JIMMY D. LEYTHAM, Petitioner-Appellant,
STATE OF IDAHO, Respondent.
Opinion No. 54
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Cheri C. Copsey, District
summarily dismissing petition for post-conviction relief,
D. Fredericksen, Interim State Appellate Public Defender;
Justin M. Curtis, Deputy Appellate Public Defender, Boise,
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for respondent.
MELANSON, CHIEF JUDGE.
D. Leytham appeals from the district court's judgment
summarily dismissing Leytham's petition for
post-conviction relief. Specifically, Leytham alleges the
district court abused its discretion in denying his motion
for discovery seeking to depose trial counsel and erred in
summarily dismissing the petition. For the reasons set forth
below, we affirm.
underlying case, Leytham pled guilty to forgery. I.C. §
18-3601. Leytham filed a petition for post-conviction relief,
making a number of claims of ineffective assistance of trial
counsel. Leytham alleged that he placed more than twenty
calls to his attorney, which were never returned; he asked
his attorney for a binding plea agreement but was told that
the judge would not allow it; he asked his counsel to recuse
the district judge but his counsel refused, explaining that
he and the judge were good friends; counsel did not contact
Leytham before a court appearance and that counsel's law
partner, who was not familiar with Leytham's case,
appeared at that hearing; counsel told Leytham that if he
plead guilty he would be placed on probation; and that
counsel told Leytham to say at the plea hearing that no
promises were made regarding his sentence.
filed a motion for discovery seeking to depose his trial
counsel regarding his claims. The district court explained
that it believed Leytham was "engaged in nothing but a
fishing expedition." After explaining that Leytham's
claims were ineffective assistance of counsel for failing to
investigate and for failing to effectively communicate, the
district court held:
These are routine matters. Other than cursory claims that he
wants to inquire regarding investigation of his issues, the
Court finds Leytham made no showing why the discovery he
requests is necessary to his application. Leytham's
claims are abstract. Raudebaugh v. State, 135 Idaho
602, 605, 21 P.3d 924, 927 (2001).
in an exercise of discretion, the Court denies
[Leytham's] motion. Upon motion from the state, the
district court summarily dismissed Leytham's petition,
holding that Leytham failed to present sufficient evidence to
raise a genuine issue of material fact regarding ineffective
assistance of trial counsel. Leytham appeals.
Denial of Discovery
alleges the district court abused its discretion in denying
Leytham's request to depose his trial counsel. When a
petitioner believes discovery is necessary for acquisition of
evidence to support a claim for post-conviction relief, the
petitioner must obtain authorization from the district court
to conduct discovery. I.C.R. 57(b); Raudebaugh v.
State, 135 Idaho 602, 605, 21 P.3d 924, 927 (2001).
Discovery in a post-conviction action is not required unless
necessary to protect a petitioner's substantial
rights. Murphy v. State, 143 Idaho 139, 148, 139
P.3d 741, 750 (Ct. App. 2006); Griffith v. State,
121 Idaho 371, 375, 825 P.2d 94, 98 (Ct. App. 1992).
Discovery may be denied where the petitioner's claims are
nothing more than speculation, unsupported by any evidence.
Raudebaugh, 135 Idaho at 605, 21 P.3d at 927.
Indeed, discovery may not be used to engage in "fishing
expeditions, " as post-conviction actions provide a
forum for known grievances, not an opportunity to search for
them. Murphy, 143 Idaho at 148, 139 P.3d at 750.
Whether to authorize discovery is a matter directed to the
discretion of the court. Raudebaugh, 135 Idaho at
605, 21 P.3d at 927.
threshold issue here is whether discovery was necessary to
protect one of Leytham's substantial rights. It appears
that Leytham alleges discovery was necessary to protect his
right to assistance of counsel. While the right to assistance
of counsel is a substantial right, discovery was not
necessary to protect that right in this case. All of
Leytham's allegations of ineffective assistance of
counsel were based upon his interactions (or lack thereof)
with counsel. Because Leytham had personal knowledge of his
interactions with counsel, his affidavit was admissible
evidence for purposes of raising a genuine issue of material
fact regarding ineffective assistance of trial counsel.
Leytham filed an affidavit with his petition for
post-conviction relief, which provided the factual basis for
his claims. Leytham's request to depose counsel appears
to have been an effort to corroborate the evidence provided
in Leytham's affidavit, rather than acquire evidence that
was otherwise unavailable to him. Because discovery was not
necessary to protect one of Leytham's
substantial rights, the district court did not err in denying
Leytham's motion for discovery.
alleges the district court erred in summarily dismissing his
petition for post-conviction relief. Specifically, Leytham
alleges that he raised a genuine issue of material fact as to
whether his trial counsel was ineffective for failing to
properly advise him regarding the potential sentence
resulting from his guilty plea.
petition for post-conviction relief initiates a proceeding
that is civil in nature. I.C. § 19-4907; 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. 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.
Code Section 19-4906 authorizes summary dismissal of a
petition for post-conviction relief, either pursuant to a
motion by 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. 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 most probable inferences to be drawn from uncontroverted
evidence. Hayes v. State, 146 Idaho 353, 355, 195
P.3d 712, 714 (Ct. App. 2008). Such inferences will not be
disturbed on appeal if the uncontroverted evidence is
sufficient to justify them. Id.
may be summarily dismissed if the petitioner's
allegations are clearly disproven by the record of the
criminal proceedings, if the petitioner has not presented
evidence making a prima facie case as to each essential
element of the claims, or if the petitioner's allegations
do not justify relief as a matter of law. Kelly v.
State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010);
DeRushé v. State, 146 Idaho 599, 603, 200
P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim
for post-conviction relief is appropriate when the court can
conclude, as a matter of law, that the petitioner is not
entitled to relief even with all disputed facts construed in
the petitioner's favor. For this reason, summary
dismissal of a post-conviction petition may be appropriate
even when the state does not controvert the petitioner's
evidence. See Roman, 125 Idaho at 647, 873 P.2d at
if the petition, affidavits, and other evidence supporting
the petition allege facts that, if true, would entitle the
petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho
789, 792, 102 P.3d 1108, 1111 (2004); Sheahan v.
State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App.
2008). If a genuine issue of material fact is presented, an
evidentiary hearing must be conducted to resolve the factual
issues. Goodwin, 138 Idaho at 272, 61 P.3d at 629.
appeal from an order of summary dismissal, we apply the same
standards utilized by the trial courts and examine whether
the petitioner's admissible evidence asserts facts which,
if true, would entitle the petitioner to relief. Ridgley
v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010);
Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over
questions of law, we exercise free review. Rhoades,
148 Idaho at 250, 220 P.3d at 1069; Downing v.
State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App.
of ineffective assistance of counsel may properly be brought
under the post-conviction procedure act. Murray, 121
Idaho at 924-25, 828 P.2d at 1329-30. To prevail on an
ineffective assistance of counsel claim, the petitioner must
show that the attorney's performance was deficient and
that the petitioner was prejudiced by the deficiency.
Strickland v. Washington, 466 U.S. 668, 687-88
(1984); Hassett v. State, 127 Idaho 313, 316, 900
P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the
petitioner has the burden of showing that the attorney's
representation fell below an objective standard of
reasonableness. Aragon v. State, 114 Idaho 758, 760,
760 P.2d 1174, 1176 (1988). Where, as here, the petitioner
was convicted upon a guilty plea, to satisfy the prejudice
element, the petitioner must show that there is a reasonable
probability that, but for counsel's errors, he or she
would not have pled guilty and would have insisted on going
to trial. Plant v. State, 143 Idaho 758, 762, 152
P.3d 629, 633 (Ct. App. 2006). This Court has long adhered to
the proposition that tactical ...