1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38979

MICHAEL SHAUN DILL,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

)

)

)

)

)

)

)

)

)

)

2012 Unpublished Opinion No. 412

Filed: March 28, 2012

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

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

Bingham County. Hon. David C. Nye, District Judge. 

Order summarily dismissing successive application for post-conviction 

relief, affirmed.

Michael Shaun Dill, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GRATTON, Chief Judge

Michael Shaun Dill appeals from the district court’s order summarily dismissing his 

successive application for post-conviction relief.

I.

FACTUAL AND PROCEDURAL BACKGROUND

According to Dill’s post-conviction relief application, he pled guilty to rape and on 

April 19, 2004, the district court entered a judgment of conviction and sentenced him to a unified 

term of twelve years with three years determinate. Dill did not appeal the conviction or sentence. 

On January 12, 2010, Dill filed an application for post-conviction relief, alleging violations of 

his Fifth and Sixth Amendment rights and violations under Estrada v. State, 143 Idaho 558, 149 

P.3d 833 (2006). On January 29, 2010, the district court issued a notice of intent to dismiss the 

application. The court dismissed the application on January 21, 2011. Dill did not appeal the 

dismissal of his application.
2

On February 14, 2011, Dill filed a successive application for post-conviction relief, 

asserting that: (1) his conviction and sentence violated the United States Constitution or Idaho 

Constitution; (2) material facts existed which were not previously heard and which required 

vacation of his conviction and sentence in the interest of justice; (3) Dill was innocent of the 

offense pursuant to Idaho Code § 19-4902(b) through (f); and (4) Dill’s plea was not made 

knowingly or voluntarily. The district court issued a twenty-day notice of intent to dismiss on 

the grounds that Dill’s successive petition was untimely and that he had failed to provide a 

sufficient reason for not asserting the claims in his original application for post-conviction relief. 

Dill filed a response which reiterated the four grounds for relief contained in his successive 

application. The district court summarily dismissed Dill’s successive application on the grounds 

stated in its notice of intent to dismiss. Dill timely appeals.

II.

DISCUSSION

An application for post-conviction relief initiates a civil, rather than criminal, 

proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 

443, 180 P.3d 476, 482 (2008); see also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 

(2008). Like the plaintiff in a civil action, the applicant must prove by a preponderance of 

evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-

4907; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Goodwin v. State, 138 

Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). “An application for post-conviction relief 

differs from a complaint in an ordinary civil action[.]” Dunlap v. State, 141 Idaho 50, 56, 106 

P.3d 376, 382 (2004) (quoting Goodwin, 138 Idaho at 271, 61 P.3d at 628). The application 

must contain much more than “a short and plain statement of the claim” that would suffice for a 

complaint under I.R.C.P. 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); 

Goodwin, 138 Idaho at 271, 61 P.3d at 628. The application must be verified with respect to 

facts within the personal knowledge of the applicant, and affidavits, records or other evidence 

supporting its allegations must be attached, or the application must state why such supporting 

evidence is not included with the application. I.C. § 19-4903. In other words, the application 

must present or be accompanied by admissible evidence supporting its allegations, or the 

application will be subject to dismissal.
3

Idaho Code § 19-4906 authorizes summary dismissal of an application for postconviction relief, either pursuant to motion of a party or upon the court’s own initiative. 

Summary dismissal of an application is the procedural equivalent of summary judgment under 

I.R.C.P. 56. “A claim for post-conviction relief will be subject to summary dismissal . . . if the 

applicant has not presented evidence making a prima facie case as to each essential element of 

the claims upon which the applicant bears the burden of proof.” DeRushé v. State, 146 Idaho 

599, 603, 200 P.3d 1148, 1152 (2009) (quoting Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 

739 (1998)). Thus, summary dismissal is permissible when the applicant’s evidence has raised 

no genuine issue of material fact that, if resolved in the applicant’s favor, would entitle the 

applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must 

be conducted. Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at 

629. Summary dismissal of an application for post-conviction relief may be appropriate, 

however, even where the State does not controvert the applicant’s evidence because the court is 

not required to accept either the applicant’s mere conclusory allegations, unsupported by

admissible evidence, or the applicant’s conclusions of law. Payne, 146 Idaho at 561, 199 P.3d at 

136; Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).

“When reviewing a district court’s order of summary dismissal in a post-conviction relief 

proceeding, we apply the same standard as that applied by the district court.” Ridgley v. State, 

148 Idaho 671, 675, 227 P.3d 925, 929 (2010). On review of dismissal of a post-conviction 

relief application without an evidentiary hearing, we determine whether a genuine issue of 

material fact exists based on the pleadings, depositions, and admissions together with any 

affidavits on file. Rhoades v. State, 148 Idaho 247, 220 P.3d 1066 (2009); Ricca v. State, 124 

Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). However, “while the underlying facts must 

be regarded as true, the petitioner’s conclusions need not be so accepted.” Rhoades, 148 Idaho at 

250, 220 P.3d at 1069 (quoting Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985)); 

see also Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). As the trial 

court rather than a jury will be the trier of fact in the event of an evidentiary hearing, summary 

dismissal is appropriate where the evidentiary facts are not disputed, despite the possibility of 

conflicting inferences to be drawn from the facts, for the court alone will be responsible for 

resolving the conflict between those inferences. Yakovac, 145 Idaho at 444, 180 P.3d at 483; 

Hayes, 146 Idaho at 355, 195 P.3d at 714. That is, the judge in a post-conviction action is not 
4

constrained to draw inferences in favor of the party opposing the motion for summary 

disposition, but rather is free to arrive at the most probable inferences to be drawn from 

uncontroverted evidentiary facts. Id.

Our review of the district court’s construction and application of the limitations statute is 

a matter of free review. Freeman v. State, 122 Idaho 627, 628, 836 P.2d 1088, 1089 (Ct. App. 

1992). The statute of limitations for post-conviction actions provides that an application 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 appeal or from the determination of a proceeding following 

an appeal, whichever is later. I.C. § 19-4902(a). The appeal referenced in that section means the 

appeal in the underlying criminal case. Freeman, 122 Idaho at 628, 836 P.2d at 1089. The 

failure to file a timely application is a basis for dismissal of the application. Sayas v. State, 139 

Idaho 957, 959, 88 P.3d 776, 778 (Ct. App. 2003). 

Dill argues that his second application should be considered timely for two reasons: 

(1) he was under the influence of psychotropic medication and lacked capacity to work on his 

application until recently; and (2) he exercised due diligence by researching material for his postconviction case. Dill also argues that because he lacks any legal training and because counsel 

was not appointed to assist him with his first application, the facts underlying the claims in his 

successive application could not have been known at the time of his first application. The State 

argues that Dill’s successive application is untimely and also that Dill has failed to provide a 

sufficient reason for not including his present claims in his first application.

To be timely, the UPCPA requires that a post-conviction proceeding be commenced by 

filing an application “any time within 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(a). Dill was sentenced on April 19, 2004. He did not 

appeal from the judgment of conviction and waited until January 2010 before filing his original 

application for post-conviction relief. His successive application was filed on February 11, 2011,

almost seven years after his sentencing. The successive application clearly falls outside the oneyear period in which to file a post-conviction application.

Nevertheless, we have also recognized that the statute of limitations for post-conviction 

claims may be equitably tolled in circumstances where psychotropic medication has prevented an 

applicant from timely pursuing challenges to his conviction or where an applicant has only 
5

recently discovered the factual basis for his claim. See Rhoades, 148 Idaho at 251, 220 P.3d at

1070; Charboneau v. State, 144 Idaho 900, 904, 174 P.3d 870, 874 (2007). However, an 

applicant’s due process right is not violated by a statute of limitations bar unless he can show 

such an inability to file a timely petition that he was denied any meaningful opportunity to 

present his post-conviction claims. See Amboh v. State, 149 Idaho 650, 653, 239 P.3d 448, 451

(Ct. App. 2010); Schwartz v. State, 145 Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 2008). 

Tolling is not allowed for an applicant’s own inaction. Schultz v. State, 151 Idaho 383, 386, 256 

P.3d 791, 794 (Ct. App. 2011). As this Court stated in Amboh:

[I]n cases where equitable tolling was allowed, the petitioner was alleged 

to have been unable to timely file a petition due to extraordinary circumstances 

beyond his effective control, or the facts underlying the claim were hidden from 

the petitioner by unlawful state action.

Amboh, 149 Idaho at 653, 239 P.3d at 451 (citations omitted).

Dill’s arguments regarding equitable tolling are unavailing for two reasons. First, Dill 

argues in his reply brief that he was under the influence of psychotropic medication “for years 

while incarcerated,” and due to the effects of this medication, he only recently became aware of 

the facts underlying his claim. Dill made no equitable tolling argument regarding psychotropic 

medication before the district court or in his opening brief. His “due diligence” tolling argument, 

although he argues it in his opening brief on appeal, was never argued before the district court. 

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

Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Nor will this Court “consider 

arguments raised for the first time in the appellant’s reply brief.” Jacklin Land Co. v. Blue Dog 

RV, Inc., 151 Idaho 242, 248, 254 P.3d 1238, 1244 (2011). Therefore, Dill did not demonstrate a 

basis for equitable tolling. 

Second, even if we assume that Dill could make the requisite showing to toll the 

limitations period, Dill’s successive application was still properly dismissed because he failed to 

show a sufficient reason the claims in his successive application were not included in his original

application. Idaho Code § 19-4908 provides that “all grounds for relief available to an 

applicant . . . must be raised in his original, supplemental, or amended application.” The section 

further provides that “any ground . . . not so raised, or knowingly, voluntarily[,] and intelligently 

waived in the proceeding that resulted in the conviction . . . may not be the basis for a subsequent 

application, unless the court finds a ground for relief asserted which for sufficient reason was not 
6

asserted . . . in the original, supplemental, or amended application.” Id. Thus, I.C. § 19-4908 

prohibits the filing of a second application for post-conviction relief unless the applicant shows 

sufficient reason why the issues could not have been raised in the prior application. See Baker v. 

State, 142 Idaho 411, 420, 128 P.3d 948, 957 (Ct. App. 2005) (citing Palmer v. Dermitt, 102 

Idaho 591, 593, 635 P.2d 955, 957 (1981)). Therefore, where the applicant fails to meet the 

burden of establishing sufficient reason why the grounds for relief asserted in a successive 

application were not asserted in the original application for post-conviction relief, his application 

must be dismissed. See Hooper v. State, 127 Idaho 945, 948, 908 P.2d 1252, 1254-55 (Ct. App. 

1995).

The district court took judicial notice of Dill’s prior application for post-conviction relief. 

In that application, Dill alleged that he was sentenced in violation of the Fifth and Sixth 

Amendments and that Estrada v. State, 143 Idaho 558, 149 P.3d 833 (2006), required that his 

sentence be overturned. The district court noted that the first two grounds in Dill’s successive 

application were duplicative of the grounds raised in the original application. The additional 

allegations included in his successive application concern the entry of his guilty plea, whether he 

was informed of his right to appeal, and whether he saw his presentence investigation report. 

The facts underlying these claims occurred prior to sentencing, and were known to Dill, or 

should have been known, immediately following sentencing. Even if we assume that he could 

have shown that the original application was timely due to equitable tolling, Dill provides no 

explanation for why his original application could not have contained the additional allegations 

included in this successive application. He provides no facts to indicate that he was unaware of 

the additional claims at the time of his original application; nor is there anything in the record to 

suggest that the additional claims could not have been included in his original application. 

Without providing a sufficient reason for failing to raise the additional allegations in his original 

application, Dill’s equitable tolling arguments are irrelevant; and, therefore, Dill’s application 

was properly dismissed by the district court. 

III.

CONCLUSION

Dill has failed to show that the district court erred in dismissing his successive 

application for post-conviction relief. His arguments regarding equitable tolling were not raised

before the district court; and even assuming he could make the requisite showing to toll the 
7

limitations period, he has not provided any reason that the grounds contained in his successive

application could not have been included in his original application. Therefore, the district 

court’s judgment summarily dismissing Dill’s successive application for post-conviction relief is 

affirmed.

Judge LANSING and Judge MELANSON CONCUR.