be
affirmative
and
as well
inef
alleged
tured evidence
state,
proved by the
cautiously
in-
fectiveness of his
counsel
trial and
voked.”
postconviction
direct
the prior
as
With the
is because of the ineffective
foregoing interpretation of I.C.
prior postconviction
19-4908
sistance of his
analysis
of the
counsel.
doctrine of
waiver as it applies
postconviction
allegations
original
were
Specifically,
these
proceedings
mind,
ly presented
we now turn
pro
in Palmer’s
se
allegations
various
contained in Palmer’s
amendment
thereto for
re
postconviction
petition for issuance of
lief,
a writ of habeas
by
but
then
allegedly
were
omitted
court-appointed
Palmer’s
attorney
4901(a)
that a
I.C.
states
§ 19—
the knowledge or consent of Palmer. The
prisoner serving a sentence in this state
allegations of ineffective
prior
assistance of
may
postconviction
seek
six
relief in
situa
true,
if
war
would
is:
tions —when
claimed error
finding
rant a
that the
prior
omission in the
“(1) that
sentence
the conviction or the
postconviction proceeding
allegations
of the
was in
violation of the Constitution
now being
by
raised anew Palmer was not a
United
or laws
States or
Constitution
active,
result of an
knowing choice made by
state;
of this
through
prior
(2)
jurisdic-
was without
court
attorney,
provide
and would therefore
suffi
sentence;
impose
tion to
permitting
cient reason for
newly
as
(3) the sentence exceeds the maxi-
allegations
serted
to be raised in the instant
law;
mum
by
authorized
jurisdictions
petition. Other
have similarly
held that
a claim ineffective assistance of
(4) that there exists evidence of material
appellate
prior postconviction
counsel or
facts,
heard,
not previously presented and
provides
permit
counsel
sufficient reason to
requires
vacation of the conviction or
newly
asserted
to be raised in a
justice;
sentence in the interest of
subsequent postconviction proceeding. See
(5) that
expired,
pro-
his sentence has
State,
(Iowa 1980);
Sims v.
597
on
res
doing
passed.
pass
To
the Court should
the time for
so has
view that
effects,
judicata question, and that
American
attack the detainer’s
Palmer should
That
be utilized.
corpus
Bar
should
have filed a habeas
in this
Standards
Court,
of view did not command
prior
point
state
the time of his transfer. To
acknowledge
it in
did the Court
challenge
charge
nor
validity
pending
Nevada,
against
manner.
him in
he should have filed
for issuance of a writ of habeas
III,
Nevertheless,
up
which came
Kraft
corpus
being placed
upon
Nevada
arrangement,
expedited
calendar
temporary custody
the officials
and Justice Bistline
with Justice McFadden
that state. See
30th
Braden v.
Judicial
including
a unanimous Court
sitting,
not
Court,
484, 93
Circuit
410
S.Ct.
U.S.
petition for
Justice Bakes ruled that Kraft’s
(1973);
George,
L.Ed.2d 443
Nelson v.
res
civil doctrine of
relief was barred
U.S.
90 S.Ct.
this:
“In this case nothing has
been
HEESE,
Conrad W.
presented to this Court even tending to
Claimant-Respondent,
raise a factual issue as to the competence of
trial
For my part,
counsel.
I consider it so
TRUCKING, Employer-Appellant.
A & T
raised,
improvidently
it would be bet-
ter to consider it as
having
not
been raised
No. 13288.
at all.” Id. at
effect of (prematurely inade-
quate record) incompetence of
at the same time recommended “the
adoption procedure of a abating the [for appeal
direct while hearing an evidentiary post-conviction proceedings] had in as
mentioned in 99 Idaho at [Kraft II].”
least in one of those two finally areas comes opinion.
with today’s Unfortunately Kraft
III intervened ahead of today’s pronounce-
ments, and more unfortunately the Court cases,
does deign to mention the Kraft
or explain squares how Kraft III with our
holding In such today. a casual manner the
science jurisprudence is not much ad-
vanced, case, assuming, appears to be the
that Kraft is incompatible III with that
which we proper now declare to be the
approach dealing peti- repetitive with
tions for relief. is, course,
Today’s opinion compatible Bistline, J., II,
with opinion in Kraft
adoption of which at that time would have
been of to the value trial court in Palmer’s precluded
case and might hearing another district court —and possibility Court. Palmer IV in this *8 Blackburn,
4. State v. 579 P.2d