Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.
The opinion of the court was delivered by: Gutierrez, Judge
2012 Unpublished Opinion No. 547
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Judgment dismissing petition for post-conviction relief, affirmed.
Phillip A. Turney appeals from the judgment summarily dismissing his petition for post-conviction relief. For the reasons set forth below, we affirm.
Turney was charged with two counts of aggravated driving under the influence (DUI) and being a persistent violator after crashing his taxi into a stationary police patrol car, causing the patrol car to collide with another patrol car. Two officers were severely injured. Turney's defense at trial was that he was not the driver of the taxi. The jury found him guilty as charged, and this Court affirmed the judgment of conviction and his sentence. State v. Turney, 147 Idaho 690, 214 P.3d 1169 (Ct. App. 2009).
Turney filed a timely petition for post-conviction relief, alleging, among other claims, the prosecutor committed error by relying on perjured testimony of one of the injured officers, who was later fired from the police force for unrelated misconduct, and ineffective assistance of his trial counsel because trial counsel failed to interview or call to testify Travis Anderson, an arrestee who was in the back of one of the patrol cars at the time of the crash. After the State moved to dismiss the petition, Turney requested appointment of counsel. The district court denied the motion for appointment of counsel, finding Turney's claims were frivolous. Three weeks later, the court entered an order conditionally dismissing the petition, giving Turney twenty days to respond. Turney filed a response, including an affidavit and exhibits. The court summarily dismissed Turney's petition. Turney now appeals.
Turney contends the district court erred in denying his request for appointment of post-conviction counsel because he presented sufficient evidence in regard to his claim that his trial counsel was ineffective for failing to interview an eyewitness to the incident. He also contends the district court erred in summarily dismissing his claim regarding the prosecution's use of allegedly perjured testimony of a police officer because he raised a genuine issue of material fact. We address both claims pursuant to the standard applicable to appointment of post-conviction counsel because, as the State points out, failure to present sufficient evidence to meet that standard will necessarily mean the petitioner failed to meet the higher standard necessary to survive summary dismissal. See Gonzales v. State, 151 Idaho 168, 174, 254 P.3d 69, 75 (Ct. App. 2011) (noting that failure to present evidence sufficient to warrant appointment of counsel "compels a conclusion that the [petition] did not raise a genuine issue of material fact").
If a post-conviction petitioner is unable to pay for the expenses of representation, the trial court may appoint counsel to represent the petitioner in preparing the petition. Idaho Code § 19-4904. The decision to grant or deny a request for court-appointed counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). When a district court is presented with a request for appointed counsel, the court must address this request before ruling on the substantive issues in the case. Id.; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct. App. 1997). The district court abuses its discretion where it fails to determine whether a petitioner for post-conviction relief is entitled to court-appointed counsel before denying the petition on the merits. See Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
In determining whether to appoint counsel pursuant to section 19-4904, the district court should determine if the petitioner is able to afford counsel and whether the situation is one in which counsel should be appointed to assist the petitioner. Charboneau, 140 Idaho at 793, 102 P.3d at 1112. In its analysis, the district court should consider that petitions filed by a pro se petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts sufficient to state a claim may not be alleged because they do not exist or because the pro se petitioner does not know the essential elements of a claim. Id. Some claims are so patently frivolous that they could not be developed into viable claims even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a petitioner alleges facts raising the possibility of a valid claim, the district court should appoint counsel in order to give the petitioner an opportunity to work with counsel and properly allege the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112.
Turney's prosecutorial misconduct claim is based on his assertion that the State presented perjured testimony at trial--specifically, the testimony of one of the injured officers who identified Turney as the driver of the taxi. Turney argues there is "newly-discovered" evidence in that the officer was later terminated from the Boise Police Department for "conduct unbecoming an officer, violations of law and making inconsistent statements during an internal investigation" in ...