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Kelly v. State

July 27, 2010

GREGORY LOUIS KELLY, PETITIONER-APPELLANT,
v.
STATE OF IDAHO, RESPONDENT.



Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Richard T. St. Clair, District Judge.

The opinion of the court was delivered by: Burdick, Justice

2010 Opinion No. 90

District court order summarily dismissing pro se petition for post-conviction relief, affirmed.

This case comes before this Court on the grant of a petition for review from a Court of Appeals decision, considering the district court‟s summary dismissal of Gregory Kelly‟s pro se petition for post-conviction relief. The Court of Appeals decision affirmed the district court judgment in part, reversed in part, and remanded for further proceedings. In its petition for review the State argues that the Court of Appeals erred in finding that Kelly did not receive notice of the grounds on which his petition was dismissed by the district court, and that the district court dismissed certain of Kelly‟s claims on grounds entirely separate from those raised by the State, in light of this Court‟s decision in DeRushé v. State, 146 Idaho 599, 200 P.3d 1148 (2009). We affirm the district court‟s summary dismissal of Kelly‟s petition for post-conviction relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gregory Kelly was charged with one count of trafficking in methamphetamine, four counts of conspiracy to traffic in methamphetamine, one count of possession of methamphetamine with intent to deliver when children are present, and one count of conspiracy to traffic in marijuana. On August 20, 2003, Kelly pled guilty to two counts of conspiracy to traffic in methamphetamine in return for the State‟s dismissal of the other charges. Kelly was sentenced to a total of 20 years, 8 fixed followed by 12 indeterminate, for each count, to be served concurrently. An amended judgment of conviction was entered on October 24, 2003. Kelly filed an Idaho Criminal Rule 35 motion for a reduction of sentence. The district court denied Kelly‟s Rule 35 motion and Kelly appealed. In an unpublished opinion, entered on January 5, 2005, the Court of Appeals affirmed the district court‟s denial; a remittitur was entered on January 27, 2005.

On January 9, 2006, Kelly filed a pro se petition for post-conviction relief, raising five issues: (1) denial of effective assistance of counsel; (2) denial of due process; (3) denial of the right against self-incrimination; (4) denial of the right to a fair trial; and (5) prosecutorial misconduct. The State filed its answer in February, 2006. On August 15, 2006, the State filed a "Motion for Summary Dismissal; Alternatively, Summary Adjudication of Issues" (State‟s MSD), and a "Memorandum in Support of Motion for Summary Dismissal" (State‟s Memo), alleging that the State was entitled to summary judgment as a matter of law. On August 30, 2006, the district court scheduled a hearing for September 27, 2006. On September 25, 2006, the district court received Kelly‟s reply to the State‟s MSD. On September 27, 2006, the district court held the hearing as planned, noting that it had received Kelly‟s reply, but had not received notice that Kelly wished to participate in the hearing. Kelly mailed a motion requesting that the court enter an order of transportation so that Kelly could be transported from prison to the hearing, but this motion was not received by the district court until September 29, 2006. On October 19, 2006, the district court issued its Memorandum Decision and Order, granting the State‟s MSD. Kelly timely appealed.

The Court of Appeals considered this case on appeal and issued an opinion on April 13, 2009, affirming in part, reversing in part, and remanding for further proceedings. In a 2-1 decision, the Court of Appeals declined to address Kelly‟s allegation that the State‟s MSD and the State‟s Memo provided insufficient notice of the grounds on which Kelly‟s petition was dismissed, finding that such a challenge could not be raised for the first time on appeal. However, the court did examine Kelly‟s allegation that some of his claims had been dismissed on grounds other than those set forth in the State‟s MSD and the State‟s Memo, without notice. The Court of Appeals found this argument to be meritorious, reversing the district court‟s dismissal on these issues and remanding. The State filed a petition for review on May 4, 2009, which this Court granted on July 8, 2009.

II. STANDARD OF REVIEW

When a case comes before this Court on a petition for review from a Court of Appeals decision, serious consideration is given to the views of the Court of Appeals, but this Court reviews the decision of the lower court directly. DeRushé v. State, 146 Idaho 599, 601, 200 P.3d 1148 , 1150 (2009).

As we stated in Charboneau v. State:

An application for post-conviction relief under the Uniform Post Conviction Procedure Act (UPCPA) 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. Unlike the complaint in an ordinary civil action, however, an application for post-conviction relief must contain more than "a short and plain statement of the claim" that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, an applicant for post-conviction relief must be verified with respect to facts within the personal knowledge of the application. The application must include affidavits, records or other evidence supporting its allegations, or must state why such supporting evidence is not included.

Summary disposition of a petition for post-conviction relief is appropriate if the applicant‟s evidence raises no genuine issue of material fact. On review of a 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. 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 ...


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