Opinion No. 29
from the District Court of the Third Judicial District, State
of Idaho, Canyon County. Hon. Christopher S. Nye, District
denying motion for relief from post-conviction judgment,
D. Fredericksen, State Appellate Public Defender; Reed P.
Anderson, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Ted S. Tollefson,
Deputy Attorney General, Boise, for respondent.
GRATTON, Chief Judge.
Devan appeals from the district court's order denying his
motion for relief from post-conviction judgment pursuant to
Idaho Rule of Civil Procedure 60(b). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
judgment of conviction was entered against Devan after a jury
found him guilty of conspiracy to commit burglary, Idaho Code
§18-1701; burglary, I.C. § 18-1401; and misdemeanor
trespassing, I.C. § 18-7011. Devan appealed and in an
unpublished decision this Court affirmed the conviction.
State v. Devan, Docket No. 39853 (Ct. App. Nov. 7,
2013). Devan filed a petition for post-conviction relief
alleging that counsel in the underlying case was ineffective
for failing to secure witnesses, failing to object, and
failing to investigate a defense. Devan also asserted there
was new evidence in the case. The State filed a motion for
summary dismissal, which the district court subsequently
granted. Devan filed a notice of appeal.
filed a pro se motion and memorandum for relief from judgment
or order under I.R.C.P. 60(b)(6). In his motion, Devan
claimed that he was entitled to relief from the order
dismissing his petition for post-conviction relief as there
had been an absence of meaningful representation by his
appointed counsel, and Devan had a meritorious claim. Devan
argued that his post-conviction counsel failed to submit
evidence that would have withstood summary dismissal;
specifically, an affidavit by Mr. Jones which Devan believed
established an alibi for his underlying convictions. Further,
Devan asserted that his appointed counsel failed to file an
amended petition or a response to the State's motion for
summary dismissal, and that counsel did not inform Devan that
the State had filed a motion for summary dismissal. Counsel
was appointed to replace the post-conviction counsel against
whom Devan directed the allegations. After a hearing, the
district court denied Devan's motion for relief. Devan
argues that the district court erred in denying his Rule
60(b)(6) motion. Devan asserts the district court abused its
discretion in finding that there was not a complete absence
of meaningful representation by his post-conviction counsel.
Further, Devan asserts the district court impermissibly
addressed the credibility of the proffered evidence in
determining that it did not constitute a meritorious claim.
Rule of Civil Procedure 60(b) gives the district court
authority to grant relief from a judgment in limited
circumstances. The Rule states, in relevant part: "On
motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or
proceeding for the following reasons . . . (6) any other
reason that justifies relief."
court enjoys broad discretion when deciding whether to grant