Appeal from the District Court of the Fifth Judicial District, State of Idaho, Lincoln County. Hon. John K. Butler, District Judge.
The opinion of the court was delivered by: Lansing, Judge
2013 Unpublished Opinion No. 447
THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
Judgment summarily dismissing action for post-conviction relief, affirmed.
Traci N. Hadden appeals the summary dismissal of three of her claims for post-conviction relief. We affirm.
Hadden was found guilty by a jury of grand theft for stealing twenty calves owned by a local cattle rancher. The district court imposed a unified sentence of fourteen years with seven years determinate. Hadden appealed, raising allegations of district court error in instructing the jury and in the denial of her motion for change of venue. In State v. Hadden, 152 Idaho 371, 271 P.3d 1227 (Ct. App. 2012), this Court affirmed.
In a separate case, Hadden was charged with aiding and abetting attempted first degree murder, solicitation of first degree murder of a police officer, and grand theft by possession. The attempted murder charge arose from allegations that Hadden's minor son and her son's sixteen- year-old friend shot Hadden's former father-in-law, Craig Hadden, multiple times and that Hadden aided the boys in their crime. The solicitation charge arose from allegations that Hadden had attempted to hire an undercover federal agent to kill a local police officer for $10,000. The grand theft charge arose from allegations that Hadden's minor son and her son's sixteen-year-old friend had stolen ATVs belonging to Craig Hadden and that Hadden had taken possession of those vehicles knowing they were stolen.
Pursuant to a plea agreement Hadden pleaded guilty to the attempted murder and the theft charge, and the solicitation charge was dismissed. The agreement was binding in that it called for mandatory ten-year fixed terms of imprisonment for both crimes and required the sentences to be served concurrently. The indeterminate portion of each sentence was left open to the judge's discretion as was the determination whether the sentences would be served concurrently with, or consecutive to, the grand theft of cattle sentence. The district court imposed a unified fifteen-year sentence, with ten years fixed, for attempted murder and a concurrent unified fourteen-year sentence, with ten years fixed, for grand theft. The court further ordered that the sentences would be served consecutively to the grand theft of cattle sentence.
Hadden filed a consolidated petition for post-conviction relief for both cases, alleging a number of claims of ineffective assistance of counsel. The district court denied relief. Hadden appeals from the district court's final judgment, contending that the court erred in summarily dismissing three of her claims of ineffective assistance of counsel.
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 I.R.C.P. 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 fact, 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 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. ...