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Vogel v. State

Court of Appeals of Idaho

October 2, 2013

DAVID WAYNE VOGEL, Petitioner-Appellant,
STATE OF IDAHO, Respondent.


2013 Unpublished Opinion No. 685

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia County. Hon. Michael R. Crabtree, District Judge.

Orders ummarily dismissing petition for post-conviction relief, affirmed.

Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy Attorney General, Boise, for respondent.


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


Vogel pled guilty to possession of methamphetamine in 2010 after a glass pipe in his possession tested positive for the drug. The glass pipe was analyzed by the Idaho State Police forensic laboratory in Pocatello. Vogel was sentenced to a unified term of seven years, with a minimum period of confinement of three years. He subsequently learned of misconduct at the Pocatello laboratory through letters sent by the Idaho State Police to Idaho prosecutors. The letters indicated that employees at the Pocatello laboratory--including the employee that had conducted the test in Vogel's case--had clandestinely maintained a box of unaccounted-for controlled substances in the laboratory, which they used for training purposes and tour displays.

After learning of these issues, Vogel filed a petition for post-conviction relief. In his petition and supporting affidavit, Vogel alleged ineffective assistance of counsel and his belief that the controlled substance testing in his case was flawed as a result of the misconduct at the Pocatello laboratory. The district court appointed counsel, who then filed an affidavit with attached exhibits of the letter from the Idaho State Police and the original test results showing which employee had processed the evidence in Vogel's case. The state moved to dismiss the petition under I.C. § 19-4906(b) and (c), arguing that the claims were bare and conclusory, Vogel had failed to present evidence in support of his claims, and he had failed to raise a genuine issue of material fact. The district court granted the state's motion for summary dismissal of Vogel's claim of ineffective assistance of counsel, but allowed Vogel to amend his petition regarding his claim of misconduct at the Pocatello laboratory. Vogel filed an amended petition that restated both his ineffective assistance of counsel argument and his belief that the controlled substance testing was flawed. Vogel also filed a motion for retesting of the evidence in his case at state expense. However, he presented no further evidence in support of either the motion or the amended petition. As a result, the district court denied the motion and summarily dismissed Vogel's amended petition. Vogel appeals.


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 arrive at the ...

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