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David Zivkovic v. State of Idaho

March 30, 2011

DAVID ZIVKOVIC, PETITIONER-APPELLANT,
v.
STATE OF IDAHO, RESPONDENT.



Appeal from the District Court of the Sixth Judicial District, State of Idaho, Oneida County. Hon. David C. Nye, District Judge.

The opinion of the court was delivered by: Melanson, Judge

2011 Opinion No. 15

Stephen W. Kenyon, Clerk

Order summarily dismissing application for post-conviction relief, affirmed.

David Zivkovic appeals from the district court's order summarily dismissing his application for post-conviction relief. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

Zivkovic pled guilty to unlawful possession of a firearm by a felon, I.C. § 18-3316, and was admitted to the Oneida County DUI/Drug Court program. After Zivkovic was terminated from the program, the district court entered Zivkovic's judgment of conviction and imposed a unified sentence of five years, with a minimum period of confinement of three years. Subsequently, Zivkovic filed an application for post-conviction relief pursuant to I.C. §§ 19- 4901 to 19-4911. In his application, Zivkovic argued that his counsel was ineffective for failing to argue that I.C. § 18-3316 was unconstitutional as a bill of attainder under the United States and Idaho Constitutions and that it violated the Ex Post Facto Clause of the United States and Idaho Constitutions. Zivkovic also alleged that his termination from the drug court program violated his due process rights.

The state filed an answer to Zivkovic's application for post-conviction relief, which contained within it a motion for summary dismissal. Zivkovic filed a response. The district court issued a notice of intent to dismiss Zivkovic's application. Zivkovic was given more than twenty days to respond, but he failed to do so. The district court issued an order dismissing all of Zivkovic's claims. Zivkovic appeals.

II. STANDARD OF REVIEW

An application for post-conviction relief initiates a proceeding that is civil in nature. Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). An application for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004). An application must contain much 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 application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.

Idaho Code Section 19-4906 authorizes summary dismissal of an application for post- conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. A claim for post-conviction relief will be subject to summary dismissal if the applicant has not presented evidence making a prima facie case as to each essential element of the claims upon which the applicant bears the burden of proof. DeRushe v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal is permissible when the applicant's evidence has raised no genuine issue of material fact that, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Goodwin, 138 Idaho at 272, 61 P.3d at 629. Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the state does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant's conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372 (Ct. App. 1986).

On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions, and admissions together with any affidavits on file. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). In post-conviction actions, the district court, as the trier of fact, is not constrained to draw inferences in favor of the party opposing the motion for summary disposition; rather the district court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008).

III. ANALYSIS

On appeal, Zivkovic argues that the district court erred in summarily dismissing his application for post-conviction relief. Zivkovic argues that the district court erred when it dismissed his ineffective assistance of counsel claims because the district court ignored factual evidence and relied on authority in ...


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