Opinion No. 12
from the District Court of the Third Judicial District, State
of Idaho, Canyon County. Hon. Christopher S. Nye, District
summarily dismissing petition for post-conviction relief,
D. Fredericksen, State Appellate Public Defender; Brian R.
Dickson, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy
Attorney General, Boise, for respondent.
Gene Blackburn, Jr. appeals from the district court's
judgment summarily dismissing Blackburn's petition for
post-conviction relief. Specifically, Blackburn argues the
district court erred because Blackburn's counsel rendered
ineffective assistance by failing to file a notice of appeal.
For the reasons explained below, we affirm the district
AND PROCEDURAL BACKGROUND
pled guilty to violation of a no-contact
order and was sentenced to a unified term of four years, with
a minimum period of confinement of one year. Blackburn filed
a petition for post-conviction relief claiming ineffective
assistance of counsel. Specifically, Blackburn alleged that
his counsel's advice--that an appeal was not necessary
and that Blackburn should file an I.C.R. 35 motion for
reduction of his sentence--deprived him of his constitutional
right to effective assistance of counsel. The district court
filed a notice of intent to dismiss the petition and
scheduled a hearing for Blackburn to provide additional facts
to avoid summary dismissal of his petition. At the hearing,
Blackburn's counsel stated he had no additional
information to provide. The district court summarily
dismissed Blackburn's petition.
argues the district court erred in summarily dismissing his
petition for post-conviction relief. A 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 ...