Opinion No. 5
from the District Court of the Fifth Judicial District, State
of Idaho, Minidoka County. Hon. Jonathan P. Brody, District
of summary dismissal of petition for post-conviction relief,
reversed and case remanded.
Benjamin, McKay & Bartlett, LLP; Deborah A. Whipple,
Boise, for appellant.
Lawrence G. Wasden, Attorney General; Russell J. Spencer,
Deputy Attorney General, Boise, for respondent.
Jared Thompson appeals from the district court's order
summarily dismissing his petition for post-conviction relief.
Specifically, Thompson argues that his claims raise a genuine
issue of material fact as to whether trial counsel was
ineffective in basing the defense in an involuntary
manslaughter case on the existence of an intervening,
superseding cause without requesting proximate and
intervening, superseding cause instructions. Similarly,
Thompson argues he properly presented a prima facie case of
ineffective assistance of appellate counsel for the failure
to pursue the jury instruction issue on direct appeal. For
the reasons explained below, the district court's order
summarily dismissing Thompson's petition for
post-conviction relief is reversed and the case is remanded
for an evidentiary hearing.
AND PROCEDURAL BACKGROUND
factual background is derived from this Court's
unpublished opinion on direct appeal:
Four friends went out drinking at two local bars in Minidoka
County. The victim, Michael Blair, and his longtime friend,
Kristen Kull, began to argue. By this time all four
individuals were highly intoxicated. Thompson became
irritated by the arguing and decided that they should all
leave. The four friends left in Thompson's truck.
Thompson drove, Kull sat in the front passenger seat, Blair
sat directly behind the driver's seat, and Khali Jones
sat behind the front passenger seat. Blair and Kull continued
to argue as they drove towards Thompson's house. Thompson
interjected, "If one of you don't shut up, I'm
going to shoot somebody." Jones could see that he had a
gun in a holster. Blair laughed. Thompson responded,
"You think I'm kidding?" He then removed the
pistol from the holster and cocked the gun twice. Then
holding the gun in his right hand, Thompson rested his elbow
on the center console and pointed the gun up and backwards.
Blair, who was known to be a jokester, responded, "If
you're going to shoot somebody, it might as well be me.
End my miserable existence." Blair then slid over,
placed his hand on Thompson's hand, and put his mouth
around the barrel of the gun; the gun fired. The shot likely
killed Blair instantly. Thompson told the others that Blair
pulled the trigger. Jones could not see whose finger was on
the trigger and she did not know who pulled it. Kull could
not remember what occurred that night.
The State charged Thompson with involuntary manslaughter,
with an enhancement for using a deadly weapon. After the
above information was presented at trial, the jury found
Thompson guilty as charged. The district court sentenced
Thompson to fifteen years with five years determinate.
Thompson subsequently filed an Idaho Criminal Rule 35 motion
for leniency. The district court denied his motion.
See State v. Thompson, Docket No. 40796 (Ct. App.
Nov. 7, 2014) (unpublished). On appeal, we affirmed
Thompson's judgment of conviction and sentence for
involuntary manslaughter with an enhancement for using a
then filed a petition for post-conviction relief.
Thompson's first claim in his petition was that his trial
counsel was ineffective because he failed to request
proximate cause and intervening, superseding cause jury
instructions. Thompson's second claim is not at
issue. Thompson's third claim was that his appellate
counsel was ineffective in failing to adequately review the
trial record and in failing to raise on appeal the issue of
whether the district court's failure to instruct the jury
on proximate and intervening, superseding cause constituted
motion for summary dismissal, the State responded to
Thompson's first claim by asserting that the jury was
properly instructed on the law. The State argued that it was
not required to prove or establish that Thompson's
actions were the proximate cause of the victim's death,
only that Thompson operated "any firearm or deadly
weapon in a reckless, careless or negligent manner which
produces death." According to the State, it would not
matter if the deceased was the one who pulled the trigger
because "introducing" the weapon in an unstable
situation in which somebody dies due to that weapon
constitutes the crime. The State also argued that "the
giving of a jury instruction regarding proximate cause, as a
matter of law, would not have altered the verdict."
district court agreed with the State that the giving of a
proximate cause jury instruction would not have altered the
verdict, but declined to rule that proximate cause was not
required under the statute. The district court reasoned that
although Idaho Code § 18-4006(2), the statute defining
involuntary manslaughter, does not expressly require the
proof of proximate cause, the plain meaning analysis of the
term "produces" in the statute requires a finding
by the jury that the person convicted produced--or
caused--the death. The district court further explained that
because the jury was instructed as to causation, as it was
implied in the term "produces, " it is unclear why
an additional jury instruction addressing proximate cause was
necessary or would have changed the outcome. Moreover, the
district court found that Thompson had failed to demonstrate
that any prejudice would have resulted from trial
counsel's failure to propose proximate cause or
intervening, superseding cause jury instructions. Thompson
appeals from the district court's summary dismissal of
his petition for post-conviction relief.
petition for post-conviction relief initiates a proceeding
that is civil in nature. Idaho Code § 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).
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