Carver v. State, Docket No. 44164

CourtCourt of Appeals of Idaho
Writing for the CourtGRATTON, Chief Judge
PartiesTODD WILLIAM CARVER, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.
Docket NumberDocket No. 44164,2017 Unpublished Opinion No. 564
Decision Date31 August 2017

TODD WILLIAM CARVER, Petitioner-Appellant,
STATE OF IDAHO, Respondent.

Docket No. 44164
2017 Unpublished Opinion No. 564


August 31, 2017

Karel A. Lehrman, Clerk


Appeal from the District Court of the Second Judicial District, State of Idaho, Idaho County. Hon. Gregory Fitzmaurice, District Judge.

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

Nevin, Benjamin, McKay & Bartlett LLP; Dennis Benjamin, Boise, for appellant. Dennis Benjamin argued.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.


GRATTON, Chief Judge

Todd William Carver appeals from the district court's summary dismissal of his petition for post-conviction relief. We affirm.


Carver was found guilty by a jury of murder in the first degree. Idaho Code §§ 18-4001, 18-4002, and 18-4003(d). The victim was the three-year-old son of Carver's live-in girlfriend. The child suffered multiple blows to his head causing bilateral subdural hematomas, and there was bruising on his neck consistent with strangulation. The district court sentenced Carver to life in prison without the possibility of parole. The Idaho Supreme Court affirmed the conviction and sentence on appeal. State v. Carver, 155 Idaho 489, 314 P.3d 171 (2013).

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Carver filed a pro se petition for post-conviction relief and a motion for appointment of counsel. The district court granted Carver's motion for counsel. The State filed an answer after which Carver filed a motion to amend his petition. The district court held a hearing on Carver's motion and Carver subsequently filed an amended petition for post-conviction relief. Thereafter, the State filed a motion for summary dismissal. The district court issued a notice of intent to dismiss. Carver filed a response to that notice asking to again amend the petition based on newly discovered evidence: the affidavit of prospective juror Arnold Pineda. Thereafter, the district court held a hearing at which it authorized Carver to file a second amended petition. In his second amended petition, Carver alleged the following: (1) trial counsel was ineffective in failing to assert a peremptory challenge to juror V.L., who knew the victim's mother and a witness for the prosecution and who had discussed the case with said witness; (2) trial counsel was ineffective in failing to challenge V.L. for cause; (3) the district court erred by failing to excuse sua sponte V.L. for cause; and (4) Carver was denied his due process right to a fair trial because the jury was not impartial.

In support of his second amended petition, Carver submitted excerpts of the transcript from the voir dire of V.L., excerpts of the trial transcript, and the Pineda affidavit. In his affidavit, Pineda stated that he was summoned as a prospective juror in Carver's criminal case but was replaced because he was late in arriving at the courthouse. Pineda further averred:

When I was waiting with other potential jurors on the second floor of the courthouse . . . I heard [V.L.] talking to another woman. As best I can remember, [V.L.] said she was surprised that they kept her on the jury because she knew the relatives of the child and had discussed the facts of the case with those persons. I think, but am not certain, she referenced the grandparents. She said she thought "he was guilty."

The State filed an amended motion for summary dismissal. Carver filed a written objection to the State's motion, which included a request for discovery. The district court held a hearing on the State's motion for summary dismissal of Carver's second amended petition. Subsequently, the district court entered an order granting the State's motion to summarily dismiss Carver's petition and denying Carver's request for discovery. Carver timely appeals.


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.

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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).

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 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.

Claims 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

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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 901.

Conversely, 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 evidentiary hearing must be conducted to resolve the factual issues. Goodwin, 138 Idaho at 272, 61 P.3d at 629.

On appeal from an order of summary dismissal, we apply the same standards utilized by the trial courts and examine whether the petitioner's admissible evidence asserts facts which, if true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).

A. District Court's Ruling on Impartial Jury Claim

Carver argues that the district court erred in failing to rule on Carver's claim that his due process right to a fair trial was violated. The State argues that the district court's order encompasses Carver's due process claim. The State notes that the district court granted the State's motion for summary dismissal and that motion addressed the alleged impartiality of V.L.

Carver relies upon Dawson v. Cheyovich Family Trust, 149 Idaho 375, 234 P.3d 699 (2010). In that case, the district court dismissed the plaintiff's claims for failure to prosecute and granted summary judgment on the defendant's counterclaims. Id. at 378, 234 P.3d at 702. The plaintiff moved both for reconsideration and to set aside the judgment under I.R.C.P. 60(b)(6). Dawson, 149 Idaho at 378-79, 234 P.3d at 702-03. The district court denied the reconsideration but did not issue a ruling on the Rule 60(b)(6) motion. Id. at 379, 234 P.3d at 703. The Idaho Supreme Court held that the district court "erred by failing to issue a ruling on Dawson's Rule

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60(b)(6) motion." Id. at 380, 234 P.3d at 704. In the present case, the district court did not fail to rule on the State's motion for summary disposition. Rather, the district court held as follows:

The State's Second Motion to dismiss

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