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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48081

MARK DOUGLAS HUBER,

Petitioner-Appellant,

v.

JAY CHRISTENSEN, Warden,

Respondent.

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Filed: February 17, 2021

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Gerald F. Schroeder, Senior District Judge. Hon. Ransom Bailey, 

Magistrate.

Order of the district court, on intermediate appeal, affirming the magistrate court 

order dismissing appeal, affirmed. 

Mark D. Huber, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; Mark A. Kubinski, Deputy 

Attorney General, Boise, for respondent. Respondent did not participate on 

appeal.

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GRATTON, Judge 

Mark Douglas Huber appeals from the district court’s decision on intermediate appeal 

affirming the magistrate court’s order dismissing his appeal. We affirm. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2011, Huber was found guilty of rape and lewd conduct with a minor under sixteen. 

Huber was sentenced to concurrent, unified terms of thirty years with fifteen years determinate. 

This Court affirmed Huber’s sentences and the denial of his Idaho Criminal Rule 35 motion for 

reduction of sentences. State v. Huber, Docket No. 39222 (Ct. App. Apr. 27, 2015)

(unpublished). Huber then filed a petition for post-conviction relief, the denial of which was also 
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affirmed by this Court. State v. Huber, Docket No. 46897 (Ct. App. Aug. 21, 2020)

(unpublished). 

Huber next filed a state habeas corpus petition alleging actual innocence. Huber 

challenged the validity of his conviction, arguing that new evidence proved his innocence. The 

magistrate court dismissed his petition, concluding that state habeas corpus does not provide a 

remedy for his claims. Rather, a post-conviction petition pursuant to the Uniform PostConviction Procedure Act is the correct vehicle to challenge the validity of a conviction. The 

district court affirmed the magistrate court’s order. Huber timely appeals. 

II.

ANALYSIS

Huber argues that both the magistrate court and district court erred in dismissing his 

habeas petition and request for counsel. Specifically, Huber argues that he is challenging the 

conditions of his confinement under Idaho Code § 19-4203(2), which is reviewable in a habeas 

petition. 

An in-state prisoner may petition for habeas corpus “to request that a court inquire into 

state or federal constitutional questions concerning: (a) The conditions of his confinement; 

(b) Revocation of parole; (c) Miscalculation of his sentence; (d) Loss of good time credits; (e) A 

detainer lodged against him.” I.C. § 19-4203(2). “Habeas corpus shall not be used as a 

substitute for, or in addition to, a direct appeal of a criminal conviction or proceedings under 

Idaho criminal rule 35 or the uniform post-conviction procedures act, chapter 49, title 19, Idaho 

Code, and the statutes of limitations imposed therein.” I.C. § 19-4203(4). “Post-conviction 

procedure acts have replaced the writ of habeas corpus for the purpose of challenging the validity 

of a conviction.” Stuart v. State, 149 Idaho 35, 47, 232 P.3d 813, 825 (2010). 

Huber states that he is challenging the conditions of his confinement, rather than the 

validity of his conviction. Upon review of the record, we disagree. The purpose of Huber’s 

petition is clearly to put forward new evidence that challenges the validity of his conviction. 

None of his filings mention the conditions of his confinement outside of the fact that he is 

confined at all, which he repeatedly challenges as illegal due to his actual innocence. We agree 

with the district court’s holding that Huber’s petition challenged the validity of his conviction, 

and as habeas corpus does not provide a remedy in such cases, we affirm the dismissal of 

Huber’s appeal. 
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While Huber also states that the district court erred in dismissing his request for counsel, 

he provides neither argument nor authority to support his position. 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).

III.

CONCLUSION

The district court did not err by dismissing Huber’s appeal. Accordingly, we affirm the

district court’s decision on intermediate appeal affirming the magistrate court’s order dismissing 

Huber’s habeas corpus petition. 

Judge LORELLO and Judge BRAILSFORD CONCUR.