Hooley v. State

                   IN THE SUPREME COURT OF THE STATE OF IDAHO
                                  Docket No. 48846

 THOMAS K. HOOLEY,                                      )   Boise, September 2022 Term
                                                        )
      Petitioner-Appellant,                             )   Opinion Filed: October 27, 2023
                                                        )
 v.                                                     )   Melanie Gagnepain, Clerk
                                                        )
 STATE OF IDAHO,                                        )   SUBSTITUTE OPINION. THE
                                                        )   COURT’S PRIOR OPINION DATED
      Respondent.                                       )   MARCH 23, 2023, IS WITHDRAWN

         Appeal from the District Court of the Fifth Judicial District, State of Idaho, Gooding
         County. Rosemary Emory, District Judge.

         The order of the district court is affirmed.

         Nevin, Benjamin & McKay LLP, Boise, for appellant, Thomas K. Hooley. Dennis
         Benjamin argued.

         Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent, State of
         Idaho. Kenneth K. Jorgensen argued.

                                      _____________________

BEVAN, Chief Justice.
         Thomas Hooley appeals from the district court’s summary dismissal of his petition for
post-conviction relief. In 2014, Hooley was convicted of aiding and abetting aggravated battery
and kidnapping in the first degree. Hooley petitioned for post-conviction relief in 2019, asserting
that (1) he was actually innocent and (2) the prosecution withheld evidence in contravention of
Brady v. Maryland, 

 (1963). The district court concluded that Hooley’s actual
innocence claim was time-barred and further concluded the claim failed on the merits. While the
district court found that Hooley’s Brady claim was timely, the court ultimately determined the
claim failed on the merits. As a result of its conclusions, the district court summarily dismissed the
petition without an evidentiary hearing. Hooley timely appeals. For the reasons below, we affirm
the district court’s decision.
                        I.       FACTUAL AND PROCEDURAL BACKGROUND
         A. Factual Background


                                                   1
       Two people kidnapped Jason Given from the Apollo Motel in Twin Falls, Idaho on July
13, 2013. The kidnappers took Given to a secluded location near Gooding, Idaho, atop a hill that
was out of sight of a road below. The kidnappers stunned Given with a “stun baton” and then
bound Given’s hands and feet using zip ties. They purportedly “interrogated” Given, hitting him
in the face and threatening further use of the stun baton. At trial, it was disputed how long the
“interrogation” lasted. Ryan Cunningham, one of the admitted kidnappers, testified the
interrogation lasted about thirty to forty minutes. Given testified that no one asked him any
questions but that “the torture” lasted around ten minutes. At this point, Cunningham stabbed
Given twice, once in the back of the head and once in the temple. Cunningham then cut Given’s
throat twice and attempted to break Given’s neck, telling Given “this is for all the times you hurt
her [Autumn Boyack].” Believing that Given was dead, Cunningham and his accomplice left the
scene and went back to Twin Falls. Given, however, survived the incident.
       At first, Given said he did not recognize his assailants. He told his rescuer and the police
officers who responded to the scene that he had been “jumped” by “two white males” he did not
know. It was not until five days after the attack and three days after Given had been released from
the hospital that Given told the police a different version of the story about the assault. He said the
names of his two kidnappers were Ryan Cunningham and Thomas Hooley. Both men were later
arrested.
       Detective Derrick Walker interviewed Hooley on July 30, 2013. Hooley admitted knowing
both Cunningham and Given and to seeing them both on the day of Given’s assault. Even so,
Hooley denied traveling with Cunningham and Given to the secluded area and participating in the
attack. Walker explained to Hooley that “the first one to talk gets the deal.” Hooley maintained
that he did not go to the secluded area, and that he was innocent. Instead, he told Walker, “I’m
thinking I’m getting set up here and I ain’t liking the smell of things.”
       Cunningham, on the other hand, struck a deal with law enforcement. In exchange for
testifying against Hooley, Cunningham received what he deemed to be a “sweetheart deal” of his
own creation: Rather than serving “life plus thirty” years for first degree kidnapping and
aggravated battery (with a deadly weapon enhancement), in exchange for his testimony,
Cunningham pleaded guilty to aggravated battery and received a unified sentence of fifteen years,
with the possibility of parole after only four years.




                                                  2
       Hooley was charged with one count of aiding and abetting aggravated battery and one
count of kidnapping in the first degree. A jury trial was held in July 2014. At trial, Cunningham
portrayed Hooley as the mastermind of the attack on Given. Cunningham testified that: Hooley
knew of the secluded area, used the stun baton on Given, “interrogated” Given, and told
Cunningham to stab Given and cut his throat. Cunningham also testified that Hooley instructed
him on precisely where to stab Given. During cross-examination, Cunningham explained,
“[Hooley]’s the one who told me how to do it. I had never – I never stabbed anyone before, so he’s
the one who told me how to stick it in the back of his neck and temple.” And Cunningham testified
that, after the assault, Hooley told him to “shut [his] mouth” and “[c]ome up with an alibi.”
       Cunningham added that, when he told Given “this is for all the times you hurt her,” he was
referring to Autumn Boyack. At the time of the attack, Boyack and Given had a four-year-old son
together. Cunningham was also intimately involved with Boyack, having met Boyack through
Given. Even so, Cunningham testified that Hooley had been the one to “interrogate” Given
specifically about the extent of Given’s sexual relations with a different woman—with whom
Hooley had apparently been romantically involved.
       Given also testified at Hooley’s trial. Given’s version of events differed from
Cunningham’s. Given corroborated the fact that Hooley was the one who used the stun baton and
the fact that Cunningham was the one who stabbed him and cut his throat. Given testified, however,
that except for Cunningham stating that “this is for all the times you hurt her” between the two
attempts to cut Given’s throat, no one spoke during the attack—not to “interrogate” him, nor to
give instructions on how to stab him and cut his throat. Given further testified that he waited to
identify the kidnappers because he knew Cunningham was a member of a violent white
supremacist gang, the Aryan Peckerwoods, and he was fearful of retaliation by Cunningham or
other members of Cunningham’s gang.
       During closing argument, Hooley’s defense counsel focused on the lack of credibility on
behalf of the prosecution’s two eyewitnesses: Cunningham and Given. Both were felons and
admitted drug addicts, and both had at least some affiliation with a white supremacist gang.
Hooley’s counsel could not, however, establish an identity for an alternate perpetrator if it was not
Hooley. Hooley’s counsel’s argument was apparently unpersuasive because the jury found Hooley
guilty of both counts. For aiding and abetting aggravated battery, Hooley was sentenced to a
unified sentence of fifteen years, with five years fixed. For kidnapping in the first degree, Hooley



                                                 3
was sentenced to a unified sentence of twenty-five years, with five years fixed. The trial court
ordered the sentences to be served concurrently.1
         B. Procedural History
         Hooley moved for a new trial alleging juror misconduct (the basis of which is not relevant
to his appeal), which the trial court denied. Hooley then appealed that denial, which the Idaho
Court of Appeals affirmed.2 State v. Hooley, No. 42627, 

, at *1–3 (Idaho Ct.
App. Dec. 2, 2015) (unpublished opinion). Hooley then filed a pro se motion for a new trial,
alleging the prosecution had improperly withheld favorable material under Brady v. Maryland,

 (1963). The trial court dismissed the motion as untimely under Idaho Criminal Rule
34. Hooley appealed, arguing the trial court should have considered the motion not as a motion for
a new trial based on newly discovered evidence, but as a petition for post-conviction relief. The
Court of Appeals again affirmed the trial court, as did this Court after Hooley petitioned for review.
State v. Hooley, No. 46181, 

, at *1 (Idaho Ct. App. June 28, 2018) (unpublished
opinion); State v. Hooley, 

, 

 (2020).
         On September 18, 2019, while his appeal was pending before this Court, Hooley filed a
pro se petition for post-conviction relief in district court, alleging that he had new evidence that
proved he was innocent and that Given, Cunningham, and Boyack had “conspired to send me to
prison for a crime Autumn [Boyack] and Ryan [Cunningham] committed.” Hooley further
requested he be appointed counsel. The district court granted Hooley’s request for the appointment
of counsel.
         On December 2, 2019, Hooley’s newly appointed counsel submitted an unsigned amended
petition for post-conviction relief, which contained no mention of Hooley’s actual innocence
claim. Counsel reported that Hooley had refused to sign the amended petition.3 Citing a breakdown



1
  This opinion will refer to the district court judge who presided over the criminal trial (Judge John K. Butler) as the
“trial court” and to the district court judge who presided over the post-conviction case (Judge Rosemary Emory) as
the “district court.”
2
  The district court’s recitation of facts states that Hooley filed a motion for a new trial and then separately appealed
his sentence as being excessive. However, it appears that the district court was incorrect: The Court of Appeals
affirmed the trial court’s denial of a new trial on December 2, 2015. The Court of Appeals opinion does not address a
claim that Hooley’s sentence was excessive, nor is a separate appeal of Hooley’s sentence reflected in Idaho’s
appellate records.
3
  The district court’s recitation of facts states that Hooley filed an amended petition on December 19, 2019. However,
no filings from December 19, 2019, are in the record. Additionally, on January 2, 2020, the State filed a “Motion to
Dismiss or for Extension of Time to File State’s Response,” in which the State asserted: “Although the ‘Report of
Counsel’ was filed on December 3, 2019, petitioner has still failed to present a verified amended petition.”


                                                           4
in the attorney-client relationship, counsel requested leave of the court to withdraw from
representing Hooley. The district court granted the request and appointed Hooley a new attorney
on February 5, 2020. This second attorney did not submit an amended petition either and, on May
22, 2020, also requested leave to withdraw from representing Hooley. The district court approved
the request and, on June 9, 2020, appointed a third attorney to represent Hooley.
         On August 26, 2020, Hooley (through his new attorney) finally filed a verified amended
petition.4 In that petition, Hooley set forth the following claim of actual innocence based on newly
discovered evidence:
                 Mr. Hooley has discovered through the attached Affidavits to this Petition
         that there is new evidence, unavailable to Mr. Hooley at the time of trial, as to the
         truth of Mr. Hooley’s involvement, or more accurately, his lack of involvement in
         the alleged incident. See, Attached Affidavits of Jody Carr and Steven A. Bauer. . . .
Hooley then cited the Drapeau standard for newly discovered evidence, and pleaded the following
claim:
               The attached Affidavits, incorporated by reference herein, show that Mr.
       Hooley has evidence that was obtained after the trial – admissions by the codefendant and alleged victim, that tend to show that their testimony was false. It
       follows that these statements, if presented at a new trial or if they were presented at
       Mr. Hooley’s original trial would produce an acquittal because as offered above,
       the State’s case and resulting verdict was based almost entirely upon the testimony
       of these two witnesses.
See State v. Drapeau, 

, 

 (1976).
         Hooley thus submitted affidavits from two inmates, Jody Carr and Steven Bauer, who
swore that, while incarcerated, they were personally told by Cunningham and Given that testimony
during Hooley’s trial was false and that this impeaching testimony, if presented at trial, would
produce an acquittal.5 Hooley also asserted that, contrary to Brady, the prosecution withheld an
officer safety alert related to Cunningham, a “material witness,” Boyack, and another individual,
Nick Rice, all of which was favorable to Hooley.
         The State moved to summarily dismiss Hooley’s amended petition on October 16, 2020.
In his memorandum responding to the State’s motion, in addition to arguing his Brady claim,
Hooley “request[ed the district court’] reach the merits of his claims based upon the U.S. Supreme



4
  This document is titled “Second Amended Petition for Post Conviction Relief.” As previously noted, it appears from
the record that no “first amended petition” was ever filed.
5
  Given was in custody during Hooley’s trial on charges unrelated to this appeal.


                                                         5
Court [case] of Schlup v. Delo, 

 (1995), and subsequent Idaho appellate decisions that
reference Schlup with approval.”
         After hearing oral argument from Hooley and the State, the district court issued its
memorandum decision and order, but the court did not analyze Schlup directly in doing so. Instead,
the district court simply noted that the holding was cited with approval by the Idaho Court of
Appeals in Hays v. State, 

, 

 (Ct. App. 1999). The district court
concluded that Hooley’s amended petition was untimely because he had not “demonstrated
extraordinary circumstances that should permit equitable tolling of his petition as a general
matter.” Even so, the district court addressed each claim on the merits anyway, applying Drapeau’s
four-prong test to find that Hooley’s proffered affidavits were inadmissible because the affidavits:
(1) contained hearsay or were not based on personal knowledge; (2) were neither material nor
impeaching; and (3) were simply consistent with testimony at trial. The district court concluded
that “Hooley has not shown evidence so strong that this [c]ourt would not have confidence in the
outcome of the trial.” The district court summarily dismissed Hooley’s amended petition for post-conviction relief on April 28, 2021. Hooley timely appeals.6
                                       II.       STANDARDS OF REVIEW
         A petition for post-conviction relief is civil in nature. “Like a plaintiff in a civil action, the
applicant for post-conviction relief must prove by a preponderance of evidence the allegations
upon which the application for post-conviction relief is based.” Charboneau v. State, 

, 

 (2007). “Yet unlike the complaint in an ordinary civil action, a petition
for post-conviction relief must contain more than ‘a short and plain statement of the claim’ that
would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(2).” Marsalis v. State, 

, 

 (2020) (quoting Charboneau, 

, 

). “The petition ‘must present or be accompanied by admissible evidence supporting its
allegations, or the application will be subject to dismissal.’” 

 (quoting State v. Yakovac, 

, 

 (2008)).
         “Idaho Code section 19-4906 authorizes summary dismissal of a petition for post-conviction relief, ‘either pursuant to motion of a party or upon the trial court’s own initiative.’” 

6
  In issuing this substitute opinion, we note that we considered all arguments made by the parties in the petition for
rehearing, even those not expressly mentioned. It is after full consideration of the parties’ arguments that we decline
to grant the request for rehearing and, instead, issue this substitute opinion.


                                                          6
(quoting Yakovac, 

, 

). “Summary disposition of a petition for post-conviction relief is appropriate if the applicant’s evidence raises no genuine issue of material fact.”

 (citing I.C. § 19-4906(b), (c)). When reviewing the “dismissal of a post-conviction relief
application without an evidentiary hearing, this Court will determine whether a genuine issue of
fact exists based on the pleadings, depositions and admissions together with any affidavits on file
and will liberally construe the facts and reasonable inferences in favor of the non-moving party.”
Charboneau v. State, 

, 

 (2007). “A court is required to accept
the petitioner’s unrebutted allegations as true, but need not accept the petitioner’s conclusions.”

 “When the alleged facts, even if true, would not entitle the applicant to relief, the trial court
may dismiss the application without holding an evidentiary hearing.” 

 “Allegations contained
in the application are insufficient for the granting of relief when (1) they are clearly disproved by
the record of the original proceedings, or (2) do not justify relief as a matter of law.” 

                                                III.     ANALYSIS
A.       The district court did not err in summarily dismissing Hooley’s petition for post-conviction petition as untimely.
         Hooley makes a series of interrelated arguments to contend that the district court erred in
dismissing his post-conviction petition as untimely. First, Hooley alleges that, despite advocating
for its application below, this Court need not decide whether the Schlup7 gateway standard applies
in state post-conviction cases. Second, Hooley argues that even if considered, the State has waived
any argument on the Schlup gateway because it did not advance an argument on the standard
below. Finally, Hooley maintains that he established actual innocence sufficient to warrant an
evidentiary hearing.
         1. Equitable tolling of the post-conviction relief statute of limitations is a limited right.
         The Uniform Post Conviction Procedure Act (“the Act”) was passed by the 39th Session
of the Idaho Legislature and became law in 1967. See I.C. §19-4901-11. The purpose of the Act,
as set forth in section 19-4901, is to provide a remedy to those who have “been [wrongfully]
convicted of, or sentenced for, a crime.” Pertinent here, the statute provides relief for those
wrongfully convicted when “there exists evidence of material facts, not previously presented and


7
  Schlup v. Delo, 

 (1995). A Schlup gateway claim provides the procedural means for a habeas
petitioner to present an untimely claim. When such a claim is alleged, the trial court reviews only a procedural claim,
not a substantive claim of actual innocence. This Court has not adopted this federal standard before, and we decline
to do so now.


                                                          7
heard, that requires vacation of the conviction or sentence in the interest of justice . . . .” In addition,
except as otherwise provided in the post-conviction act, “it comprehends and takes the place of all
other common law, statutory, or other remedies heretofore available for challenging the validity
of the conviction or sentence. It shall be used exclusively in place of them.”
        In construing the Act, as a statute, we are bound by ordinary rules of statutory construction.
The interpretation of a statute is an issue of law over which we exercise free review. Aguilar v.
Coonrod, 

, 

 (2011). Such interpretation must begin
with the literal words of the statute; those words must be given their plain, usual, and ordinary
meaning; and the statute must be construed as a whole. Verska v. Saint Alphonsus Reg'l Med. Ctr.,

, 

 (2011). The application of these principles leads us to the
conclusion that we reach today.
        2. The Schlup gateway is not applicable to Idaho post-conviction proceedings.

        Hooley admits that his petition, filed more than three years after the conclusion of his first
appeal, was untimely under the Act. He asserts, however, that his petition should be allowed to
proceed to hearing under the Schlup gateway because of his newly discovered claim of actual
innocence and to avoid a miscarriage of justice. We recognize that Idaho’s courts have held that
the post-conviction statute of limitation may be equitably tolled. But “[t]he standard for application
of equitable tolling in post-conviction actions is a stringent one. . . .” Schultz v. State, 

, 

 (Ct. App. 2011). To qualify for such tolling, a petitioner must show
that “an inability to file a timely petition denied him a meaningful opportunity to present his post-conviction claims.” Gutierrez-Medina v. State, 

, 

 (Ct. App.
2014). “Equitable tolling has only been recognized in Idaho where the petitioner was incarcerated
in an out-of-state facility without legal representation or access to Idaho legal materials and where
mental disease and/or psychotropic medication prevented the petitioner from timely pursuing
challenges to the conviction.” 

 Even so, Hooley asserts the statute of limitations should be
equitably tolled because he asserts his actual innocence here.
                a. This Court is not bound to apply erroneous law to this case.

        Hooley first asserts that, under the district court’s implied application of Schlup, this Court
is bound to do likewise since the State did not argue against the gateway in its response
memorandum below. We disagree with this assertion on two bases: first, the State argued in
principle that the actual innocence should not be applied to toll the statute of limitations in this


                                                     8
case; and second, this Court has already distinguished Schlup and held it is inapplicable to claims
for post-conviction relief under Idaho law:
        The Supreme Court in Schlup . . . was addressing the showing required for a federal
        habeas petitioner to avoid a procedural bar to the consideration of his constitutional
        claims. The Court was not setting forth a requirement applicable to state claims for
        post-conviction relief. [Schlup has no] application to these [post-conviction]
        proceedings, and the district court erred in relying upon [this authority]. However,
        “[w]here the lower court reaches the correct result by an erroneous theory, this
        Court will affirm the order on the correct theory.” Nampa & Meridian Irr. Dist. v.
        Mussell, 

, 

 (2003).
Fields v. State, 

, 

 (2011) (emphasis added).
        This holding colors how we view both the preservation question and the decision on the
merits. Fields rejected Schlup’s applicability in post-conviction cases, as we will address below.
Given that conclusion, it is of note that the State argued below that Hooley’s claim was untimely.
Hooley conceded his claim was untimely, but argued the district court should reach the merits of
his claim based on Schlup. Hooley failed to point out for the district court that this Court rejected
the application of Schlup to post-conviction cases in Fields. Hooley simply argued below that the
district court should apply the Schlup gateway based on a reference to Schlup in a 1999 Court of
Appeals opinion (Hays v. State, 

, 

 (Ct. App. 1999)). That
holding distinguished Schlup in post-conviction cases: “Here, unlike in Schlup, [Petitioner’s]
claim is substantive, rather than procedural.” Hays, 

, 

 (emphasis
in original). Beyond that, Schlup has no application in post-conviction proceedings. See Fields,

, 

. Hooley failed to reference the Fields v. State authority that goes
directly against his position in any of his briefing before the district court.
        This Court cannot have foisted upon it a legal rule that is 180 degrees different from the
Fields precedent that binds Hooley, the State, and this Court, simply because of poor legal
draftsmanship that led to a district court decision based on what legal authority was provided to
that court. See Miller v. Idaho State Patrol, 

, 864–65, 

, 1282–83
(2011) (“[T]here is always a risk of bad decision-making” when the briefing is “inadequate” or
“unhelpful.”).
        Because we hold that the State did not waive consideration of this standard, and the district
court implied it was good law in Idaho, we next examine whether the Schlup gateway applies to
state post-conviction proceedings.
                 b. Schlup does not apply to state post-conviction cases.


                                                   9
        The issue before this Court involves a question of law: should the Schlup gateway be made
available to post-conviction petitioners outside the limits of Idaho Code section 19-4902? How
this Court applies U.S. Supreme Court opinions to our cases is a question of law. See id; Rhoades
v. State, 

, 

 (2010). “This Court exercises free review over
questions of law.” Fields v. State, 

, 

 (2010).
        The question presented is whether Idaho’s statutory post-conviction scheme (Idaho Code
sections 19-4901-4911) should be modified by judicial fiat to include a tolling mechanism for
claims of actual innocence under the statute. This is not a question of constitutional rights, or the
great writ—indeed, nowhere in either Hooley’s briefing below or in the district court’s decision,
is the writ of habeas corpus mentioned. The right to post-conviction relief is proscribed by what
the statute provides; we are not in the business of rewriting statutes. See State v. Doe, 

, 

 (2009).
        Under Idaho Code sections 19-4906(c) and 19-4902(a), “[t]he failure to file a timely
petition is a basis for summary dismissal of a post-conviction petition.” Mahler v. State, 

, 

 (Ct. App. 2014). The statute of limitations in a non-capital case requires
that a post-conviction petition be filed within one year “from the expiration of the time for appeal
or from the determination of an appeal or from the determination of a proceeding following an
appeal, whichever is later.” I.C. § 19-4902(a). When there has been a direct appeal, and the petition
is the first petition for post-conviction relief (as in this case), “[t]he one-year period begins to run
when the appellate court issues a remittitur.” Bahr v. State, 

, ___, 

(2023) (quoting Windom v. State, 

, 

 (2017)). The only nonstatutory basis for tolling the limitation period is when due process so requires. Rhoades v. State,

, 

 (2009). We hold that due process does not require
tolling here; this Court has already held that the gateway from Schlup does not apply to post-conviction proceedings, and it is not an additional means to toll the one-year statute of limitations.
        Beyond the holding of this Court in Fields, we also reiterate that we are bound by what the
post-conviction relief statute provides by way of actual innocence causes of action: Those based
on newly acquired DNA or fingerprint evidence. I.C. §19-4902(b). We construe this statute as a
whole, Verska, 

, 

, and note that post-conviction relief claims may
only be filed “at any time,” Idaho Code section 19-4902(b), when it is “more probable than not,”




                                                  10
based on DNA or fingerprint evidence, that “the petitioner is not the person who committed the
offense.” I.C. §19-4902(f).
        Thus, Schlup is inapplicable here, and Hooley is bound by the statutory proscription of
Idaho’s post-conviction statute, as it is written. The dissent and Hooley take a myopic view of
Fields to extract from it a suitable interpretation that permits application of Schlup to Idaho post-conviction cases. But the language quoted from this Court above makes clear that we have already
recognized Schlup applies only to federal habeas proceedings and is inapplicable to Idaho’s post-conviction system. Our holding in Fields was clear: Schlup was “not setting forth a requirement
applicable to state claims for post-conviction relief.” Fields, 

, 

.
       While some states have applied the Schlup gateway in post-conviction cases, as the dissent
suggests, many of those states do not differentiate their habeas corpus statutes from their post-conviction statutes. See Berry v. State, 

, 1152 (Nev. 2015) (involving a “third
postconviction petition for a writ of habeas corpus”); Lisle v. State, 

, 734 (2015)
(affirming the district court’s order dismissing petitioner’s post-conviction petition for a writ of
habeas corpus); In re Carter, 

, 

 (2011) (applying Schlup
to petitioner’s personal restraint petition, under a combined habeas and post-conviction statute).
Kansas and Missouri, which Hooley cited, do not apply Schlup to post-conviction cases at all; the
cases relied on by Hooley applied the standard to the review of habeas cases. See Skaggs v. State,

 (Kan. App. 2020); Clay v. Dormire, 

 (Mo. 2000). Idaho’s
post-conviction proceedings are independent civil actions authorized by statute and thus these out-of-state decisions are of little moment.
       At bottom, we simply will not extend Idaho’s statutes of limitation to a ground (actual
innocence based on evidence other than DNA or fingerprints) that the legislature has not adopted.
And as the State points out, even if we did, Hooley’s evidence falls short of demonstrating actual
innocence. Accordingly, because Schlup is unavailable to toll the statute of limitations, the district
court did not err in concluding Hooley’s petition was time-barred.
               c. Hooley’s newly discovered evidence does not meet the Drapeau standard.
       Despite Hooley’s argument below that Schlup was available as a gateway to present his
procedurally barred constitutional claims, he argues now that his actual innocence claim was
substantive, not procedural, as Schlup provides. Hooley’s post-conviction claims were based on
what he alleged was “newly discovered” evidence demonstrating he was innocent of the conduct



                                                 11
for which he was convicted. Thus, he argues, irrespective of the Schlup gateway, his claims should
be recognized as newly discovered evidence. His claim was supported by declarations from two
witnesses—Jody Carr and Steven Bauer—who alleged that the trial testimony from Hooley’s codefendant was false.
       The district court addressed this claim directly, and applied Idaho’s newly discovered
evidence standard from State v. Drapeau, 

, 

 (1976) in ruling against
Hooley. That standard provides:
       (1) that the evidence is newly discovered and was unknown to the defendant at the
       time of trial; (2) that the evidence is material, not merely cumulative or impeaching;
       (3) that it will probably produce an acquittal; and (4) that failure to learn of the
       evidence was due to no lack of diligence or the part of the defendant.

, 

.
       Hooley now argues that the evidence from Carr and Bauer meets all four prongs of this
test; however, the State argued below that, even if admitted, nothing within either affidavit was
material evidence; any value from the affidavits was merely impeachment. The district court
agreed, noting that the evidence from Carr and Bauer, even if admissible, (a conclusion we accept
for Hooley’s argument) was either cumulative, or perhaps impeaching, and that it failed to satisfy
the second and third requirements for newly discovered evidence for that reason. The district court
noted that the affidavits from Carr and Bauer established the following facts:
               In his affidavit, Carr provides that he was housed with Cunningham, Given,
       and Hooley at Idaho Department of Corrections at various times. According to this
       affidavit, Given told Carr that Cunningham cut Given’s throat and that Cunningham
       told Given the only way to protect his wife was to put the blame on another person.
       Carr also provides that while being housed with Cunningham, Cunningham
       admitted to cutting Given’s throat.

               In his affidavit, Bauer claims that he lived with Cunningham while in
       protective custody. He alleges that he was told by Cunningham that he set up
       Hooley, and that he would brag about how he stuck five inches of steel into Given’s
       head and slit his throat from ear to ear. In addition, he provides that Cunningham
       told him that the police in Blackfoot and Gooding told him what to say in court.

               [This] evidence, by way of affidavits of Carr and Bauer, is neither material
       nor impeaching. Even if the affidavits were admissible evidence, the affidavits of
       Carr and Bauer are generally consistent with the trial testimony. If the information
       in the affidavits had been presented at trial, it is not likely to have resulted in an
       acquittal. The affidavits are in agreement with Cunningham’s own trial testimony
       in that he cut Given’s throat.
       ...


                                                12
                   The only information that is arguably helpful to Hooley are the statements
           that Cunningham allegedly made that he had to put the blame on someone else and
           that he set Hooley up. However, not only is this hearsay, it is merely impeachment
           evidence. Evidence that is merely impeaching or cumulative, rather than material,
           does not justify a new trial based on newly discovered evidence.
           We agree with the district court’s analysis.
           The bottom line, even if this evidence would have been admitted, it is, at best, merely
contradictory evidence that is insufficient to produce an acquittal. Newly discovered evidence must
be “material, not merely cumulative or impeaching.” Evidence is material when it has “some
logical connection with the consequential facts.” State v. Ellington, 

, 

 (2014) (citing BLACK’S LAW DICTIONARY 1066 (9th ed. 2009)). Here, the newly
discovered evidence failed to establish the requisite elements of being “beyond impeaching” to a
degree sufficient to result in Hooley’s acquittal.
                  d. Hooley’s petition is untimely.
           For Hooley to file a petition for post-conviction relief within the statute of limitations, he
had one-year from the date this Court issued a remittitur on his appeal—December 18, 2015.
Hooley, however, waited until September 18, 2019, to file his petition for post-conviction—more
than three years after the deadline. As a substantive claim of innocence based on new evidence,
the legislature has provided a one-year statute of limitations period. I.C. §§ 19-4901(4), 19-
4902(a). Absent a showing that the one-year limitation should be tolled, the failure to file a timely
petition for post-conviction relief is a basis for dismissal of the petition. Bahr, ___ Idaho at ___,

; Kriebel v. State, 

, 

, 1206 (2009) (citing
Evensiosky v. State, 

, 

 (2001)). A time-barred petition for
postconviction relief must be dismissed. Evensiosky, 136 Idaho at 190–91, 30 P.3d at 968–69.
Consequently, there is no avenue of relief available to Hooley under Idaho’s post-conviction
statute.
           For example, under Idaho Code section 19-4901(a)(1) or (a)(4), a petition for post-conviction is available if: “the conviction or the sentence was in violation of the constitution of the
United States or the constitution or laws of this state[,]” or if “there exists evidence of material
facts, not previously presented and heard, that requires vacation of the conviction or sentence in
the interest of justice[.]” If we were to generously construe Hooley’s claim of actual innocence as
falling within the confines of either provision, he is time barred with no mechanism to toll the
statute of limitations. The only statutory exception available to Hooley to toll the one-year


                                                    13
limitation period is for actual innocence claims based on fingerprint or DNA evidence. I.C. § 19-
4902(b). Neither Hooley’s petition for post-conviction nor the declarations in support were based
on fingerprint or DNA evidence.
           Regardless of the subsection under which we consider Hooley’s claim, whether his
innocence claim was one of substance or procedure, he is time-barred. Hooley cannot assert actual
innocence as a procedural claim to toll the statute of limitations for his other constitutionally based
claims because we decline to adopt Schlup. Neither can Hooley assert a substantive claim of actual
innocence beyond the statute of limitations set by the legislature because the claim does not invoke
DNA or fingerprints. Under either scenario, Hooley’s petition fails.
           B. The district court did not err in dismissing Hooley’s Brady claim.
           In his amended petition, Hooley asserted that, in violation of Brady8, the prosecution
withheld information related to an officer safety alert related to Cunningham and Rice, which
favored Hooley’s defense. After the attack on Given, the Joint Investigations Division of the
Bingham County Sheriff’s Office and Blackfoot Police Department issued an “officer safety alert”
regarding Cunningham, Rice, and Boyack. Although Hooley’s trial counsel knew about the officer
safety alert, the version of the alert obtained by Hooley after the trial included handwritten notes
identifying Cunningham as the “primary cutter” and Boyack as a “material witness.” Regarding
Rice, the handwritten notes stated: “Not presently wanted for this crime. Officer safety only @
[sic] this time Aryan Nations[.]”
           The district court concluded that, although Hooley’s petition was untimely, his Brady claim
“appear[ed] to have been made within a reasonable time after its discovery and therefore, is not
time-barred.” However, the district court further concluded Hooley’s Brady claim failed on its
merits. The district court determined that evidence linking Rice to the Aryan Nations was “neither
exculpatory nor impeaching” and therefore was not favorable to Hooley. The district court further
concluded that Hooley “failed to demonstrate resulting prejudice from any failure by the State to
produce this information.” The district court reasoned that “[t]he possibility that both Rice and
Cunningham were affiliated with the Aryan Nations organization does not by itself establish that
Cunningham and Rice knew one another or that it would make it any more or less likely that
Hooley was involved in the attack on Given.” Additionally, the district court determined the officer
safety alert would have been inadmissible at trial because it was not relevant to Hooley’s

8
    Brady v. Maryland, 

 (1963).


                                                   14
underlying offenses. The district court noted that “[t]here was overwhelming evidence at trial
supporting the jury verdict finding Hooley guilty” and ultimately concluded “Hooley [had] not
shown evidence so strong that this [c]ourt would not have confidence in the outcome of the trial.”
         On appeal, Hooley contends the district court erred in dismissing his Brady claim. Hooley
first asserts the evidence is favorable to him. He argues that “evidence that Rice–a known associate
of Cunningham, who[m] the police suspected of harboring Cunningham after the attack on Given–
is also a fellow member of the Aryan Nations suggests that it was Rice and Cunningham who
attacked Given.” Hooley further contends the evidence is relevant because “the identity of
Cunningham’s accomplice was of central consequence to the offenses Mr. Hooley was charged
with.”
         We first address Hooley’s contention that the State waived its argument that Hooley’s
Brady claim was untimely based on the “forty-two-day” rule. This forty-two-day rule comes from
the “Special appellate and post-conviction procedure for capital cases,” and provides “[w]ithin
forty-two (42) days of the filing of the judgment imposing the punishment of death, and before the
death warrant is filed, the defendant must file any legal or factual challenge to the sentence or
conviction that is known or reasonably should be known.” I.C. § 19-2719(3). While the State did
not make this argument below, the rule does not apply here, and thus does not affect whether
Hooley’s petition was untimely. Below, the State moved to dismiss both of Hooley’s claims under
Idaho Code section 19-4902 because the entire petition was untimely. The State’s argument on
appeal that Hooley’s Brady claim was untimely under the same statute is, thus, preserved.
         Even so, while Hooley did not assert his Brady claim within the time proscribed under
Idaho Code section 19-4902, this Court has considered petitions for post-conviction stemming
from a Brady violation within a “reasonable time” after the discovery of the violation before.
Charboneau v. State, 

, 

 (2007). The district court also
considered this “reasonable time” standard. It is not a rigid rule but one this Court considers caseby-case. Based on the facts before us, we hold that Hooley’s delay was unreasonable.
         Hooley learned of the notation on the officer safety report on April 2, 2020. On April 3,
Hooley filed for a motion for extension of time, requesting another thirty days—not because of
any newly discovered evidence—but because COVID-19 within the prison reduced his ability to
work on his case. The district court granted his request and extended his time to file a secondamended petition to May 8, 2020. On May 5, 2020, Hooley filed a second request to extend time.



                                                 15
Again, he did not mention discovering new evidence, but he requested two more weeks so that he
could communicate with his counsel and because he was not feeling well. The court granted that
motion, giving him until May 22, 2020. On May 22, 2020, his attorney filed a notice of withdrawal,
citing a breakdown in communication with Hooley based on the attorney’s ethical obligations to
Hooley. The court appointed another public defender to represent Hooley in his post-conviction
case on June 9, 2020. On July 1, 2020, Hooley filed a third request to extend time to file his second
amended petition for post-conviction, again with no mention of newly discovered evidence. The
court granted that motion the same day, giving Hooley until July 31, 2020, to file his petition. On
July 24 and August 18, Hooley filed two more motions requesting more time, with no reference to
the Brady material cited on appeal. The court granted both, and Hooley filed his amended second
amended petition for post-conviction on August 26, 2020.
       Thus, Hooley had nearly five months from the date he received the notations until the date
he filed, and he failed to explain his delay once he did file. As noted, he filed multiple motions
during that five-month period without referencing this new evidence. As this Court explained in
Charboneau, while assessing a capital post-conviction petitioner’s claim of reasonableness, “[t]his
Court, in the capital context, has measured timeliness from the date of notice, not from the date a
petitioner assembles a complete cache of evidence.” Charboneau, 

, 

. The same rule applies here. Based on the facts of Hooley’s case, a delay of five months was
unreasonable. Therefore, the district court’s summary dismissal of Hooley’s Brady claim without
an evidentiary hearing is affirmed.
                                         IV.     CONCLUSION
       For these reasons, the district court’s summary dismissal of Hooley’s petition for post-conviction relief is affirmed.
       JUSTICES BRODY, MOELLER, AND BURDICK, pro tem, CONCUR.
STEGNER, J., dissenting.
       I recognize that there is no such thing as a perfect criminal justice system. However, when
mistakes are made and an innocent person is convicted, justice demands that we rectify that
mistake. Accordingly, I would reach the merits of both Hooley’s actual innocence claim and his
claim that the prosecution suppressed favorable evidence in violation of Brady v. Maryland, 

 (1963). Further, I would hold that Hooley is entitled to an evidentiary hearing on both his




                                                 16
post-conviction claims. Because I conclude that the district court erred in summarily dismissing
Hooley’s petition for post-conviction relief, I respectfully dissent.
       Idaho law provides a mechanism for a person who is wrongfully convicted of a crime to
prove his or her innocence of that crime. The majority contends that actual innocence claims may
only be brought if DNA or fingerprint evidence supports the claim. See I.C. § 19-4901(a)(6).
However, Idaho Code section 19-4901(a)(4) provides relief when “there exists evidence of
material facts, not previously presented and heard, that requires vacation of the conviction or
sentence in the interest of justice[.]” In my view, nothing “requires vacation of the conviction or
sentence in the interest of justice” more than actual innocence.
       This is true whether the facts that establish the petitioner’s innocence come to light the day
after trial or a decade after trial. Rigid application of the one-year time limit would unreasonably
bar a petitioner from bringing a meritorious claim of actual innocence simply because the
information—which was, by definition, not available to him at trial—remained hidden from him
for another year. I.C. §§ 19-4901(b), 4902(a). Such cases are, in my view, “within the ‘narrow
class of cases . . . implicating a fundamental miscarriage of justice[.]’ ” Schlup v. Delo, 

 (1995) (quoting McCleskey v. Zant, 

 (1991)). As such, I would conclude
that Hooley’s claim of actual innocence should be equitably tolled.
       Relying on Fields v. State, 

, 

 (2011), the majority concludes this
Court has already determined Schlup does not apply in Idaho. However, the present case is readily
distinguishable from Fields. Hooley’s claim of actual innocence is based upon newly discovered
evidence contained in the affidavits of Jody Carr and Steven Bauer. In Fields, the Court expressly
acknowledged that the petitioner had not brought a claim based on newly discovered evidence:
       

(a)(4) provides a claim for post-conviction relief when “there
       exists evidence of material facts, not previously presented and heard, that requires
       vacation of the conviction or sentence in the interest of justice.” Fields did not
       allege in his application for post-conviction relief that he was making a claim based
       upon newly discovered evidence. Likewise, he did not argue to the district court
       that he was making a claim under section 19-4901(a)(4) based upon newly
       discovered evidence. Finally, he did not make such claim on appeal. He simply
       argued that such affidavits and the DNA test results established a claim of
       innocence under section 19-4901(a)(6).
151 Idaho at 25, 

. Thus, Fields is not controlling here.
       Additionally, while I recognize that the United States Supreme Court’s holding in Schlup
applies to federal habeas petitions in capital cases, I see no reason not to extend Schlup to the case


                                                 17
at bar. As I have explained, actual innocence is a distinct and colorable claim under Idaho law. An
actual innocence claim does not exist under federal law. Rather, as a matter of procedure, a federal
petitioner must make a showing of actual innocence in order for his or her time-barred substantive
constitutional claims to be heard on the merits. Herrera v. Collins, 

 (1993). If
time-barred constitutional claims may be heard if the petitioner can show he or she is actually
innocent, why should we not allow Idaho petitioners to be heard on the merits of their actual
innocence claims, even past the one-year time limit? I do not disagree that constitutional claims
are important; however, claims of actual innocence are at least as important, maybe even more so.
I do not condone closing the doors of the courthouse for the petitioner who was wrongfully
convicted. If a mistake was made at trial that caused the wrongful conviction of an innocent person,
that mistake should be fixed. We should never turn a blind eye to such a claim. The day we let
innocence take a back seat to finality is the day we should cease to be judges.
       I would further conclude that Hooley is entitled to an evidentiary hearing on the merits of
his actual innocence claim. In State v. Drapeau, this Court set forth four elements that must be met
for a criminal defendant to be entitled to a new trial based on newly discovered evidence:
       A motion based on newly discovered evidence must disclose (1) that the evidence
       is newly discovered and was unknown to the defendant at the time of trial; (2) that
       the evidence is material, not merely cumulative or impeaching; (3) that it will
       probably produce an acquittal; and (4) that failure to learn of the evidence was due
       to no lack of diligence on the part of the defendant.

, 

 (1976) (quoting 2 C. WRIGHT, FEDERAL PRACTICE AND
PROCEDURE: CRIMINAL s 557, at 515 (1969)). The parties agree that the district court correctly
concluded Hooley had established the first and fourth elements. They narrow their dispute to
whether the district court was correct in concluding Hooley had failed to meet the second and third
elements – whether the evidence was material and likely to produce an acquittal.
       The newly discovered evidence is, in my view, material. As pointed out by Hooley on
appeal, “other than [Ryan] Cunningham’s and [Jason] Given’s false testimony[,] . . . [t]here was
no evidence linking Mr. Hooley to the offense[.]” Cunningham and Given were the prosecution’s
star witnesses at Hooley’s trial. They were the only two people that had been in the secluded area
when Given was attacked and left for dead. The prosecution presented no forensic evidence linking
Hooley to the crime. The new evidence tends to show that Given and Cunningham—the only two
eyewitnesses to the attack on Given—knowingly falsified the only testimony that placed Hooley
at the scene of the crime. Assuming the information in the affidavits is true, as is required when


                                                18
reviewing the summary dismissal of a post-conviction petition, Given and Cunningham both
admitted to lying under oath at trial specifically regarding Hooley’s involvement in the
commission of the attack on Given. Thus, the new evidence likely has “some logical connection”
to a consequential fact: whether Hooley was Cunningham’s accomplice. See State v. Ellington,

, 

 (2011) (explaining that the touchstone of materiality is
whether the evidence has “some logical connection with the consequential facts”) (quoting
Material Evidence, BLACK’S LAW DICTIONARY 1066 (9th ed. 2009)).
         I would also conclude that the newly discovered evidence, if introduced at a new trial and
believed by the trier of fact, “will probably produce an acquittal[.]” Drapeau, 

, 

. There was precious little evidence implicating Hooley other than Cunningham’s and
Given’s testimony. Accordingly, at a new trial, Hooley could show not only that Cunningham and
Given lied on the stand and were therefore unreliable witnesses, but he could also show that they
had planned to falsely testify as a plan to set him up. Accordingly, liberally construing facts and
reasonable inferences in Hooley’s favor and assuming the new evidence is true, the new evidence
would probably produce an acquittal.
         Thus, in my view, Hooley has established there is an issue of material fact as to whether
he is entitled to a new trial based on newly discovered evidence. I would hold that the district court
erred in summarily dismissing Hooley’s actual innocence claim without holding an evidentiary
hearing. Therefore, I dissent from the majority’s decision regarding Hooley’s actual innocence
claim.
         I also dissent from the majority’s decision regarding Hooley’s Brady claim. Pointing to
Charboneau v. State, 

, 

 (2007), the majority acknowledges
that “this Court has considered petitions for post-conviction stemming from a Brady violation
within a ‘reasonable time’ after the discovery of the violation before.” However, the majority
contends that the “nearly five months” between when Hooley received the officer safety alert
notations and when he filed his amended petition was an unreasonable amount of time. I disagree.
Hooley filed multiple requests to extend his filing time—none of which were opposed by the State
below. Furthermore, Hooley first learned of the notations on April 2, 2020—the beginning of the
Covid-19 pandemic. As evidenced by the transcripts in the record, the Covid-19 pandemic
prevented Hooley’s counsel from physically meeting with him at the prison. Given these
circumstances, I do not find a five-month delay to be unreasonable.



                                                 19
       Having reached the merits of Hooley’s Brady claim, I would conclude he is entitled to an
evidentiary hearing.
       The State has a duty to disclose exculpatory evidence to a defendant. This duty
       exists even in the absence of a request by the defendant and extends to impeachment
       evidence as well as exculpatory evidence. In order to establish a Brady violation,
       there must be evidence that (1) is favorable to the accused because it is either
       exculpatory or impeaching; (2) was willfully or inadvertently suppressed by the
       State; and (3) was prejudicial or material in that there is a reasonable probability
       that its disclosure to the accused would have led to a different result. “Reasonable
       probability” of a different result is shown when the suppression “undermines
       confidence in the outcome of the trial.”
State v. Lankford, 

, 

 (2017) (internal citations omitted).
       The evidence that Nick Rice was involved in the Aryan Nations—the same gang in which
Cunningham was a proud member—is favorable to Hooley. The district court reasoned that simply
belonging to the same organization did not necessarily mean that Rice and Cunningham knew each
other. However, on appeal Hooley points out that, not only did the two know each other, but law
enforcement believed Rice had harbored Cunningham after the attack on Given. The fact that Rice
was a member of the same gang as Cunningham makes it more likely that Rice and Cunningham
conspired to set Hooley up and is, therefore, favorable to Hooley.
       I would also conclude that the district court erred in concluding the handwritten notes were
not material.
       [The] touchstone of materiality is a “reasonable probability” of a different result,
       and the adjective is important. The question is not whether the defendant would
       more likely than not have received a different verdict with the evidence, but
       whether in its absence he received a fair trial, understood as a trial resulting in a
       verdict worthy of confidence. A “reasonable probability” of a different result is
       accordingly shown when the government’s evidentiary suppression “undermines
       confidence in the outcome of the trial.”
Kyles v. Whitley, 

 (1995). “Thus, evidence is material for purposes of a due
process analysis if there is a reasonable probability that disclosure of the undisclosed evidence
would have produced a different outcome in the proceeding.” 

       Hooley describes the evidence that Rice is associated with the Aryan Nations as “the final
piece of the puzzle needed to show Rice was Cunningham’s accomplice as it gives Cunningham a
motive to protect Rice and concoct the false story about Mr. Hooley.” He notes there were other
facts linking Cunningham and Rice: “Rice and Cunningham were known associates”; “The police
suspected Rice of harboring Cunningham after the attack and believed Rice to be dangerous”;


                                                20
“Rice was in possession of the items stolen from Given, suggesting that he stole them or assisted
Cunningham in the theft”; “Rice’s girlfriend [Autumn Boyack] had threatened to kill Given just a
week prior to the attack, providing a motive for Rice.” Hooley freely admits he was already in
possession of these facts, but maintains that, had he been able to present the fact Rice was a
member of the same gang as Cunningham to the jury, he could have established why Cunningham
set Hooley up and lied on the stand. In its briefing before this Court, the State proclaims it is
“incredible” that “Cunningham did not intimidate Given into exonerating him, but instead into
exonerating his only accomplice.” It stands to reason that a jury would have the same question:
Without a motive to do so, why would Cunningham lie about the identity of his accomplice?
Cunningham freely admitted at trial that he was the one who physically attacked Given and was
given a “sweetheart deal” in exchange for his testimony. But why would he lie about the identity
of his accomplice? Liberally construing facts and reasonable inferences in favor of Hooley, it is
my view that Cunningham’s and Rice’s membership within the same gang, the Aryan Nations,
could have supplied the answer to that question for the jury. Thus, Hooley has established there is
an issue of material fact as to whether there is a substantial likelihood that the result of the trial
could have been different and, thus, whether he is entitled to relief under Brady and its progeny.
        In sum, Hooley met his initial burden at the summary dismissal stage regarding both his
actual innocence claim and his Brady claim. In my view, he should be given his day in court and
his case should not have been summarily dismissed without an evidentiary hearing. Accordingly,
I respectfully dissent.
STEGNER, J., dissenting to the decision to deny Hooley’s Petition for Rehearing.
        The other four members of this Court who originally participated in this case have voted
to deny Hooley’s petition to rehear his appeal. I disagree with that decision. Because I think the
majority is making one of the most important and egregious mistakes I have seen as a member of
this Court, I find it necessary to explain why I would grant Hooley’s petition to rehear his appeal.
        I disagree with the majority’s opinion in two important respects. First, for the reasons
outlined in my original dissent as well as those advanced now by Hooley and the amicus in support
of his petition for rehearing, I do not believe that Hooley’s petition is time-barred. Of course,
considering this as a purely statutory matter, as the majority does, Hooley’s petition is untimely
because it was filed after the one-year statute of limitations period. See I.C. § 19-4902(a). However,
in my view, the Idaho Constitution affords Hooley a right to seek habeas corpus relief (whether it



                                                 21
is characterized as post-conviction relief or habeas corpus relief is immaterial), and that right
cannot be diminished by the Idaho Legislature. As this Court has previously acknowledged, the
Uniform Post-Conviction Procedure Act (UPCPA) is an expansion of an individual’s habeas
corpus right, not a constriction of it. Dionne v. State, 

, 

(1969) (“This [C]ourt, therefore, construes the Uniform Post Conviction Procedure Act as an
expansion of the Writ of Habeas Corpus and not as a denial of the same.”). Accordingly, in cases
such as this which involve a colorable claim of actual innocence based on newly discovered
evidence, the constitutional right to seek habeas corpus relief should result in the equitable tolling
of the UPCPA’s statute of limitations.9
         Second, I disagree with the majority regarding the merits of Hooley’s actual innocence
claim. The evidence presented by Hooley appears to satisfy the prima facie elements of the
Drapeau standard and, at a minimum, warrants that he be afforded an evidentiary hearing. The
two affidavits supporting Hooley’s petition suggest that the State’s two principal witnesses, Given
and Cunningham, conspired to frame Hooley. While this evidence may be interpreted as hearsay,
it nevertheless may still be admissible as substantive evidence because the affidavits include
statements against penal interest by Given and Cunningham and are therefore an exception to the
rule against hearsay. After all, the affidavits allege that both Given and Cunningham conspired to
commit perjury by falsely testifying against Hooley. Accordingly, Hooley’s newly discovered
evidence goes beyond mere impeachment. It is false testimony that has been sworn to under oath.
Perjury is a level of magnitude greater than mere impeachment and is material and likely to
produce an acquittal. State v. Drapeau, 

, 

 (1976).
         Because I disagree with the majority’s decision in these two respects, I respectfully dissent
from the denial of Hooley’s petition for rehearing.
         A. Hooley’s claim of actual innocence should not be time-barred.




9
  The one-year limitation period should be equitably tolled based on due process considerations. See Charboneau v.
State, 

, 

 (2007) (permitting the equitable tolling of a post-conviction petition
based on due process when new claims are discovered). The majority concludes that due process does not require
tolling here because this Court purportedly rejected such an argument in Fields by declining to adopt the Schlup
gateway. However, as my original dissent explained, Fields is distinguishable from this case because it did not involve
an actual innocence claim based on newly discovered evidence. Moreover, the statute of limitations at issue in Fields
is different than here. See I.C. § 19-2719(3). Section 19-2719(3) only applies to petitions that are “known or reasonably
should be known.” Thus, Hooley’s petition would not have been considered untimely under section 19-2719(3) since
it is based on evidence that was not known to Hooley previously.


                                                          22
        I begin by noting the obvious: that the writ of habeas corpus is, without any doubt, a
constitutional right preserved under Idaho’s constitution. Article 1, section 5 of our constitution
reads as follows: “Right of habeas corpus – The privilege of the writ of habeas corpus shall not be
suspended, unless in case of rebellion or invasion, the public safety requires it, and then only in
such manner as shall be prescribed by law.” The ability to issue the great writ is part of this Court’s
original jurisdiction. Article V, section 9 states: “The Supreme Court shall also have original
jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus[.]” (Italics
added.) In addition, the Idaho Legislature is constitutionally prohibited from interfering with this
Court’s original jurisdiction. Article V, section 13 of the Idaho Constitution reads: “Power of
legislature respecting courts. – The legislature shall have no power to deprive the judicial
department of any power or jurisdiction which rightly pertains to it as a coordinate department of
the government[.]”
        Read together, these provisions hold that every citizen is entitled to seek and, in meritorious
cases, obtain a writ of habeas corpus, and this Court enjoys original and unfettered jurisdiction to
issue such a writ. A corollary of this conclusion is that the Idaho Legislature has no ability to limit
this Court’s exercise of its constitutional power. This Court has previously explained the critical
importance of habeas corpus being under the protection and guardianship of this Court. In 1964,
this Court explained that the framers of Idaho’s constitution placed greater protection over the writ
of habeas corpus with this Court than in our sister states because the writ is outside the purview of
the legislature:
                In many jurisdictions, the courts state that they are limited in habeas corpus
        proceedings, either by statute or by precedent to a simple remand or discharge of
        the prisoner. . . .
                A different rule prevails in Idaho. The writ of habeas corpus is recognized
        by the Declaration of Rights in the Idaho Constitution. Article 1, § 5. Although the
        legislature has made and provided reasonable regulation for its use (I.C. §§ 19–
        4201 through 19–4236), the writ is not a statutory remedy, but rather a remedy
        recognized and protected by the Idaho Constitution. While the legislature (absent
        certain contingencies) is without power to abridge this remedy secured by the
        Constitution, it may add to the efficacy of the writ. Statutes are usually enacted for
        this purpose and should be construed so as to promote the effectiveness of the
        proceeding. 39 C.J.S. Habeas Corpus § 3 (1944).
Mahaffey v. State, 

, 230–31, 

 (1964) (italics added). In short, the
Idaho Constitution limits the legislature in this realm to expanding, not diminishing, “the efficacy
of the writ.” 

, 

.


                                                  23
        Five years later, the Idaho Supreme Court explained the relationship between the writ of
habeas corpus and the newly enacted UPCPA:
                 The Uniform Post Conviction Procedure Act was passed by the 39th
        Session of the Idaho Legislature and became law in 1967. The purpose of the Act
        is set forth in Section I. It does not specifically repeal the use of the Writ of Habeas
        Corpus but states that it takes the place of all common law, statutory or other
        remedies previously available. It therefore is broader in scope than a Writ of Habeas
        Corpus.
                This [C]ourt has previously stated that the Writ of Habeas Corpus is a
        constitutional remedy and statutes enacted to add to the efficacy of the writ should
        be construed so as to promote the effectiveness of the proceeding. Mahaffey v.
        State, 

, 

 (1964). This [C]ourt, therefore, construes the
        Uniform Post Conviction Procedure Act as an expansion of the Writ of Habeas
        Corpus and not as a denial of the same.
Dionne, 

, 

 (italics added).
        Next, citing its previous decisions in Mahaffey and Dionne, this Court reinforced these
principles:
                

(b) states that the Uniform Post-Conviction
        Procedure Act is the exclusive remedy for challenging the validity of a conviction
        or sentence once the time for direct appeal has expired. Because the writ of habeas
        corpus is a constitutional remedy, Mahaffey v. State, 

, 

        (1964), the Act has been construed by this Court as an expansion of the writ. Dionne
        v. State, 

, 

 (1969). Therefore, substance and not form
        governs and it is immaterial whether the petition or application is labeled as one
        for habeas corpus or post-conviction relief.
Still v. State, 

, 

 (1974) (italics added).
        Notwithstanding the foregoing case law, the majority’s opinion makes no mention of the
fact that Hooley has a constitutional right to seek a writ of habeas corpus under the UPCPA.
Indeed, absent from the opinion is any recognition that the UPCPA is the statutory expansion of
the preexisting constitutional right rather than a restriction of it. Instead, the majority bypasses the
Idaho Constitution and this Court’s jurisprudence and limits Hooley’s right to postconviction relief
to that prescribed by the legislature:
                The question presented is whether Idaho’s statutory post-conviction scheme
        (Idaho Code sections 19-4901[–]4911) should be modified by judicial fiat to
        include a tolling mechanism for claims of actual innocence under the statute. This
        is not a question of constitutional rights, or the great writ—indeed, nowhere in
        either Hooley’s briefing below or in the district court’s decision, is the writ of
        habeas corpus mentioned. The right to post-conviction relief is proscribed by what



                                                  24
       the statute provides; we are not in the business of rewriting statutes. See State v.
       Doe, 

, 

 (2009).
Hooley v. State, No. 48846, slip op. at 10 (italics added). To suggest that the UPCPA “proscribe[s]”
Hooley’s ability to seek postconviction relief not only misunderstands our constitution but it also
fails to give any credence to years of this Court’s jurisprudence explaining the relationship between
postconviction relief and the writ of habeas corpus. Unfortunately, and sadly, today’s decision not
only reduces the vibrancy and availability of the great writ, but it also cedes this Court’s
guardianship of the great writ to the Legislature. I view this as nothing short of constitutional
abdication by this Court.
       The majority’s decision draws a substantive distinction between habeas corpus relief and
post-conviction relief which does not (or at least should not) exist. For example, the majority’s
decision partially justifies its rejection of the Schlup gateway in post-conviction proceedings
because, unlike some states, Idaho happens to “differentiate[] [its] habeas corpus statutes from [its]
post-conviction statutes.” Hooley v. State, slip op. at 11. However, as illustrated above, our
precedent has long recognized that the UPCPA, notwithstanding its name, is a statute that
encompasses, rather than replaces, the writ of habeas corpus. See, e.g., Dionne, 

,

 (“This [C]ourt, therefore, construes the Uniform Post Conviction Procedure Act
as an expansion of the Writ of Habeas Corpus and not as a denial of the same.” (italics added)).
       The majority’s misunderstanding of post-conviction relief is also evident from its
conclusion that this case does not implicate habeas corpus relief simply because neither Hooley’s
briefing nor the district court explicitly mentioned it below. However, once again, our precedent
explains that a claim under the UPCPA squarely implicates constitutional rights, including the writ
of habeas corpus. In Still, this Court stated that the UPCPA is the “exclusive remedy for
challenging the validity of a conviction or sentence once the time for direct appeal has expired.
Because the writ of habeas corpus is a constitutional remedy, the Act has been construed by this
Court as an expansion of the writ.” 

, 

 (internal citation omitted).
       How, then, can the majority claim that constitutional rights are not at issue in this case
when the UPCPA is an expansion of the right to habeas corpus? Moreover, how can the majority
fault Hooley for not mentioning the writ of habeas corpus when this Court’s precedent as well as
Idaho Code section 19-4901(b) instruct that the UPCPA is the “exclusive remedy” by which a
criminal defendant may seek post-conviction relief? Indeed, our guidance in Still makes clear that
“it is immaterial whether the petition or application is labeled as one for habeas corpus or post-


                                                 25
conviction relief.” Thus, whether Hooley expressly mentioned “habeas corpus relief” is immaterial
given our precedent. His claim under the UPCPA is enough to implicate his constitutional right to
seek habeas corpus relief.
       The Idaho Association of Criminal Defense Lawyers in its amicus brief accurately
illustrates how the majority misunderstands the relationship between post-conviction relief and
habeas corpus relief:
               One of the Court’s reasons for withholding from Mr. Hooley an
       actual-innocence pathway was that he filed a post-conviction action below instead
       of a habeas petition. See Hooley, 

, at *7. However, that logic is
       inconsistent with Idaho law, authority elsewhere, and basic principles of collateral
       challenges to convictions. There is nothing about the difference between post-conviction and habeas procedure in Idaho that would make the latter inappropriate
       for actual-innocence arguments and not the former.
               For starters, it appears that the only basis the Hooley opinion had for
       attributing any significance to the term “habeas” to begin with is because it happens
       to be the device at issue in some of the U.S. Supreme Court’s actual-innocence
       cases. See Hooley, 

, at *7 (“Even if we were to acknowledge the
       parallel between federal habeas and state post-conviction claims, any state habeas
       claims are distinct from state post-conviction proceedings.”). In other words, the
       rationale is that because the U.S. Supreme Court has utilized actual innocence for
       federal habeas cases, it would at most only be available for state habeas cases—
       and not post-conviction actions. But the Court’s analysis misunderstands the import
       of these terms in the federal regime. In federal court, the nomenclature makes no
       difference. The rule is simply that when a prisoner has a procedural avenue to
       contest the constitutionality of his conviction and sentence, he can avail himself of
       actual innocence to overcome a default—no matter what the avenue is called.
To the extent the majority views habeas proceedings as separate and somehow distinct or different
from post-conviction proceedings, it is a gross misunderstanding of Idaho’s statutory scheme and
our jurisprudence from the time of the passage of the UPCPA.
       The majority has effectively allowed the legislature to usurp and constrain this Court’s
constitutional authority. Today’s decision adds to our more recent and, in my view, misguided
jurisprudence which attempts to severely limit habeas corpus relief within the strictures of the
UPCPA. See McKinney v. State, 

, 703–04, 

, 152–53 (1999) (internal
citation omitted) (“The legislature may pass statutes regulating the use of the writ of habeas
corpus.”); and Stuart v. State, 

, 

 (2010); Eubank v. State, 

, 863–64, 

, 1070–71 (Ct. App. 1997) (“[W]hen a petitioner is challenging
the validity of his conviction, Idaho requires use of the procedures and remedies afforded under



                                                26
the UPCPA.”). To the extent these cases allow the legislature to define the constitutional right to
seek habeas corpus relief, they are manifestly wrong. Until we arrive at that conclusion, the once
great writ will be reduced to nothing more than a statutory right confined to the four corners of the
UPCPA as defined by the legislature and not this Court.
       Members of this Court like to talk about “staying within our lane.” I wholeheartedly agree
that we should not exceed our lane of travel. However, an important corollary of this concept is
that we, as a Court, should not stand idly by when others, in this case the legislature, wittingly or
unwittingly, cause us to lose sight of our proper authority and prerogative. We have all taken a
solemn oath to support Idaho’s constitution. With today’s denial of Hooley’s petition to rehear his
case we have failed that solemn oath. This Court is denying the great writ, the writ of habeas
corpus, to an individual who claims and has evidence of actual innocence. The majority concludes
Hooley is not entitled to an evidentiary hearing on his claims. The magnitude of this decision is
profound. It means we would rather promote finality above a colorable claim of innocence. Even
when shown the error of our analysis, we decline to rehear the case.
       The majority concludes that it cannot “extend Idaho’s statutes of limitation to a ground
(actual innocence based on evidence other than DNA or fingerprints) that the legislature has not
adopted.” Hooley v. State, No. 48846, slip op. at 12. However, this contradicts what this Court has
long recognized: The UPCPA is an expansion of the writ of habeas corpus, which is, first and
foremost, a constitutional remedy preserved and protected under the auspices of this Court. While
the legislature may add to that right, it is wholly without power to abridge it. See Mahaffey, 87
Idaho at 230–31, 

; Dionne, 

, 

. Rather, “ ‘[i]t is
emphatically the province and duty of the judicial department to say what the law is.’ ” Nye v.
Katsilometes, 

, 

 (2019) (quoting Marbury v. Madison, 

 (1803)). This has never been more important than when this Court determines
the rights enumerated by our state’s constitution. To the extent this Court defers to the legislature
to define the contours of the right to habeas corpus, we shirk our judicial duty and abdicate our
authority and responsibility to give full effect to the rights of our citizens provided by our
constitution.
       For these reasons, I would grant Hooley’s petition for rehearing. We need to determine
whether the statute of limitations under Idaho Code section 19-4902(a) impedes Hooley’s
constitutional right to seek habeas corpus relief. While Idaho case law has generally upheld the



                                                 27
one-year limitation period from constitutional attacks, the facts and the arguments raised in those
cases are distinguishable from this case. See, e.g., Eubank, 130 Idaho at 863–64, 949 P.2d at 1070–
71. Indeed, this Court has never addressed section 19-4902(a)’s constitutionality in the context of
an actual innocence claim based on evidence discovered after the statute of limitation had already
expired. Cf. Abbot v. State, 

, 

 (1996).10
         As my original dissent explained, rigid application of the one-year time limit prevents
petitioners from asserting meritorious claims of actual innocence simply because the evidence
remained hidden until after the time limit had run. That may well be the case here, though we are
unable to know without an evidentiary hearing.
         Hooley has presented affidavits from two individuals who swear they were told by the
prosecution’s key witnesses (the only two witnesses who placed Hooley at the scene of the crime),
Cunningham and Given, that they lied at Hooley’s trial when they implicated him in serious
crimes. If these allegations are true, this would seriously undermine the integrity of Hooley’s
conviction. The majority today would prefer to uphold the conviction of a potentially innocent
man rather than expend judicial resources on an evidentiary hearing. I would conclude that,
pursuant to Article I, section 5 of the Idaho Constitution, a petitioner with a colorable claim of
actual innocence such as Hooley’s, has a constitutional right to seek and obtain habeas corpus
relief notwithstanding the legislature’s efforts to limit that claim. As such, the statute of limitations
should be equitably tolled to accommodate such a claim. The writ of habeas corpus should not
depend on an arbitrary statute of limitations imposed by the legislature when the evidence to
exonerate was not and could not have been known until after the statute expired.
         B. Hooley’s newly discovered evidence satisfies the Drapeau standard.
         In its original opinion, the majority affirmed the district court’s summary dismissal of
Hooley’s petition solely because it concluded the petition was time-barred under the UPCPA.
However, now, in its substitute opinion, the majority reaches the merits of Hooley’s claim and
concludes that even if Hooley’s petition were timely, it would still fail under the Drapeau standard.
Specifically, the majority adopts the district court’s reasoning that the evidence contained in Carr’s


10
   In Abbott v. State, the Idaho Court of Appeals concluded that the UPCPA’s statute of limitations should be tolled to
accommodate a petition alleging that the defendant had been prevented from challenging his conviction because of
mental incompetence both during and after his conviction. 

, 

 (1996). While
the Court of Appeal’s decision was based on due process, the result it reached is applicable to this case: Where
circumstances outside the petitioner’s control prevent the filing of a petition until after the one-year limitation period
has expired, the statute of limitation should be equitably tolled to accommodate the petitioner’s claim.


                                                           28
and Bauer’s affidavits does not satisfy the second and third Drapeau elements in that it is neither
material nor likely to produce an acquittal. (Neither party disputes that the evidence satisfies the
first and fourth elements of the test set out in Drapeau.)
       In my view, such a conclusion is, at best, premature, and at worst, patently wrong. The
evidence Hooley has provided in support of his petition—construed liberally in favor of Hooley,
as is required under our rules since he is the non-moving party—establishes that the prosecution’s
two principal witnesses framed Hooley for the kidnapping and aggravated battery of Given by
perjuring themselves at Hooley’s trial. Carr, for example, swears in his affidavit that Given said
that “Ryan [Cunninghan] and he had ‘set up’ ” Hooley. Likewise, in Bauer’s affidavit, Bauer
claims that “Cunningham did in fact say to me that he and his friends, Nick, Autumn [sic] had set
up a man he called Hooley[.]”
       Admittedly, as the district court noted, these out-of-court statements are likely hearsay if
offered to prove that Given and Cunningham did in fact set Hooley up. But this does not prevent
their admission if an exception to the rule against hearsay applies. See I.R.E. 804(b). The district
court concluded, without any further analysis, that no hearsay exception applied to Carr’s and
Bauer’s affidavits. However, the evidence is likely admissible under one of two different hearsay
exceptions.
       First, the statements likely qualify as statements against interest. Idaho Rule of Evidence
804(b)(3) defines a statement against interest as follows:
       (3) Statement Against Interest. A statement that:
          (A) a reasonable person in the declarant’s position would have made only if the
          person believed it to be true because, when made, it was so contrary to the
          declarant’s proprietary or pecuniary interest or had so great a tendency to
          invalidate the declarant's claim against someone else or to expose the declarant
          to civil or criminal liability; and
          (B) is supported by corroborating circumstances that clearly indicate its
          trustworthiness, if it is offered in a criminal case as one that tends to expose the
          declarant to criminal liability.
(Italics in original.) Here, a reasonable person would not admit to lying under oath or to framing
another of a crime he had not committed because such conduct would expose the declarant to
criminal liability. Moreover, the trustworthiness of Carr’s and Bauer’s affidavits is corroborated
by the fact that both Carr and Bauer were fellow inmates (if not cellmates) of either Given or
Cunningham when the purported statements were made, making it more likely that the alleged



                                                 29
statements in the affidavits actually occurred. In fact, Carr claims Given’s statements were made
while Given and he were cellmates in prison. Similarly, Bauer claims Cunningham’s statements
were made when Cunningham and he were inmates together. Therefore, both Given’s and
Cunningham’s statements qualify as statements against their penal interests.
       Of course, the statement-against-interest exception to the rule against hearsay only applies
if the declarant is also unavailable to testify. See I.R.E. 804(a). Notably, a declarant is unavailable
to testify if he invokes his Fifth Amendment privilege against self-incrimination, which would be
the case if Given and Cunningham decline to testify based on their Fifth Amendment privilege.
See I.R.E. 804(a)(1). Given’s and Cunningham’s statements to Carr and Bauer would, in that event,
be admissible, not just as impeachment evidence, but as substantive evidence that Hooley had been
framed.
       Even if Given and Cunningham were available to testify and did in fact testify, I would
still conclude that the statements in the affidavits are admissible under Idaho’s residual hearsay
exception. Under Idaho Rule of Evidence 803(24), hearsay is admissible if the following
requirements are satisfied:
       (A) the hearsay statement has circumstantial guarantees of trustworthiness
       equivalent to those in Rules 803(1) to 803(23), (B) the statement is offered as
       evidence of a material fact, (C) the statement is more probative on the point for
       which it is offered than any other evidence which the proponent can procure
       through reasonable efforts, (D) the general purposes of the rules of evidence, and
       the interests of justice, will best be served by admission of the statement into
       evidence, and (E) the proponent gives the adverse party adequate notice and
       information regarding use of the statement.
State v. Ransom, 

, 

 (1993) (internal citation omitted). Given’s
and Cunningham’s statements in Carr’s and Bauer’s affidavits satisfy all the requirements for
admission under the residual exception. The statements meet the preliminary qualifications of
statements against penal interest under Idaho Rule of Evidence 804(b)(3) and, therefore, are
presumed trustworthy. The affidavits are also both material and more probative than any other
evidence because the statements are the only evidence available that prove Given and Cunningham
falsely testified against Hooley. Finally, admitting the evidence is in the interest of justice because
the affidavits indicate that a potentially innocent man has been wrongfully convicted. For these
reasons, the statements in the affidavits are admissible under the residual exception to the rule
against hearsay.



                                                  30
       Accordingly, because the affidavits are admissible to substantively prove that Hooley was
framed, Hooley’s newly discovered evidence satisfies all four elements of the Drapeau standard.
The second and third elements of Drapeau require “(2) that the [newly discovered] evidence is
material, not merely cumulative or impeaching” and “(3) that it will probably produce an
acquittal[.]” 

, 

 (internal citation omitted). The evidence here is
material because, as explained, not only is it admissible to seriously undermine Given and
Cunningham, but it is also likely admissible as substantive evidence to prove that Hooley was
framed for the kidnapping and battery of Given.
       Additionally, the affidavits of Carr and Bauer are not merely “impeaching” because they
are tantamount to evidence of conspiracy and perjury, a level of magnitude substantially greater
than mere impeachment. Indeed, this Court has previously concluded that, in certain cases, a
conviction obtained using perjured testimony amounts to a due process violation. See State v.
Ellington, 

, 

 (2011) (quoting United States v. Agurs, 

 (1976)) (“We also note that ‘a conviction obtained by the knowing use of perjured
testimony is fundamentally unfair’ as a violation of due process.”). In Ellington, this Court also
held that when perjury is “particularly egregious . . . , a defendant will receive a new trial even if
that evidence is merely impeaching or cumulative.” Id. at 74, 253 P.3d at 748 (italics added)
(holding that knowing use of perjured testimony from a law enforcement officer satisfied the
second prong of Drapeau even if it was merely impeaching or cumulative). Like Ellington, I would
similarly conclude that the use of perjured testimony by the State’s two key witnesses in Hooley’s
case constitutes a due process violation.
       Furthermore, it follows that the evidence in Carr’s and Bauer’s affidavits would likely
produce an acquittal since it affirmatively proves Hooley’s innocence. The State’s case in Hooley’s
original trial relied extensively and critically on the testimony of Cunningham and Given. Without
their testimony, it is exceedingly doubtful that Hooley would have been convicted. Therefore,
these affidavits from Carr and Bauer rebut the State’s only evidence linking Hooley to the
kidnapping.
       In sum, I would grant Hooley’s petition to rehear his appeal. Hooley’s petition is neither
time-barred nor does it fail on its merits. The majority not only misconstrues Idaho’s statutory and
constitutional scheme, but it also fails to follow (without explanation) this Court’s prior
jurisprudence from the time Idaho’s legislature enacted the UPCPA. This Court’s precedent



                                                 31
indicates that Hooley’s petition under the UPCPA implicates his constitutional right to seek habeas
corpus relief. Hooley’s request for rehearing should at a minimum be granted to determine whether
the UPCPA’s statute of limitations infringes on his right to seek habeas corpus relief. In the end,
his petition for post-conviction relief should be tested at an evidentiary hearing to determine
whether his claim of actual innocence may proceed. I believe the dismissal of his petition without
a hearing was not only patently wrong but a miscarriage of justice. To reject Hooley’s petition
consigns a potentially innocent man to a lengthy future in an Idaho penitentiary. Accordingly, I
respectfully dissent from the majority’s decision to deny Hooley’s petition to rehear his appeal.




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