Nuss v. State
| Decision Date | 21 September 2022 |
| Docket Number | 48509 |
| Parties | ELIJAH ZACHARIAH NUSS, Petitioner-Appellant, v. STATE OF IDAHO, Respondent. |
| Court | Idaho Court of Appeals |
UNPUBLISHED OPINION
Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Barbara Buchanan, District Judge.
Judgment summarily dismissing petition for post-conviction relief affirmed.
Elijah Zachariah Nuss, Eloy, Arizona, pro se appellant.
Hon Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen Deputy Attorney General, Boise, for respondent.
Elijah Zachariah Nuss appeals pro se from the district court's summary dismissal of his petition for post-conviction relief. Nuss contends the court erred in dismissing his claims of prosecutorial misconduct and of ineffective assistance of trial and appellate counsel. We affirm.
In 2016, the State charged Nuss under Idaho Code § 18-1508 with one felony count of committing a lewd act on a fourteen-year-old child. The case proceeded to trial, and the district court allowed a facility dog and its handler to be present during the victim's testimony pursuant to I.C. § 19-3023.[1] At the close of the State's case, Nuss moved for a judgment of acquittal under Idaho Criminal Rule 29, asserting the State failed to present evidence sufficient to sustain a conviction. The court denied the motion, and the jury subsequently found Nuss guilty. Following trial, Nuss renewed his motion for acquittal under I.C.R. 29(c)(1). The court held a hearing and denied the motion.
Thereafter, Nuss directly appealed his conviction. State v. Nuss, 165 Idaho 400, 446 P.3d 458 (Ct. App. 2019). Nuss, who was represented by counsel, challenged the district court's decision to allow a facility dog and its handler at the witness stand with the victim, asserting that their presence was prejudicial and that the court failed to mitigate this prejudice. Id. at 402, 446 P.3d at 460. This Court rejected Nuss's arguments and affirmed the conviction. Id. at 404, 446 P.3d at 462.
Subsequently, Nuss filed a 165-page pro se petition for post-conviction relief asserting claims of prosecutorial misconduct and of ineffective assistance of trial and appellate counsel. Nuss did not submit any affidavits or evidence in support of his petition. The district court appointed Nuss counsel, who neither amended Nuss's petition nor submitted any additional filings in support. The State moved to dismiss Nuss's petition summarily, arguing that Nuss failed to meet the standard for establishing ineffective assistance of counsel and that he forfeited his remaining claims by failing to raise them on direct appeal. Nuss responded, arguing cumulative errors deprived him of a fair trial.
Following a hearing on the State's summary disposition motion, the district court entered a written memorandum decision granting the motion and dismissing Nuss's petition for post-conviction relief. The court construed Nuss's petition to include fifteen claims of ineffective assistance of trial counsel, two claims of ineffective assistance of appellate counsel, and five claims of prosecutorial misconduct.[2] The court ruled that Nuss could have raised the prosecutorial misconduct claims on direct appeal and that by failing to do so he forfeited those claims. Regarding Nuss's ineffective assistance of counsel claims, the court ruled that Nuss failed to present any admissible evidence showing any genuine material factual issues of deficient performance or of prejudice and that Nuss's conclusory allegations failed to establish such factual issues.
Nuss timely appealed the district court's order dismissing his petition.
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. 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).
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 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).
Nuss challenges the district court's summary dismissal of his prosecutorial misconduct claims.[3] The court concluded these claims could have been raised on direct appeal and dismissed them as forfeited under I.C. § 19-4901(b). This statute generally prohibits a petitioner from raising an issue for post-conviction relief if he could have raised that issue on direct appeal unless he can make a special showing. That showing requires "a substantial factual showing by affidavit, deposition, or otherwise" that the issue raises "a substantial doubt about the reliability of finding of guilt" and that the petitioner, in the exercise of due diligence, could not have presented the issue earlier. Id. This provision applies to prosecutorial misconduct claims, which could have been asserted on direct appeal, even if trial counsel did not object to the alleged misconduct at trial. As the Idaho Supreme Court held in State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010), Idaho appellate courts may reverse a conviction on direct appeal if a defendant demonstrates unobjected-to prosecutorial misconduct qualifies as fundamental error. See also Grove v. State, 161 Idaho 840, 851-52, 392 P.3d 18, 29-30 (Ct. App. 2017) ().
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