EXPLANATION:

When I clerked for Justice Horton of the Idaho Supreme Court in 2009, I was tasked with composing a prehearing memorandum for a case then before the court. I independently researched and composed this thirty-page document and turned it in on time. Justice Horton initially thought the case would turn on whether a particular rule of law was new; my analysis suggested the case should instead turn on the sufficiency of the brief. Though surprising, the court ultimately adopted my recommended ruling and reasoning. I include excerpts below; contact me for the full version. bradleycarmack@gmail.com

MY MEMORANDUM:
Vavold does not cite any constitutional provision, statute, or decision to support the assertion that filing his petition within one year of a decision announcing a new rule of law overcomes, tolls, or delays the onset of this clearly stated limitations period (page 5).

PUBLISHED IDAHO SUPREME COURT OPINION:

Vavold does not make any argument, nor does he cite any constitutional provision, statute, or decision to support his implied premise that a decision announcing a new rule of law overcomes, tolls, or otherwise delays the onset of the clearly stated limitation period in I.C. 19-4902(a). Vavold v. State, 218 P.3d 388, 390 (2009).

MY MEMORANDUM:
For example, in Hall, this Court decided that even though Walston, an authority, had been cited to support an appellants conclusion, the issue was deemed waived because Issues on appeal ... that are not supported by propositions of law or authority are deemed waived and will not be considered by the Supreme Court. Hall at 323, 179 P.3d at 286. See Walston v. Monumental Life Ins. Co., 129 Idaho 211, 923 P.2d 456 (1996). See also State v. Grazian 144 Idaho 510, 518, 164 P.3d 790, 798 (2007) (failure to cite authority resulted in lack of preservation of the issue for appeal). The court reasoned that the appellant failed to support with authority a necessary bridge between the proposition supported by Walston and the appellants conclusion. Id. Vavold concludes that Estrada should be retroactively applied to him, citing various authorities supporting the proposition that Estrada should be retroactively applied. See generally, Appellants Brief. However, Vavold does not support with authority the necessary bridge that a retroactively applicable new rule of law overcomes a timeliness challenge (page 6).

PUBLISHED IDAHO SUPREME COURT OPINION:

It is true that Vavold cites various authorities in support of his assertion that the rule announced in Estrada is entitled to retroactive application; however, he does not argue or support with authority the necessary link between the limitation established by I.C. 19-4902(a) and the announcement of a new rule of law. He thus waives the issue. Hall v. Farmers Alliance Mut. Ins. Co., 145 Idaho 313, 323, 179 P.3d 276, 286 (2008) (holding that although appellants cited to a case involving potential criminal and
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civil penalties for fraud, they did not show how the holding supported their argument regarding punitive damages and thereby waived the issue). Vavold at 290.

Excerpt from my prehearing memorandum: VI. CLERKS DISCUSSION Vavold asks this court to retroactively apply the rule articulated in Estrada to him. First, we analyze whether Vavold adequately argues the issue of timeliness. Second, we discuss the timeliness of Vavolds petition. Assuming that the first and second questions are resolved in Vavolds favor, we third examine whether Estradas holding should be retroactively applied. Assuming that Estradas holding should be retroactively applied, we then, fourth, determine whether Vavold is an appropriate candidate for that retroactive application. This Court should conclude that (1) Vavold did not adequately argue the issue of timeliness, (2) Vavolds petition is untimely, (3) Estrada does not merit retroactive application, and (4) Vavold is not an appropriate candidate for retroactive application. Thus, we will conclude that this Court should affirm the district courts summary dismissal.

A. Vavold does not adequately argue timeliness in his appellate brief A petition for post conviction relief may be filed at any time within one year from the expiration of the time for appeal or from the determination of an appeal or from the determination of a proceeding following an appeal, whichever is later. I.C. 19-4902(a). See Schwartz v. State 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 2008). The appeal referenced means the appeal in the underlying criminal case. Schwartz at 189, 177 P.3d at 403. A proceeding following an appeal is any proceeding that is both an extension of the underlying criminal action and a part of the continuous stream of events that lead to the finality of the conviction judgment. Hauschulz v. State, 144 Idaho 834, 837 172 P.3d 1109, 1113 (2007). Vavolds filed his November 26, 2007 petition approximately seven years after the court of appeals affirmed his conviction and sentence on October 27, 2000. R. Vol. 1 at 39; Opinion and Order at 5; [Att. B]. Vavold filed no post appeal proceedings. Id. Vavold does not cite any constitutional provision, statute, or decision to support the assertion that filing his petition within one year of a decision announcing a new rule of law overcomes, tolls, or delays the onset of this clearly stated limitations period. See generally, Appellants Brief, Vavold v. Idaho, No. 35339 (Dec. 8, 2008). In
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Idaho, the requirements for an appellants brief include the requirement that the argument section contain the contentions of the appellant with respect to the issues presented on appeal, the reasons therefor, with citations to the authorities, statutes and parts of the transcript and record relied upon. I.A.R. 35(6). Vavolds discussion on timeliness in the argument section of his appellate brief is limited to the unsupported statement, The potential field of candidates for relief is further narrowed to those who filed a timely application, that is, one filed within one year of the Estrada decision. Appellants Brief, 19. This Court has consistently followed the rule that it will not review the actions of a trial court, unless the action has been listed as an issue on appeal, especially where no authorities are cited and no argument is contained in the appellate briefs. Andersen v. Profl Escrow Services, Inc., 141 Idaho 743, 746, 118 P.3d 75, 78 (2005) (quoting Sun Valley Shopping Center, Inc. v. Idaho Power Co., 119 Idaho 87, 93, 803 P.2d 993, 999 (1991)). See also Hall v. Farmers Alliance Mut. Ins. Co. 145 Idaho 313, 323, 179 P.3d 276, 286 (2008) (quoting Student Loan Fund of Idaho, Inc. v. DesFosses, 138 Idaho 855, 859, 71 P.3d 454, 458 (2003)). For example, in Hall, this Court decided that even though Walston, an authority, had been cited to support an appellants conclusion, the issue was deemed waived because Issues on appeal ... that are not supported by propositions of law or authority are deemed waived and will not be considered by the Supreme Court. Hall at 323, 179 P.3d at 286. See Walston v.

Monumental Life Ins. Co., 129 Idaho 211, 923 P.2d 456 (1996). See also State v. Grazian 144 Idaho 510, 518, 164 P.3d 790, 798 (2007) (failure to cite authority resulted in lack of preservation of the issue for appeal). The court reasoned that the appellant failed to support with authority a necessary bridge between the proposition supported by Walston and the appellants conclusion. Id. Vavold concludes that Estrada should be retroactively applied to him, citing various authorities supporting the proposition that Estrada should be retroactively applied. See generally, Appellants Brief. However, Vavold does not support with authority the necessary bridge that a retroactively applicable new rule of law overcomes a timeliness challenge. Id. Surprisingly, Vavolds appellants brief does not even allege that the action of the trial court dismissing his petition was in error. Id. Therefore, this court should affirm the district courts summary dismissal of the petition as time-barred. Nonetheless, we will examine timeliness as though Vavold argued the issue in his appellate brief. B. Vavolds petition is untimely The proper use of the UPCPA is to avoid repetitious and successive applications, while protecting the applicants constitutional rights. Peltier v. State 119 Idaho 454, 456, 808 P.2d 373, 375
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(1991). The interpretation of a statute must begin with the literal words of the statute; those words must be given their plain, usual, and ordinary meaning; and the statute must be construed as a whole. State v. Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003). The decision in Estrada does not constitute any of the three statutory triggers in I.C. 19-4902: (1) an expiration of the time for appeal, (2) a determination of an appeal, or (3) the determination of a proceeding following an appeal. I.C. 194902. Vavold concedes that his petition is untimely under I.C. 19-4902 but argues that it is timely because it is filed within one year of Estrada1 announcing a new rule of law, the earliest trigger date for the one year filing requirement. Arguably, Mr. Vavold would have until the denial of the petition for writ of certiorari in which to file his Petition. R. Vol. 1 at 23; Mem. in Resp. to the States Mot. for Summ. Dismissal at 3 [Att. A]. The court of appeals and this Court have been reluctant to acknowledge exceptions to the one year filing requirement of I.C. 19-4902. See Evensiosky v. State, 136 Idaho 189, 191, 30 P.3d 967, 969 (2001) (there is no discovery exception in I.C. 19-4902); Cochran v. State, 133 Idaho 205, 208, 984 P.2d 128, 131 (Ct. App. 1999) (custody status does not delay the statute from beginning to run); Hernandez v. State, 133 Idaho 794, 798, 992 P.2d 789, 792 (Ct. App. 1999) (filing a separate application under I.C. 19-4902 does not renew the time limit); Martinez v. State, 130 Idaho 530, 537, 944 P.2d 127, 134 (Ct. App. 1997) (deprivation of access to Idaho courts may temporarily toll); Chapman v. State, 128 Idaho 733, 734, 918 P.2d 602, 603 (Ct. App. 1996) (reduction of statute of limitations did not entitle plaintiff to an extension); Freeman v. State, 122 Idaho 627, 629, 836 P. 2d 1088, 1090 (Ct. App. 1992) (time limit not renewed or extended by any other collateral post-judgment proceeding). Vavold could assert a discovery exception to the one year limitation. Though Vavold is not asserting a discovery of evidence, he is implicitly asserting a discovery, albeit of law. Vavold could contend that a discovery exception to I.C. 19-4902s statute of limitation does exist, based on the statement that a particular cases facts did not warrant its application: There is no discovery exception in I.C. 19-4902, and the facts of this case do not warrant application of a discovery exception. I .C. 19-4902 expressly limits a party's time to bring a claim for post-conviction review to one year. Evensiosky at 191, 30 P.3d at 969 (emphasis added).

Though the one year statute of limitation on federal habeas motions includes a trigger of the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review, this trigger has no analog in Idaho law. 28 U.S.C.A. 2255(f)(3). PREHEARING MEMORANDUM Vavold v. State Page 4 OF 5

Vavold could also contend, as another I .C. 19-4902 applicant did, that this court should apply a discovery exception to the statute of limitation sua sponte. Person v. State --- P.3d ----, 2009 WL 918519 at 2. Person claimed that the trial courts summary dismissal of his petition as time-barred was fundamental error, referencing Gonzalez v. State, 120 Idaho 759, 762, 819 P.2d 1159, 1162 (Ct. App. 1991). Person at 2. Person claimed that inaccurate advice by his appellate attorney should toll the limitation to the effect that the one year started when he could have reasonably discovered the claim. Id. The court of appeals declined to apply a fundamental analysis to the trial courts decision and affirmed the district courts dismissal. Id. There is, however, a previously recognized discovery exception to the timeliness of a closely related I.C. 19-4908 application (which, without articulating a time limit, provides for a subsequent petition). [T]he district court reasoned that the same reasonable time standard for capital cases under I.C. 19-2719 should apply to claims of newly discovered evidence in non-capital cases under I.C. 19-4908. While I.C. 19-4908 does not mention whether successive petitions must be filed within the one year time limitation, the statute clearly contemplates there may be circumstances under which a successive petition may be filed if the trial court finds a claim for sufficient reason was not asserted or was inadequately raised in the original petition. Moreover, as acknowledged by the State, there may be claims which simply are not known to the defendant within the time limit, yet raise important due process issues we agree with the district court that there should be a reasonable time within which such claims are asserted in a successive post-conviction petition, once those claims are known. . In determining what a reasonable time is for filing a successive petition, we will simply consider it on a case-by-case basis, as has been done in capital cases. Charboneau v. State 144 Idaho 900, 904-5, 174 P.3d 870, 874-75 (2007) (emphasis added). Charboneauss filing thirteen months after his awareness of undisclosed evidence is too long to be reasonable, and the court saw no reason to apply a different standard in a non-capital case than measuring timeliness from the date of notice. Id. at 905, 174 P.3d at 875. Vavold could argue that the principles which apply to evaluating the timeliness of the closely related subsequent petition under I.C. 19-4908 should also apply to his petition because...

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