Zivkovic v. State

• Decision Date: 30 March 2011
• Docket Number: No. 37287.,37287.
• Citation: 251 P.3d 611,150 Idaho 783
• Court: Idaho Court of Appeals
• Parties: David ZIVKOVIC, Petitioner–Appellant, v. STATE of Idaho, Respondent.

150 Idaho 783

251 P.3d 611

David ZIVKOVIC, Petitioner–Appellant,

v.STATE of Idaho, Respondent.

No. 37287.

Court of Appeals of Idaho.

March 30, 2011.

Review Denied May 23, 2011.

David Zivkovic, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy Attorney General, Boise, for respondent.

MELANSON, Judge.

David Zivkovic appeals from the district court's order summarily dismissing his application for post-conviction relief. For the reasons set forth below, we affirm.

I.FACTS AND PROCEDURE

Zivkovic pled guilty to unlawful possession of a firearm by a felon, I.C. § 18–3316, and was admitted to the Oneida County DUI/Drug Court program. After Zivkovic was terminated from the program, the district court entered Zivkovic's judgment of conviction and imposed a unified sentence of five years, with a minimum period of confinement of three years. Subsequently, Zivkovic filed an application for post-conviction relief pursuant to I.C. §§ 19–4901 to 19–4911. In his application, Zivkovic argued that his counsel was ineffective for failing to argue that I.C. § 18–3316 was unconstitutional as a bill of attainder under the United States and Idaho Constitutions and that it violated the Ex Post Facto Clause of the United States and Idaho Constitutions. Zivkovic also alleged that his termination from the drug court program violated his due process rights.

The state filed an answer to Zivkovic's application for post-conviction relief, which contained within it a motion for summary dismissal. Zivkovic filed a response. The district court issued a notice of intent to dismiss Zivkovic's application. Zivkovic was given more than twenty days to respond, but he failed to do so. The district court issued an order dismissing all of Zivkovic's claims. Zivkovic appeals.

II.STANDARD OF REVIEW

An application for post-conviction relief initiates a proceeding that is civil in nature. 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 applicant must prove by a preponderance of evidence the allegations upon which the request for post-conviction relief is based. I.C. § 19–4907 ; Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct.App.2002). An application 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). 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. A claim for post-conviction relief will be subject to summary dismissal if the applicant has not presented evidence making a prima facie case as to each essential element of the claims upon which the applicant bears the burden of proof. DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal is permissible 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. Goodwin, 138 Idaho at 272, 61 P.3d at 629. 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. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App.1993). In post-conviction actions, 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).

III.ANALYSIS

On appeal, Zivkovic argues that the district court erred in summarily dismissing his application for post-conviction relief. Zivkovic argues that the district court erred when it dismissed his ineffective assistance of counsel claims because the district court ignored factual evidence and relied on authority in conflict with United States Constitution and United States Supreme Court precedent.¹

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). Where, as here, the defendant was convicted upon a guilty plea, to satisfy the prejudice element, the claimant must show that there is a reasonable probability that, but for counsel's errors, he or she would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct.App.2006). 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).

A. Bill of Attainder

Zivkovic argues that the district court erred in dismissing his claim that his counsel was ineffective for failing to argue that the felon in possession of a firearm statute, I.C. § 18–3316, is a bill of attainder prohibited by the United States and Idaho Constitutions. The United States Constitution, in denying powers to the states, declares that "no state shall ... pass any bill of attainder." U.S. CONST. art. I, § 10, cl. 1. Similarly, the Idaho Constitution states that "no bill of attainder ... shall ever be passed." IDAHO CONST. art. I, § 16. A bill of attainder is any legislation that targets an easily ascertainable group, determines guilt, and inflicts punishment without the protections of a judicial trial. United States v. Brown, 381 U.S. 437, 448–49, 85 S.Ct. 1707, 1714–15, 14 L.Ed.2d 484, 491–92 (1965) ; State v. Lovelace, 140 Idaho 53, 71, 90 P.3d 278, 296 (2003), on reh'g 140 Idaho 73, 90 P.3d 298 (2004) ; State v. Gee, 107 Idaho 991, 993, 695 P.2d 376, 378 (1985). Three requirements must be met to establish a violation of the Bill of Attainder Clause-specification of the affected persons, punishment, and lack of judicial trial. United States v. Munsterman, 177 F.3d 1139, 1141 (9th Cir.1999).

Idaho Code Section 18–3316(1), the unlawful possession of a firearm by a felon statute, provides, in relevant part:

A person who previously has been convicted of a felony who purchases, owns, possesses, or has under his custody or control any firearm shall be guilty of a felony and shall be imprisoned in the state prison for a period of time not to exceed five (5) years and by a fine not to exceed five thousand dollars ($5,000).

Whether this statute constitutes a bill of attainder has never been addressed in Idaho, although other states have analyzed their own similar felon in unlawful possession of firearm statutes and have held that such statutes do not constitute bills of attainder. See, e.g., State v. Swartz, 601 N.W.2d 348, 351–52 (Iowa 1999) ; State v. Myrick, 436 A.2d 379, 383–84 (Me.1981) ; State v. Whitaker, 364 N.C. 404, 700 S.E.2d 215, 220 (2010).

The first indicator of a bill of attainder is the specificity of the persons who are affected by the legislation. Langford v. Day, 134 F.3d 1381, 1382–83 (9th Cir.1998). Idaho Code Section 18–3316 sets forth a rule generally applicable to all persons having a certain characteristic—being convicted of a felony. Any person who has been convicted of a felony in Idaho is subject to I.C. § 18–3316 and prohibited from possessing a firearm. I.C. § 18–3316(1). Therefore, the group of individuals affected by I.C. § 18–3316 is specific and ascertainable.

However, the second characteristic of a bill of attainder—that it imposes punishment on the specified group or individual—is not present here. The prohibition...