2013 Unpublished Opinion No. 606
Appeal from the District Court of the Third Judicial District, State of Idaho, Gem County. Hon. Juneal C. Kerrick, District Judge.
Order summarily dismissing petition for post-conviction relief, affirmed.
Nestor Sanchez, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.
Nestor Sanchez appeals from the district court's order summarily dismissing his petition for post-conviction relief. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Sanchez entered an Alford plea to one count of lewd conduct with a minor under sixteen, Idaho Code § 18-1508. Prior to sentencing, Sanchez filed a motion to withdraw his guilty plea which was denied by the district court. Thereafter, Sanchez filed a renewed motion to withdraw his guilty plea and the district court denied it as well. The district court imposed a unified sentence of twenty years with ten years determinate. Sanchez filed an Idaho Criminal Rule 35 motion for reduction of sentence which was denied by the district court. This Court affirmed Sanchez's conviction and sentence in State v. Sanchez, Docket No. 32181 (Ct. App. 2007) (unpublished).
Subsequently, Sanchez filed a pro se petition for post-conviction relief. The district court appointed counsel to represent Sanchez. The State filed a motion to dismiss the petition. Thereafter, the district court entered an order summarily dismissing Sanchez's petition for post-conviction relief. Sanchez timely appeals.
Sanchez claims that: (1) the district court erred by summarily dismissing his petition for post-conviction relief prior to holding an evidentiary hearing; (2) his post-conviction counsel provided ineffective assistance; and (3) the district court erred by allowing a conflict of interest with post-conviction counsel to continue. 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 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 P.3d at 1172; Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). ...