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Blackburn v. State

Court of Appeals of Idaho

February 9, 2017

RODNEY GENE BLACKBURN, JR., Petitioner-Appellant,
STATE OF IDAHO, Respondent.

         2017 Opinion No. 12

         Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon County. Hon. Christopher S. Nye, District Judge.

         Judgment summarily dismissing petition for post-conviction relief, affirmed.

          Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.

          Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney General, Boise, for respondent.

          MELANSON, Judge

         Rodney 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 court.



         Blackburn pled guilty[1] 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.



         Blackburn 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. 2011).

         Idaho 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 ...

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