1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 35997

STATE OF IDAHO , Plaintiff-Respondent ,

v.

VICTOR R. WOODS , Defendant-Appellant

. ) ) ) ) ) ) ) ) ) ) 2010 Unpublished Opinio n No. 486

Filed: May 28, 2010

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster , District Judge.

Order summarily dismissing application for post

- conviction relief, affirmed

. Molly J. Huskey, State Appellate Publi c Defender; Diane M. Walker, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

________________________________________________ GRATTON, Judge Victor R. Woods appeals from the district court’s order summarily dismissing his application for post

- conviction relief. We affirm. In his application, Woods alleges that on December 29, 2003

, he was sentenced for sex abuse of a minor under the age of sixteen, Idaho Code § 18

- 1506

, to a unified term of eight years with two years determinate. As part of the plea agreement he waive d his right to appeal and,

therefore

, did not directly appeal hi s judgment of conviction and sentence. Prior to sentencing he submitted to a psychosexual evaluation. On November 15, 2007, Woods filed an application for
post

- conviction relief. The State moved for summary disposition and, on November 6, 2008, the

dist rict court dismissed the application. Woods appeals.

Woods asserts that the district court erred in summarily dismissing his application for
post

- conviction relief. He contends that the Idaho Supreme Court in Estrada v. State , 143 Idaho
558, 149 P.3d 833 (2006), announced a new rule of law and that it should be retroactively2

applied to him. He also argues that his case raises important due process issues such that this Court should grant equitable relief by tolling the statute of limitations.

Th e Idaho S upreme Court recently stated in Vavold v. State , 148 Idaho 44, 46 , 218 P.3d
388, 390 (2009) :

[W]e note, admittedly by way of dicta, that we agree with the district court’s conclusion that Estrada did not announce a new rule of law. As the district court o bserved, we stated in Estrada that our earlier “ decisions clearly indicate that both at the point of sentencing and earlier, for purposes of a psychological evaluation, a defendant’s Fifth Amendment privilege against self

incrimination applies.” 143 Idaho at 563, 149 P.3d at 838 (emphasis added). It is our view, therefore, that Estrada did not announce a new rule of law entitled to retroactive effect.

Woods acknowledges the Court’s language, but contends that it is not controlling because it is

not the holding of the case; rather, that it is dicta. Woods also acknowledges this Court’s opinion

in Kriebel v. State , 148 Idaho 188, 191 , 219 P.3d 1204, 1207 (Ct. App. 2009), where we quoted the above language in Vavold and held: “ Thus, given this clear direc tion from our Supreme Court, we conclude that Kriebel’s post

- conviction petition was untimely, because the post

conviction statute of limitations could not have been tolled on the basis that Estrada announced a new, retroactively applicable rule.” 1 This c ase raises identical issues to those already determined

in Kriebel . Thus, Kriebel is controlling here. As such, the district court did not err in summarily dismissing Wood ’s application for post

- conviction relief because it was untimely filed. “ [T]he

po st

- conviction statute of limitations could not have been tolled on the basis that Estrada announced a new, retroactively applicable rule.” 2 Kriebel , 148 Idaho at 191 , 219 P.3d at 1207.

1 We note that the Idaho Supreme Court recently adopted the retroactivity test from Teague v. Lane , 489 U.S. 288 (1989), for criminal cases on collateral review

. See In re Rhoades, et al. v. State , ___ Idaho ___, ___ P.3d ___ (March 17, 2010). We utilized Teague ’s retroactivity test in Kriebel . Thus, we need not address Wood s ’ retroactivity argument under Linkletter v. Walker

, 381 U.S. 618 (1965).

2 We note, incidentally, that since Kriebel was issued, this Court has, on several occasions, reaffirmed its holding in unpublished opinions involving claims identical to those raised by Woods

. See Mowrey v. S tate, Docket No. 35872 (Ct. App. April 16, 2010) (unpublished); Stewart v. State , Docket No. 35398 (Ct. App. April 9, 2010) (unpublished); Coburn v. State

, Docket No. 35416 (Ct. App. March 30, 2010) (unpublished); Lightner v. State , Docket No. 35740 (Ct. App. March 17, 2010) (unpublished).3

The district court’s order summarily dismissing Wood s ’ application fo r post

- conviction relief is, therefore, affirmed. No costs or attorney fees are awarded on appeal. Chief Judge LANSING and Judge GUTIERREZ, CONCUR.