NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Capital Punishment Handbook: State Law Summaries - Idaho

        a.     History
        b.     Capital Offenses
        c.     Representation In Capital Case
        d.     Trial Of Capital Offenses
        e.     Capital Sentencing: Penalty Hearing
        f.      Aggravating Circumstances
        g.     Mitigating Circumstances
        h.     Appellate Review Of Capital Sentences
        i.      Collateral Remedies
        j.     Habeas Corpus
        k.     Post-Conviction Relief       
        l.      Appellate Review Of Collateral Proceedings
        m.    Procedural Bars/Waivers/Exhaustion
        n.     Execution
        o.     Competency For Execution
        p.     Stays Of Execution
        q.     Clemency Procedures

Prior to 1973, Idaho’s sentencing statutes provided for either a sentence of death or life imprisonment for capital offenses. In 1973, in response to Furman v. Georgia, 408 U.S. 238 (1972), the Idaho legislature amended the capital sentencing law to make the death penalty mandatory for all first degree murder convictions, in an attempt to eliminate any discretion on the part of the sentencer. The legislature also transferred the role of sentencing from the jury to the court.

In 1977, after mandatory death sentences were held unconstitutional in Woodson v. North Carolina, 428 U.S. 280 (1976), the Idaho legislature amended the sentencing statute to require the court to conduct a sentencing hearing at which all relevant information on aggravation and mitigation is presented prior to the court’s determination of whether the death penalty should be imposed. In addition, the statutory scheme provides for mandatory review of all death sentences by the Idaho Supreme Court.

In 2003, in response to Ring v. Arizona, 536 U.S. 584 (2002) (see § 4.6.1), the Idaho legislature amended the sentencing statute to provide that a sentencing proceeding be conducted before a jury unless the jury is waived by the defendant with the prosecuting attorney’s consent (Idaho Code § 19-2515).

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment).

Woodson v. North Carolina, 428 U.S. 280 (1976) (declaring mandatory death sentences unconstitutional).

Furman v. Georgia, 408 U.S. 238 (1972) (holding unguided discretionary sentencing unconstitutional).

State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981) (stating that § 19-2827 mandates supreme court examine not only sentence but procedure followed in imposing sentence regardless of whether an appeal taken).

State v. Lindquist, 99 Idaho 766, 768, 589 P.2d 101, 103 (1979) (holding 1977 amendment to unconstitutional death penalty statute did not apply retroactively to defendant).

Idaho Code § 18-4004 (2004) (providing death or life imprisonment for first degree murder) (defining first degree murder).

Idaho Code § 19-2515 (2004) (providing for sentencing hearing for aggravation and mitigation evidence).

Idaho Code § 19-2827 (2004) (requiring automatic review of all death sentences by Idaho Supreme Court).

Section 18-4004 of the Idaho Code, as amended in 2003, provides that every person convicted of first degree murder must be sentenced to death or a fixed life sentence. Idaho also permits the imposition of a death sentence for first degree kidnaping or perjury resulting in the execution of an innocent person. Prosecution for the death penalty for the latter crimes, however, is rarely, if ever, pursued.

In 2003, following the decision in Atkins v. Virginia, 536 U.S. 304 (2002) (see § 1.6), the Idaho legislature enacted Idaho Code § 19-2515A, which prohibits the execution of the mentally retarded. “Mentally retarded” is defined as significantly subaverage general intellectual functioning, which in turn is defined as an I.Q. of 70 or below. The significantly subaverage general intelligence functioning must be accompanied by significant limitations in adaptive functioning and both must have had an onset before age 18.

Section 19-2515A of the Idaho Code provides that in any case where the state has provided notice of an intent to seek the death penalty and where the defendant intends to claim he or she is mentally retarded, the defendant must give notice of such intention at least 90 before trial. On receipt of such notice the court must conduct a hearing promptly. If the court finds by a preponderance of the evidence that the defendant is mentally retarded, the death penalty may not be imposed.

Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed).

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment).

Idaho Code § 18-4004 (2004) (providing death penalty or life imprisonment for first degree murder).

Idaho Code § 18-4504 (2004) (providing death sentence for first degree kidnaping unless kidnaped person liberated unharmed).

Idaho Code § 18-5411 (2004) (providing death penalty for perjury resulting in execution of innocent person).

Idaho defendants have a statutory right to counsel during trial and appeal. Death sentenced defendants also have the right to appointed counsel for representation during  their first postconviction relief proceeding. At the time the district court imposes a death sentence, it also appoints at least one attorney, other than trial counsel, for postconviction relief representation. Appointed counsel may also handle a defendant’s appeal.

Idaho Code § 19-106 (2004) (providing that defendant entitled to counsel in criminal actions).

Idaho Code § 19-852 (2004) (providing for indigent defendant’s entitlement to counsel).

Idaho Code § 19-860 (2004) (providing for establishment of county public defender’s office; representation and compensation by contract attorney).

Idaho Code § 19-2719A (2004) (requiring court inquiry at sentencing into need for new postconviction counsel).

Idaho Code § 19-4904 (2004) (providing for district court’s authority to appoint counsel for defendants for postconviction relief representation).

Idaho Crim. R. 44.2 (requiring sentencing judge to appoint at least one attorney, other than trial counsel, for postconviction representation).

Idaho Crim. R. 44.3 (establishing competency standards for appointed capital defense counsel).

Idaho’s trial court of general jurisdiction is the district court. This court exercises original jurisdiction over civil and criminal cases, including felonies, postconviction applications, and habeas corpus petitions.

Idaho’s capital offense trials proceed in two steps: a guilt phase and a sentencing phase. Prior to 2003, if the jury convicted a defendant of a capital crime in the guilt phase, the court held a sentencing hearing and determined whether the death sentence should be imposed

In Ring v. Arizona, 536 U.S. 584 (2002) the Supreme Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. See § 4.6.1. In 2003, the Idaho legislature amended Idaho Code § 19-2515 to comply with Ring. The statute now provides that, where a notice of intent to seek the death penalty was filed as provided in Idaho Code § 18-4004A, and where a guilty plea or verdict is entered, the special sentencing phase of a first degree murder case must be conducted before a jury unless a jury trial was waived by the defendant with the prosecuting attorney’s consent. See discussion below “Capital Sentencing, Penalty Hearing.”

Schriro v. Summerlin, 542 U.S. 348 (2004) (holding that Ring v. Arizona did not apply retroactively to cases already final on direct review; also holding that (1) that the Ringdecision is properly classified as procedural, rather than substantive; and (2) the Ring rule does not fall under the second exception under Teague for watershed rules of criminal procedure).

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment; also holding that Walton v. Arizona, 497 U.S. 639 (1990) and Apprendi v. New Jersey, 530 U.S. 466 (2000) are irreconcilable and overruling Walton to extent that it allowed sentencing judge, sitting without jury, to find aggravating circumstance necessary for imposition of death penalty).

Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001) (declining to engage in a participatory overruling and holding that Walton v. Arizona forecloses Hoffman’s Apprendi-based challenge to Idaho’s capital sentencing scheme; but see Judge Pregerson’s dissent holding that Idaho’s sentencing scheme is unconstitutional in light of Apprendi but harmless error under in this case).

State v. Hoffman, 142 Idaho 27, 121 P.3d 958 (2005) (rejecting the contention that Schriro v. Summerlin, 542 U.S. 348 (2004), was not applicable to Idaho cases). 

Porter v. State, 140 Idaho 780, 102 P.3d 1099 (2004) (reversing an order that had granted a petition for post-conviction relief in a capital case based on the retroactive application of Ring v. Arizona, the court rejected petitioner’s contention that Idaho should apply a more lenient standard of retroactively to Ring than did the Supreme Court in Schriro v. Summerlin), cert. denied, 125 S. Ct. 2967 (2005).

Idaho Statutes:

Idaho Code § 18-4004A (2004) (requiring prosecutor to provide notice of intent to seek death penalty within 30 days of entry of plea; requiring notice to contain list of statutory aggravating circumstances on which state will rely; providing that jury be informed at start of jury selection if death penalty is not sentencing option).

Idaho Code § 19-2515(3)(a) (2004) prohibiting imposition of death sentence without notice of intent).

In 2003 the Idaho legislature amended the statutory scheme in response to the decision of the Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002). See § 4.6.1 for a discussion of Ring.

Formerly, the court heard all relevant evidence and arguments of counsel in aggravation and mitigation of the offense without jury participation. As amended in 2003, Idaho Code § 19-2515 provides that if a person is found guilty of first degree murder, whether by acceptance of a guilty plea, by a jury verdict, or by the court sitting without a jury, and if a notice of intent to seek the death penalty was filed, a special sentencing proceeding must be conducted before a jury unless a jury trial is waived with the prosecutor’s consent. If the defendant’s guilt was determined by a jury verdict, the same jury must hear the special sentencing proceeding unless it is impractical to reconvene the same jury due to an insufficient number of jurors. If a special sentencing proceeding is conducted before a newly impaneled jury, the state and defense may present evidence to inform the jury of the nature and circumstances of the murder.

Section 19-2515, as amended in 2003, provides that a sentence of death cannot be imposed unless the jury, or the court if a jury is waived, finds beyond a reasonable doubt at least one statutory aggravating circumstance. Where a statutory aggravating circumstance is found, the defendant must be sentenced to death unless mitigating circumstances are found to be sufficiently compelling that the death penalty would be unjust. The jury must not direct imposition of a death sentence unless it unanimously finds at least one statutory aggravating circumstance and unanimously determines the death penalty should be imposed. If the jury finds the existence of a statutory aggravating circumstance and no mitigating circumstances, the defendant will be sentenced to death by the court.

The jury must return a special verdict stating whether the aggravating circumstances were proven beyond a reasonable doubt, and if so, when weighed against the aggravating circumstance, whether there are mitigating circumstances that are sufficiently compelling that the death penalty would be unjust.

If a jury trial was waived, the court must make written findings regarding any aggravating and mitigating factors it considers at the sentencing hearing. If the court finds that mitigating circumstances compel a life sentence, it must detail this finding in writing.

At the sentencing hearing all relevant evidence in aggravation and mitigation is admissible. Disclosure of evidence to be relied on must be made in accordance with Idaho Criminal Rule 16.

Lankford v. Idaho, 500 U.S. 110 (1991) (holding death sentence unconstitutional where state did not seek death penalty but trial court imposed it after a sentencing hearing in which the parties argued over concurrent or consecutive sentences).

State v. Fetterly, 137 Idaho 729, 52 P.3d 874 (2002) (noting that Ring v. Arizona appears to invalidate Idaho’s death penalty scheme, which to this time has allowed the sentencing judge to make factual findings of the aggravating factors necessary to the imposition of a death sentence, while Ring requires those factual findings to be made by a jury; vacating death sentence and remanding to district court for resentencing following appeal of death sentence and petition for postconviction review).

State v. Hairston, 133 Idaho 496, 988 P.2d 1170 (1999) (holding trial court did not violate United States or Idaho constitutions by refusing to appoint a mitigation specialist).  

State v. Creech, 132 Idaho 1, 966 P.2d 1 (1998) (holding no double jeopardy when trial court changed its findings at resentencing, when death sentence imposed at initial sentencing), cert. denied, 526 U.S. 1147 (1999).

State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (holding district court must weigh all mitigating factors against each aggravating factor; mitigating circumstances must outweigh each aggravating factor), cert. denied, 493 U.S. 922 (1989), overruled on other grounds, State v. Card, 121 Idaho 425, cert. denied, 506 U.S. 915 (1992).

Idaho Code § 19-2515 (2004) (providing for capital sentencing procedure; requiring written findings of aggravation and/or mitigation; listing aggravating factors; requiring finding of at least one aggravating factor beyond a reasonable doubt; providing for presentence report only when no statutory aggravating circumstance is proven beyond reasonable doubt or when no special sentencing proceeding is held; providing for impanelment of new jury in some circumstances).

Idaho Code § 18-4505 (2004) (defining capital sentencing procedure for first degree kidnaping).

Idaho Code § 19-2519(9) specifies ten aggravating circumstances for first degree murder, one of which must be found beyond a reasonable doubt to sustain a sentence of death. These circumstances are as follows:

(2) defendant also committed another murder at the same time as the instant murder;

(4) defendant committed murder for remuneration, promise of remuneration, or defendant employed another to commit the murder for remuneration or promise of remuneration;

(5) murder was especially heinous, atrocious or cruel, manifesting exceptional depravity;

(6) murder, or circumstances surrounding its commission, exhibited defendant’s utter disregard for human life;

(7) defendant committed murder in perpetration or attempted perpetration of arson, rape, robbery, burglary, kidnaping, or mayhem and defendant killed, intended a killing, or acted with reckless indifference to human life;

(8) by prior conduct or in murder at hand, defendant exhibited propensity to commit murder which will probably constitute continuing threat to society;

(9) defendant committed murder of a peace officer, executive officer, officer of the court, judicial officer, or prosecuting attorney because of the exercise of official duty;

(10) defendant committed murder of a witness or potential witness in a criminal or civil legal proceeding because of such proceeding.

Aggravating circumstances for first degree kidnaping are codified at Idaho Code § 18-4505.

In 2003, the Idaho legislature amended Idaho Code § 19-2515 in response to decision of the Supreme Court in Ring v. Arizona, 536 U.S. 584 (2002), in which the Supreme Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. See § 4.6.1. Section 19-2515(8) of the Idaho Code, as amended in 2003, provides that the jury must return a special verdict stating whether each statutory aggravating circumstance alleged has been proven beyond a reasonable doubt, and if so, whether all mitigating circumstances, when weighed against the aggravating circumstance, are sufficiently compelling that the death penalty would be unjust. If a jury trial has been waived, the court must make written findings setting forth any statutory aggravating circumstance found beyond a reasonable doubt, any mitigating circumstance considered, and, after weighing the mitigating circumstances against each statutory aggravating circumstance, whether mitigating circumstances are found to be sufficiently compelling that the death penalty would be unjust.

Arave v. Creech, 507 U.S. 463 (1993) (holding aggravating factor “utter disregard for human life” is constitutional as narrowed by the Idaho Supreme Court in Osborn).

Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004) (per curiam) (holding that aggravating circumstance that murder was “especially heinous, atrocious or cruel, manifesting exceptional depravity” was not unconstitutionally vague where the Idaho Supreme Court construed the aggravator by relying in part on the limiting construction given to similar language by other states), cert denied, 125 S. Ct. 2540 (2005).

State v. Hairston, 133 Idaho 496, 988 P.2d 1170 (1999) (declining to address challenges to two of four aggravators found by sentencer where sentencer had found that mitigating factors did not outweigh any of the four found aggravating circumstances).

State v. Wood, 132 Idaho 88, 967 P.2d 702 (1998) (holding g(7) (presently codified as h(7)) aggravating factor not overbroad or arbitrary; g(7) (presently codified as h(7)) factor constitutional notwithstanding that it duplicates an element of first degree murder in § 18-4003), cert. denied, 526 U.S. 1118 (1999).

State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (holding g(5) and g(6) (presently codified as h(5) and h(6)) not duplicative aggravating factors), cert. denied, 493 U.S. 922 (1989), overruled on other grounds, State v. Card, 121 Idaho 425, cert. denied, 506 U.S. 915 (1992).

State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983) (stating court need not apply beyond a reasonable doubt standard to weighing aggravating circumstances against mitigating circumstances), cert. denied, 468 U.S. 1220 (1984).

State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983) (holding list of statutory aggravating factors not exclusive, but decision to impose death must be based on finding at least one statutory factor), cert. denied, 465 U.S. 1051 (1984).

State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981) (holding (g)(6) (presently codified as h(6)) statutory aggravating factor “utter disregard” interpreted as “cold-blooded, pitiless slayer,” constitutional; (g)(5) (presently codified as h(5)) aggravating factor, as defined, also constitutional).

Idaho Code § 18-4505(6) (2004) (setting forth five aggravating circumstances for first degree kidnaping).

Idaho Code § 19-2515(9) (2004), as amended by 2005 Id. Laws, ch. 152, § 1 (enumerating aggravating circumstances for first degree murder).

The Idaho capital sentencing statute enumerates no mitigating factors, reflecting the unlimited mitigation provision endorsed in Eddings v. Oklahoma, 455 U.S. 104 (1982).Section 19-2515 of the Idaho Code specifies that the jury, or the court if a jury trial is waived, should consider only “relevant” mitigating circumstances. The Idaho Supreme Court has held that § 19-2515 encompasses not only the defendant’s conduct and circumstances surrounding the commission of the crime but also the conduct and character of the defendant as an individual apart from the crime. These factors may include defendant’s background, age, upbringing, and environment, as well as any other considerations appropriate to a determination of the degree of defendant’s culpability. 

Eddings v. Oklahoma, 455 U.S. 104 (1982) (requiring mitigating evidence in capital sentencing).

State v. Row, 131 Idaho 303, 955 P.2d 1082 (holding when one statutory factor outweighs all mitigating factors, court not required to perform weighing against other established aggravating factors), cert. denied, 525 U.S. 967 (1998).

State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (holding district court must weigh all mitigating factors against each aggravating factor; mitigating circumstances must outweigh each aggravating factor), cert. denied 493 U.S. 922 (1989), overruled on other grounds, State v. Card, 121 Idaho 425, cert. denied, 506 U.S. 915 (1992).

Sivak v. State, 112 Idaho 197, 731 P.2d 192 (holding that resentencing trial judge must permit defendant to introduce new mitigating evidence, including evidence of events taking place after first sentencing), cert. denied, 516 U.S. 1095 (1996).

State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983) (holding that judge not required to reference each circumstance of mitigation in its findings when imposing death sentence), cert. denied, 465 U.S. 1051 (1984).

State v. Owen, 73 Idaho 394, 253 P.2d 203 (1953) (interpreting § 19-2515 to encompass defendant’s character and background as possible mitigating factors).

Idaho Code § 19-2515(5) (2004) (requiring hearing considering all relevant aggravating and mitigating circumstances).

The Idaho Supreme Court hears all appeals of trial court determinations in death penalty cases. The state court of appeals lacks the jurisdiction to hear cases involving extraordinary writs or capital appeals.

The supreme court considers the mandatory sentencing review and direct appeal, if any, in a consolidated proceeding. If the defendant seeks postconviction relief, the court also considers any appeal of the district court’s denial of such relief in a consolidated proceeding. Section 19-2719 of the Idaho Code provides special procedures for appeals and petitions for postconviction relief in death penalty cases. Section 19-2827 provides the procedures for the supreme court’s mandatory sentencing review.

The defendant has forty-two days from the filing of the death warrant to file a direct appeal. The supreme court initiates mandatory sentencing review upon receipt of the trial transcript. The parties have a right to brief submission and oral argument. On mandatory review, the supreme court must determine: (1) whether the death sentence was imposed under passion or prejudice, or arbitrarily; (2) whether the record supports a finding of a statutory aggravating factor; and (3) whether the death sentence is excessive. By considering these factors, the Idaho Supreme Court reviews the imposition of a death sentence for constitutional error.

The supreme court may either affirm the death sentence, remand for resentencing by the district court, or remand for a new trial.

Beam v. Paskett, 3 F.3d 1301, 1306–07 (9th Cir. 1993) (holding supreme court is deemed to have implicitly reviewed imposition of death sentence for certain constitutional error even though defendant did not raise claims with specificity on appeal to supreme court), cert. denied, 511 U.S. 1060 (1994).

Idaho Const. art. V, § 9 (1994) (providing original and appellate jurisdiction of Idaho Supreme Court).

Idaho Code § 19-2719 (2004) (providing special procedures for appeals and petitions for postconviction relief in capital cases; all issues relating to conviction, sentence, and postconviction challenge must be considered in the same appellate proceeding).

Idaho Code § 19-2719(4), § 19-4901(a)(6) and § 19-4902(b)-(f) (2004) (providing special procedures for fingerprinting and DNA testing on evidence secured in respect to petitioner’s trial that resulted in petitioner’s conviction).

Idaho Code § 19-2827 (2004) (requiring and setting procedures for supreme court mandatory review of death sentences).

The Idaho Code provides for a system of state postconviction review in capital cases designed to minimize successive petitions for relief. Section 19-2719 of the Idaho Code provides special postconviction procedures for capital cases. These procedures govern a death-sentenced defendant’s use of Idaho’s Uniform Post-Conviction Procedure Act (Idaho Code §§ 19-4901–4911). Under § 19-2719, the defendant must make any collateral attack on the judgment before direct appellate review. The trial court files a death warrant forty-two days after judgment of death. The court stays this time period during the time the defendant makes a postconviction challenge. During this forty-two-day period before filing of the death warrant, the defendant must make a collateral challenge to the sentence or conviction or waives the right to do so. The district court has ninety days to hear any petition for collateral relief.

The time for filing of the direct appeal begins to run when the death warrant is filed. The defendant then takes any direct appeal and any appeal of the denial of postconviction relief to the supreme court.

The Ninth Circuit Court of Appeals has held that the forty-two day time limit violated the Sixth Amendment right to counsel. Consequently, the federal habeas court will hear any claims that were procedurally defaulted by the state court for not being raised within this time period. Hoffman v. Arave, 236 F.3d 523 (9th Cir.), cert. denied, 534 U.S. 944 (2001).

Hoffman v. Arave, 236 F.3d 523 (9th Cir.) (holding Idaho Code § 19-2719's forty-two day statute of limitations for filing a postconviction petition in a capital case violates the Sixth Amendment because it denies the petitioner any meaningful review of his ineffective assistance of counsel claims, cert. denied, 534 U.S. 944 (2001).

Idaho Code § 19-2719 (2004) (providing special postconviction procedures for capital cases; defendant must make collateral attack before direct review; trial court must file death warrant forty-two days after death judgment; stay during time postconviction action pending; if no collateral challenge to sentence or conviction during forty-twoday period, challenges deemed waived; district court has ninety days to hear petition; after death warrant filed, time for filing direct appeal begins to run and any appeal may be taken to supreme court).

The writ of habeas corpus is a remedy recognized and protected by the Idaho Constitution. Article I, § 5. The legislature may enact statutes to promote the efficiency of proceedings, but may not limit this remedy secured by the Idaho Constitution. Mahaffey v. State, 87 Idaho 228, 231, 392 P. 2d 279, 280 (1964).

Prior to 1999, the Idaho habeas corpus statute, Idaho Code § 19-4201, provided that “[e]very person unlawfully committed, detained, confined or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.” In 1999, the Idaho legislature repealed the habeas corpus statute, and replaced it with a series of statutes comprising the “Idaho Habeas Corpus and Institutional Litigation Procedures Act,” Idaho Code § 19-4201, et seq. Currently, Idaho Code § 19-4203 delineates five specific categories of claims that may be brought by an in-state prisoner in a habeas corpus petition: (a) conditions of confinement; (b) revocation of parole; (c) miscalculation of sentence; (d) loss of good time credits; or (e) a detainer lodged against him or her. 

In Idaho, a petitioner challenging the validity of his conviction is required to use the post-conviction petition procedure rather than habeas corpus to raise such issues. Dionne v. State, 93 Idaho 235, 237, 459 P.2d 1017, 1019 (1969). The Idaho Supreme Court has construed the postconviction relief statute as an expansion, not a limitation, of the writ of habeas corpus. Id.

Mahaffey v. State, 87 Idaho 228, 392 P. 2d 279 (1964) (holding legislature may not limit remedy of habeas corpus, but may enact statutes to promote efficiency of proceedings).

Still v. State, 95 Idaho 766, 519 P. 2d 435 (1974) (holding Uniform Post-Conviction Procedure Act is expansion of constitutional habeas remedy and therefore properly replaces it).

Dionne v. State, 93 Idaho 235, 459 P.2d 1017 (1969) (holding that petitioner challenging validity of conviction must use post-conviction petition procedure rather than habeas corpus).

Since 1967, Idaho has had in place the Uniform Post-Conviction Procedure Act, which replaces all common law or statutory remedies as the sole procedural device available to challenge the validity of a conviction or sentence. Idaho Code § 19-4901, et seq. Proceedings under the Uniform Post-Conviction Procedure Act are distinct from the criminal action that resulted in the conviction; as a result, state rules of civil procedure govern the proceedings.

Grounds for relief under the Uniform Post-Conviction Procedure Act, as set forth in Idaho Code § 19-4901(a), include the following: (1) that the conviction or the sentence violates the federal or state constitution or laws of the state; (2) that the court was without jurisdiction to impose the sentence; (3) that the sentence exceeds the maximum authorized by law; (4) that there exists evidence of material facts, not previously presented and heard, requiring vacation of the conviction or sentence in the interest of justice; (5) that the sentence has expired, or that probation or conditional release was unlawfully revoked by the court in which he was convicted, or that he is otherwise unlawfully held in custody or other restraint; (6) subject to the provisions of Idaho Code § 19-4902(b) through (f), that the petitioner is innocent of the offense; and (7) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy.

Idaho Code § 19-2719 provides special postconviction procedures for capital cases. These special capital procedures are used in addition to the Uniform Post-Conviction Procedure Act; the special capital procedures supersede any conflicting sections in the Uniform Post-Conviction Procedure Act. McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999), cert. denied, 530 U.S. 1208 (2000). The special capital procedures provide a different time limitation on filing, different appellate procedures, and different language regarding waiver of claims. See supra “Collateral Remedies.”

Idaho Code § 19-853(b) (2004) (notifying that defendant’s right to court-appointed counsel for uniform postconviction relief cases is with the discretion of the court pursuant to § 19-4904).

Idaho Code § 19-2719 (2004) (providing special postconviction procedures for capital cases; defendant must make collateral attack before direct review; trial court must file death warrant forty-two days after death judgment; stay during time postconviction action pending; if no collateral challenge to sentence or conviction during forty-twoday period, challenges deemed waived; district court has ninety days to hear petition, extended upon showing that fair consideration impossible; after death warrant filed, time for filing direct appeal begins to run, and any appeal may be taken to supreme court).

Idaho Code § 19-2719(4), § 19-4901(a)(6) and § 19-4902(b) - (f) (2004) (providing special procedures for fingerprinting and DNA testing on evidence secured in respect to petitioner’s trial that resulted in petitioner’s conviction).

Either party may appeal the district court’s final postconviction judgment to the Idaho Supreme Court within forty-two days from entry of the judgment. Under Idaho Code § 19-2719(6), however, the appeal in a capital case must be consolidated with the appeal from the conviction and sentence. The state supreme court reviews the district court’s postconviction order under a clearly erroneous standard.

Holmes v. State, 104 Idaho 312, 658 P.2d 983 (1983) (applying clearly erroneous standard to supreme court review of postconviction order).

Idaho Code § 19-2719(6) (2004) (consolidating appeal of collateral proceedings with appeal of conviction and sentence).

Idaho Code § 19-4909 (2004) (stating final judgment under Post-Conviction Act may be reviewed on appeal by either party within forty-two days of judgment).

Idaho Appellate R. 14 (requiring notice of appeal to be filed in district court within forty-two days of death warrant filing).

The Idaho Code has various waiver and other limiting provisions governing the failure of a party to make objection or to pursue a claim under the procedures set forth under state law. The special capital procedures specify that the failure to assert a claim for relief within 42 days after judgment acts as a waiver of any claim he or she knew or reasonably should have known existed. The courts have no power to consider or grant relief on any such waived claims. Idaho Code § 19-2719(5).

Idaho courts have consistently applied the special capital procedures set forth in Idaho Code § 19-2719(5) to bar “any legal or factual challenge to the sentence or conviction that [was] known or reasonably should [have been] known” within 42 days after judgment. In Paz v. State, 123 Idaho 758, 852 P.2d 1355 (1993), the Idaho Supreme Court extended the reach of § 19-2719(5)(a), holding that claims that were not known or could not have reasonably been known within 42 days of judgment must be asserted within a “reasonable time” after they are known. In Dunlap v. State, 131 Idaho 576, 577, 961 P.2d 1179, 1180 (1998), the Idaho Supreme Court held that a two-year delay in filing was reasonable. There, the defendant did not know the difference between an appeal and postconviction relief until his postconviction counsel informed him, and he did not know that his first attorney had failed to file a postconviction relief petition.

The special capital procedures severely limit the filing of successive postconviction petitions. Idaho Code § 19-2719(5)(a) through (c). Successive petitions not falling into one of the specified exceptions must be summarily dismissed. Such a summary dismissal is not subject to a motion to alter, amend, or reconsider, and it is not appealable. These procedures are currently being challenged in the Idaho Supreme Court by death penalty petitioners asserting that they should be able to bring sentence challenges based upon Ring v. Arizona in a successive postconviction petition.

In contrast to the special capital procedures, the Uniform Post-Conviction Act has a more liberal successive petition provision for noncapital petitioners, who may use a successive proceeding to assert claims “which for sufficient reason [were] not asserted or [were] inadequately raised in the original, supplemental, or amended application. Idaho Code § 19-4908.

In a capital case, the defendant has exhausted all state remedies only after the defendant has asserted or waived any postconviction challenges, the state supreme court has completed its mandatory review and issued a remittitur, and the district court has set an execution.

When a federal court returns a death sentence to the state courts for further proceedings, Idaho Code § 19-2818 requires the Idaho Supreme Court to consider whether it can correct any legal or factual error without further remand to the state district court.

Porter v. State, 136 Idaho 257, 32 P.3d 151 (upholding trial court’s dismissal of defendant’s second postconviction petition, finding that three-year span from date of filing of first appellate brief to assertion of current claims was unreasonable length of time; concluding that Fields did not per se bar consideration of claims, but also noting that second postconviction petition was filed one year after Federal Defenders' office was appointed to represent defendant for purposes of his federal habeas corpus petition and more than five months after his habeas petition was filed), rehearing denied, 136 Idaho 257, 32 P.3d 151 (2001).

Row v. State, 135 Idaho 573, 21 P.3d 895 (finding that where same counsel was prosecuting both appeal and simultaneous postconviction proceeding, to hold that counsel’s failure to raise in the postconviction proceedings the alleged errors they were making while prosecuting appeal would effectively preclude defendant from ever having the opportunity to raise claim of ineffective assistance of appellate counsel; dismissing appeal from summary dismissal of second application for postconviction relief and request for habeas corpus relief on alternate basis that petition, which listed various issues that defendant desired to raise regarding effectiveness of her appellate counsel, did not include, nor was it accompanied by, sworn statements setting forth material facts supporting the issue), rehearing denied, 135 Idaho 573, 21 P.3d 895 (2001).

Rhoades v. State, 135 Idaho 299, 17 P.3d 243 (2000) (finding claims based on newly discovered evidence not brought within reasonable time following discovery where none of claims brought earlier than six months from time of discovery), rehearing denied, 135 Idaho 299, 17 P.3d 243 (2001).

Fields v. State, 135 Idaho 286, 17 P.3d 230 (2000)(affirming trial court’s dismissal of postconviction petition, holding that two and one-half year span between date first appellate brief filed and filing of postconviction petition asserting ineffective assistance of appellate counsel is an unreasonable length of time), rehearing denied, 135 Idaho 286, 17 P.3d 230 (2001).

Sivak v. State, 134 Idaho 641, 8 P.3d 636 (2000) (affirming trial court’s dismissal of third postconviction petition as procedurally barred because state’s withholding of exculpatory evidence was cumulative and claim of prosecutorial misconduct should have been know at time of first petition), rehearing denied, 134 Idaho 641, 8 P.3d 636 (2000).

McKinney v. State, 133 Idaho 695, 992 P.2d 144 (1999) (holding that ineffectiveness of postconviction counsel neither constitutes a separate basis for an additional postconviction proceeding nor justifies petitioner’s failure to raise issues that should reasonably have been known at time of first petition).

Dunlap v. State, 131 Idaho 576, 961 P.2d 1179 (1998) (finding two-year delay in filing postconviction relief petition reasonable where defendant did not know his first attorney failed to file a timely postconviction relief petition).

Paradis v. State, 128 Idaho 223, 912 P.2d 110 (1996) (applying § 19-2719 to bar late claims)

Pizzuto v. State, 127 Idaho 469, 903 P.2d 58 (1995) (barring late claims under § 19-2719).

Paz v. State, 123 Idaho 758, 852 P.2d 1355 (1993) (holding claims not known or reasonably could have been known within forty-two days of judgment must be asserted within reasonable time).

Idaho Statutes:

Idaho Code § 19-2719(5) (2004) (providing that defendant deemed to waive claims if fails to apply timely for § 19-2719(3) appellate or postconviction relief; court may not consider any claims so waived).

Idaho Code § 19-2818 (2004) (providing for duties of supreme court upon federal remand).

The district court must file a death warrant forty-two days after its judgment imposing death or, if the defendant has initiated postconviction proceedings, forty-two days after the conclusion of such proceedings. The warrant must set forth an execution date no more than thirty days after the date of entry of the warrant. Rule 38(a) of the Idaho Criminal Rules mandates a stay of execution during any appeal or review. Section 19-2802 provides that an appeal to the supreme court stays the sentence in a capital case. 

Any stay pursuant to § 19-2719 is dissolved upon remittitur, at which time the district court sets a new execution date.

Death-sentenced prisoners are housed at the Idaho Maximum Security Institution at Boise. In 2003 the Idaho legislature amended Idaho Code § 19-2705 to remove statutory restrictions regarding the imposition of solitary confinement on persons on death row. Section 19-2705 provides for solitary confinement of those prisoners on death row for whom a death warrant has been issued that has not been stayed. When a person has been sentenced to death, but the death warrant has been stayed, the warden is not required to hold such person in solitary confinement until the stay of the death warrant is lifted or a new death warrant is issued, but such prisoner must still be housed in maximum security. Prisoners subject to solitary confinement are allowed visits only with family members, their spiritual adviser, and their attorneys of records and those attorneys’ agents. 

The prisoner is put to death by lethal injection or, if the prison director finds lethal injection “impractical,” by a firing squad.

Idaho Code § 19-2705 (2004) (providing warrant sets execution date no more than thirty days after date of warrant; providing for housing and visits for death row inmates)

Idaho Code § 19-2716 (2004) (providing lethal injection or firing squad as method of execution).

Idaho Code § 19-2719 (2004) (setting forth district court filing of death warrant forty two days after judgment imposing death).

Idaho death penalty statutes provide that a death-sentenced inmate who is pregnant maynot be executed until the district court is satisfied that the inmate is no longer pregnant. Idaho does not have a statute addressing the competency of an inmate to be executed.

Idaho Code § 19-2713 (2004) (providing procedures to determine whether pregnancy exists).

Upon appeal of a capital conviction, the clerk of the Supreme Court of Idaho automatically enters a stay of execution to permit consideration of defendant’s direct appeal, mandatory review, and appellate review of postconviction proceedings. If the supreme court upholds the sentence, the stay is dissolved when the court files a remittitur. The district court then sets a new execution date for not more than thirty days thereafter. The district court can reset the execution date without holding a hearing.

Idaho Code § 19-2715(2) (2004) (setting new execution date thirty days after remittitur when death sentence affirmed by supreme court).

Idaho Code § 19-2715(4) (2004) (providing that no hearing necessary when execution date reset).

Idaho Code § 19-2719(12) (2004) (setting automatic stay of execution during pendency of § 19-2719 review).

Idaho Code § 19-2802 (2004) (setting automatic stay of execution upon appeal to supreme court).

Pursuant to the Idaho constitution, the governor appoints a five-member Commission of Pardons and Parole who make recommendations to the governor in capital casesregarding commutation or pardon. The Commission makes its recommendation only after extensive notice and public hearing. Any recommendation not approved by the governor within thirty days of submission is deemed denied.

The governor may grant reprieves or respites, including stays of execution. However, the duration of these executive stays do not extend beyond the next session of the Board of Pardons.

During the summer of 1996, the governor applied Idaho’s clemency procedures for the first time to a capital case. After receiving a recommendation from the Commission, the governor commuted the death sentence of state prisoner Donald M. Paradis to fixed life.

Idaho Const. art. IV, § 7 (1986) (creating pardoning power; requiring public notice and hearing).

Idaho Code § 20-240 (2004) (defining pardoning power of governor; limiting power of Commission under governor in capital cases; thirty-day limit for governor to grant approval of Commission’s decision; duration of governor’s reprieves or respites not to extend beyond next session of legislature).