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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 35458

WILLIAM GLEN LEER,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2009 Opinion No. 56

Filed: July 31, 2009

Stephen W. Kenyon, Clerk

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

County. Hon. Ronald J. Wilper, District Judge. 

Judgment denying post-conviction relief, affirmed.

Dennis Benjamin of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for 

appellant. 

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

Attorney General, Boise, for respondent. 

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LANSING, Chief Judge

William Glen Leer appeals from the district court’s order denying his petition for postconviction relief. Leer asserts that the district court erred in concluding that Leer’s appellate 

attorney in the criminal case was not ineffective. We do not reach this issue because we 

conclude that Leer’s post-conviction action is time-barred.

I.

BACKGROUND

Leer was arrested in 2004 and charged with trafficking in 400 grams or more of 

methamphetamine, and several other crimes. Leer later filed a motion to suppress evidence 

seized at the time of his arrest, which the district court denied. Leer thereafter entered into an 

agreement with the State whereby he agreed to plead guilty to the methamphetamine trafficking 

charge and the State agreed to dismiss the other charges. Leer entered a conditional guilty plea, 

reserving the right to appeal various prior court rulings, including the denial of his suppression 
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motion. The court accepted the guilty plea and sentenced Leer to a twenty-year term of 

imprisonment with ten years determinate.

On appeal, Leer’s counsel did not challenge the district court’s denial of his suppression 

motion and instead argued only that Leer’s sentence was excessive. This Court affirmed Leer’s 

sentence in an unpublished opinion, State v. Leer, Docket No. 31559 (Ct. App. February 1, 

2006). After the Supreme Court denied review, a remittitur was issued on April 19, 2006. Leer 

later received a July 31, 2006 letter from his appellate attorney which stated that although the 

appellate attorney had believed at the time of the appeal, and continued to believe, that the 

suppression issue was meritless, the attorney thought he should have raised the issue anyway 

because Leer had reserved the right to appeal the suppression order as part of his conditional 

guilty plea.1 The letter stated that because of this oversight, Leer’s appellate attorney believed 

that Leer might have a viable claim for post-conviction relief. About nine months later, on 

March 29, 2007, Leer filed a motion under the criminal case caption requesting appointment of 

counsel to help him prepare a petition for post-conviction relief. The appellate attorney’s July 31 

letter was attached to the motion as an exhibit. After allowing Leer time to file the necessary 

affidavit of indigency, the district court granted the motion for counsel on May 9, 2007. It 

appears that the Ada County Public Defender was initially appointed for Leer, but conflict 

counsel was later assigned on or about July 18, 2007. Leer’s petition, asserting ineffective 

assistance of appellate counsel, was finally filed on October 2, 2007. At some point the State 

offered to stipulate that Leer be allowed to file an appeal from the suppression order, but Leer 

rejected that offer because he wanted to withdraw his plea instead. 

The State filed a motion for summary dismissal, asserting that Leer’s petition was barred 

by the statute of limitations. The district court concluded, however, that the statute of limitations

should be equitably tolled because Leer had started the post-conviction process within the 

limitations period by filing his motion for counsel, though his conflict counsel was not 

appointed, nor a petition filed, until after the limitations period had expired. The court 

 

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Leer’s appellate attorney also testified during the evidentiary hearing in Leer’s postconviction action that he had not realized during the appeal that it was the policy of the State 

Appellate Public Defender’s office, where he worked, to appeal all issues preserved in 

conditional guilty pleas regardless of their merit.
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nevertheless denied Leer’s petition on the merits after an evidentiary hearing, and Leer now 

appeals. 

II.

ANALYSIS

Leer argues that he proved that his appellate counsel was deficient in not appealing the 

denial of the suppression motion and therefore the district court erred in refusing post-conviction 

relief. We do not address the merits of this claim, however, because we conclude, as the State

contends, that Leer’s post-conviction action is time-barred.

A. Leer’s Contentions That the State May Not Raise the Timeliness Issue on Appeal

Before addressing the State’s statute of limitations argument, we must consider Leer’s 

contention that the State may not raise this defense on appeal. Leer first argues that the State is 

prohibited from raising the timeliness issue because it did not cross-appeal from the district 

court’s ruling that the doctrine of equitable tolling salvaged Leer’s otherwise untimely petition. 

This assertion is incorrect, for a cross-appeal is required only when a respondent seeks 

affirmative relief from a judgment, order, or decree. “If no affirmative relief is sought by way 

of reversal, vacation, or modification of the judgment, order or decree, an issue may be presented 

by the respondent as an additional issue on appeal under Rule 35(b)(4) without filing a crossappeal.” Idaho Appellate Rules 11(g) and 15(a). See also State v. Fisher 140 Idaho 365, 372, 93 

P.3d 696, 703 (2004). Here, the State does not seek to reverse, vacate, or modify the district 

court’s denial of Leer’s petition. Instead, the State urges affirmance of that denial on a ground 

that was raised in the trial court but that differs from the rationale on which the district court 

relied. Since the State seeks no change in the district court’s judgment but, rather, simply asserts 

an alternate basis for upholding the judgment, it need not cross-appeal. See McKay v. Boise

Project Bd. of Control, 141 Idaho 463, 467-68, 111 P.3d 148, 152-53 (2005); Fisher, 140 Idaho 

at 372-73, 93 P.3d at 703-04. See also Bewley v. Bewley, 116 Idaho 845, 847, 780 P.2d 596, 598 

(Ct. App. 1989). 

Leer also asserts that the State did not dispute his position below that equitable tolling 

rendered his petition timely, and therefore it cannot challenge that position on appeal. This 

contention is meritless. It is true that a party generally may not raise a new issue on appeal, see

State v. Cole, 135 Idaho 269, 272-73, 16 P.3d 945, 948-49 (Ct. App. 2000); Small v. State, 132 

Idaho 327, 331, 971 P.2d 1151, 1155 (Ct. App. 1998), but here both the statute of limitations 
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defense and the equitable tolling question were before the trial court. The State expressly sought 

dismissal of Leer’s petition on the ground that it was barred by the statute of limitations, and in 

response to this affirmative defense, Leer himself brought up the doctrine of equitable tolling. 

Having raised the limitations defense, the State did not need to present argument on each of 

Leer’s theories of limitations avoidance in order to address those theories on appeal. Moreover, 

the prosecutor did contest Leer’s equitable tolling theory. At the hearing on the State’s motion 

the prosecutor argued that Leer had not shown a basis for equitable tolling: “I don’t see any of 

those [equitable tolling] allegations here, and so I don’t see where there is any way that we can 

get around the fact that this is just too late.” The State plainly is entitled to controvert Leer’s 

tolling argument on appeal. 

B. Leer’s Petition Is Barred by the Statute of Limitations

The limitations period for post-conviction actions in non-capital cases is one year from 

the expiration of the time for appeal in the criminal case or from the determination of the appeal 

or from the determination of the proceedings following an appeal, whichever is later. I.C. § 19-

4902. See also Gonzalez v. State, 139 Idaho 384, 386, 79 P.3d 743, 745 (Ct. App. 2003); Hanks 

v. State, 121 Idaho 153, 154, 823 P.2d 187, 188 (Ct. App. 1992). Here, the remittitur was issued 

in Leer’s criminal appeal on April 19, 2006, and he had one year from that date to file his 

petition for post-conviction relief but did not do so. Although Leer did file a motion for 

appointment of counsel within the one-year period,

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Leer’s conflict counsel was not designated 

until July of 2007, after the limitations period had expired, and did not file Leer’s petition until 

October 2, 2007.

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 Therefore, the action is time-barred unless a basis has been shown to 

equitably toll the limitations period.

The district court held that the limitations period was equitably tolled, and the State 

argues that this was error. Equitable tolling in a post-conviction action has been recognized by 

 

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Perhaps due to our recent decision in Schwartz v. State, 145 Idaho 186, 190-91, 177 P.3d 

400, 404-05 (Ct. App. 2008), Leer does not assert that his motion for appointment of counsel 

should itself be considered a petition for post-conviction relief. 

3 One argument made by Leer on appeal, that attorney malfeasance in failing to file the 

petition within the statutory period will justify equitable tolling, is without factual support 

inasmuch as his attorney was not even appointed until after the limitations period had run.
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Idaho appellate courts in two circumstances--where the petitioner was incarcerated in an out-ofstate facility without legal representation or access to Idaho legal materials, see Martinez v. State,

130 Idaho 530, 536, 944 P.2d 127, 133 (Ct. App. 1997); and where mental disease and/or 

psychotropic medication prevented the petitioner from timely pursuing challenges to the 

conviction, see Abbott v. State, 129 Idaho 381, 385, 924 P.2d 1225, 1229 (Ct. App. 1996).

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Equitable tolling is borne of the petitioner’s due process right to have a meaningful opportunity 

to present his or her claims. See Martinez, 130 Idaho at 535-36, 944 P.2d at 132-33; Abbott, 129 

Idaho at 385, 924 P.2d at 1229. As we noted in Chico-Rodriguez v. State, 141 Idaho 579, 582, 

114 P.3d 137, 140 (Ct. App. 2005), American courts generally have applied equitable tolling 

only in rare and exceptional circumstances beyond the petitioner’s control that prevented him or 

her from filing a timely petition. Therefore, “the bar for equitable tolling for post-conviction 

actions is high.” Id. 

Here, the district court leniently applied equitable tolling upon the general consideration 

that Leer had taken a step to pursue a post-conviction claim in a timely manner by filing his 

motion for appointed counsel, but that circumstances beyond his control caused the petition not 

to be filed within the one-year period. We conclude, however, that this was error. Three weeks 

before the limitations period ended Leer filed a well-crafted motion for appointment of postconviction counsel that was three and one-half pages long, cited pertinent legal authority, and 

was accompanied by exhibits that presented the facts later used as the basis for his petition. The 

exhibits included the letter from his appellate attorney stating that the attorney’s failure to raise 

the suppression issue in Leer’s appeal in the criminal case might entitle Leer to either withdraw 

his plea or receive a new appeal. The letter specifically discussed the possibility of pursuing a 

post-conviction claim. When the district court issued a notice of intent to deny Leer’s motion for 

counsel due to his failure to show indigency, Leer submitted a well-written affidavit and 

documentation showing that he was in fact indigent. By these filings, Leer demonstrated that he 

had the capacity to submit an adequate and timely pro se petition for post-conviction relief had 

 

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In addition, at least in some circumstances the commencement of the limitations period 

may be delayed until the petitioner discovers the facts giving rise to the claim. In Charboneau v. 

State, 144 Idaho 900, 904-05, 174 P.3d 870, 874-75 (2007), the Idaho Supreme Court recognized

that, at least where the post-conviction claim raises important due process issues, the limitations 

period may be postponed until the petitioner has discovered the factual basis for the claim. Leer 

does not urge application of this discovery exception here.
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he chosen to do so, even if he might later need legal assistance to adequately pursue the action. 

Leer has not shown that his failure to file a timely petition was due to any inability to do so, and 

therefore he did not demonstrate a basis for equitable tolling. 

Because Leer’s petition was filed outside the limitations period and no basis for equitable 

tolling has been shown, his petition was untimely and should have been dismissed on that basis. 

We therefore affirm the judgment denying relief on Leer’s petition.

Judge PERRY and Judge GRATTON CONCUR.