Appeal from the District Court of the Fourth Judicial District, State of Idaho, Elmore County. Hon. Michael E. Wetherell, District Judge.
The opinion of the court was delivered by: Lansing, Judge
2012 Unpublished Opinion No. 539
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Judgment summarily dismissing petition for post-conviction relief, affirmed in part and reversed in part, and case remanded.
James Floyd appeals from the summary dismissal of his petition for post-conviction relief. He asserts that an evidentiary hearing was required to resolve material issues of fact. We affirm in part, reverse in part, and remand for further proceedings.
Floyd was charged with possession of a controlled substance after the police found methamphetamine in his sock. He filed a motion to suppress this evidence, which the district court denied. He then entered a conditional plea of guilty, reserving his right to appeal the denial of his suppression motion. Floyd was sentenced to a unified five-year term with one and one- half years fixed. His sentence was suspended, however, and he was placed on probation. In 2006, the court revoked his probation and executed his sentence after Floyd violated the terms of his probation. The district court retained jurisdiction and, in 2007, suspended the remainder of Floyd's sentence and placed him on probation a second time. In 2008, the court again revoked Floyd's probation after Floyd admitted to violating the terms of his probation. His sentence was executed, and he was given credit for 232 days of incarceration previously served. In an unpublished opinion, this Court affirmed Floyd's judgment of conviction, holding the district court did not err in denying Floyd's motion to suppress evidence. State v. Floyd, Docket No. 34114 (Ct. App. Mar. 20, 2009).
While that appeal was pending, Floyd filed a pro se petition for post-conviction relief in which he raised various claims, including a claim that he was not given all the credit for time served to which we was entitled and a claim that counsel was ineffective for failing to file a notice of appeal from the revocation of his probation. Counsel was appointed for Floyd, and his counsel filed an amended petition that included a claim that his trial attorney was ineffective for failing to request an evidentiary hearing on Floyd's suppression motion. After providing notice of its intent to dismiss, the district court summarily dismissed all the claims in Floyd's petition and amended petition. Floyd appeals.
Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal of a petition is the procedural equivalent of summary judgment under Idaho Rule of Civil Procedure 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) (quoting Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998)). If there exists a genuine issue of material fact that, if resolved in the petitioner's favor, would entitle the petitioner to the requested relief, an evidentiary hearing must be conducted. State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008); Goodwin v. State, 138 Idaho 269, 272, 61 P.3d 626, 629 (Ct. App. 2002). As the trial court rather than a jury will be the trier of fact in the event of an evidentiary hearing, summary dismissal is appropriate where the evidentiary facts are not disputed, despite the possibility of conflicting inferences to be drawn from the facts, for the court alone will be responsible for resolving the conflict between those inferences. State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476, 483 (2008); Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). That is, the judge in a post-conviction action is not constrained to draw inferences in favor of the party opposing the motion for summary disposition, but rather is free to arrive at the most probable inferences to be drawn from uncontroverted evidentiary facts. Hayes, 146 Idaho at 355, 195 P.3d at 714. "[W]hen reviewing a district court's order of summary dismissal in a post-conviction relief proceeding, we apply the same standard as that applied by the district court." Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010).
To prevail on an ineffective assistance of counsel claim, the petitioner must show that his defense attorney's performance was deficient, and ordinarily the petitioner must also show that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the petitioner must show a reasonable probability ...