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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37147

STEVEN KIM ANDERSON,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2012 Unpublished Opinion No. 497

Filed: May 30, 2012

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THIS IS AN UNPUBLISHED 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. 

Judgment summarily dismissing successive petition for post-conviction 

relief, affirmed.

Steven Kim Anderson, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

LANSING, Judge

Steven Kim Anderson appeals from the summary dismissal of his successive petition for 

post-conviction relief. He asserts that the district court erred by dismissing the petition without 

giving him sufficient notice and without first ruling on his motion for appointment of counsel, 

and that the district court erroneously concluded that his successive petition was procedurally 

barred. We affirm.

I.

BACKGROUND

Anderson was convicted of aggravated battery after a jury trial, and sentenced to a 

unified term of fifteen years with seven years determinate. The judgment of conviction and 

sentence were affirmed in an unpublished decision. State v. Anderson, Docket No. 25632 (Ct. 

App. Feb. 27, 2001). Anderson later filed a petition for post-conviction relief raising a number 

of issues, including ineffective assistance of counsel and prosecutorial misconduct. The district 
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court granted summary dismissal, and this Court affirmed in an unpublished decision. Anderson

v. State, Docket Nos. 30079, 30080, 30625 (Ct. App. June 2, 2006).

On August 26, 2006, Anderson filed a successive petition for post-conviction relief 

asserting: (1) that the prosecutor committed misconduct at trial by knowingly eliciting testimony 

from a witness, C.B., that was different from C.B.’s prior out-of-court statements; and (2) that 

trial counsel was ineffective for failing to address the prosecutor’s misconduct. The district court 

appointed counsel and, on September 13, issued notice of intent to dismiss the petition for 

several reasons, including that the successive petition was untimely because the claims were not 

raised within a reasonable time of their discovery. Anderson filed an amended petition with the 

assistance of counsel, asserting that his attorney’s failure to raise the claims in his original 

petition was ineffective assistance of counsel, and the court scheduled an evidentiary hearing. At 

the hearing--which was not held until March 26, 2009, as the result of multiple continuances--

Anderson’s attorney requested to withdraw the amended petition pursuant to her obligations 

under Idaho Rule of Civil Procedure 11.1 The court deemed the amended petition withdrawn 

and reinstated the original petition. Anderson’s attorney then stated that she could not continue 

to represent Anderson because of a breakdown of communication. The Court allowed her to 

withdraw and stayed the proceedings. The court subsequently appointed new counsel and, on 

June 9, reissued notice of its intent to dismiss the original petition on the same grounds stated in 

the original notice. Anderson’s new attorney also was permitted to withdraw because of a 

breakdown of attorney-client communication. Upon permitting Anderson’s second attorney to 

withdraw, the court ruled that “the petition as stated is frivolous, [and] does not warrant 

appointment of additional counsel.” Nevertheless, Anderson filed another motion for 

 

1 Idaho Rule of Civil Procedure 11(a)(1) provides, in part:

The signature of an attorney or party constitutes a certificate that the attorney or 

party has read the pleading, motion or other paper; that to the best of the signer’s 

knowledge, information, and belief after reasonable inquiry it is well grounded in 

fact and is warranted by existing law or a good faith argument for the extension, 

modification, or reversal of existing law, and that it is not interposed for any 

improper purpose, such as to harass or to cause unnecessary delay or needless 

increase in the cost of litigation.
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appointment of counsel, which the court denied. On November 18, the court again issued notice 

of intent to dismiss the petition on the same grounds stated in previous two notices. 

On May 5, 2010, Anderson refiled a handwritten copy of the amended petition for postconviction relief which had been filed and withdrawn by Anderson’s first counsel, and the court 

scheduled an evidentiary hearing for August 3. Anderson also filed a renewed motion for 

appointment of counsel, and the State filed a motion for summary dismissal, asserting that 

Anderson’s successive petition was untimely. The district court granted the State’s motion for 

summary dismissal. Anderson appeals.

II.

ANALYSIS

A. Standard of Review

A petition for post-conviction relief under the Uniform Post Conviction Procedure Act 

(UPCPA) is civil in nature. Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 870, 873 (2007). 

The petitioner must prove the claims upon which the petition is based by a preponderance of the 

evidence. Id. When the alleged facts, even if true, would not entitle the applicant to relief, the 

trial court may dismiss the application without holding an evidentiary hearing. Idaho Code § 19-

4906(b), (c); Charboneau, 144 Idaho at 903, 174 P.3d at 873; Stuart v. State, 118 Idaho 865, 

869, 801 P.2d 1216, 1220 (1990); Cooper v. State, 96 Idaho 542, 545, 531 P.2d 1187, 1190 

(1975). If the petitioner’s evidence raises a genuine issue of material fact which, if resolved in 

his favor, would demonstrate entitlement to relief, summary disposition is not appropriate. 

Charboneau, 144 Idaho at 903, 174 P.3d at 873. Therefore, on review of a dismissal of a postconviction 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, and whether the petitioner’s allegations, if true, show a right to relief. Id.; 

Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Ricca v. State, 124 Idaho 

894, 896, 865 P.2d 985, 987 (Ct. App. 1993).

All claims for post-conviction relief must be raised in an original, supplemental, or 

amended application. I.C. § 19-4908. An original application must be filed 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. 

Successive petitions are impermissible “unless the court finds a ground for relief asserted which 
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for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or 

amended application.” I.C. § 19-4908. While Section 19-4908 sets forth no fixed time within 

which successive petitions may be filed, the “sufficient reason” language in the statute

necessarily provides “a reasonable time within which such claims [may be] asserted in a 

successive post-conviction petition, once those claims are known.” Charboneau, 144 Idaho at 

905, 174 P.3d at 875. The determination of what is a reasonable time is considered on a case-bycase basis. Id.

B. Consideration of the State’s Motion

We first address Anderson’s assertion that the court erred by considering the State’s 

motion to dismiss, which was filed six days before the scheduled evidentiary hearing. Anderson 

asserts that motion was untimely because it did not comply with the court’s scheduling order or 

applicable rules of civil procedure.2

 Anderson relies on Wolfe v. State, 117 Idaho 645, 649, 791 

P.2d 26, 30 (Ct. App. 1990). In Wolfe, this Court stated:

A motion for summary disposition is the procedural equivalent of a 

motion for summary judgment. See Ramirez v. State, 113 Idaho 87, 741 P.2d 374 

(Ct. App. 1987). Rules and statutes applicable in civil proceedings generally are 

available to parties involved in post-conviction applications. I.C. § 19-4907(a). 

Motions for summary judgment must be filed at least sixty days before trial or 

within seven days of the order setting the case for trial, whichever date comes 

later. I.R.C.P. 56(a), (b). The motion, together with supporting affidavits and 

brief, must be served on the opposing party at least twenty-eight days before the 

time set for hearing. I.R.C.P. 56(c). The purposes of the time requirements in 

Rule 56 are twofold: to give the opposing party an adequate opportunity to 

respond and to give the court an adequate opportunity to make a reasoned 

decision.

Here, the district court entered an order on May 24, 2010, scheduling the evidentiary 

hearing for August 3, 2010. The State’s motion for summary judgment was not filed until 

July 28. Thus, the motion was not filed at least sixty days before the evidentiary hearing or 

within seven days of the scheduling order. Additionally, Anderson did not receive at least 

twenty-eight days’ notice before the hearing on the motion, which in this case was scheduled for 

August 3--the same day as the evidentiary hearing. Noncompliance with scheduling or notice 

 

2 The court entered scheduling orders each time the evidentiary hearing was rescheduled, 

but none of the orders appear in the record. However, it appears from the transcripts that the 

court’s scheduling orders mirrored I.R.C.P. 56. 
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requirements of Rule 56 does not require reversal, however, absent a showing of prejudice. See 

I.R.C.P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the 

proceeding which does not affect the substantial rights of the parties.”). Thus, in Ponderosa 

Paint Mfg., Inc. v. Yack, 125 Idaho 310, 317, 870 P.2d 663, 670 (Ct. App. 1994), we declined to 

reverse a summary judgment merely because the summary judgment motion and supporting 

documents were not mailed to the opposing party at least thirty-one days in advance of the 

hearing as required by I.R.C.P. 56(c) and 6(e)(1). We held that the technical error did not require 

reversal because the appellants had not demonstrated that, if given additional time, they could 

have submitted evidence or legal argument that would have prevented the summary judgment 

against them. Ponderosa, 125 Idaho at 317, 870 P.2d at 670. See also McClure Eng’g, Inc. v. 

Channel 5 KIDA, 143 Idaho 950, 955, 155 P.3d 1189, 1194 (Ct. App. 2006); In re Estate of 

Keeven, 126 Idaho 290, 298, 882 P.2d 457, 465 (Ct. App. 1994). Despite the short notice, 

Anderson was able to file an eight-page response to the State’s motion, replete with numerous 

citations to authority, before the hearing. Anderson has not asserted that he could have 

submitted any additional evidence or legal argument if given additional time. Therefore, 

Anderson has not demonstrated reversible error.

Anderson also asserts that reversal is required because he was not afforded a twenty-day 

opportunity to reply to the State’s motion. When a court issues notice of intent to dismiss a 

petition, the petitioner “shall be given an opportunity to reply within 20 days to the proposed 

dismissal.” I.C. § 19-4906(b). The purpose of the twenty days’ notice is to ensure that the 

applicant will have an opportunity to challenge an adverse decision before it becomes final.

Baruth v. Gardner, 110 Idaho 156, 158-59, 715 P.2d 369, 371-72 (Ct. App. 1986); Gibbs v. 

State, 103 Idaho 758, 760, 653 P.2d 813, 815 (Ct. App. 1982). When the State files a motion to 

dismiss, the petitioner is entitled to a like twenty-day period of time to respond. State v. 

Christensen, 102 Idaho 487, 489, 632 P.2d 676, 678 (1981). Ordinarily, the failure to provide a 

petitioner with twenty days’ notice before entering an order of summary dismissal is ground for 

reversal. See Saykhamchone v. State, 127 Idaho 319, 321-22, 900 P.2d 795, 797-98 (1995); Buss 

v. State, 147 Idaho 514, 518-19, 211 P.3d 123, 127-28 (Ct. App. 2009). Here, however, 

Anderson actually filed a response to the State’s motion before the hearing. Thus, the court did 

not err when it considered the State’s motion during the time scheduled for an evidentiary 

hearing. Furthermore, Anderson had received notice on numerous occasions that his successive 
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petition was not timely, and therefore was subject to dismissal. The issue of timeliness was 

raised in each of the district court’s three notices of intent to dismiss the petition, as well as the 

State’s answer. Therefore, Anderson was well aware of this challenge to his petition and had 

abundant time to prepare a response to this asserted ground for dismissal. In these unique 

circumstances, even if we deemed the failure to provide the full twenty-day-notice period after 

the State’s motion for summary disposition to be erroneous, it was not prejudicial, and therefore 

would not call for reversal. 

C. Timeliness of Anderson’s Successive Petition

Having concluded that the district court’s consideration of the State’s motion for 

summary disposition on shortened notice did not constitute reversible error, we next consider 

whether the district court correctly concluded that the successive petition was untimely.3

 

Anderson asserts that his petition was timely because it was filed within one year of discovering 

the claims, and alternatively, because it was filed within a reasonable time. Initially, we note that 

the parties dispute when Anderson first became aware of the claims raised in his successive 

petition for post-conviction relief. Anderson asserts that he first learned of C.B.’s prior 

inconsistent statements on August 15, 2005, when he watched a recording of a police interview

with C.B. The State contends that Anderson knew or should have known of the prior 

inconsistent statements well before August 2005. The district court concluded that Anderson 

knew of, and even previously litigated, the claims contained in Anderson’s successive petition 

 

3 Anderson also asserts that the district court erred by raising the issue of timeliness of the 

successive petition sua sponte in the notices of the court’s intent to dismiss. Our conclusion here 

makes it unnecessary to address Anderson’s alternative arguments. We note, however, that 

Anderson fails to recognize that Idaho Code § 19-4906(b) allows a court to issue notice of intent 

to dismiss on its own initiative. Thus, we have previously held: 

The trial court, in determining whether the applicant is not entitled to postconviction relief, is not limited to defenses pled by the State. The trial court may 

issue a notice of its intent to dismiss before the State has filed any response 

whatsoever to the application. Accordingly, it is proper for the district court to 

consider the statute of limitations even if this defense is not raised by the State. 

While the statute of limitations can be raised as an affirmative defense by the 

State pursuant to I.C. § 19-4906(b), it can also be raised sua sponte by the court. 

Therefore, the district court acted properly when it sua sponte raised the statute of 

limitations in regard to Ochieng’s application for post-conviction relief.

State v. Ochieng, 147 Idaho 621, 625, 213 P.3d 406, 410 (Ct. App. 2009) (citations omitted).
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well before 2005, and accordingly dismissed on several grounds including on principles of res 

judicata, and because Anderson’s successive petition was untimely. On appeal, Anderson 

asserts that the claims previously raised in his direct appeal and original post-conviction action 

involved different witness statements, and that he did not learn of the witness statements 

discussed in his successive petition until August 2005. From our review of our decisions from 

Anderson’s direct appeal and appeal from the dismissal of his first post-conviction petition, we 

are unable to determine whether he knew of or previously litigated the precise claims he now 

raises. In order to fully address whether the claims were known or litigated, it would be 

necessary to review records from Anderson’s trial, direct appeal, and original post-conviction 

action. However, while the necessary records were apparently before the district court, 

Anderson has not presented them for review on appeal.4 Missing portions of an appellate record 

are presumed to support the decision of the trial court. Esquivel v. State, 149 Idaho 255, 258, 

233 P.3d 186, 189 (Ct. App. 2010); State v. Sulez, 141 Idaho 253, 255, 108 P.3d 400, 402 (Ct.

App. 2004); State v. Longoria, 133 Idaho 819, 823, 992 P.2d 1219, 1223 (Ct. App. 1999). 

Applying this presumption, we cannot conclude that the district court incorrectly found that 

Anderson knew of the claims prior to August 2005, perhaps as early as trial in 1999, or that he 

previously litigated the claims in his original post-conviction action. However, we need not rest 

our decision on this presumption alone, because the district court also ruled that even if 

Anderson did not know of the claims until August 15, 2005, his successive petition was still 

untimely.

1. Within one year

Anderson asserts that his petition was timely because it was filed within one year of 

August 15, 2005. However, the time requirement for filing a successive petition is not the oneyear limit provided by Idaho Code § 19-4902(a). Instead, the correct standard to measure the 

timeliness of a successive petition was articulated in Charboneau, 144 Idaho at 905, 174 P.3d at

875:

[T]here should be a reasonable time within which such claims [which were not 

known when the original petition was filed] are asserted in a successive postconviction petition, once those claims are known. . . . In determining what a

 

4 Anderson did file a motion to augment the record, but it did not include a request to 

attach records from his trial, direct appeal, or first post-conviction action.
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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.

Thus, the issue is not whether Anderson filed the petition within one year of the discovery of 

new claims, but whether he filed “within a reasonable time after the claims were known or 

should have been known.” Pizzuto v. State, 134 Idaho 793, 797-98, 10 P.3d 742, 747-48 (2000); 

accord Fields v. State, 151 Idaho 18, 25, 253 P.3d 692, 699 (2011); Stuart v. State, 149 Idaho 35, 

41, 232 P.3d 813, 819 (2010); Paradis v. State, 128 Idaho 223, 227, 912 P.2d 110, 114 (1996); 

Paz v. State, 123 Idaho 758, 760, 852 P.2d 1355, 1357 (1993). The district court correctly 

applied the reasonable time standard, and concluded that even if Anderson did not discover the 

claims until he actually viewed the tape on August 15, 2005, his delay of nearly one year was 

unreasonable. 

2. Reasonable time

Anderson alternatively argues that his petition was filed within a reasonable time because 

it was filed approximately two months after this Court released a decision affirming the dismissal 

of his first post-conviction petition on June 6, 2006, and before the remittitur was issued on 

March 13, 2007. See Anderson v. State, Docket Nos. 30079, 30080, 30625 (Ct. App. June 2, 

2006). Anderson asserts that we should measure the timeliness of his successive petition from 

the conclusion of his prior appeal because petitioners are barred from filing successive petitions 

until the completion of the appeal from a previous post-conviction action. Anderson draws this 

proposition from Schwartz v. State, 145 Idaho 186, 177 P.3d 400 (Ct. App. 2008), in which this 

Court stated:

[I]f an initial post-conviction action was timely filed and has been concluded, an 

inmate may file a subsequent application outside of the one-year limitation period 

if “the court finds a ground for relief asserted which for sufficient reason was not 

asserted or was inadequately raised in the original, supplemental, or amended 

application.” 

Id. at 189, 177 P.3d at 403 (emphasis added). Anderson incorrectly interprets this statement to 

mean that a petitioner cannot file a successive petition until the appeal from a prior postconviction has been concluded. That issue was not addressed in Schwartz. The quoted language 

from Schwartz means only that before a petition has been decided by the district court, any 

modification to the petition or additional claim should be addressed through an amended or 

supplemental petition, instead of a successive petition. See id. (citing I.C. § 19-4908). Once the 
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district court has issued a final judgment, however, additional claims can be brought only in a 

successive petition. See id. (citing Charboneau, 144 Idaho at 904, 174 P.3d at 874). We have 

never adopted a rule that petitioners are barred from filing a successive petition until the appeal 

on a prior petition has been concluded, or that the timeliness of a successive petition should be 

measured from the conclusion of the prior appeal. As discussed above, the correct standard for 

the timeliness of a successive petition was set forth in Charboneau, 144 Idaho at 905, 174 P.3d at

875.

Anderson similarly asserts that as part of our analysis under the reasonable time standard, 

we should consider that a paralegal at the prison informed him that he could not file a successive 

petition during the pendency of an appeal from an earlier petition. Anderson made the same 

argument before the district court during a hearing on March 26, 2009. At that time, the court 

informed Anderson that it intended to issue notice of intent to dismiss his petition, and informed 

him: 

[Y]ou’ll have the 20-day time to review it, analyze it, and submit additional facts.

Now you need to be aware that what you have told me in court is 

argument. It’s not an affidavit. It’s not sworn testimony. And so, if you wish to 

have that considered, it has to be done in oath, under oath, at some future time, 

like an affidavit.

Despite the court’s explicit instructions, which repeated the requirements of Idaho Code § 19-

4903 that a petition must be supported by evidence, Anderson did not file an affidavit or provide 

other evidence to support the allegation that he had been told he could not file a successive 

petition during the pendency of the appeal of his previous petition. Because Anderson never 

provided evidentiary support for this assertion, the district court correctly declined to consider it. 

Anderson has not shown a justifiable reason for the approximately one-year delay 

between his discovery of C.B.’s allegedly inconsistent statements and the filing of his successive 

petition. We agree with the district court’s conclusion that the claims made in Anderson’s 

successive petition for post-conviction relief are barred for failure to bring them within a 

reasonable time after they were allegedly discovered.5

 

 

5 It is thus unnecessary to address Anderson’s additional argument that the district court 

erred by concluding that he voluntarily dismissed the ineffective assistance of counsel claim.
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D. Appointment of Counsel

Next, Anderson asserts that the district court erred by failing to address his renewed 

motion for appointment of counsel before dismissing his petition. Idaho Code § 19-4904 gives 

courts discretion to appoint an attorney for post-conviction petitioners who are unable to pay for 

the expenses of representation. Hust v. State, 147 Idaho 682, 683, 214 P.3d 668, 669 (Ct. App. 

2009); Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). Counsel should be 

appointed if the petitioner qualifies financially and alleges facts to raise the possibility of a valid 

claim, and a request for counsel may be denied only if all the alleged claims raised in the petition 

are frivolous. Charboneau v. State, 140 Idaho 789, 792-93, 102 P.3d 1108, 1111-12 (2004); 

Hust, 147 Idaho at 684, 214 P.3d at 670. “[A]ny time a district court dismisses a petition for 

post-conviction relief on either substantive or procedural grounds without first addressing the 

petitioner’s request for post-conviction counsel (assuming the petitioner made such a request), 

the court commits an abuse of discretion.” Hust, 147 Idaho at 685, 214 P.3d at 671 (emphasis in 

original); accord Fox, 129 Idaho at 885, 934 P.2d at 951; Swisher v. State, 129 Idaho 467, 469, 

926 P.2d 1314, 1316 (Ct. App. 1996). However, such an abuse of discretion constitutes 

reversible error only if a petitioner “presents any colorably meritorious claim, the presentation of 

which might have been enhanced by the assistance of counsel.” Swisher, 129 Idaho at 469, 926 

P.2d at 1316 (holding that failure to address request for counsel on claims unquestionably barred 

by the statute of limitation is harmless error).

At the hearing, on August 3, 2006, before ruling on the State’s motion for summary 

dismissal, the court effectively denied Anderson’s renewed motion for appointment of counsel as 

follows:

With respect to the lawyer question, what I would hold is that there have 

been two lawyers appointed in this case. Both withdrew, were allowed to 

withdraw for the reasons already expressed in the record. An additional 

appointment of counsel would not change any of the past--or the facts in this case. 

The new, or this amended petition, Mr. Anderson has told us, is a handwritten 

copy of the petition filed by his [first appointed] counsel . . . . So in effect, it was 

filed . . . with the assistance of counsel. 

To the extent that the district court reasoned that Anderson was represented by counsel even 

though his counsel was permitted to withdraw, we disagree. However, Anderson has not 

demonstrated that the district court abused its discretion by declining to appoint a third attorney. 

The district court considered that claims presented in Anderson’s petition were procedurally 
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barred, and thus concluded that even with the assistance of counsel, Anderson could not develop 

the claims to merit relief. Thus, we find no error.

E. Prosecutorial Misconduct and Ineffective Assistance of Counsel

Anderson has also argued on appeal the merits of his claims of prosecutorial misconduct 

and ineffective assistance of counsel, both of which are predicated on alleged inconsistencies 

between C.B.’s testimony at trial and her prior out-of-court statements. While we do not rest our 

decision on this ground, we take the opportunity to inform Anderson that we discern no merit in 

his claims. Even accepting as true Anderson’s assertions that C.B. originally told police that 

Anderson broke her jaw during a physical altercation in the driveway, instead of in the house as 

she testified at trial, such an inconsistency does not demonstrate that C.B. perjured herself, that 

the prosecutor elicited false testimony, or that Anderson’s trial attorney was ineffective because 

he did not object to the testimony. First, Anderson incorrectly assumes that we must presume 

that C.B.’s earlier statements to the police were true and any later inconsistent statements were 

false. We know of no authority to support such a presumption. While the existence of a prior 

inconsistent statement may provide fertile ground for the impeachment of a witness, see 

I.R.E. 801(d)(1)(A), it does not necessarily preclude a party from eliciting subsequent contrary 

testimony. C.B.’s trial testimony may have been slightly different than her earlier statements to 

the police, but Anderson has not demonstrated that it was false. Second, whether Anderson 

broke the victim’s jaw in the driveway, as she told the police, or in the house, as she testified at 

trial, is of little importance as the specific location is not an element of the offense. The victim 

consistently stated that Anderson took her glasses, that she argued with Anderson in the 

driveway as she attempted to recover her glasses, and that Anderson hit her in the face, breaking 

her jaw. Third, even if defense counsel could have prevented the admission of C.B.’s testimony 

that was inconsistent with prior statements, this deficiency was not prejudicial. On direct appeal 

from his conviction, Anderson asserted that the district court erred by ruling that he could not 

impeach C.B. with unrelated prior inconsistent statements without opening the door to the 

admission of his previous criminal history. This Court affirmed, holding that even if the district 

court’s ruling was erroneous, “any such error could not have contributed to the verdict.” See 

State v. Anderson, Docket No. 25632 (Ct. App. Feb. 27, 2001). The reasoning for the conclusion 

of harmlessness is equally applicable to Anderson’s post-conviction claims, and thus bears 

repeating here:
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The evidence of Anderson’s guilt was overwhelming and was not based merely 

upon C.B.’s testimony. Witnesses observed Anderson and C.B. in a heated 

argument immediately before the battery and saw him enter the room where the 

injury occurred. Witnesses who entered the room immediately thereafter saw 

C.B. lying on the floor, crying and holding her face in pain. Both C.B. and 

another witness testified that Anderson was wearing some type of fingerless glove 

on his right hand a few days after the incident. C.B. also testified that Anderson’s 

right hand was swollen, that he complained that her face had injured his hand, and 

that in a subsequent argument Anderson threatened to break her jaw again if she 

did not stop screaming. Dr. Mark A. Plant, the surgeon who operated on C.B.’s 

broken jaw, testified that the injury could not have been caused by a fall on the 

chin or cheek, and that she must have been struck with a great deal of force by a 

blunt object, such as a human fist, right below the cheekbone. Finally, there was 

testimony from witnesses who heard Anderson brag that he had broken C.B.’s 

jaw.

Id. In short, even if C.B. had not been allowed to testify at all, there is no reasonable probability 

that Anderson would have been acquitted of the aggravated battery charge because the State 

possessed independent and overwhelming evidence of his guilt.

III.

CONCLUSION

Anderson has not demonstrated that his successive petition was filed within a reasonable 

time. Because Anderson’s successive petition was time-barred, the district court acted within its 

decision when it denied Anderson’s renewed motion for appointment of counsel. We therefore 

affirm the dismissal of Anderson’s successive petition for post-conviction relief. 

Chief Judge GRATTON and Judge MELANSON CONCUR.