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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41235

LEE EDD GREEN, JR.,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2014 Opinion No. 55

Filed: July 18, 2014

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Third Judicial District, State of Idaho, 

Owyhee County. Hon. Molly J. Huskey, District Judge. 

Judgment summarily dismissing action for post-conviction relief, affirmed.

Richard L. Harris, Caldwell, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy 

Attorney General, Boise, for respondent. 

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LANSING, Judge

Lee Edd Green, Jr. appeals from the judgment dismissing his petition for post-conviction 

relief on the ground that it was barred by the statute of limitations. We affirm.

I.

BACKGROUND

In 2011, Green was represented by appointed counsel in a criminal case. Pursuant to a 

negotiated plea agreement, Green pleaded guilty to two counts of lewd conduct with a minor 

child under sixteen, Idaho Code § 18-1508, and one count of felony injury to a child, I.C. § 18-

1501(1). The plea agreement provided for the dismissal of additional charges and required that 

the district court retain jurisdiction, but left the underlying sentence open to argument. The 

agreement further provided that Green waived his right to appeal, his right to file an Idaho 

Criminal Rule 35 motion for reduction of sentence, and his right to file an action for postconviction relief. The district court imposed concurrent unified sentences of twenty years with 
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ten years fixed for the lewd conduct convictions, and a consecutive unified sentence of ten years 

with five years fixed for felony injury to a child. In accord with the agreement, the district court 

also retained jurisdiction for 180 days. The judgment of conviction was filed on December 20, 

2011.

On June 15, 2012, at the conclusion of Green’s rider,1 the district court relinquished 

jurisdiction and executed the sentences. Shortly thereafter, Green filed an Idaho Criminal 

Rule 35 motion for reduction of the sentences and an appeal from the order relinquishing 

jurisdiction. The district court denied the Rule 35 motion on the ground that, through the plea 

agreement, Green had waived his right to file the motion. Green’s appeal was also dismissed on 

the State’s motion, presumably also on the basis of the waiver in the plea agreement. 

On March 6, 2013, one year and seventy days after entry of the judgment of conviction, 

Green filed this post-conviction action asserting a number of claims of ineffective assistance of 

defense counsel. The State filed a motion for summary dismissal on the basis of the plea 

agreement’s waiver of Green’s right to file a post-conviction petition and, in the alternative, on 

the basis that the action was barred by the statute of limitations. The district court declined to 

dismiss the action on the ground of waiver,

2 but granted the State’s motion to dismiss the 

petition as time-barred. Green filed a motion for reconsideration of the dismissal, which the 

district court denied, and Green now appeals. 

II.

ANALYSIS

A summary dismissal of a post-conviction action will be upheld on appeal if the facts

alleged by the petitioner, even if true, would not entitle petitioner to relief. See I.C. § 19-4906; 

Matthews v. State, 122 Idaho 801, 807, 839 P.2d 1215, 1221 (1992); Wilson v. State, 133 Idaho 

874, 877-78, 993 P.2d 1205, 1208-09 (Ct. App. 2000). Legal conclusions of the district court are 

reviewed de novo. Owen v. State, 130 Idaho 715, 716, 947 P.2d 388, 389 (1997); Wilson, 133 

 

1 “Rider” is a term for the retained jurisdiction program.

2 Green’s brief on appeal includes an argument, supported by authority from other 

jurisdictions, that it is impermissible for a criminal defense attorney to advise a client to waive 

the right to pursue post-conviction relief for ineffective assistance of counsel due to the conflict 

of interest that is inherent in such advice. Green argues that such waivers are void. Because we 

conclude that Green’s post-conviction action was barred on other grounds, we do not reach this 

issue.
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Idaho at 878, 993 P.2d at 1209. Whether this post-conviction action is barred by the statute of 

limitations is an issue of law and is therefore subject to our free review.

The limitations period for filing a petition for post-conviction relief in noncapital cases is

“one (1) 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. 

The “appeal” referenced in that section means an appeal in the underlying criminal case. 

Gonzalez v. State, 139 Idaho 384, 385, 79 P.3d 743, 744 (Ct. App. 2003); Hanks v. State, 121 

Idaho 153, 154, 823 P.2d 187, 188 (Ct. App. 1992). With respect to post-conviction claims 

arising from prejudgment proceedings in the criminal case, the limitations period generally 

begins to run from the expiration of the time for appeal from the judgment of conviction. If the 

post-conviction claims arise from matters that occurred after judgment in the criminal case and

that led to a post-judgment order from which the petitioner seeks relief, then the limitations 

period commences upon the expiration of the time for appeal from the post-judgment order. 

Illustrative of these principles is Lake v. State, 124 Idaho 259, 858 P.2d 798 (Ct. App. 1993), 

where a petition for post-conviction relief asserted both claims relating to a 1984 judgment of 

conviction and a claim of ineffective assistance of counsel during 1986 probation revocation 

proceedings. We held that the petitioner’s claim which related to the probation revocation 

proceeding was timely, but that the claims relating to the 1984 convictions were barred by the 

statute of limitations. Id. at 260, 858 P.2d at 799. Similarly, in Fox v. State, 129 Idaho 881, 884,

934 P.2d 947, 950 (Ct. App. 1997), we held that a post-conviction petition was timely with 

respect to a claim of ineffective assistance of counsel in handling a post-judgment motion for 

reduction of sentence, but was untimely with respect to claims related to the judgment of 

conviction itself. And, in Gonzalez, 139 Idaho at 386-87, 79 P.3d at 745-46, the post-conviction

petition would have been timely for claims related to probation revocation proceedings, but the 

petition included no claim concerning the order revoking probation. Instead, all of the claims for 

post-conviction relief referred to proceedings leading to the judgment of conviction and 

sentence. For those claims, we held that the limitation period for a post-conviction action had 

expired years before the action was filed. These cases stand for the proposition that where there 

has been a motion or proceeding after judgment in a criminal action, the entry of an order on that 

matter does not usually affect the running of the statute of limitations for a post-conviction relief 

claim that arose from events which preceded the judgment of conviction.
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Thus, a determination of the timeliness of a post-conviction petition must begin with the 

allegations in the petition itself which identify the underlying criminal proceeding, order, or 

judgment that the petitioner seeks to set aside. Here, Green’s petition asserted a number of 

claims of ineffective assistance of defense counsel, including claims that his defense attorney did 

an inadequate investigation; refused to offer defenses even though Green provided names of 

witnesses who could support the defenses; urged Green to plead guilty rather than pursuing 

defenses; improperly permitted Green to enter into a plea agreement that waived Green’s rights

to appeal, to file a Rule 35 motion, or to file an action for post-conviction relief; and falsely 

assured Green that the plea agreement required that he be placed on probation if he successfully 

completed the retained jurisdiction program. Because all of these claims involve allegations of 

prejudgment errors and omissions of defense counsel, the one-year limitation period for Green’s 

post-conviction action began to run from the expiration of the time to appeal from the judgment 

of conviction. 

The time for filing appeals in criminal cases is governed by Idaho Appellate Rule 14(a)

which states:

Any appeal as a matter of right from the district court may be made only 

by physically filing a notice of appeal with the clerk of the district court within 42 

days from the date evidenced by the filing stamp of the clerk of the court on any 

judgment or order of the district court appealable as a matter of right in any civil 

or criminal action. . . . The time for an appeal from any criminal judgment, order 

or sentence in an action is terminated by the filing of a motion within fourteen 

(14) days of the entry of the judgment which, if granted, could affect the 

judgment, order or sentence in the action, in which case the appeal period for the 

judgment and sentence commences to run upon the date of the clerk’s filing stamp 

on the order deciding such motion. If, at the time of judgment, the district court 

retains jurisdiction pursuant to Idaho Code § 19-2601(4), the length of time to file 

an appeal from the sentence contained in the criminal judgment shall be enlarged 

by the length of time between entry of the judgment of conviction and entry of the 

order relinquishing jurisdiction or placing the defendant on probation; provided, 

however, that all other appeals challenging the judgment must be brought within 

42 days of that judgment.

Here, the judgment of conviction was filed on December 20, 2011. Therefore, the time to file an 

appeal challenging the judgment or any act that preceded the judgment expired forty-two days 

later, on January 31, 2012. It follows that the one-year statute of limitations for Green to file a 
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post-conviction petition under I.C. § 19-4902 expired on January 31, 2013,3 and Green’s petition 

filed on March 6, 2013, was untimely. 

Green asserts that the final sentence of the above-quoted portion of Rule 14(a) operated 

to make his petition timely, but he misreads the rule. The sentence provides that if the district 

court retains jurisdiction, the time for an appeal from the sentence only is enlarged by the time 

between entry of the judgment of conviction and entry of an order relinquishing jurisdiction or 

placing the defendant on probation. The rule expressly states that all other appeals challenging 

the judgment must be brought within forty-two days of that judgment.4 Therefore, except for 

appeals challenging the defendant’s sentence, a period of retained jurisdiction does not extend 

the forty-two-day time limit for an appeal from the judgment of conviction. Because none of 

Green’s post-conviction claims assert ineffective assistance of counsel or other flaws in the 

sentencing proceedings, the statute of limitations for his post-conviction claims was not extended 

by the period of retained jurisdiction. 

It must be acknowledged that one of Green’s post-conviction claims relates indirectly to 

the sentences, but the claimed deficiency of his defense attorney occurred at or before the guilty 

plea hearing. Green alleges that his defense attorney was deficient for failing to require language 

in the plea agreement obligating the court to place Green on probation if probation was 

recommended by the Idaho Department of Correction’s jurisdictional review committee. He also 

alleges that defense counsel falsely assured Green that under terms of the plea agreement he 

would receive probation in such event. While these allegations are related to Green’s sentences, 

 

3 The State argues that because Green’s plea agreement included a waiver of his right to 

appeal, the limitations period for his post-conviction action commenced on December 20, 2011, 

the date of the judgment of conviction, rather than forty-two days later. This contention is 

without merit. Idaho Code § 19-4902 specifies that where no appeal from the judgment of 

conviction has been taken, the limitations period for a post-conviction action begins upon 

“expiration of the time for appeal.” It is not conditioned upon there being a meritorious basis for 

an appeal.

4 This provision of I.A.R. 14(a) formerly stated: “In a criminal case, the time to file an 

appeal is enlarged by the length of time the district court actually retains jurisdiction pursuant to 

Idaho Code. When the court releases its retained jurisdiction or places the defendant on 

probation, the time within which to appeal shall commence to run.” By amendment effective 

July 1, 2011, the rule was changed to its current form. Cases that Green relies upon for the 

proposition that the time for appeal from a judgment is enlarged by the period of retained 

jurisdiction are based upon the former version of I.A.R. 14(a).
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they allege deficiencies by counsel in the course of the plea negotiations. They are in substance 

a challenge to the validity of Green’s guilty plea, and hence to the judgment of conviction. If 

Green were entitled to relief on these claims, the relief would be vacating the guilty plea and the 

judgment that was predicated upon that plea. None of Green’s claims of ineffective assistance 

relate to counsel’s conduct at the sentencing hearing or in any proceedings concerning 

relinquishment of jurisdiction at the conclusion of his rider. For these reasons, the statute of 

limitations for these claims was not extended by the final sentence of Rule 14(a). 

Green also asserts that his Idaho Criminal Rule 35 motion for reduction of sentence filed 

on June 26, 2012, extended the period for appeal from his judgment of conviction by terms of the 

second sentence of the above-quoted portion of Rule 14(a), and that the limitations period for his 

post-conviction action was thereby extended. Again, he is incorrect. Although the Rule 35 

motion was filed within fourteen days of the June 15, 2012, order relinquishing jurisdiction, it 

was not filed within fourteen days of the judgment, as required by the rule. Consequently, the 

motion had no effect on the time for an appeal from the judgment of conviction and no effect on 

the commencement of the statute of limitations for a post-conviction petition. Fox, 129 Idaho at 

884, 934 P.2d at 950.

Finally, Green appears to argue that his June 27, 2012, appeal from the June 15, 2012, 

order relinquishing jurisdiction operated to delay commencement of the one-year limitations 

period until that appeal was dismissed because I.C. § 19-4902 provides, in part, that the 

limitations period does not begin until “the determination of an appeal.” We disagree. If Green 

was at that point attempting to appeal from the judgment of conviction, the appeal would have 

been untimely under I.A.R. 14(a). An untimely notice of appeal in a criminal case does not 

produce a valid appeal for an appellate court to “determine” and therefore cannot postpone or 

restart the post-conviction statute of limitations under I.C. § 49-4902(a). Schultz v. State, 151 

Idaho 383, 385, 256 P.3d 791, 793 (Ct. App. 2011); Amboh v. State, 149 Idaho 650, 652-53, 239 

P.3d 448, 450-51 (Ct. App. 2010); Loman v. State, 138 Idaho 1, 2, 56 P.3d 158, 159 (Ct. App.

2002). 

Even without the extension of the limitations period for which Green has argued in this 

appeal, more than half a year remained for Green to file this post-conviction action after the 

court relinquished jurisdiction in his criminal case. He did not file this action, however, until 
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twenty-eight days after the limitations period expired. Therefore, his post-conviction action was 

properly dismissed by the district court.

The district court’s judgment dismissing Green’s untimely post-conviction petition is 

affirmed.

Chief Judge GUTIERREZ and Judge MELANSON CONCUR.