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Michael Alan Mccall v. State of Idaho

July 25, 2012

MICHAEL ALAN MCCALL,
PETITIONER-APPELLANT,
v.
STATE OF IDAHO,
RESPONDENT.



Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin Falls County. Hon. John K. Butler, District Judge.

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

2012 Unpublished Opinion No. 564

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Order dismissing petition for post-conviction relief, affirmed. Greg S. Silvey, Star, for appellant.

Michael Alan McCall appeals from the order dismissing his petition for post-conviction relief. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

In 2007, McCall drove to his landlord's house located on the 600 block of a street. After McCall departed that house, he was pulled over by an officer for allegedly failing to signal when leaving the 500 block of that street from a parked position. I.C. § 49-808. The officer called for assistance from a second officer. When the second officer arrived, he walked his drug dog around McCall's vehicle. After the dog indicated that she detected an odor of controlled substances, the second officer searched McCall's vehicle.

McCall was charged with two counts of possession of a controlled substance with intent to deliver. A public defender was appointed to represent McCall; however, McCall later retained private counsel. The information was amended to include a persistent violator enhancement.

McCall's retained counsel was permitted to withdraw and a public defender was reappointed. A jury found McCall guilty of one count of possession of a controlled substance with intent to deliver and not guilty of the other count. The jury also found McCall to be a persistent violator. The district court sentenced McCall to a unified term of life imprisonment, with a minimum period of confinement of ten years. McCall appealed. In an unpublished opinion, this Court affirmed McCall's judgment of conviction and sentence. State v. McCall, Docket No. 36538 (Ct. App. Dec. 16, 2009).

McCall filed a petition for post-conviction relief along with an affidavit, a supplemental affidavit, and memorandum in support of his petition. McCall alleged that the officer violated McCall's Fourth Amendment rights by making the initial traffic stop and that his counsel was ineffective for failing to file a motion to suppress evidence. McCall also asserted several other claims. The district court entered a notice of intent to dismiss McCall's petition except as to the claim that McCall's counsel was ineffective. McCall filed a response to the notice of intent to dismiss together with an affidavit of his landlord. The district court entered an order partially dismissing McCall's petition and scheduled an evidentiary hearing on McCall's claim regarding ineffective assistance of counsel. After the hearing, the district court entered an order dismissing McCall's petition. McCall appeals.

II. STANDARD OF REVIEW

A petition 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 petitioner 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). A petition 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). A petition 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). A petition for post-conviction relief must be verified with respect to facts within the personal knowledge of the petitioner, and affidavits, records or other evidence supporting its allegations must be attached, or the petition must state why such supporting evidence is not included with the petition. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations, or the petition will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).

When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review ...


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