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Ildar Dursunov v. State of Idaho

June 21, 2012

ILDAR DURSUNOV,
PETITIONER-APPELLANT,
v.
STATE OF IDAHO,
RESPONDENT.



Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker, District Judge.

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

Stephen W. Kenyon, Clerk

2012 Unpublished Opinion No. 525

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

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

Ildar Dursunov 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

Dursunov pled guilty to lewd conduct with a minor under the age of sixteen. I.C. § 18- 1508. The sentencing court ordered a psychosexual evaluation that indicated that Dursunov was a moderate to high risk to reoffend. The evaluator opined that Dursunov should not be enrolled in a sex offender treatment program in the community because of "language barriers and cultural foundation which would obviate the treatment effects." The evaluator suggested that the district court consider the retained jurisdiction program and local incarceration. Dursunov was thereafter sentenced to a unified term of twenty years, with a minimum period of confinement of six years. Dursunov filed an I.C.R. 35 motion for reduction of his sentence. At a hearing on the motion, a licensed professional counselor, who also performed psychosexual evaluations, testified that he believed Dursunov was a low to moderate risk to reoffend and recommended probation along with a sex offender treatment program. He also opined that Dursunov would be amenable to sex offender treatment despite the language and cultural differences. The sentencing court denied Dursunov's motion. On appeal in an unpublished opinion, this Court concluded that Dursunov had not shown error in the sentencing proceedings or in the denial of his I.C.R. 35 motion and we affirmed both the judgment of conviction and the order denying Dursunov's I.C.R. 35 motion. State v. Dursunov, Docket No. 35927 (Ct. App. Mar. 17, 2010). Dursunov filed an application for post-conviction relief, alleging numerous instances of ineffective assistance of trial counsel. The state filed a motion for summary dismissal; the district court issued a notice of intent to dismiss; and, after a hearing, the district court entered an order summarily dismissing Dursunov's application. Dursunov appeals.

II.

ANALYSIS

Dursunov argues that the district court erred by summarily dismissing his application for post-conviction relief. Specifically, Dursunov asserts that the district court was wrong to conclude that he raised no genuine issue of material fact necessitating an evidentiary hearing on his claim that his trial counsel was ineffective for failing to obtain a confidential psychosexual evaluation rather than having him submit to a court-ordered one.

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. ยง 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 ...


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