Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster, District Judge.
The opinion of the court was delivered by: Gratton, Judge
2013 Unpublished Opinion No. 418
Stephen W. Kenyon, Clerk
THIS IS AN UNPUBLISHED
OPINION AND SHALL NOT
BE CITED AS AUTHORITY
Daniel L. Eby appeals from the district court's order denying his petition for post-conviction relief after an evidentiary hearing.
FACTUAL AND PROCEDURAL BACKGROUND
This Court described the underlying facts of the criminal case in State v. Eby, 136 Idaho 534, 37 P.3d 625 (Ct. App. 2001):
According to the State's evidence, the victim, Mel Evenson, was murdered late in the night of March 25 or early the next morning. On that night, Daniel Eby, Jeremy Schmitz, Cliff Hicks and Evenson were working on cars in a garage belonging to Gerald Smith. Inside the adjacent residence were Smith and several other individuals. While in the garage, Evenson was repeatedly struck in the head with a baseball bat and with a large wrench. His clothing was removed and was then burned in a wood stove in the garage. Evenson's body was wrapped in a tarp and placed in the bed of his own truck. The body was then covered with flattened cardboard boxes, and the truck was abandoned in the countryside.
Approximately one month later, law enforcement officers found Evenson's body. An autopsy revealed that he had died of multiple cranial cerebral injuries due to blunt force impacts to his head. Further investigation led law enforcement officers to the garage where they discovered blood on the wood stove and on a motorcycle. Persons who had been present at Gerald Smith's residence on the night of Evenson's death were questioned by police. Ultimately, Eby was charged with first degree murder, conspiracy to commit robbery and attempted robbery. It was the prosecution's theory that, on the evening in question, Eby, Schmitz and Hicks believed that Evenson was carrying a substantial amount of narcotics and cash because he had just returned from an out-of-town drug transaction, and the three decided to kill Evenson in order to steal his money and drugs. A jury found Eby guilty of all of the charges. The district court imposed a unified life sentence with a twenty-five-year minimum term of imprisonment for first degree murder, and determinate fifteen-year sentences for attempted robbery and conspiracy to commit robbery, with the sentences to be served concurrently.
Eby, 136 Idaho at 536, 37 P.3d at 627. This Court affirmed Eby's convictions for first degree murder and conspiracy to commit robbery, but reversed Eby's conviction for attempted robbery because that offense merged with the conviction for first degree murder under the felony murder theory. Id. at 540-41, 37 P.3d at 631-32.
Eby timely filed a pro se petition for post-conviction relief with the district court. The district court appointed post-conviction counsel. Over the next several years, Eby's various appointed attorneys failed to amend his petition or otherwise advance his claims. The district court dismissed the petition for inactivity. The district court later denied Eby's Idaho Rule of Civil Procedure 60(b) motion for relief from the dismissal order, concluding that I.R.C.P. 60(b) does not apply to I.R.C.P. 40(c) dismissals for inactivity.
Eby appealed, and the Idaho Supreme Court reversed, holding that I.R.C.P. 60(b) does apply, in rare instances, to I.R.C.P. 40(c) dismissals. Eby v. State, 148 Idaho 731, 732, 228 P.3d 998, 999 (2010). The Court remanded the case for consideration of whether the facts presented by Eby constituted grounds for relief in this case. Id. at 734-38, 228 P.3d at 1001-05. On remand, the district court withdrew its previously entered dismissal of Eby's post-conviction petition.
Through new appointed counsel, Eby filed a post-conviction petition, with a supporting affidavit, raising three claims: (1) he was denied his constitutional right to counsel, free from any conflict; (2) there were material facts not previously presented and heard in violation of Idaho Code § 19-4901(a)(4); and (3) his trial counsel was ineffective for failing to adequately communicate with him, failing to advise him of his rights, failing to adequately prepare for trial, and for preventing Eby from testifying on his own behalf. The district court took judicial notice of the underlying criminal case file, ordered an evidentiary hearing, and received briefing from both parties. The district court denied Eby's petition for post-conviction relief. Eby timely appealed.
In order to prevail in a post-conviction proceeding, the applicant must prove the allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 801 P.2d 1216 (1990). 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 ...