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IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 32269
ELIBERTO RIOS-LOPEZ,                                                                                   )
                                                                                                       )                                                                                                 2007 Opinion No. 19
Petitioner-Appellant,                                                                                  )
                                                                                                       )                                                                                                 Filed: April 18, 2007
v.                                                                                                     )
                                                                                                       )                                                                                                 Stephen W. Kenyon, Clerk
STATE OF IDAHO,                                                                                        )
)
Respondent.                                                                                            )
)
Appeal from the District Court of the Fifth Judicial District, State of Idaho, Blaine
County.  Hon. Robert J. Elgee, District Judge.
Order summarily dismissing application for post-conviction relief, affirmed.
Nevin, Benjamin & McKay, LLP, Boise, for appellant.
Hon.  Lawrence  G.  Wasden,  Attorney  General;  John  C.  McKinney,  Deputy
Attorney General, Boise, for respondent.
PERRY, Chief Judge
Eliberto Rios-Lopez appeals from the district court’s order summarily dismissing his
application for post-conviction relief.   Specifically, Rios-Lopez challenges the district court’s
denial of his motion to replace his substitute counsel.  For the reasons set forth below, we affirm.
I.
FACTS AND PROCEDURE
Rios-Lopez was convicted of two counts of trafficking in methamphetamine, I.C. § 37-
2732B(a)(4)(A), and two counts of failure to affix illegal drug tax stamps, I.C. §§ 63-4205(1),
63-4207(2).   For trafficking, Rios-Lopez was sentenced to ten-year terms of imprisonment, with
minimum periods of confinement of five years.  For failure to affix illegal drug tax stamps, Rios-
Lopez was sentenced to two-year terms of imprisonment, with minimum periods of confinement
of one year.  All sentences were ordered to run consecutively.   Rios-Lopez subsequently filed an
I.C.R.                                                                                                 35  motion  for  reduction  of  his  sentences,  which  the  district  court  denied.    In  an
unpublished opinion, this Court affirmed Rios-Lopez’s judgment of conviction, his sentences,
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and the denial of his Rule 35 motion.   See State v. Rios-Lopez, Docket Nos. 28078 and 29163
(Ct. App. Sept. 18, 2003).   Rios-Lopez filed a pro se application for post-conviction relief and
the district court appointed counsel, who subsequently filed an amended application.  The district
court  summarily  dismissed  Rios-Lopez’s  application.    This  Court  affirmed  the  summary
dismissal of Rios-Lopez’s application in an unpublished opinion.    See Rios-Lopez v. State,
Docket No. 30547 (Ct. App. Mar. 31, 2005).
On November 17, 2004, Rios-Lopez filed a successive application for post-conviction
relief,  asserting  claims  of  ineffective  assistance  of  counsel  in  his  direct  appeal,  his  post-
conviction proceeding, and the appeal of his post-conviction proceeding.   The district court
appointed Rios-Lopez a public defender.   On February 3, 2005, the district court allowed the
public defender to withdraw due to a conflict of interest and appointed Rios-Lopez a substitute
counsel.   On April 26, 2005, Rios-Lopez filed a pro se motion to replace his substitute counsel,
asserting that the substitute counsel had failed to contact him despite his repeated efforts to
contact her.   On June 9, 2005, Rios-Lopez requested a hearing on his motion where both he and
his substitute counsel could be heard.   At a status conference on June 13, 2005, the district court
denied the request to replace the substitute counsel, reasoning that there was no allegation of a
conflict of interest.   Rios-Lopez was not present at this status conference.   The district court
subsequently granted the state’s motion for summary disposition on July 25, 2005.   Rios-Lopez
appeals.
II.
ANALYSIS
Rios-Lopez argues the district court deprived him of procedural due process because the
district court did not afford him with the opportunity to attend a hearing where he could present
the facts and reasons in support of his motion to replace his substitute counsel.1
Although Rios-Lopez relies on the Due Process Clauses of both the United States and
Idaho  Constitutions,  the  due  process  guarantees  derived  from  the  two  constitutions  are
1                                                                                                            Rios-Lopez only provides argument and authority on whether the district court violated
his procedural rights in denying his motion.   He provides no argument or authority on the merits
of the district court’s denial of his motion, and he has therefore waived a challenge to the district
court’s ruling on the merits.   See Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct.
App. 1997).
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substantially the same.   See Rudd v. Rudd, 105 Idaho 112, 115, 666 P.2d 639, 642 (1983).
Where a defendant claims that his or her right to due process was violated, we defer to the trial
court’s findings of fact, if supported by substantial evidence.  State v. Smith, 135 Idaho 712, 720,
23 P.3d 786, 794 (Ct. App. 2001).   However, we freely review the application of constitutional
principles to those facts found.   Id.    The test for determining whether state action violates
procedural due process requires the Court to consider three distinct factors:                           (1) the private
interest that will be affected by the official action;                                                  (2) the risk of an erroneous deprivation of
such interest through the existing procedures used and the probable value, if any, of additional or
substitute procedural  safeguards;  and                                                                 (3)  the  government’s  interest,  including  the  function
involved and the fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.   Mathews v. Eldridge, 424 U.S. 319, 335 (1976); Aeschliman v. State,
132 Idaho 397, 402, 973 P.2d 749, 754 (Ct. App. 1999).
Here, the private interest at stake was Rios-Lopez’s interest in securing assistance to
adequately present the claims raised in his successive application for post-conviction relief.   In a
post-conviction relief action, applicants do not have a constitutional right to counsel.  Freeman v.
State, 131 Idaho 722, 724, 963 P.2d 1159, 1161 (1998); Follinus v. State, 127 Idaho 897, 902,
908 P.2d 590, 595 (Ct. App. 1995).   Pursuant to I.C. § 19-4904, the district court may, rather
than shall, order that an indigent applicant have a court-appointed attorney.   See Follinus, 127
Idaho at 902 & n.1, 908 P.2d at 595 & n.1.   If an applicant alleges facts that raise the possibility
of a valid claim, the district court should appoint counsel in order to give the applicant an
opportunity  to  work  with  counsel  and  properly  allege  the  necessary  supporting  facts.
Charboneau v. State, 140 Idaho 789, 793, 102 P.3d 1108, 1112 (2004).   If the district court
appoints counsel, the district court may, for good cause, assign a substitute attorney.   I.C. § 19-
856.  Therefore, while Rios-Lopez had an interest in securing assistance to adequately present his
claims, his interest does not rise to the level of the constitutionally protected right to counsel.
The next factor we must consider is the risk that the procedures used by the district court
would erroneously deprive Rios-Lopez of his interest in securing assistance to adequately present
his claims and the probable value, if any, of additional or different procedural safeguards.   The
district court responded to Rios-Lopez’s initial request for counsel by appointing him a public
defender.   The district court then appointed Rios-Lopez a substitute counsel because the original
counsel had a conflict of interest which prevented representation of Rios-Lopez.   Almost three
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months after she had been appointed, Rios-Lopez’s substitute counsel had not responded to his
repeated attempts to contact her regarding his application for post-conviction relief.   Rios-Lopez
moved the district court to replace his substitute counsel, citing her failure to contact him.   The
district court did not ignore this request.   Rather, the district court concluded, on the record at a
status conference, that the failure to contact him was not grounds for replacing substitute
counsel.   The district court noted that, depending on the nature of the case, there was not
necessarily “much communication to engage in” between an attorney and a prisoner in a post-
conviction relief action.
Finally, the district court requested that counsel contact Rios-Lopez and notify him that
she was aware of his case and working on it.   The district court also concluded that there was no
indication that substitute counsel had a conflict of interest which would impair her ability to
represent Rios-Lopez.   The district court did not provide Rios-Lopez with notice of the status
conference where the court ruled on his motion, and Rios-Lopez was not present to argue his
motion or offer evidence of good cause for the replacement of substitute counsel.   His argument
for replacing his substitute counsel, however, was clearly set forth in his written motion to
replace his substitute counsel.   If there existed any additional reasons why he believed himself
entitled to new counsel, those reasons could have been presented to the district court in writing
without the need for his presence at a hearing.  Therefore, his presence would have added little to
the proceedings.
The final factor we must consider is the state’s interest in the expedient completion of
post-conviction proceedings.   In the present case, the district court had already dismissed Rios-
Lopez’s first application for post-conviction relief, and the state was now required to litigate his
successive application.   Requiring Rios-Lopez’s attendance at a hearing whenever he was to
challenge the competence of each successively-appointed counsel would further prolong post-
conviction proceedings to the detriment of the state’s interest.
Due process of law does not require a hearing in every conceivable case of government
impairment of private interest.   Stanley v. Illinois, 405 U.S. 645, 650 (1972).   Rather, procedural
due process requires an opportunity to be heard.   Kramer v. Jenkins, 806 F.2d 140, 141 (7th Cir.
1986).    Procedural due process is flexible and calls for such procedural protections as the
particular situation demands.   Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Aeschliman, 132
Idaho at 402, 973 P.2d at 754.    We conclude that the district court did not violate Rios-Lopez’s
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procedural due process rights because his written motion adequately apprised the district court of
the basis for his request.   In such a circumstance, the state’s interest in the expedient completion
of post-conviction proceedings warrants ruling on a motion to replace substitute counsel without
providing Rios-Lopez the opportunity to present his grounds for the motion at a formal hearing.
Alternatively, we are not persuaded by Rios-Lopez’s reliance on cases addressing the
procedures necessary to rule on a criminal defendant’s request to substitute counsel in criminal
proceedings.   See State v. Nath, 137 Idaho 712, 715, 52 P.3d 857, 860 (2002); State v. Clayton,
100 Idaho 896, 898, 606 P.2d 1000, 1002 (1980); State v. Peck, 130 Idaho 711, 713, 946 P.2d
1351, 1353 (Ct. App. 1997).   Both a criminal defendant and an applicant for post-conviction
relief may be appointed a substitute counsel if good cause is shown for such substitution.   See
I.C. § 19-856.   However, determining whether good cause exists to substitute counsel for a
criminal defendant differs from determining whether good cause exists to substitute counsel for
an applicant for post-conviction relief because the underlying rights to counsel differ.  A criminal
defendant has a constitutional right to counsel; but, in Idaho, an applicant for post-conviction
relief does not even have a statutory right to counsel.   See Follinus, 127 Idaho at 902 & n.1, 908
P.2d at 595 & n.1.   See also I.C. § 19-4904.   Indeed, a claim of ineffective assistance of post-
conviction counsel may not be brought because the applicant for post-conviction relief does not
have a right to effective assistance of counsel.   See Follinus, 127 Idaho at 902-03, 908 P.2d at
595-06.  Because Nath, Clayton, and Peck address the procedures necessary to protect a criminal
defendant’s constitutional right to effective assistance of counsel in criminal proceedings, those
cases are inapposite.    Rather, the right Rios-Lopez asserts is his constitutional right to be
afforded procedural due process in asserting that good cause existed to replace his court-
appointed counsel.   Nath, Clayton, and Peck do not address the procedural due process rights of
an applicant for post-conviction relief seeking to replace his or her court-appointed counsel.
Even if Nath, Clayton, and Peck were applicable to post-conviction proceedings, these
cases do not hold that a hearing on a motion for substitution of counsel is the only permissible
method for the district court to afford a full and fair opportunity for a litigant to present the
motion.   In Nath, the Idaho Supreme Court held the district court erred because it had failed to
conduct a complete assessment of the defendant’s reason for requesting substitute counsel in his
motion and the defendant had not been given the opportunity to explain his problems.  Nath, 137
Idaho at 715, 52 P.3d at 860.   In Clayton, the defendant contended that the district court erred in
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denying his motion for substitute counsel following a hearing in which the defendant had
asserted that his counsel lacked the desire to competently represent him.   Because the defendant
was accorded ample opportunity to recite any underlying facts giving rise to his subjective
beliefs concerning appointed counsel’s alleged incompetency, the Supreme Court determined
that the district court did not abuse its discretion in refusing to substitute counsel.   Clayton, 100
Idaho at 898, 606 P.2d at 1002.  In Peck, this Court remanded the issue of substitution of counsel
for a hearing where Peck could voice his concerns because the record revealed no reason for
summarily rejecting the defendant’s request for new counsel.   Peck, 130 Idaho at 714, 946 P.2d
at 1354.
These cases stand for the proposition that the trial court must afford a criminal defendant
a full and fair opportunity to present the facts and reasons in support of a motion for substitution
of counsel after having been made aware of the problems involved.    Nath, 137 Idaho at 715, 52
P.3d at 860; Clayton, 100 Idaho at 898, 606 P.2d at 1002; Peck, 130 Idaho at 714, 946 P.2d at
1354.    As discussed above, Rios-Lopez sufficiently presented the facts and reasons for his
request to replace his substitute counsel in his written motion, and the district court adequately
considered those facts and reasons when it denied the motion.   Rios-Lopez does not now assert
that he could have better articulated his grounds for good cause to have his substitute counsel
replaced had he been afforded an opportunity to address the court at a hearing on his motion.
The record therefore indicates that, even if Nath, Clayton, and Peck applied, the district court did
not deprive Rios-Lopez of his rights.
III.
CONCLUSION
Rios-Lopez was not deprived of procedural due process when the district court denied his
motion to replace his counsel without affording Rios-Lopez an opportunity to present the facts
and reasons for the motion at a formal hearing.  We therefore affirm the district court’s summary
dismissal of Rios-Lopez’s application for post-conviction relief.   No costs or attorney fees are
awarded on appeal.
Judge LANSING and Judge GUTIERREZ, CONCUR.
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