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

Idaho, Bonneville County. Hon. Jon J. Shindurling, District Judge.

The appeal is dismissed pursuant to I.C. § 19-2719.

Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant. Oliver Loewy 

argued.

Lawrence G. Wasden, Attorney General, Boise, for respondent. Lamont 

Anderson argued.

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W. JONES, Justice

I. NATURE OF THE CASE

This case arises from Appellant Paul Ezra Rhoades‟s (Rhoades) 1988 conviction for the 

murder, kidnapping, robbery, rape, and infamous crime against nature of Susan Michelbacher. 

In 2002, Rhoades filed a petition for post-conviction relief and new DNA testing. Rhoades filed 

a motion to amend his petition, which the district court denied. Rhoades then filed a motion to 

withdraw Count I of his petition in order to appeal the district court‟s denial of his motion to 

amend. The district court granted the withdrawal and dismissed Rhoades‟ petition. Rhoades 

appeals to this Court contending that it was error for the district court to deny his motion to 

amend his petition for post-conviction relief.

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 34236

PAUL EZRA RHOADES,

 Petitioner/Appellant,

v. 

 

STATE OF IDAHO,

 

 Respondent. 

 

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Boise, August 2009 Term

2009 Opinion No. 126

Filed: October 19, 2009

Stephen W. Kenyon, Clerk
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II. FACTUAL AND PROCEDURAL BACKGROUND

Rhoades was convicted in 1988 of murdering three people, including the first-degree 

murder, first-degree kidnapping, infamous crime against nature, robbery, and rape of Susan 

Michelbacher. This Court affirmed his convictions and sentences, which included the imposition 

of the death penalty. State v. Rhoades, 121 Idaho 63, 80, 822 P.2d 960, 977 (1991).

DNA recovered from the crime scene consists of three semen samples taken from Susan 

Michelbacher‟s body, presumably deposited after her death by her attacker. In 1987, the Idaho 

Forensic Laboratory conducted a PGM analysis1on the semen to determine the donor‟s identity. 

This testing did not rule out Rhoades as a donor of the semen. The Forensics Laboratory then 

sent the sample swabs to the FBI Bureau of Laboratories for a more refined DNA test. Using the 

swabs, the FBI generated the 1987 DNA report at issue in this case. The report was not used at 

Rhoades‟s trial even though it was available.

Rhoades filed his petition for post-conviction relief in 2002 seeking new scientific testing 

of DNA collected by the police during the investigation of Susan Michelbacher‟s murder

pursuant to I.C. § 19-4902 (Count I).

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 The district court stayed proceedings in order to conduct 

DNA testing. In 2005, Rhoades then filed a motion to amend the petition for post-conviction 

relief seeking to add claims that the prosecutor knowingly violated his constitutional rights by 

presenting allegedly false DNA evidence (Count II) and that Rhoades is actually innocent of the 

crimes (Count III). Rhoades supported his motion to amend with two affidavits by Greg 

Hampikian, Ph.D., interpreting the FBI DNA tests conducted prior to trial. The district court 

denied Rhoades‟ motion to amend because Rhoades had been in possession of the FBI report 

since 1987 and did not present any evidence as to why he could not have obtained an expert to 

examine the report at the time that his petition was filed in 2002. Rhoades subsequently 

withdrew Count I of his petition, which alleged that the DNA samples exonerated Rhoades as the 

perpetrator of the crime. This appeal is based solely on whether the district court should have 

allowed Rhoades to amend his petition to add Count II and Count III.

III. ISSUE ON APPEAL

 

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PGM refers to an enzyme found in bodily fluids such as blood, vaginal secretions, and semen. It comes in a finite 

number of variations, much like blood types such as A, B, and so on. 

2 A petitioner may file a petition for DNA testing “on evidence that was secured in relation to the trial which 

resulted in his or her conviction but which was not subject to the testing that is now requested because the 

technology for the testing was not available at the time of trial.” I.C. § 19-4902(b).
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A. Whether the district court correctly denied Rhoades‟s motion to amend his petition for 

post-conviction relief to add a count alleging a Brady violation under Idaho Code § 19-

2719.

B. Whether the district court correctly denied Rhoades‟s motion to amend his petition to add 

an “actual-innocence” count under Idaho Code § 19-2719.

IV. STANDARD OF REVIEW

Post-conviction proceedings are civil in nature, and are therefore governed by the Rules 

of Civil Procedure. McKinney v. State, 133 Idaho 695, 699, 992 P.2d 144, 148 (1999). “[T]he 

decision to grant or refuse permission to amend is left to the sound discretion of the trial court.” 

Jones v. Watson, 98 Idaho 606, 610, 570 P.2d 284, 288 (1977). However, jurisdictional issues 

are questions of law that can be raised at any time. Rhoades v. State, 135 Idaho 299, 300, 17 

P.3d 243, 244 (2000). The Idaho Supreme Court exercises free review over questions of law. 

Munson v. State, 128 Idaho 639, 642, 917 P.2d 796, 799 (1996).

V. ANALYSIS

A. The District Court Was Correct in Determining that It Was Without Jurisdiction to 

Permit Rhoades to Amend his Petition to Allege a Brady Violation.

Rhoades filed his motion to amend the petition for post-conviction relief asserting a 

Brady violation3(Count II) and “actual innocence” (Count III) arising from the 1987 DNA 

report. 

“The Uniform Post-Conviction Procedure Act „is the exclusive means for challenging the 

validity of a conviction or sentence.‟” Hays v. State, 132 Idaho 516, 519, 975 P.2d 1181, 1184 

(Ct. App. 1999) (quoting Gomez v. State, 120 Idaho 632, 634, 818 P.2d 336, 338 (Ct. App. 

1991)). Post-conviction proceedings are generally governed by the Uniform Post Conviction 

Procedure Act (UPCPA). I.C. §§ 19-4901 to -4911; McKinney, 133 Idaho at 700, 992 P.2d at

149 (1999). However, in capital cases, “the UPCPA is modified by I.C. § 19-2719 . . . [and] 

supersedes the UPCPA to the extent that their provisions conflict.” McKinney, 133 Idaho at 700, 

992 P.2d at 149. 

Under I.C. §19-2719, the defendant has forty-two days from the judgment imposing the 

death penalty to file a petition. I.C. § 19-2719(3). “The time limitations contained in I.C. § 19-

2719 are jurisdictional in nature, the statute specifically depriving the courts of Idaho of the 

 

3 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963) (holding that it is a violation of due process 

for the prosecutor, whether acting in good faith or in bad faith, to not disclose all “evidence favorable to an accused 

upon request where the evidence is material either to guilt or to punishment”).
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power to consider any claims for relief that have been waived under the statute.” Pizzuto v. 

State, 127 Idaho 469, 471, 903 P.2d 58, 60 (1995).4 All claims that were known or could have 

been known within forty-two days of judgment that are not raised in the first petition for postconviction relief are deemed waived. I.C. § 19-2719(5); Porter v. State, 136 Idaho 257, 259, 32 

P.3d 151, 153 (2001). There is an exception to the forty-two day rule under subsection (5). A 

petition may be maintained after the expiration of the forty-two days if the claims for relief were 

not known, or could not reasonably have been known. I.C. § 19-2719(5). However, it is well 

settled that the statute places a “heightened burden” on the defendant to make a prima facie case 

that the matter could not reasonably have been known within forty-two days of the judgment. 

E.g. Dunlap v. State, 131 Idaho 576, 577, 961 P.2d 1179, 1180 (1998) (citing Paz v. State, 123 

Idaho 758, 760, 852 P.2d 1179, 1357); McKinney, 133 Idaho at 701, 992 P.2d at 150. “Any 

successive petition for post-conviction relief not within the exception of subsection (5) of the 

statute shall be dismissed summarily.” Fields v. State, 135 Idaho 286, 289, 17 P.3d 230, 233 

(2000).

Rhoades‟s motion to amend was filed in July of 2005. In the motion to amend, Rhoades 

claims that the prosecutor had full knowledge that the 1987 FBI report exonerated him and 

therefore violated Brady by presenting testimony at trial linking Rhoades to the samples 

collected from Susan Michelbacher‟s body. Rhoades further contended that his amended 

petition was timely because he only recently obtained an expert to examine the report in 2005 

when he moved to amend. Rhoades presented the affidavit of Dr. Hampikian to support his 

amended petition. It states that the report ruled out Rhoades as the donor of one of the three 

semen samples taken at the crime scene, but that the other two samples “failed to exhibit 

sufficient activity to allow a conclusive determination of any PGM subtype present.”

Rhoades fails to explain why he could not reasonably have known about the report‟s 

conclusions. Defendants are entitled to expect the prosecutor to disclose exculpatory evidence, 

not merely to make it available. Sivak v. State, 134 Idaho 641, 642, 8 P.3d 636, 647 (2000) 

(citing Strickler v. Greene, 527 U.S. 263, 286–87, 119 S. Ct. 1936, 1951 (1999)). Here, 

 

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In Pizzuto, this Court acknowledged that the legislature created a jurisdictional bar against hearing post-conviction 

claims later than forty-two days after the judgment. Pizzuto, 127 Idaho 469, 471, 903 P.2d 58, 60. Rhoades waited 

until his Reply to raise a separation-of-powers issue as to whether I.C. § 19-2719 encroaches on the district courts‟ 

jurisdiction under the Idaho Constitution. Because he did not raise the issue in his opening brief, this Court does not 

reach the separation-of-powers question. Suitts v. Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005).
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however, Rhoades received a copy of the FBI‟s DNA report and was appointed an expert, 

Richard Fox, to review the report before trial.

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 It was readily apparent to any expert that the 

report might contain exculpatory information. The most damaging indication that Rhoades 

should have known about the report‟s implications comes from his own expert, Dr. Hampikian,

who stated in an affidavit that:

The analysis I conducted was generally, perhaps universally, accepted by 

the community of forensic biologists as well as the community of forensic 

serologists in 1987. Further, once the FBI completed its testing . . . , whether Mr. 

Rhoades was a potential contributor of the semen was not a matter of 

interpretation or opinion. Any forensic scientist with expertise in PGM analysis 

would have reached the same conclusions as I did.

Rhoades has accordingly failed to meet the “heightened burden” of I.C. § 19-2719. The district 

court was therefore without jurisdiction to grant Rhoades‟s motion to amend his petition for postconviction relief.

B. The District Court Correctly Held that it Is Without Jurisdiction to Permit Rhoades 

to Amend His Petition to Add an “Actual Innocence” Count.

Rhoades similarly contends that the potentially exculpatory DNA report shows that he is 

actually innocent of the crimes he was convicted of because the state relied on a single-attacker 

theory to convict him, and one of the semen swabs on the victim has allegedly been shown not to 

contain his DNA.

For reasons identical to the purported Brady violation above, Rhoades waived any “actual 

innocence” issue when he failed to raise it within forty-two days of the judgment. A defendant 

filing a successive petition must show the existence of an issue that he could not reasonably have 

known of and support the petition with new material facts. I.C. § 19-2719(5). As explained 

above, Rhoades had received the 1987 FBI report allegedly excluding him from being a donor of 

one of the semen samples found on the victim and could therefore have raised the issue long ago. 

He bases his motion to amend solely on his expert‟s opinion of the report. Therefore, he alleges 

no new material facts to support an “actual innocence” claim.

Moreover, a pleading “shall be deemed facially insufficient to the extent it alleges matters 

that . . . would not, even if the allegations were true, cast doubt on the reliability of the 

conviction.” I.C. § 19-2719(5)(b). The 1987 FBI report states that only one of the three semen 

 

5 The district court also granted a motion requiring the state to list and make available all physical evidence in its 

custody that had not yet been tested.
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swabs, labeled Q1, produced a measurable test result. The Q1 swab was PGM Sub1+. This, 

according to Dr. Hampikian‟s affidavits, rules out Rhoades as the semen donor because he is a 

PGM Sub1-1+, a different PGM subtype. However, Dr. Hampikian later admitted in an affidavit 

submitted during Rhoades‟s federal habeas corpus proceedings that the victim‟s own tissue may 

have actually been caught in the swab and caused the test result because she was also the same 

PGA subtype as the Q1 swab. Rhoades v. Arave, No. CV 93-0156-S-EJL, 2007 WL 951897, at

*32 (D. Idaho Mar. 28, 2007). Thus, even if Rhoades could not reasonably have known about the 

report‟s full implications until his expert reviewed it in 2005, the report is essentially 

inconclusive as to whether the DNA is simply the victim‟s and not from an alternate perpetrator. 

There is no new material fact here that tends to cast doubt on the reliability of the conviction 

under I.C. § 19-2719(5)(b). 

VI. CONCLUSION

For the foregoing reasons, the appeal is dismissed pursuant to I.C. § 19-2719.

Chief Justice EISMANN, Justices BURDICK, HORTON and Justice pro tem TROUT, 

CONCUR.