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Mariano Perez, Jr v. State of Idaho

March 13, 2013

MARIANO PEREZ, JR.,
PETITIONER-APPELLANT,
v.
STATE OF IDAHO,
RESPONDENT.



Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Juneal C. Kerrick, District Judge.

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

2013 Unpublished Opinion No. 398

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Mariano Perez, Jr. appeals from the district court's order summarily dismissing his petition for post-conviction relief. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

In 2005, Perez threatened an ex-girlfriend and three other individuals with a firearm. A few days later, an officer on patrol attempted to pull Perez over for a traffic infraction. Perez fled and the officer pursued him. Perez shot and injured the officer during the pursuit. The state charged Perez with three counts of aggravated assault, one count of felony injury to child, and one count of unlawful possession of a firearm. The state filed a separate case with respect to the fleeing incident, wherein the state charged Perez with aggravated battery on a law enforcement officer, felony eluding an officer, and unlawful possession of a firearm. The state alleged a persistent violator enhancement in both cases. Both cases were consolidated for plea and sentencing, where Perez pled guilty to one count of aggravated assault, one count of aggravated battery on a police officer, and being a persistent violator. In exchange for his guilty pleas, the remaining charges were dismissed. At the plea hearing, the district court determined Perez's pleas were entered freely, voluntary, and knowingly. The district court sentenced Perez to concurrent fixed life sentences. The judgment and sentences were affirmed by this Court on appeal. State v. Perez, 145 Idaho 383, 179 P.3d 346 (Ct. App. 2008).

Perez subsequently filed a petition for post-conviction relief, claiming ineffective assistance of counsel. Specifically, Perez alleged his attorney used coercive conditions of pretrial detention to force him to enter a guilty plea. The state moved to dismiss the petition and the district court granted the motion. Perez 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). Rather, 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).

Idaho Code Section 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, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. When considering summary dismissal, the district court must construe disputed facts in the petitioner's favor, but the court is not required to accept either the petitioner's mere conclusory allegations, unsupported by admissible evidence, or the petitioner'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). Moreover, 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 ...


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