from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Jason D. Scott, District
dismissing petition for post-conviction relief, affirmed.
C. Lynn, Boise, for appellant.
Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy
Attorney General, Boise, for respondent.
GRATTON, CHIEF JUDGE
Black appeals from the district court's judgment
dismissing his petition for post-conviction relief. Black
challenges the district court's order granting the
State's motion for summary dismissal of his petition. For
the reasons set forth below, we affirm.
AND PROCEDURAL BACKGROUND
pled guilty to trafficking in heroin, Idaho Code §
37-2732B(a)(6)(B). The district court entered judgment and
imposed a unified fifteen-year sentence with ten years
determinate. Black did not appeal.
Black filed a petition for post-conviction relief. He
asserted two grounds for relief in the petition. First, Black
argued I.C. § 37-2732B(a)(6)(B) is unconstitutional on
nine separate theories. Second, Black argued his trial
counsel rendered ineffective assistance by failing to file a
motion to dismiss challenging the constitutionality of I.C.
§ 37-2732B(a)(6)(B). The State moved for summary
dismissal of Black's petition. The district court held a
hearing on the State's motion for summary dismissal.
Following the hearing, the court ordered the parties to file
post-hearing briefing to address whether Black's first
claim fails because (1) he had waived his right to directly
challenge the statute's constitutionality pursuant to
I.C. § 19-4908,  or (2) he had forfeited the claim in
post-conviction proceedings pursuant to I.C. §
19-4901(b). The district court concluded Black had
failed to raise a challenge to the constitutionality of I.C.
§ 37-2732B(a)(6)(B) in the trial court or on direct
appeal, and thus pursuant to I.C. § 19-4901(b) Black had
forfeited his direct challenge to the statute in
post-conviction proceedings. The court also concluded
Black's ineffective assistance of counsel claim failed
because Black had been unable to prove that his trial
counsel's performance was deficient. Thus, the court
granted the State's motion for summary dismissal and
dismissed Black's petition for post-conviction relief
with prejudice. Black timely appeals.
asserts the district court erred by summarily dismissing his
claim that § 37-2732B(a)(6)(B) is unconstitutional and
his claim that trial counsel rendered ineffective assistance.
The State asserts the district court did not err in
dismissing the petition for post-conviction relief. We agree.
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 Idaho Rule of
Civil Procedure 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 ...