Opinion No. 69
from the District Court of the Third Judicial District, State
of Idaho, Canyon County. Hon. Renae J. Hoff, District Judge.
summarily dismissing petition for post-conviction relief,
affirmed; order denying motion for reconsideration,
Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin,
Boise, for appellant. Dennis A. Benjamin argued.
Lawrence G. Wasden, Attorney General; John C. McKinney,
Deputy Attorney General, Boise, for respondent. John C.
MELANSON, Chief Judge
Robert Adams appeals from the district court's judgment
summarily dismissing Adams's petition for post-conviction
relief and the district court's order denying Adams's
motion for reconsideration. For the reasons set forth below,
FACTS AND PROCEDURE
was driving a motor vehicle with four male passengers when
Adams and the three backseat passengers became involved in an
argument. An altercation ensued after Adams abruptly stopped
the vehicle and the three backseat passengers exited the
vehicle. It was alleged that, during the altercation, Adams
stabbed two of the men, the second of whom later died from
his injuries. Adams was charged with first degree
premeditated murder or, in the alternative, first degree
felony murder; three counts of attempted robbery; and one
count of aggravated battery. At trial, Adams testified that
the surviving victim and the deceased victim were the
aggressors and had attacked Adams. Adams asserted that he
used a knife in self-defense.
acquitted Adams of first degree murder and attempted robbery.
However, the jury found Adams guilty of the lesser offense of
second degree murder, I.C. §§ 18-4001 and
18-4003(g), and guilty of aggravated battery, I.C. §
18-907. The district court imposed a unified life sentence,
with a minimum term of confinement of twenty-five years, for
second degree murder and a consecutive ten-year sentence,
with a minimum term of confinement of three years, for
aggravated battery. Adams filed an I.C.R. 35 motion for
reduction of his sentences, which the district court denied.
On direct appeal, this Court affirmed Adams's judgment of
conviction and sentences. State v. Adams, 147 Idaho
857, 216 P.3d 146 (Ct. App. 2009). Adams subsequently filed a
pro se petition for post-conviction relief and filed an
amended petition raising numerous causes of action. Adams
filed a motion for investigative services to locate two
witnesses, which the district court denied. The district
court issued an order summarily dismissing Adams's
petition for post-conviction relief. Adams filed a motion for
reconsideration, which the district court denied. Adams
STANDARD OF REVIEW
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.
appeal, Adams argues the district court erred in summarily
dismissing his petition for post-conviction relief.
Specifically, Adams claims the district court abused its
discretion in denying Adams's motion for investigative
services to locate two witnesses. Adams also alleges trial
counsel was ineffective and that the cumulative effect of
trial counsel's deficient performances denied Adams of
his Sixth Amendment right to counsel. Finally, Adams argues
the district court erred in denying Adams's motion for
reconsideration of the order summarily dismissing his
argues that the district court abused its discretion in
denying Adams's motion for investigative services. In his
petition for post-conviction relief, Adams raised a claim of
ineffective assistance of trial counsel for failing to
investigate and call two witnesses in Adams's defense at
trial. Adams contends that these witnesses would have
undermined the State's theory of events and supported
Adams's testimony that he acted in self-defense.
of deposition, trial counsel testified that he had no
recollection of either witness. Adams also asserted that he
did not have access to trial counsel's working
to clarify whether the witnesses had been contacted and
questioned. Consequently, Adams filed a motion for
investigative services, arguing that an investigator was
necessary in order to find the witnesses and question them
about the events on the night of the altercation and whether
they had been contacted by trial counsel. Adams asserted that
such information would substantiate his claim and aid in
responding to the State's motion for summary dismissal.
district court held a hearing on Adams's motion and
The issue of these two witnesses was raised in the amended
petition filed back in June of 2012. And counsel for [Adams]
states today she's been unable to locate these people.
But it has been two years. And here we are on the eve of the
State noticing up their motion. And I get this responding
matter that an [investigator is] needed to locate the
witnesses. Other than what counsel says today, it was not
detailed as to what had been undertaken to locate the
I don't find good cause for delay at this point in time.
We've been trying to put this case--or get this matter
heard for years now. And I don't see a real justification
to delay this matter. I want to move forward on the matter of
district court denied Adams's motion. On appeal, Adams
argues that the district court was not acting consistently
with the applicable legal standards when it failed to
consider the prejudicial effects the denial of Adams's
motion would have on his substantive rights.
Idaho Code Section 19-4904 provides:
If the applicant is unable to pay court costs and expenses of
representation, including stenographic, printing, witness
fees and expenses, and legal services, these costs and
expenses, and a court-appointed attorney may be made
available to the applicant in the preparation of the
application, in the trial court, and on appeal, and paid, on
order of the district court, by the county in which the
application is filed.
request under I.C. § 19-4904 for funds to retain an
expert may be viewed as analogous to a request for discovery
in a post-conviction action. Murphy v. State, 143
Idaho 139, 148, 139 P.3d 741, 750 (Ct. App. 2006). 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, 143 Idaho at 148, 139 P.3d at 750;
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.
to authorize discovery is a matter directed to the discretion
of the court. Raudebaugh, 135 Idaho at 605, 21 P.3d
at 927. When a trial court's discretionary decision is
reviewed on appeal, the appellate court conducts a
multi-tiered inquiry to determine whether the lower court
correctly perceived the issue as one of discretion; acted
within the boundaries of such discretion and consistently
with any legal standards applicable to the specific choices
before it; and reached its decision by an exercise of reason.
Sun Valley Shopping Ctr., Inc. v. Idaho Power Co.,
119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). The issue on
appeal is whether the district court acted consistently with
the applicable legal standards when it denied Adams's
motion as being unsupported and untimely.
the district court did not specifically discuss on the record
the impact of its ruling on Adams's substantial rights,
we note that the district court expressly found no "good
cause" or "justification" to delay the
proceedings further. However, even presuming that the
district court's reference to "good cause" or
"justification" did not implicitly contemplate
Adams's substantial rights, the district court had the
discretion to consider the foundation and timeliness of
Adams's motion. Post-conviction motions for discovery
and, by analogy, motions for funds to hire experts are
subject to the supervision and firm control of the trial
courts to prevent abuses. Murphy, 143 Idaho at 148,
139 P.3d at 750 (requests under I.C. § 19-4904 for funds
are viewed as analogous to a request for discovery in a
post-conviction action); see I.C.R. 57(b) (providing
that the provisions for discovery shall not apply to the
proceedings unless and only to the extent ordered by the
trial court); Morris v. Slappy, 461 U.S. 1, 11
(1983) (holding that trial courts require a great deal of
latitude in scheduling trials and this burden counsels
against continuances except for compelling reasons);
United States v. Harp, 282 F.App'x 774, 776
(11th Cir. 2008) (trial courts are not required to grant an
eleventh-hour request for expert services, particularly where
the delay in making the request is unjustified and would
require continuance of trial); Christian v. Rhode,
41 F.3d 461, 470 (9th Cir. 1994) (upholding denial of
untimely motion for discovery because party failed to explain
the delay); State v. Tapia, 127 Idaho 249, 255, 899
P.2d 959, 965 (1995) (upholding denial of motion to continue
based on late discovery of evidence because party was unable
to show that tardiness of disclosure resulted in
prejudice--specifically what methods might have been used or
what additional evidence could have been established with the
extra time); State v. Cagle, 126 Idaho 794, 797, 891
P.2d 1054, 1057 (Ct. App. 1995) (holding that, when trial
courts consider motions which may cause delay in the
proceedings, the timing of the motion, length of the delay,
and whether the delay is an attempt to manipulate proceedings
are relevant factors in the trial court's consideration).
to the status hearing on Adams's motion for investigative
services, Adams had long been on notice that the two
witnesses' alleged testimonies would be at issue and that
contact with the witnesses would be necessary to support his
claim. Specifically, Adams's claim concerning trial
counsel's failure to call the two witnesses was initially
alleged in Adams's 2010 pro se petition. In an August
2011 deposition, Adams questioned trial counsel concerning
the two witnesses and trial counsel stated that he did not
recall either witness. In 2012, Adams again asserted his
claim that trial counsel had been ineffective for failing to
call the two witnesses. Adams did not move to obtain funds to
hire an investigator for the purpose of locating the two
witnesses until June 2014--just prior to the summary
dismissal stage of the proceedings.
hearing on his motion, Adams declared in a conclusory fashion
that he had limited resources and was unable to find the
witnesses. Adams provided no justification for his delayed
motion so late in the proceedings. In addition, Adams did not
provide any foundation or explanation as to why his limited
resources kept him from locating the two witnesses,
especially given that, as Adams notes on appeal, both
witnesses appeared to live in the local area. Additionally,
Adams made no showing of what efforts had been made to locate
the two witnesses in the years leading up to his motion.
Based on the information presented at the time of the
hearing, the district court exercised its discretion to
control the proceedings, found that Adams's motion would
cause an unjustified delay, and considered it untimely.
argues that the district court's timeliness concerns were
unfounded because the hearing on the State's motion for
summary dismissal could not be held for thirteen days after
the district court denied Adams's motion for
investigative services. Adams speculates that the
investigator likely could have found the two witnesses within
that time, especially as it appeared that the both witnesses
lived locally. The district court ruled on Adams's motion
finding that Adams had failed to present the district court
any details about the witnesses, their locations, or
Adams's efforts to locate them. Based on the limited
information provided by Adams, the district court was within
its discretion to find that Adams's motion would have
caused undue delay to the proceedings.
has failed to show that the district court engaged in
reversible error or otherwise failed to act consistently with
applicable legal standards. Accordingly, the district court
did not err in denying Adams's motion for investigative
Ineffective Assistance of Counsel
claims that his trial counsel was ineffective on multiple
grounds and that the district court's summary dismissal
of Adam's post-conviction claims was erroneous. A claim
of ineffective assistance of counsel may properly be brought
under the Uniform Post-Conviction Procedure Act. Barcella
v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). 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); Self v.
State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App.
2007). 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);
Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222,
231 (Ct. App. 2007). To establish prejudice, the petitioner
must show a reasonable probability that, but for the
attorney's deficient performance, the outcome of the
trial would have been different. Aragon, 114 Idaho
at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at 442,
163 P.3d at 231. This Court has long adhered to the
proposition that tactical or strategic decisions of trial
counsel will not be second-guessed on appeal unless those
decisions are based on inadequate preparation, ignorance of
relevant law, or other shortcomings capable of objective
evaluation. Gonzales v. State, 151 Idaho 168, 172,
254 P.3d 69, 73 (Ct. App. 2011).
argues that the district court erred in summarily dismissing
his claim that his trial counsel was ineffective for failing
to object to a paramedic's testimony that the surviving
victim suffered a stab wound. At trial, the State called a
paramedic, who had been dispatched to the scene of the
altercation, to testify about the wounds sustained by both
the deceased and surviving victims. Concerning the surviving
victim, the State introduced a ...