Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge.
The opinion of the court was delivered by: Gutierrez, Chief Judge
2013 Unpublished Opinion No. 443
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Judgment summarily dismissing petition for post-conviction relief in part, affirmed.
Paul James Cavanaugh appeals from the district court's judgment summarily dismissing his petition for post-conviction relief in part. For the reasons set forth below, we affirm.
On March 10, 2005, a pedestrian was struck by a pickup truck at approximately 6:30 in the evening while she was walking along a dirt road. The pedestrian later died from her injuries. Cavanaugh, who was the registered owner of the truck, emerged several minutes later from the dark wooded area the truck had swerved into after striking the victim. He was charged with vehicular manslaughter, Idaho Code § 18-4006, and leaving the scene of an accident, I.C. § 18-8007. A jury found Cavanaugh guilty as charged.
Cavanaugh did not directly appeal his conviction, but filed a motion for a new trial, which the district court denied. This Court affirmed. State v. Cavanaugh, Docket No. 33657 (Ct. App. Feb. 10, 2009) (unpublished). Thereafter, Cavanaugh filed a pro se petition for post-conviction relief, asserting a variety of ineffective assistance of counsel claims, including that his trial counsel was ineffective for failing to use a peremptory challenge to exclude an allegedly biased juror during voir dire and for failing to file a direct appeal. After a hearing on the latter issue, the district court granted relief, entering an order allowing Cavanaugh a renewed period of time to file a direct appeal.*fn1 The district court summarily dismissed the remaining claims. Cavanaugh now appeals the summary dismissal of his claim that counsel was ineffective at voir dire.
Cavanaugh asserts the district court erred in concluding there was no genuine issue of material fact with respect to his allegation that he received ineffective assistance of counsel at voir dire. A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like plaintiffs in other civil actions, 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; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); 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, however, in that it must contain more than "a short and plain statement of the claim" that would suffice for a complaint under Idaho Rule of Civil Procedure 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 Idaho at 271, 61 P.3d at 628. The petition 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. I.C. § 19-4903. In other words, the petition must present or be accompanied by admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
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, 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." I.C. § 19-4906(c). 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. Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district court is not constrained to draw inferences in the petitioner's favor, but is free to arrive at the most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Wolf, 152 Idaho at 67, 266 ...