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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket Nos. 40454/40455

JAMES ALAN GERDON,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2014 Unpublished Opinion No. 466

Filed: April 21, 2014

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin 

Falls County. Hon. G. Richard Bevan, District Judge. 

Judgments dismissing actions for post-conviction relief, affirmed.

Stephen D. Thompson, Ketchum, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

LANSING, Judge

James Alan Gerdon was convicted of nine sex offenses. Since his conviction, Gerdon has 

filed numerous challenges to his conviction including at least two petitions for post-conviction 

relief. The post-conviction cases at issue in this appeal were summarily dismissed, and Gerdon 

appealed those summary dismissals. Thereafter, both appeals were dismissed, one on timeliness 

grounds and the other at Gerdon’s request. After his appeals were dismissed, Gerdon filed postjudgment motions in both post-conviction actions, seeking various forms of relief from the 

judgments. Those motions were denied by the district court. Gerdon appeals the denial of those 

motions. 

I.

BACKGROUND

In the underlying criminal matter, Gerdon was convicted of nine sex offenses targeting 

children:
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In 2004, Gerdon pled guilty to four counts of sexual abuse of a minor 

under the age of sixteen, I.C. § 18-1506(1); three counts of lewd and lascivious 

conduct with a minor under the age of sixteen, I.C. § 18-1508; and two counts of 

attempted lewd and lascivious conduct with a minor under the age of sixteen, I.C. 

§§ 18-1508, 18-306. The district court sentenced Gerdon to concurrent, 

determinate terms of fifteen years for four counts of sexual abuse of a minor 

under the age of sixteen; concurrent, unified terms of thirty years, with minimum 

periods of confinement of fifteen years, for three counts of lewd and lascivious 

conduct with a minor under the age of sixteen; and concurrent determinate terms 

of fifteen years for two counts of attempted lewd and lascivious conduct with a 

minor under the age of sixteen.

State v. Gerdon, Docket No. 39396 (Ct. App. Aug. 10, 2012) (unpublished). 

Gerdon has filed numerous post-conviction actions and appeals, most of which are not 

relevant to the issues at bar.1

 Instead, this decision addresses two consolidated appeals. The first 

appeal challenges a decision rendered in Twin Falls County Case No. 2004-5173, Gerdon’s 

original post-conviction action (“the 2004 case”). The second appeal challenges a decision 

rendered in Twin Falls County Case No. CV-2008-1712, one of Gerdon’s successive petitions

(“the 2008 case”). We set forth the procedural histories of these two cases separately, although 

there is considerable temporal overlap. 

A. Procedural History Relating to the 2004 Case

The parties have not included the entire district court record in the 2004 case.2

 We infer 

from documents included in the record and from our opinions in previous appeals, that the 2004 

case was Gerdon’s original post-conviction action. The case was summarily dismissed by the 

district court on June 29, 2006. Over a year later, on September 10, 2007, Gerdon filed notice of 

 

1 Indeed, this Court had issued written opinions in four prior, unpublished cases. See State 

v. Gerdon, Docket No. 30624 (Ct. App. May 19, 2005) (direct appeal of Gerdon’s sentence); 

State v. Gerdon, Docket No. 39396 (Ct. App. Aug. 10, 2012) (appeal concerning Gerdon’s pro se 

motion to overturn the verdict and withdraw his guilty plea); Gerdon v. State, Docket No. 39300 

(Ct. App. Mar. 1, 2013) (appeal concerning the summary dismissal of one of Gerdon’s 

successive post-conviction actions); Gerdon v. State, Docket No. 40420 (Ct. App. Feb. 4, 2014) 

(appeal concerning the summary dismissal of Gerdon’s third successive post-conviction relief 

action). Gerdon’s other appeals appear to have been dismissed voluntarily by Gerdon, on 

timeliness grounds, or as frivolous.

2 The incompleteness of the record is not important to the disposition of the case; we can 

resolve the claims on appeal despite the incompleteness in the record. 
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appeal. The Supreme Court responded by conditionally dismissing his appeal as untimely. In 

the conditional dismissal, the Court expressly indicated that Gerdon was permitted to respond to 

the order. Through counsel, Gerdon filed a response, indicating that he had mailed his notice of 

appeal on August 31, 2007. The Supreme Court dismissed the appeal on timeliness grounds.3

 

Over three months after the remittitur was filed, Gerdon filed a motion with the district 

court requesting that the court grant him a “re-ruling.” He claimed that he had not been properly 

notified of the district court’s ruling, and requested a re-ruling so that he could file a timely 

appeal. On April 20, 2009, the district court orally denied this motion, holding that there was 

evidence that Gerdon had received notice of the judgment dismissing the post-conviction action. 

The district court also noted that Gerdon was given the opportunity to explain to the Supreme 

Court, through counsel, why his appeal should not be dismissed. The district court held that 

Gerdon’s failure to make use of that opportunity was not a basis to grant relief. 

Over three years later, on October 9, 2012, Gerdon filed a “motion for relief from 

judgment or order.” Although his briefing is not clear, it appears he raised four issues. First, 

Gerdon contended that he was entitled to relief under I.R.C.P. 60(a) because of a clerical error by 

the court in its summary dismissal decision in 2006. That error consisted of the court making a 

factual finding that all motions in the underlying criminal case had been ruled on, whereas the 

court later admitted, in another case, that a motion had not been ruled on. Second, Gerdon 

claimed that the district court, in its 2006 decision summarily dismissing Gerdon’s postconviction action, erroneously found that Gerdon had never complained about his attorney’s 

performance. Gerdon argued that this too amounted to a clerical error which may be remedied 

under I.R.C.P. 60(a). Third, Gerdon claimed he was entitled to relief under I.R.C.P. 60(b). He 

argued that the rule authorizes relief where a new ruling reverses an older ruling upon which a 

judgment is based. He argued that Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012) bars 

summary dismissal of ineffective assistance of counsel claims without a hearing, effectively 

 

3 Although the Supreme Court’s order dismissing the appeal made clear that it was 

dismissed as untimely, it did not directly address the Gerdon’s response. Nonetheless, the 

Court’s reasoning can be easily inferred. Generally, an appeal must be filed within forty-two 

days of the entry of a judgment. I.A.R. 14(a). Because the judgment was entered on June 29, 

2006, the period of forty-two days ended on August 10, 2006. Accordingly, whether Gerdon’s 

notice of appeal should be considered to be filed on the day he mailed it, August 31, 2007, or the 

day it arrived, September 10, 2007, is immaterial. In either case, it was untimely. 
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reversing the decision of the district court. Fourth, he raised various claims regarding alleged 

interferences with his mail. For example, he asserted that the interference precluded effective 

attorney-client communication, rendering counsel ineffective. He also contended that the court 

should have issued a ruling regarding his mail but did not. 

The district court denied Gerdon’s motion in its entirety. As to the Rule 60(a) arguments, 

the court appears to have rejected the claim that those errors could be remedied under 

I.R.C.P. 60(a). As to the Rule 60(b) claim, the district court held that Martinez did not alter the 

legal basis for the district court’s judgment. Finally, as to the mail issues, the district court held 

that Gerdon failed to provide any argument or explanation showing that he was entitled to relief. 

B. Procedural History Relating to the 2008 Case

In 2008, Gerdon filed a successive petition for post-conviction relief. He alleged

ineffective assistance of counsel “at every stage of this proceeding.” He broadly claimed that 

prior attorneys had been unwilling to represent him or to advocate for him in the manner he 

preferred. Gerdon’s pleading is not a model of clarity, but he appears to claim that his counsel in 

the 2004 post-conviction case was ineffective for failing to inform him that the case had been 

summarily dismissed by the district court, causing him to file his appeal after the time limit had 

expired, which, in turn, caused the appeal to be dismissed. The district court summarily 

dismissed the successive post-conviction action on two grounds: Gerdon’s factual claims were 

conclusory and thus were insufficient to support his legal claims, and Gerdon’s ineffective 

assistance of post-conviction counsel claim did not state a cognizable basis for post-conviction 

relief. 

In 2009, Gerdon filed his notice of appeal challenging the court’s dismissal of this 

successive post-conviction action. Before any briefing was filed, however, Gerdon, through 

counsel, filed a motion to voluntarily dismiss his appeal. The Idaho Supreme Court granted the 

motion. 

Over two years later, in 2012, Gerdon filed a motion seeking relief from the dismissal in 

the 2004 case. Notably, Gerdon filed this motion in the 2008 case. His motion stated that he 

was entitled to effective post-conviction counsel pursuant to a United States Supreme Court 

decision, Martinez, ___ U.S. ___, 132 S. Ct. 1309. He further claimed that he received 

ineffective assistance of counsel in the 2004 case and that the ineffective assistance of counsel in 

that case warranted relief in the 2008 case. 
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The district court denied his motion on a number of interrelated grounds. First, it held 

that Martinez does not stand for the proposition that Gerdon was entitled to effective assistance 

of counsel at the post-conviction stage. Second, the district court noted that Gerdon “fail[ed] to 

explain how the rule cited applied to his situation.” The court held that Gerdon had not shown

how the alleged ineffective assistance of counsel in the 2004 case was grounds for relief, under 

I.R.C.P. 60(b), in the 2008 case. 

II.

ANALYSIS

On appeal, Gerdon raises numerous claims that fall within three general categories: 

I.R.C.P. 60(a) claims, I.R.C.P. 60(b) claims, and claims that are not properly before the Court. 

A. Claims Concerning Idaho Rule of Civil Procedure 60(a) 

Idaho Rule of Civil Procedure 60(a) creates a procedure by which a party in a civil case 

may ask the district court to remedy a narrow class of errors. The rule states:

Clerical mistakes in judgments, orders or other parts of the record and 

errors therein arising from oversight or omission may be corrected by the court at 

any time of its own initiative or on the motion of any party and after such notice, 

if any, as the court orders. During the pendency of an appeal, such mistakes may 

be so corrected before the appeal is docketed in the Supreme Court or the district 

court, as the case may be, and thereafter while the appeal is pending may be so 

corrected.

I.R.C.P. 60(a). Idaho decisional law has interpreted this provision narrowly. The rule “is strictly 

limited to the correction of clerical errors, as opposed to judicial or legal errors.” State v. Moore, 

152 Idaho 203, 205, 268 P.3d 471, 473 (Ct. App. 2011); see also Silsby v. Kepner, 140 Idaho 

410, 412, 95 P.3d 28, 30 (2004). In differentiating the types of errors, we have concluded that “a 

clerical mistake is one of draftsmanship; whereas, a judicial error is a mistake of substance.” 

State v. Vaughn, 156 Idaho 13, 16, 319 P.3d 497, 500 (Ct. App. 2014). Rule 60(a) applies to 

those errors in which the type of mistake or omission is mechanical in nature which is apparent 

in the record and which does not involve a legal decision or judgment by an attorney. Silsby, 140 

Idaho at 411, 95 P.3d at 29. Put another way:

The basic distinction between “clerical mistakes” and mistakes that cannot 

be corrected pursuant to Rule 60(a) is that the former consist of “blunders in 

execution” whereas the latter consist of instances where the court changes its 

mind, either because it made a legal or factual mistake in making its original 

determination, or because on second thought it has decided to exercise its 
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discretion in a manner different from the way it was exercised in the original 

determination. 

Silsby, 140 Idaho at 412, 95 P.3d at 30 (quoting Blanton v. Anzalone, 813 F.2d 1574, 1577 n.2

(9th Cir. 1987)).

In his appeal from the denial of his motion for relief in his 2004 post-conviction action, 

Gerdon raises two claims of error regarding I.R.C.P. 60(a). First, he argues that “irregularities in 

his mail” amounted to a clerical error that should have been remedied pursuant to I.R.C.P. 

60(a).4 Below, Gerdon raised two arguments regarding his mail. The first is an argument that he 

requested a ruling from the court regarding his mail and the court failed to issue such a decision. 

The second is that the State failed to deliver legal mail between Gerdon and his attorney. 

Neither of these alleged errors could be remedied through an I.R.C.P. 60(a) motion. The 

failure to issue a ruling does not amount to a clerical mistake. To the extent there was any error, 

it would have been “a mistake of substance” or “judicial error.” Likewise, the State’s failure to 

deliver mail or active interference with mail also would not be an error contained in “judgments, 

orders or other parts of the record” as required by I.R.C.P. 60(a). Accordingly, it was proper to 

deny Gerdon’s request for relief under I.R.C.P. 60(a). 

Gerdon also argues that in dismissing the 2004 case, the court erroneously found that it 

had not failed to rule on a motion in the underlying criminal case.

5 In his motion and affidavit 

below, he asserted that the trial court later admitted that it had overlooked and failed to rule on a 

motion in the underlying criminal case. Accordingly, Gerdon argued that the court made an 

incorrect factual finding in dismissing the 2004 case. Once again, we conclude that the alleged 

 

4 On appeal, Gerdon also argues that the same failure entitled him to equitable tolling and 

amounted to a denial of his due process right to access the courts. While Gerdon briefly 

mentioned the inadequacy of the law library available to him when he filed his original postconviction action, he did not raise that in his Rule 60 motions. Accordingly, these claims are 

raised for the first time on appeal. Generally, issues not raised below may not be considered for 

the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). 

Therefore, we do not consider these claims of error.

5 Below, Gerdon claimed that this error amounted to a clerical error under I.R.C.P. 60(a), 

but did not posit any connection between the error cited and I.R.C.P. 60(b). Accordingly, the 

I.R.C.P. 60(b) claim has been raised for the first time on appeal. Generally, as stated above, 

issues not raised below may not be considered for the first time on appeal. Fodge, 121 Idaho at

195, 824 P.2d at 126. Accordingly, we do not consider this claim of error.
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error could not be remedied through I.R.C.P. 60(a). To the extent there was any error, it was not 

a drafting error or mechanical error but a substantive error in the court’s findings. As explained 

above, such errors cannot be remedied through I.R.C.P. 60(a). Therefore, the district court did 

not err when it denied Gerdon’s motion for relief under I.R.C.P. 60(a). 

B. Claims Concerning Idaho Rule of Civil Procedure 60(b) 

In his successive 2008 post-conviction action, Gerdon appeals the denial of his 

I.R.C.P. 60(b) motion. As best we can make out from his briefing through counsel, Gerdon

reasons as follows: First, he received ineffective assistance of counsel in his original postconviction action due to irregularities in delivery of his mail. Second, under Idaho law, 

ineffective assistance of post-conviction counsel may be a sufficient reason to permit a 

successive post-conviction action.6 Third, due to the mail irregularities, his claims were not 

adequately presented in his 2004 case. Therefore the court’s judgment summarily dismissing 

Gerdon’s 2008 case was erroneous. Fourth, I.R.C.P. 60(b) permits the court to remedy its 

mistakes. Fifth, because the dismissal was a mistake, the court should have fixed that error when 

Gerdon requested that it do so in a Rule 60(b) motion. 

Idaho Rule of Civil Procedure 60(b) gives the district court authority to grant relief from 

a judgment in limited circumstances.

On motion and upon such terms as are just, the court may relieve a party 

or his legal representative from a final judgment, order, or proceeding for the 

following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence which by due diligence could not have been 

discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether 

heretofore denominated intrinsic or extrinsic), misrepresentation, or other 

misconduct of an adverse party; (4) the judgment is void; (5) the judgment has 

been satisfied, released, or discharged, or a prior judgment upon which it is based 

has been reversed or otherwise vacated, or it is no longer equitable that the 

judgment should have prospective application; or (6) any other reason justifying 

relief from the operation of the judgment.

 

6 In a very recent decision, Murphy v. State, ___ Idaho ___, ___ P.3d ___ (Feb. 25, 2014), 

the Idaho Supreme Court overruled prior cases holding that deficient presentation of claims by 

post-conviction counsel in the initial post-conviction action could constitute sufficient reason to 

reassert the same claims in a successive action. That decision has not become final, however, as 

a petition for rehearing is pending. For purposes of this appeal, the ultimate outcome in Murphy

is immaterial, for Gerdon is not entitled to relief for the reasons stated herein.
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I.R.C.P. 60(b). A trial court enjoys broad discretion when deciding whether to grant relief

pursuant to I.R.C.P. 60(b). 

A trial court’s decision whether to grant relief pursuant to I.R.C.P. 60(b) is 

reviewed for abuse of discretion. The decision will be upheld if it appears that the 

trial court (1) correctly perceived the issue as discretionary, (2) acted within the 

boundaries of its discretion and consistent with the applicable legal standards, and 

(3) reached its determination through an exercise of reason. A determination 

under Rule 60(b) turns largely on questions of fact to be determined by the trial 

court. Those factual findings will be upheld unless they are clearly erroneous. If 

the trial court applies the facts in a logical manner to the criteria set forth in 

Rule 60(b), while keeping in mind the policy favoring relief in doubtful cases, the 

court will be deemed to have acted within its discretion.

Eby v. State, 148 Idaho 731, 734, 228 P.3d 998, 1001 (2010) (quoting Waller v. State, Dep’t of 

Health & Welfare, 146 Idaho 234, 237-38, 192 P.3d 1058, 1061-62 (2008)).

To the extent Gerdon’s claim on appeal is comprehensible, we conclude that it is 

fundamentally different from the claim raised below. Below, Gerdon appears to have argued on 

his Rule 60(b) motion that Martinez effectively reversed the decision of the district court in the 

2008 post-conviction action. Gerdon was essentially asserting that the judgment of dismissal 

should be reversed under I.R.C.P. 60(b)(5) because the judgment had been constructively 

reversed or vacated by the United States Supreme Court’s Martinez decision.

Gerdon does not carry this argument forward on appeal. Instead, he argues that the court 

improperly denied his Rule 60(b) motion as it pertains to his mail tampering allegations. On 

appeal, counsel cites the statement “the state is tampering with my legal mail” presumably as an 

assertion that the issue was raised below. However, that statement appears in Gerdon’s motion 

and affidavit in support of appointment of counsel on appeal. That document was filed after the 

district court addressed the motion and is obviously not a basis for relief stated in the motion. 

We will not consider claims raised for the first time on appeal. State v. Fodge, 121 Idaho 192, 

195, 824 P.2d 123, 126 (1992). Therefore, we will not further address his mail tampering 

argument on appeal with respect to the 2008 case.7

 

7 Although the argument based upon Martinez is not carried forward in Gerdon’s briefing 

on appeal, for Gerdon’s benefit we note that his argument below misconstrues the import of the 

Martinez decision. There is Idaho precedent holding that “ineffective assistance of prior postconviction counsel may provide sufficient reason for permitting newly asserted allegations or 

allegations inadequately raised in the initial application to be raised in a subsequent post-
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Gerdon’s motion for relief from the judgment in the 2004 case referred to the mail 

tampering allegation and the district court’s failure to rule on a motion in the criminal case. It is 

not clear whether Gerdon was seeking I.R.C.P. 60(a) or 60(b) relief. To the extent Gerdon was 

seeking Rule 60(a) relief, that issue has been addressed above. As to Rule 60(b), Gerdon did not 

make any attempt to explain how his factual assertions entitled him to relief under that rule. On 

appeal, counsel similarly fails to make such a connection. A party waives an issue on appeal if 

either authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 

(1996). By failing to cite authority or provide argument linking the rule through which he seeks 

relief to his factual averments, Gerdon has waived this issue on appeal. 

Even if we were to address what we surmise might be Gerdon’s argument, no relief 

would be available. As stated above, on appeal Gerdon argues that he asserted the mail issue in 

his Rule 60(b) motion in the 2008 case. As stated above, he did not. However, in that portion of 

the briefing, Gerdon did make a passing reference the subsections of Rule 60(b) that he believed 

were applicable: mistake, neglect, fraud, and voidness. Accordingly, we can infer that those 

might be the grounds upon which Gerdon believed he was entitled to relief. Claims asserting 

mistake, excusable neglect, or fraud must be filed “not more than six (6) months after the 

judgment . . . was entered.” I.R.C.P. 60(b). But Gerdon’s 2004 case had been inactive for three 

years when he filed his Rule 60(b) motion. Accordingly, it was not error to deny a Rule 60(b) 

motion asserting those grounds as the motion was untimely. An I.R.C.P. 60(b) motion 

challenging a void judgment is not subject to the same time bar, but Gerdon provides no cogent 

 

conviction application.” Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 

2008); see also Palmer v. Dermitt, 102 Idaho 591, 596, 635 P.2d 955, 960 (1981). However, 

because “there is no constitutionally protected right to the effective assistance of counsel in postconviction relief proceedings . . . such an allegation, in and of itself, is not among the permissible 

grounds for post-conviction relief.” Schwartz, 145 Idaho at 189 n.3, 177 P.3d at 403 n.3; see 

also Follinus v. State, 127 Idaho 897, 902, 908 P.2d 590, 595 (Ct. App. 1995); Wolfe v. State, 

113 Idaho 337, 339, 743 P.2d 990, 992 (Ct. App. 1987). Nothing in Martinez overrules these 

Idaho precedents regarding ineffective assistance of post-conviction counsel. Indeed, the United 

States Supreme Court explicitly held that it was not deciding “whether a prisoner has a right to 

effective counsel in collateral proceedings which provide the first occasion to raise a claim of 

ineffective assistance at trial.” Id. at ___, 132 S. Ct. at 1315. Rather, that case dealt with the 

narrower procedural issue of when a State may invoke the “doctrine barring procedurally 

defaulted claims” on federal habeas corpus review. Id. at ___, 132 S. Ct. at 1316. As this is not 

a federal habeas corpus proceeding, the holding in Martinez is inapposite here. 
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argument, anywhere in the record, showing that the judgment in either case was void. 

Accordingly, even if we were to reach the merits of Gerdon’s Rule 60(b) mail tampering 

assertion, it would be found to be without merit. 

C. Gerdon Asserts Additional Claims of Error that have been Improperly Raised

Gerdon also appears to assert additional claims of error for the first time in his reply 

brief. We will not consider those claims. Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 

(2005).

III.

CONCLUSION

For the foregoing reasons, we affirm the orders denying Gerdon relief from the 

judgments in Gerdon’s 2004 post-conviction action and 2008 post-conviction action.

This Court possesses discretion to award costs on appeal to the prevailing party. Idaho 

Appellate Rule 40. Because we conclude that Gerdon’s arguments on appeal, to the extent that 

they could be discerned at all, were entirely without merit, costs on appeal are awarded to 

respondent State of Idaho. 

Judge GRATTON and Judge MELANSON CONCUR.