Grant v. State

• Decision Date: 25 April 2014
• Docket Number: No. 39207.,39207.
• Citation: 156 Idaho 598,329 P.3d 380
• Court: Idaho Court of Appeals
• Parties: Woodrow John GRANT, Petitioner–Appellant, v. STATE of Idaho, Respondent.

156 Idaho 598

329 P.3d 380

Woodrow John GRANT, Petitioner–Appellant,

v.STATE of Idaho, Respondent.

No. 39207.

Court of Appeals of Idaho.

April 25, 2014.

Review Denied July 31, 2014.

Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy Attorney General, Boise, for respondent.

MELANSON, Judge.

Woodrow John Grant appeals from the district court's summary dismissal of his petition for post-conviction relief. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

In 2006, Grant pled guilty to aggravated battery.¹ He successfully completed a period of retained jurisdiction and the district court placed Grant on probation. In 2009, the state charged Grant with possession of a controlled substance, domestic battery, aggravated assault, and unlawful possession of a firearm. Grant pled guilty to possession of a controlled substance and domestic battery. Grant also admitted to violating his probation. The district court sentenced Grant to a unified term of ten years, with a minimum period of confinement of five years, for domestic battery and a concurrent unified term of five years, with a minimum period of confinement of two years, for possession of a controlled substance. The district court also revoked Grant's probation and executed his previously suspended sentence for aggravated battery (a unified term of ten years, with a minimum period of confinement of four years). The 2009 sentences were to be served consecutively to the 2006 sentence. Grant appealed and the Idaho Supreme Court affirmed his judgments of conviction and sentences. State v. Grant, 154 Idaho 281, 288, 297 P.3d 244, 251 (2013).

In February 2011, Grant filed a petition for post-conviction relief. Grant alleged ineffective assistance of counsel in the underlying cases stemming from multiple incidents. Grant also filed a motion and affidavit in support of the appointment of counsel. The state did not file an answer to Grant's petition. The district court issued a notice of intent to dismiss pursuant to I.C. § 19–4906. The district court also denied Grant's request for the assistance of counsel. Grant filed a motion to amend his petition and a response to the district court's notice of intent to dismiss. The district court denied the motion to amend and dismissed Grant's petition. Grant filed a motion for reconsideration and the district court denied this motion as well. Grant appeals.

II.ANALYSIS

A. Due Process Right to Post–Conviction Counsel

Grant argues that there is a federal and state due process right to an attorney in an initial post-conviction proceeding. Grant's argument relies heavily upon the recent United States Supreme Court decision in Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). The state responds that this issue is unresolved by the United States Supreme Court and that Idaho law does not grant a post-conviction petitioner an absolute right to counsel.

In Martinez, the United States Supreme Court addressed a narrow issue:

[W]hether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney's errors in an initial-review collateral proceeding.

Id. at ––––, 132 S.Ct. at 1313, 182 L.Ed.2d at 280. Answering this narrow question, the Court held:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Id. at ––––, 132 S.Ct. at 1320, 182 L.Ed.2d at 288. Thus, Martinez only stands for the narrow proposition that a federal court in a habeas corpus case may excuse a procedural default of an ineffective assistance of trial counsel claim when the claim was not properly presented because of ineffective assistance of post-conviction counsel. Martinez allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted.

As Grant concedes, the United States Supreme Court has yet to recognize a Fourteenth Amendment right to counsel in initial-review collateral proceedings. Indeed, to the contrary, the United States Supreme Court has explicitly stated that its "cases establish that the right to appointed counsel extends to the first appeal of right, and no further." Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539, 545 (1987). While language in Martinez suggests that an exception to this rule may exist in limited circumstances, no such holding exists from either the United States Supreme Court or the Idaho Supreme Court.² That being the case, we decline to interpret the Fourteenth Amendment as requiring the appointment of counsel in an initial post-conviction proceeding. Further, in Idaho, it is settled law that there is no right to counsel in post-conviction cases. See, e.g., Eby v. State, 148 Idaho 731, 737, 228 P.3d 998, 1004 (2010). Where controlling precedent exists on an issue of Idaho law, stare decisis dictates we follow it. Grant, 154 Idaho at 287, 297 P.3d at 250. Thus, we decline to recognize a due process right to counsel in an initial post-conviction proceeding under the Fourteenth Amendment or Article I, Section 13 of the Idaho Constitution.

B. Discretionary Appointment of Post–Conviction Counsel

Grant also argues the district court erred in refusing to appoint post-conviction counsel because he met the requirement of demonstrating a potentially valid claim under I.C. § 19–4904. The state argues Grant failed to raise even the possibility of a valid claim.

If a post-conviction petitioner is unable to pay for the expenses of representation, the trial court may appoint counsel to represent the petitioner in preparing the petition in the trial court and on appeal. I.C. § 19–4904. The decision to grant or deny a request for court-appointed counsel lies within the discretion of the district court. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). When a district court is presented with a request for appointed counsel, the court must address this request before ruling on the substantive issues in the case. Id.; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 (Ct.App.1997). The district court abuses its discretion where it fails to determine whether a petitioner for post-conviction relief is entitled to court-appointed counsel before denying the petition on the merits. See Charboneau, 140 Idaho at 793, 102 P.3d at 1112.

In determining whether to appoint counsel pursuant to I.C. § 19–4904, the district court should determine if the petitioner is able to afford counsel and whether the situation is one in which counsel should be appointed to assist the petitioner. Charboneau, 140 Idaho at 793, 102 P.3d at 1112. In its analysis, the district court should consider that petitions filed by a pro se petitioner may be conclusory and incomplete. See id. at 792–93, 102 P.3d at 1111–12. Facts sufficient to state a claim may not be alleged because they do not exist or because the pro se petitioner does not know the essential elements of a claim. Id. Some claims are so patently frivolous that they could not be developed into viable claims even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct.App.2004). However, if a petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint counsel in order to give the petitioner an opportunity to work with counsel and properly allege the necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112. Stated differently, the trial court should appoint counsel if the petition alleges facts showing the possibility of a valid claim such that a reasonable person with adequate means would be willing to retain counsel to conduct a further investigation into the claim. Swader v. State, 143 Idaho 651, 655, 152 P.3d 12, 16 (2007).

Grant's post-conviction claims are all based on the ineffective assistance of counsel. A claim of ineffective assistance of counsel may properly be brought under the post-conviction procedure act. Murray v. State, 121 Idaho 918, 924–25, 828 P.2d 1323, 1329–30 (Ct.App.1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney's performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 2064–65, 80 L.Ed.2d 674, 693–94 (1984) ; Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995). To establish a deficiency, the petitioner has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). To establish prejudice, the petitioner must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177. This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct.App.1994).

1. Right to remain silent during psychological evaluation

In Grant's petition, he alleged that his attorney in the underlying case failed to advise him of his right to refuse to participate in a court-ordered psychological evaluation. Grant also alleged his attorney did not advise him that the information obtained in the psychological evaluation would...