1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43750

ALESHA ANN GREEN , Petitioner

- Appellant ,

v.
STATE OF IDAHO , Respondent
. ) ) ) ) ) ) ) ) ) ) 2016 Opinion No. 48

Filed: July 6, 2016 Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Melissa Moody , District Judge. Judgment summarily dismissing p etition for post

- conviction relief, affirmed

. Sara B. Thomas, State Appellate Public Defender; Ben P. McGreevy , Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer , Deputy Attorney General, Boise, for respondent.

________________________________________________ MELANSON, Chief Judge Alesha Ann Green appeals from the district court ’ s judgment dismissing her petition for post

- conviction relief. For the reasons set forth below, we affirm

. In the underlying criminal case, Green was represented by counsel from th e c ounty p ublic d efender ’ s o ffice. Green was found guilty by a jury of two counts of traf ficking in methamphetamine. T his C ourt affirmed Green ’ s sentence s in an unpublished opinion. State v. Green , Docket No. 42452 ( Ct. App. May 28, 2015). Green filed a petition for post

- conviction relief asserting ineffective assistance of trial counsel, among other claims. Green was appointed post

- conviction counsel from the same o ffice. The orde r appointing counsel stated that , because the petition for post

- conviction relief “ includes an allegation of ineffective assistance of trial2

c ounsel, ” the p ublic d efender “ may choose to a ppoint conflict counsel. ” At a status conference, the following exchange occurred between the district court and Green ’ s post

- conviction counsel:

COURT: And, [post

- conviction counsel], are you appearing on behalf of [Green] ? COUNSEL: I am, Your Honor. COURT : All right. So you have not actually sent that out for conflict counsel? And I assume that ’ s because you were not the trial attorney. COUNSEL : That ’ s what my boss tells me, Your Honor. COURT : All right. Green, through post

- conviction counse l, filed an amended petition for post

- conviction relief. Green asserted that trial counsel failed to call several witnesses o n her behalf, did not appear for the sentencing hearing, failed to research and present exculpatory evidence, did not properly int errogate witnesses, and failed to fully explain a plea offer from the state. After providing notice of its intent to dismiss the petition , to which Green did not reply, the district court dismissed Green ’ s petition. Green appeals. Green alleges that the district court erred when it failed to adequately address the potential conflict of interest resulting from Green being represented by counsel from the c ounty
p ublic d efender ’ s o ffice when making a post

- conviction claim of ineffectiv e assistance of trial counsel regarding another attorney from the same o ffice. If a post

- conviction petitioner is unable to pay for the expenses of representation, the trial court may appoint counsel to represent the petitioner in preparing the petition i n the trial court and on appeal. I.C. § 19

- 4904. The decision to grant or deny a request for court

- appointed counsel lies within the discretion of the district
court. Charboneau v. State , 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). In determining

w hether to appoint counsel pursuant to Section 19

- 4904, the district court should determine if the petitioner is able to afford counsel and whether the situation is one in which counsel should be appointed to assist the petitioner. Charboneau d , 140 Idaho a t 793, 102 P.3d at 1112. If a petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint counsel in order to give the petitioner an opportunity to work with counsel and properly allege the necessary supporting facts. Id

. In this case, the district court exercised its discretion to appoint Green post

- conviction counsel. However, Green alleges the counsel who was assigned had a conflict of interest. The threshold issue here is whether Green had a right to conflict

- free post

- conviction counsel

. Green3

cites to several cases holding that a criminal defendant has a Sixth Amendment right to conflict

- free counsel. Green acknowledges that the Sixth Amendment right to counsel does not appl y in a post

- conviction case. See Pennsylvania v. Finley , 481 U.S. 551, 555 (1987). However, Green argues that , “ by analogy to the constitutional standard, and to preserve [Green ’ s] opportunity to work with post

- conviction counsel, ” a district court “ should inquire into potential conflicts of interest in post

- conviction matters. ” This Court is not persuaded by Green ’ s analogy to the Sixth Amendment and related case law given the United States Supreme Court ’ s explicit holding that the Sixth Amendment righ t to counsel does not apply in post

- conviction case s

. A petitioner is entitled to conflict

- free and effective counsel only when he or she ha s a constitutional or statutory right to counsel. See Hall v. State , 155 Idaho 610, 616, 315 P.3d 798, 804 (2013). A petitioner is not entitled to conflict

- free or effective counsel when the trial court has discretio n to appoint counsel, as in

non capital post

- conviction proceedings. See Murphy v. State , 156 Idaho 389, 394

- 95, 327 P.3d 365, 370

- 70 (2014). Green had no constitutional or statutory right to counsel in her post

- conviction proceedings

. Accordingly, Green was not entitled to conflict

- free post

- conviction counsel. Thus, the district court ’ s judgment dismissing Green ’ s petition for post

- conviction relief i s affirmed. No costs or attorney fees are awarded on appeal. Judge GUTIERREZ and Judge HUSKEY, CONCUR

.