A motion to dismiss an inmate’s third petition for post-conviction relief is before the Court. George J. Porter appealed pro se the district court’s order granting the State of Idaho’s motion for summary dismissal of his third petition for post-conviction relief and the State has now filed a motion to dismiss that appeal based upon Idaho Code § 19- *421 2719. Because the post-conviction claims raised by Porter were known or reasonably should have been known at the time he filed his first petition for post-conviction relief, he is barred from raising those claims in this third petition for post-conviction relief. Thus, pursuant to I.C. § 19-2719(11), we grant the State’s motion to dismiss this appeal.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In 1990, George J. Porter was convicted of first-degree murder and sentenced to death. He filed a petition for post-conviction relief and this Court affirmed his conviction, sentence, and denial of post-conviction relief in
State v. Porter,
Prior to this Court’s ruling in Porter II, Porter filed a third petition for post-conviction relief on June 11, 2001. Porter’s petition is based on two ineffective assistance of counsel claims and a contention that the State withheld exculpatory evidence. The State moved to dismiss, arguing again that the petition did not meet the criteria of I.C. § 19-2719, and the district court granted the State’s motion to dismiss. Porter filed this appeal pro se and the State has filed a motion to dismiss the appeal pursuant to I.C. § 19-2719, contending this Court is without jurisdiction to hear’ the appeal.
II.
STANDARD OF REVIEW
The procedure for post-conviction review in capital cases is contained in I.C. § 19-2719.
Porter,
III.
DISCUSSION
A. Porter’s claims: ineffective assistance of counsel and prosecutorial misconduct.
Porter raises two ineffective assistance of counsel claims in the current petition. First, Porter contends his trial counsel was ineffective when he failed to challenge State’s exhibit 69, a cutting from a black guitar case which contained blood type A, by filing a motion for funds to hire a criminalist to review Alan Spanbauer’s and Ann Bradley’s blood analysis. Porter argues that because his post-conviction counsel was granted limited resources, it was not until 2000, when funds were made available to him to obtain a criminalist to do a full review as part of his federal habeas petition, that he discovered trial counsel’s ineffectiveness. Second, Porter claims his trial counsel failed to follow his instructions to “investigate, develop, submit and argue potentially material exculpatory evidence based upon Spanbauer’s erroneous misleading blood type A finding, including Bradley’s erroneous misleading genetic characteristic marker testing conclusions.”
*422 Porter also contends the State withheld exculpatory evidence, including “[ejvidence of notes made on worksheets” and “[ejvidence that Ann R. Bradley could not have reached her conclusions ... based upon her reliance upon Spanbauer’s conclusions.” Porter argues that he could not have known of this evidence until sufficient funds and resources were available to him.
The State argues that each of the bases for Porter’s third petition was known or reasonably should have been known at the time Porter filed his first post-conviction petition. Regarding the first claim of ineffective assistance of counsel, the State counters that all of Porter’s requests for funds to assess the effectiveness of trial counsel’s preparation and cross-examination of the State’s expert witnesses on blood, hair, footprints, etc., were granted in his first post-conviction proceeding. With respect to the second ineffective assistance of counsel claim, the State argues that Porter knew at the time of the first post-conviction proceeding whether trial counsel followed his directions or not. The State also argues that this same argument was made in the first petition, and was therefore known. And in response to Porter’s prosecutorial misconduct claim, the State asserts that the notes Porter claims were withheld from him were actually attached to a report addressed to his post-conviction counsel on February 10,1995. Thus, according to the State, Porter had possession of the notes by the time of his first post-conviction proceeding. The district court agreed with the State and dismissed Porter’s third post-conviction petition for failure to comply with the mandates of I.C. § 19-2719.
B. Porter’s successive petition is barred by I.C. § 19-2719.
Idaho Code § 19-2719 provides a capital defendant one opportunity to raise all challenges to a conviction and sentence in a petition for post-conviction relief unless it can be demonstrated that claims raised in a successive petition were not known and reasonably should not have been known within forty-two days of the entry of the judgment of conviction. I.C. § 19-2719(5); see
Pizzuto v. State,
1. Ineffective Assistance of Counsel Claims
Porter’s two ineffective assistance of counsel claims do not fall within the exception of I.C. § 19-2719(5). The district court noted that Porter has previously challenged at trial, on appeal, and on previous post-conviction proceedings how the blood sample oh the black guitar ease (State’s exhibits 69 and 2) was obtained and tested. In addition, the district court noted that Porter has already raised the issue of disparate resources in the federal habeas petition and first successive post-conviction petition.- Moreover, all of Porter’s requests for funds to assess the effectiveness of trial counsel’s preparation and cross-examination of the State’s expert witnesses were granted in his first post-conviction proceeding. As for the second ineffective assistance of counsel claim, Porter should have known at the time of the first post-conviction proceeding whether trial counsel followed his directions or not. 2 And *423 as the State points out, this same argument was made in the first petition, and was therefore known.
Clearly, the basis for Porter’s present claims were known or should have been known to him in the earlier proceedings.
See Pizzuto,
2. Prosecutorial Misconduct Claim
Porter’s prosecutorial misconduct claim also fails to satisfy the exception of I.C. § 19-2719(5). The notes that were allegedly withheld from Porter were in fact attached to the report of a defense expert and played a role in the 1995 post-conviction evidentiary hearing. Therefore, the notes were known or reasonably should have been known by Porter at the time of the earlier post-conviction proceedings, and the district court correctly dismissed the petition pursuant to I.C. § 19-2719(11).
IV.
CONCLUSION
Because the ineffective assistance of counsel and prosecutorial misconduct claims raised by Porter were known or reasonably should have been known at the time he filed his first petition for post-conviction relief, he is barred from raising those claims in this third petition for post-conviction relief. Accordingly, pursuant to I.C. § 19-2719(11), we hold that Porter has waived his claims pursuant to the statute, and grant the State’s motion to dismiss Porter’s appeal.
Notes
. Porter also challenges the constitutionality of I.C. § 19-2719 for the first time on appeal. This challenge is baseless, as we have repeatedly upheld the constitutionality of I.C. § 19-2719.
See, e.g., Creech v. State,
. Porter’s counsel during his first post-conviction proceedings was different from trial counsel. This satisfied the requirement that Porter be afforded the ability to consult with different counsel on appeal in order to obtain an objective assessment of trial counsel’s performance. See I.C. § 19-2719A and Idaho Criminal Rule 44.2 (providing such requirement).