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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43976

GREGORY JOSEPH NELSON,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2017 Unpublished Opinion No. 537S-2

Filed: April 6, 2018

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

SUBSTITUTE OPINION

THE COURT’S PRIOR OPINION

DATED DECEMBER 19, 2017,

IS HEREBY WITHDRAWN

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

County. Hon. Lynn G. Norton, District Judge. 

Judgment summarily dismissing petition for post-conviction relief, affirmed.

Gregory Joseph Nelson, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Judge

Gregory Joseph Nelson appeals from the district court’s judgment summarily dismissing 

his successive petition for post-conviction relief. Nelson specifically argues the district court 

erred in summarily dismissing his successive petition, denying his discovery requests, denying 

him leave of court to file a “bifurcated” petition, denying requests for counsel, and not ruling on 

a separate discovery request and a separate motion for leave to file an amended petition. For the 

reasons explained below, we affirm.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

In 1995, a jury found Nelson guilty of kidnapping in the first degree and lewd conduct 

with a minor under the age of sixteen. The district court sentenced Nelson to concurrent fixed 

terms of life imprisonment. Nelson appealed the judgment and his sentence, and this Court 

affirmed. State v. Nelson, 131 Idaho 210, 953 P.2d 650 (Ct. App. 1998).

Nelson filed his initial petition for post-conviction relief in 1999. The district court 

summarily dismissed the petition, and this Court affirmed. Nelson v. State, Docket No. 27266 

(Ct. App. Sept. 22, 2003) (unpublished). Nelson filed numerous successive petitions over the 

years that were summarily dismissed. In Nelson’s most recent successive petition at issue on 

appeal--his seventh petition--he requested STR DNA testing of the victim’s rape kit and the 

release of the victim’s DNA to see whether it matches testing results of Nelson’s underwear that 

he alleges he wore at the time of his contact with the victim. Nelson maintained the testing will 

prove his innocence because, he alleged, the victim’s DNA will not be found on Nelson’s 

underwear. Additionally, Nelson alleged the State withheld impeaching evidence pertaining to 

an FBI analyst.

Nelson also challenges on appeal the denial of several post-petition motions. For 

instance, he filed a motion to compel compliance with a subpoena duces tecum that he served on 

the Idaho State Police Forensic Services (ISPFS) demanding the disclosure of the DNA record 

and profile of the victim. The district court denied the motion to compel compliance and granted 

the State’s motion to quash Nelson’s subpoena. The district court reasoned that the discovery of 

the victim’s DNA would not lead to exculpatory evidence.

Nelson filed motions for court-ordered discovery, leave of court to conduct discovery, 

leave of court to file a “bifurcated” amended petition, and leave of court to file an amended 

petition. The district court denied Nelson’s motion for court-ordered discovery because it found 

that Nelson did not show a probability that any further testing or discovery would lead to 

exculpatory evidence. Furthermore, the district court denied Nelson’s motion for leave to file a 

“bifurcated” amended petition, determining that he had not provided a sufficient reason for leave 

to file an amended petition--it was in essence identical to the original petition he filed. The 

district court implicitly denied Nelson’s motions for leave of court to conduct discovery and yet 

another leave of court to file an amended petition.
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Nelson filed two separate motions for appointment of counsel. The district court denied 

both motions because it determined Nelson’s seventh successive petition was frivolous. 

Ultimately, the district court summarily dismissed Nelson’s petition following a hearing 

on the matter, reasoning that he failed to present a prima facie case that additional testing of the 

victim’s rape kit or release of any previous DNA results of the victim would more probably than 

not prove Nelson’s innocence. Additionally, the district court summarily dismissed Nelson’s 

claim that the State withheld impeaching evidence pertaining to the FBI analyst, finding that this 

claim was untimely. Nelson timely appeals.

II.

ANALYSIS

A. Summary Dismissal of DNA Testing Request

Nelson contends the district court erred in summarily dismissing his successive petition 

for post-conviction relief. A petition for post-conviction relief initiates a proceeding that is civil 

in nature. Idaho Code § 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 

(2009); State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 

Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the 

petitioner must prove by a preponderance of evidence the allegations upon which the request for 

post-conviction relief is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. 

App. 2002). A petition 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). A petition must contain 

much more than a short and plain statement of the claim that would suffice for a complaint under 

Idaho Rule of Civil Procedure 8(a)(1). Rather, a petition for post-conviction relief must be 

verified with respect to facts within the personal knowledge of the petitioner, and affidavits, 

records, or other evidence supporting its allegations must be attached or the petition must state 

why such supporting evidence is not included with the petition. I.C. § 19-4903. In other words, 

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

the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 

(Ct. App. 2011). 

Idaho Code Section 19-4906 authorizes summary dismissal of a petition for postconviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if it 

appears from the pleadings, depositions, answers to interrogatories, and admissions and 
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agreements of fact, together with any affidavits submitted, that there is no genuine issue of 

material fact and the moving party is entitled to judgment as a matter of law. When considering 

summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but 

the court is not required to accept either the petitioner’s mere conclusory allegations, 

unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman v. State, 125 

Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 

P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained 

to draw inferences in favor of the party opposing the motion for summary disposition; rather, the 

district court is free to arrive at the most probable inferences to be drawn from uncontroverted 

evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such 

inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify 

them. Id. 

Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven

by the record of the criminal proceedings, if the petitioner has not presented evidence making a 

prima facie case as to each essential element of the claims, or if the petitioner’s allegations do 

not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 

(2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary 

dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a 

matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in 

the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be 

appropriate even when the State does not controvert the petitioner’s evidence. See Roman, 125 

Idaho at 647, 873 P.2d at 901.

Conversely, if the petition, affidavits, and other evidence supporting the petition allege 

facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be 

summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); 

Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of 

material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues. 

Goodwin, 138 Idaho at 272, 61 P.3d at 629. 

On appeal from an order of summary dismissal, we apply the same standards utilized by 

the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if 

true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 
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929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free 

review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33 

P.3d 841, 844 (Ct. App. 2001). 

Pursuant to Idaho Code § 19-4902(b), a petitioner may file a post-conviction petition 

seeking DNA testing on evidence that was secured in relation to the criminal trial if the evidence 

was not subjected to the requested DNA testing because the technology was not available at the 

time of trial. The petitioner must present a prima facie case that identity was at issue in the trial 

and that the evidence was subject to a “chain of custody sufficient to establish that such evidence 

has not been substituted, tampered with, replaced or altered in any material aspect.” I.C. § 19-

4902(c). The trial court must allow the testing under reasonable conditions if it determines that 

the result of the testing has the scientific potential to produce new, noncumulative evidence that 

would show that it is more probable than not that the petitioner is innocent and that the testing 

method requested would likely produce admissible results. I.C. § 19-4902(e). The more 

probable than not standard is essentially a 51 percent standard. Bourgeois v. Murphy, 119 Idaho 

611, 622, 809 P.2d 472, 483 (1991). Thus, before allowing post-conviction DNA testing, the 

trial court must make a determination that the testing results, whatever they may be, have the 

scientific potential to demonstrate that it is more than 50 percent likely the petitioner is innocent. 

In the event testing is conducted, the court shall “order the appropriate relief” if the results 

demonstrate, in light of all admissible evidence, that the petitioner is not the person who 

committed the offense. I.C. § 19-4902(f). The petitioner has the burden of establishing that 

claim by a preponderance of the evidence. Fields v. State, 151 Idaho 18, 24, 253 P.3d 692, 698 

(2011); McCoy v. State, 129 Idaho 70, 72-73, 921 P.2d 1194, 1196-97 (1996).

Here, Nelson requested testing of the victim’s rape kit or the release of the victim’s DNA 

results in order to compare it to the DNA testing done on Nelson’s underwear that he was 

wearing at the time of his contact with the victim. Nelson alleged the victim’s DNA will not be 

found on his underwear, and therefore he is innocent. The district court concluded Nelson failed 

to present a prima facie case that additional testing of the victim’s rape kit or release of any 

previous DNA results of the victim had the scientific potential to produce new, noncumulative 

evidence that would show it is more probable than not that Nelson was innocent. We agree. 

Nelson testified at the criminal trial that he never had penile contact with the victim. In his own 

affidavit attached to his seventh petition, Nelson stated he never had penile contact with the 
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victim. Thus, the absence of the victim’s DNA on Nelson’s underwear does not show it is more 

probable than not that Nelson is innocent. Accordingly, the district court properly summarily 

dismissed this claim.

B. Discovery Requests

Nelson maintains the district court erred in denying two of his discovery requests and in 

not ruling on a third discovery request. When a petitioner believes discovery is necessary for 

acquisition of evidence to support a claim for post-conviction relief, the petitioner must obtain 

authorization from the district court to conduct discovery. Idaho Criminal Rule 57(b); 

Raudebaugh v. State, 135 Idaho 602, 605, 21 P.3d 924, 927 (2001). Discovery in a 

post-conviction action is not required unless necessary to protect a petitioner’s substantial rights. 

Murphy v. State, 143 Idaho 139, 148, 139 P.3d 741, 750 (Ct. App. 2006); Griffith v. State, 121 

Idaho 371, 375, 825 P.2d 94, 98 (Ct. App. 1992). Discovery may be denied where the 

petitioner’s claims are nothing more than speculation, unsupported by any evidence. 

Raudebaugh, 135 Idaho at 605, 21 P.3d at 927. Indeed, discovery may not be used to engage in 

fishing expeditions, as post-conviction actions provide a forum for known grievances, not an 

opportunity to search for them. Murphy, 143 Idaho at 148, 139 P.3d at 750. 

Whether to authorize discovery is a matter directed to the discretion of the court. 

Raudebaugh, 135 Idaho at 605, 21 P.3d at 927. When a trial court’s discretionary decision is 

reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the 

lower court correctly perceived the issue as one of discretion; acted within the boundaries of 

such discretion and consistently with any legal standards applicable to the specific choices before 

it; and reached its decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho 

Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).

1. Subpoena duces tecum and motion to compel compliance with the subpoena

Nelson contends the district court erred in granting the State’s motion to quash Nelson’s 

subpoena duces tecum and denying his motion to compel compliance with the subpoena. Nelson 

served a subpoena duces tecum on the ISPFS seeking the DNA record and profile of the victim. 

The district court recognized its discretionary authority in addressing the discovery request and 

determined the discovery of the victim’s DNA would not lead to exculpatory evidence.

While Nelson argues the State’s motion to quash the subpoena was not timely filed, it is 

of no consequence because the district court’s ruling on Nelson’s motion to compel is 
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dispositive. We turn to the merits of Nelson’s motion to compel compliance. Nelson argues the 

ISPFS’s compliance with the subpoena would have provided an exculpatory nexus between the 

victim’s DNA profile and the unknown minor DNA profile found on Nelson’s underwear, 

warranting a new trial. First, Nelson does not argue that such discovery is necessary to protect 

his substantial rights. Second, as previously stated, Nelson did not demonstrate the release of the 

victim’s DNA record and profile has the scientific potential to produce new, noncumulative 

evidence that would show it is more probable than not that Nelson is innocent. The district court 

therefore did not err in granting the State’s motion to quash the subpoena and in denying 

Nelson’s motion to compel compliance with the subpoena.

2. Denial of motion for court-ordered discovery

Next, Nelson argues the district court erred in denying his motion for court-ordered 

discovery. Nelson filed the motion in order to compel the production of information pertaining 

to the State’s expert witness--a lab analyst. Nelson’s motion was filed in response to the State’s 

notice to the district court that it intended to call the lab analyst at future hearings on the State’s 

pending motions in the case, including the State’s motion for summary dismissal, in order to 

support the State’s motions. In denying Nelson’s motion, the district court determined Nelson 

failed to show a probability that the production of documents related to the expert’s testimony 

would lead to exculpatory evidence or was otherwise necessary to protect Nelson’s substantial 

rights. We agree with the district court. A review of the motion indicates Nelson failed to argue 

the discovery was necessary to protect his substantial rights. He also failed to explain how the 

discovery would lead to exculpatory evidence. Moreover, even if the district court did err, the 

error is harmless because the State never called the witness to testify at subsequent hearings. 

Therefore, the district court appropriately denied this motion for court-ordered discovery.

3. Failure to rule on motion for leave of court to conduct discovery

Nelson further maintains the district court erred in not ruling on his motion for leave of 

court to conduct discovery. Nelson specifically sought the identification and testing of an item 

referenced in a law enforcement property invoice that was booked into the state lab. He filed his 

motion on December 9, 2015, and on January 20, 2016, the district court summarily dismissed 

Nelson’s petition. The district court’s summary dismissal constitutes an implicit denial of 

Nelson’s motion for leave of court to conduct discovery. This is because “where a district court 

fails to rule on a motion, we presume the district court denied the motion.” State v. Wolfe, 158 
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Idaho 55, 61, 343 P.3d 497, 503 (2015). In fact, the district court specifically referenced the 

motion for leave of court to conduct discovery in its order summarily dismissing Nelson’s 

petition. Nelson, however, fails to provide argument and authority as to why the district court 

erred in denying his motion for leave of court to conduct discovery. 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). This issue is therefore waived on appeal.

C. Leave to File Amended Post-Conviction Petitions

Nelson contends the district court erred in denying his July motion for leave to file a 

“bifurcated petition” and in not ruling on his December motion for leave to file an amended 

petition. During a hearing, the district court denied Nelson’s motion for “leave of court to file 

bifurcated amended petition for STR DNA testing, and successive petition for post-conviction 

relief.” The district court determined there was no sufficient reason at that point in time to grant 

leave to amend the petition because the proposed petition was identical to the original petition.

Pursuant to I.R.C.P. 15(a), once a responsive pleading has been filed a party may amend 

a pleading only by leave of court or by written consent of the adverse party. Whether to grant 

leave to amend a pleading is a matter that is within the discretion of the trial court and is subject 

to reversal on appeal only for an abuse of discretion. Black Canyon Racquetball Club, Inc. v. 

Idaho Nat’l Bank, N.A., 119 Idaho 171, 175, 804 P.2d 900, 904 (1991). Reasons for which leave 

to amend may be denied include undue delay, bad faith or dilatory motive on the part of the 

movant, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice 

to the opposing party by virtue of allowance of the amendment, and futility of amendment. 

McCann v. McCann, 138 Idaho 228, 237, 61 P.3d 585, 594 (2002); Smith v. Great Basin Grain 

Co., 98 Idaho 266, 272, 561 P.2d 1299, 1305 (1977). The district court properly denied Nelson 

leave to file a “bifurcated” amended petition where the proposed “bifurcated” petition was 

identical to the original.1

 1 Though Nelson is correct that his amended petition was not technically identical to his 

original petition, his request for testing of additional samples contained in the victim’s rape kit is 

not a significant difference. The amended petition contains no new alleged facts or authority that 

demonstrate that additional testing has the scientific potential to produce new, noncumulative 

evidence that would show it is more probable than not that Nelson is innocent. Error is not 

reversible unless it is prejudicial. State v. Stoddard, 105 Idaho 169, 171, 667 P.2d 272, 274 (Ct. 

App. 1983). Any error made here by the district court was not prejudicial as amendment would 

have been futile.
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Nelson also contends the district court erred in declining to rule on his subsequent 

“Motion for Leave of Court to File Amended Petition for STR DNA Testing and Successive 

Petition for Post-Conviction Relief.” The district court referenced the motion in its order 

granting summary dismissal: “On December 9, 2015, the Petitioner then filed a Motion for 

Leave of Court to File Amended Petition for [STR] DNA Testing and Successive Petition for 

Post-Conviction Relief.” We adhere to the proposition that the district court’s order summarily 

dismissing Nelson’s petition constitutes an implicit denial of Nelson’s motion for leave to file an 

amended petition. On appeal, Nelson fails to present argument or authority as to how the district 

court erred in denying his motion for leave to file an amended petition. Accordingly, this issue is 

waived.

D. Summary Dismissal of FBI Analyst Claim

Nelson further alleged the State withheld impeaching evidence pertaining to the FBI 

analyst. Nelson pointed to a report from the United States Office of Inspector General (OIG) 

regarding allegations the FBI analyst made against FBI lab practices. The OIG concluded that 

while the FBI analyst justifiably raised concerns in some respects, some of his allegations were 

unsupported by facts and he utilized bad judgment in the manner in which he raised some of his 

allegations. The State obtained a portion of the report, which included some of the OIG’s 

conclusions regarding the FBI analyst. The State then e-mailed that portion of the report to 

Nelson’s trial attorney. Nelson raised a Brady claim in his original petition for post-conviction 

relief, filed in December 1999, based on the facts contained in the partial 1997 OIG report.2

 

However, Nelson did not obtain a copy of the complete OIG report until September 2, 2014. In 

the current petition, Nelson attempted to bring a new Brady claim based on the facts contained in 

the portions of the OIG report that he did not receive until 2014. The district court summarily 

dismissed this claim after finding that Nelson had failed to show why this claim could not have 

been raised in his six previous petitions or on direct appeal, noting that Idaho Code § 19-4902(a) 

requires claims to be raised via an application filed within one year from the determination of an 

appeal or proceeding following an appeal, whichever is later.

 2 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that the suppression by the 

prosecution of evidence favorable to an accused upon request violates due process where the 

evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of 

the prosecution.”).
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If an initial post-conviction action was timely filed, an inmate may file a subsequent 

petition 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 petition. I.C. § 19-4908; Charboneau v. State, 144 Idaho 900, 904, 

174 P.3d 870, 874 (2007). Analysis of sufficient reason permitting the filing of a successive 

petition includes an analysis of whether the claims being made were asserted within a reasonable 

period of time. Charboneau, 144 Idaho at 905, 174 P.3d at 875. Determining what is a 

reasonable time for filing a successive petition requires a case-by-case analysis. Id. Therefore, 

the question here is whether the petitioner filed the successive petition within a reasonable period 

of time.

The deputy prosecutor that provided Nelson’s attorney with a partial copy of the OIG 

report back in 1997 specifically noted that it was a partial copy. Moreover, the portions of the 

report provided to Nelson in 1997 began with “Section D” at page 147. Nelson, therefore, had 

notice of the existence of the complete 1997 OIG report for over fifteen years by the time he sent 

a letter, dated October 27, 2014, to the Department of Justice Criminal Division inquiring about 

the full report. Because Nelson could have acquired a complete copy of the OIG report in the 

late 1990s, his most recent Brady claim is not timely. 

E. Motions for Appointment of Counsel

Nelson maintains the district court erred in denying his motions for appointment of 

counsel. Nelson filed his first motion for appointment of counsel in April 2015. The district 

court found Nelson indigent, but denied the motion after it determined Nelson did not allege 

facts that raise the possibility of a valid claim and the successive petition was frivolous. Nelson 

filed a second motion for appointment of counsel in December 2015. In its order granting 

summary dismissal, the district court addressed the second motion for counsel. Again, the 

district court found that Nelson did not allege facts that raise the possibility of a valid claim. The 

district court determined the successive petition was frivolous and denied Nelson’s second 

motion for appointment of counsel.

If a post-conviction petitioner is unable to pay for the expenses of representation, the trial 

court may appoint counsel to represent the petitioner in preparing the petition in the trial court 

and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed 

counsel lies within the discretion of the district court. Grant v. State, 156 Idaho 598, 603, 329 
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P.3d 380, 385 (Ct. App. 2014). When a district court is presented with a request for appointed 

counsel, the court must address this request before ruling on the substantive issues in the case. 

Id. The district court abuses its discretion where it fails to determine whether a petitioner for 

post-conviction relief is entitled to court-appointed counsel before denying the petition on the 

merits. Grant, 156 Idaho at 603, 329 P.3d at 385. 

In determining whether to appoint counsel pursuant to I.C. § 19-4904, the district court 

should determine if the petitioner is able to afford counsel and whether the situation is one in 

which counsel should be appointed to assist the petitioner. Grant, 156 Idaho at 603, 329 P.3d at 

385. In its analysis, the district court should consider that petitions filed by a pro se petitioner 

may be conclusory and incomplete. Id. Facts sufficient to state a claim may not be alleged 

because they do not exist or because the pro se petitioner does not know the essential elements of 

a claim. Id. Some claims are so patently frivolous that they could not be developed into viable 

claims even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 

644 (Ct. App. 2004). However, if a petitioner alleges facts that raise the possibility of a valid 

claim, the district court should appoint counsel in order to give the petitioner an opportunity to 

work with counsel and properly allege the necessary supporting facts. Grant, 156 Idaho at 603, 

329 P.3d at 385. 

A review of the record indicates Nelson failed to allege facts that raise the possibility of a 

valid claim. As discussed above, Nelson failed to present a prima facie case that additional 

testing of the victim’s rape kit or release of any previous DNA results of the victim would prove 

it was more probable than not that Nelson was innocent. Turning to Nelson’s claims regarding 

the FBI analyst, the district court properly concluded that they were untimely. For these reasons, 

we agree with the district court’s determination that Nelson’s seventh successive petition is 

frivolous. Accordingly, the district court’s denial of Nelson’s motions for appointment of 

counsel was proper.

III.

CONCLUSION

The district court did not err in summarily dismissing Nelson’s seventh successive 

petition because Nelson did not present evidence making a prima facie case as to each essential 

element of the claims regarding DNA testing. Moreover, Nelson has not shown how his FBI 

analyst claim was timely. The district court correctly denied Nelson’s discovery requests 
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because Nelson did not demonstrate the release of the victim’s DNA record and profile is 

necessary to protect Nelson’s substantial rights, and Nelson failed to argue that court-ordered 

discovery was necessary to protect his substantial rights. Nelson’s motion for leave to conduct 

discovery and Nelson’s motion for leave to file an amended petition were implicitly denied with 

the issuance of the order summarily dismissing Nelson’s successive petition. Nelson waived the 

merits of these issues on appeal by not providing argument or authority. The district court 

properly denied Nelson leave to file an amended “bifurcated” petition where the proposed 

petition was substantially identical to the original petition. Lastly, the district court properly 

exercised its discretion in denying Nelson’s motions for appointment of counsel because 

Nelson’s seventh successive petition was frivolous. We therefore affirm the judgment of the 

district court summarily dismissing Nelson’s successive petition for post-conviction relief.

Chief Judge GRATTON and Judge Pro Tem WALTERS CONCUR.