Self v. State
| Decision Date | 14 September 2007 |
| Docket Number | No. 33458.,33458. |
| Citation | 145 Idaho 578,181 P.3d 504 |
| Parties | Rodney G. SELF, Jr., Petitioner-Appellant, v. STATE of Idaho, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Greg S. Silvey, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cud, Deputy Attorney General, Boise, for respondent.
Rodney G. Self, Jr. appeals from the district court's order summarily dismissing his application for post-conviction relief. Specifically, Self challenges the district court's conclusion that his application did not raise a genuine issue of material fact regarding his allegations of ineffective assistance of counsel. For the reasons set forth below, we affirm.
Self was charged with two counts of rape, I.C. § 18-6101; one count of lewd and lascivious conduct with a minor, I.C. § 18-1508; and being a persistent violator, I.C. § 19-2514. A jury found Self guilty of the first two counts, and he admitted to being a persistent violator. Self was sentenced to concurrent unified terms of twenty years, with minimum periods of confinement of seven years. On appeal, this Court affirmed Self's judgment of conviction and the district court's denial of his I.C.R. 35 motion. See State v. Self, 139 Idaho 718, 85 P.3d 1117 (Ct.App.2003).
Self filed an application for post-conviction relief alleging three claims of ineffective assistance of counsel. Self also filed a motion for counsel. Counsel was appointed, and Self filed an amended application that asserted only a claim of ineffective assistance of counsel for failure to subpoena any expert witness who would have testified that the state's DNA evidence was significantly flawed. The state filed a motion to summarily dismiss Self's application. Post-conviction counsel filed an affidavit and was granted a continuance to contact the experts who evaluated the DNA evidence in Self's case and secure affidavits from them. At the second hearing, post-conviction counsel appeared on Self's behalf and explained that she was having difficulty securing affidavits from the experts. Another continuance was granted, and Self filed an affidavit from the criminal investigator who worked on Self's defense before trial. At the final hearing, no affidavits from the experts were filed, and the district court granted the state's motion for summary dismissal. Self appeals.
An application for post-conviction relief initiates a proceeding that is civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct.App.1992). Like a plaintiff in a civil action, the applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct.App.1990). An application for post-conviction relief differs from a complaint in an ordinary civil action. An application 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, an application for post-conviction relief must be verified with respect to facts within the personal knowledge of the applicant, and affidavits, records or other evidence supporting its allegations must be attached, or the application must state why such supporting evidence is not included with the application. I.C. § 19-4903. In other words, the application must present or be accompanied by admissible evidence supporting its allegations, or the application will be subject to dismissal.
Idaho Code Section 19-4906 authorizes summary dismissal of an application for post-conviction relief, either pursuant to motion of a party or upon the court's own initiative. Summary dismissal of an application pursuant to I.C. § 19-4906 is the procedural equivalent of summary judgment under I.R.C.P. 56. Summary dismissal is permissible only when the applicant's evidence has raised no genuine issue of material fact that, if resolved in the applicant's favor, would entitle the applicant to the requested relief. If such a factual issue is presented, an evidentiary hearing must be conducted. Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct.App.1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct. App.1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). Summary dismissal of an application for post-conviction relief may be appropriate, however, even where the state does not controvert the applicant's evidence because the court is not required to accept either the applicant's mere conclusory allegations, unsupported by admissible evidence, or the applicant'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).
On review of a dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions, and admissions together with any affidavits on file; moreover, the court liberally construes the facts and reasonable inferences in favor of the nonmoving party. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993).
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 applicant 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 applicant must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177.
On appeal, Self asserts that the district court erred in summarily dismissing his post-conviction application. Specifically, Self claims that his application raised a genuine issue of material fact regarding whether he received ineffective assistance of counsel where his attorney failed to subpoena a necessary witness.
The district court concluded:
So basically the bottom line is the only thing the court has is a conclusion from [the criminal investigator in Self's case] and a conclusion from [post-conviction counsel] that this expert ... would have been helpful, but we are not really sure why the witness would have been helpful. I think that simply is nothing more than a mere scintilla of evidence which is insufficient to counteract a motion for summary disposition.
Therefore, the district court summarily dismissed Self's application because it did not contain information as to why an expert witness would have been helpful and what the expert would have testified to.
Under the second prong of the Strickland test for ineffective assistance of counsel, a showing of prejudice requires more than mere speculation about what an expert witness may have said if trial counsel employed them. Raudebaugh v. State, 135 Idaho 602, 605, 21 P.3d 924, 927 (2001). In Raudebaugh, the defendant argued that the district court erred by not releasing the murder weapon so that he could get it examined before summarily dismissing his application for post-conviction relief. On appeal, the Idaho Supreme Court concluded that Raudebaugh failed to demonstrate how his case was prejudiced because he did not show that the state's testing was flawed or that there was a new technology that would make current testing more reliable. Raudebaugh only offered conclusory...
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...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); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct.App.2007). To establish a deficiency, the petitioner has the burden of showing the attorney's representation fe......
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Stevens v. State
...and the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007). To establish a deficiency, the petitioner has the burden of showing the attorney's representation fell below an o......
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...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); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct.App.2007). To establish a deficiency, the petitioner has the burden of showing that the attorney's representati......