               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42522

BOB LESTER BOREN,                                )    2016 Unpublished Opinion No. 391
                                                 )
        Petitioner-Appellant,                    )    Filed: February 12, 2016
                                                 )
v.                                               )    Stephen W. Kenyon, Clerk
                                                 )
STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED
                                                 )    OPINION AND SHALL NOT
        Respondent.                              )    BE CITED AS AUTHORITY
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Juneal C. Kerrick, District Judge.

       Order on motions for summary disposition and judgment dismissing petition for
       post-conviction relief, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Eric D. Fredericksen, Deputy
       Appellate Public Defender, Boise, for appellant.

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

HUSKEY, Judge
       Bob Lester Boren appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       In the underlying criminal action, Boren was charged with unlawful possession of a
firearm after he was found in possession of a .22 caliber pistol. He is prohibited from possessing
firearms because he has a 1984 felony conviction for possession of a controlled substance from
Oregon and a 1988 felony conviction for possession of a controlled substance from
Nevada. Boren filed a motion to dismiss the unlawful possession of a firearm charge because his
felony convictions occurred prior to 1991 and therefore, he believed that under Idaho Code § 18-




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310(2)(kk)1 his right to possess a firearm was automatically restored. The motion was denied
pursuant to I.C. § 18-310(4) because Boren’s convictions are out-of-state convictions and
therefore, Boren was not entitled to an automatic restoration of his right to possess a firearm.
The district court noted Boren had not applied to have this right restored under I.C. § 18-310(3).
Boren entered a conditional plea of guilty, reserving the right to appeal the denial of the motion
to dismiss. On appeal to this Court, we reversed the district court’s decision.2 However, on
review by the Idaho Supreme Court, the district court’s decision was affirmed and Boren’s
conviction upheld. The Supreme Court held it “is absolutely certain . . . that the second sentence
[of I.C. § 18-310(4)] does not provide for the restoration of any right or any nature” for persons
convicted of out-of-state felonies. State v. Boren, 156 Idaho 498, 499-500, 328 P.3d 478, 479-80
(2014).
          Following his direct appeal, Boren filed a petition for post-conviction relief alleging his
trial counsel was ineffective for failing to file a motion to dismiss the charge based on the
unconstitutionality of I.C. § 18-310. Boren alleges this code section is unconstitutional because
it violates his constitutional right to travel as protected by the Privileges and Immunities Clause
and the Equal Protection Clause of the United States Constitution. Boren filed a motion for
summary disposition and the State filed a cross-motion for summary disposition. The district
court denied Boren’s motion for summary disposition, granted the State’s cross-motion for
summary disposition, and dismissed the petition.
          The district court concluded Boren had failed to show that a motion to dismiss on the
asserted constitutional grounds would have been successful.             The district court further
determined, even if he was able to convince the district court that I.C. § 18-310 was
unconstitutional, Boren had failed to show that his right to possess firearms would be
automatically restored as a matter of Idaho law. Therefore, Boren’s trial counsel had not
provided ineffective assistance of counsel for failing to file a motion to dismiss the charge on this
basis. Boren appeals.



1
         Idaho Code § 18-310(kk) provides in relevant part: The provisions of this subsection
shall apply only to those persons convicted of the enumerated felonies in paragraphs (a) through
(jj) of this subsection on or after July 1, 1991.
2
          State v. Boren, Docket No. 39754 (Ct. App. March 14, 2013) (unpublished).
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                                                 II.
                                   STANDARD OF REVIEW
       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 Idaho Rules 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 § 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.

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         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).
         A claim of ineffective assistance of counsel may properly be brought under the post-
conviction procedure act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. To prevail on an
ineffective assistance of counsel claim, the petitioner must show the attorney’s performance was
deficient and the petitioner was prejudiced by the deficiency. Strickland v. Washington, 466
U.S. 668, 687-88 (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 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 petitioner was convicted upon a
guilty plea, to satisfy the prejudice element, the petitioner must show there is a reasonable

                                                  4
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).
                                                III.
                                           ANALYSIS
       Boren argues the district court erred by summarily dismissing his petition for post-
conviction relief because there was a genuine issue of material fact regarding the
constitutionality of I.C. § 18-310(4). He further alleges the district court erred in dismissing his
claim regarding the ineffectiveness of his trial counsel for failing to seek dismissal of the
unlawful possession of a firearm offense on constitutional grounds.
        At issue is the distinction in I.C. § 18-310(4) between an in-state and an out-of-state
felony conviction. Boren alleges this distinction violates the constitutional right to travel by
treating those two groups of felons differently. Idaho Code § 18-310(4) provides:
       Persons convicted of felonies in other states or jurisdictions shall be allowed to
       register and vote in Idaho upon final discharge which means satisfactory
       completion of imprisonment, probation and parole as the case may be. These
       individuals shall not have the right restored to ship, transport, possess or receive a
       firearm, in the same manner as an Idaho felon as provided in subsection (2) of this
       section.
       Subsection (2) allows for a person convicted of a felony in Idaho, after July 1, 1991, to be
restored to full citizenship rights upon “satisfactory completion of imprisonment, probation and
parole as the case may be.” I.C. § 18-310(2).
       The constitutionality of a statute is a question of law that we review de novo. State v.
Hart, 135 Idaho 827, 829, 25 P.3d 850, 852 (2001). A party challenging the constitutionality of
a statute must overcome a strong presumption of validity. State v. Cobb, 132 Idaho 195, 197,
969 P.2d 244, 246 (1998).
A.     Standing
       The district court’s decision, in part, was based on Boren’s failure to demonstrate that he
had standing to challenge the constitutionality of I.C. § 18-310(4) on behalf of out-of-state
residents because he did not allege and provide evidence that he ever resided outside of the state

                                                 5
of Idaho. In order to satisfy the standing requirement, Boren must demonstrate “an injury in fact
and a substantial likelihood that the judicial relief requested [would] prevent or redress the
claimed injury.” Freeman v. State, Dep’t of Corr., 134 Idaho 481, 485, 4 P.3d 1132, 1136 (Ct.
App. 2000). The district court did not err in determining that Boren had failed to allege or
demonstrate standing to challenge the constitutionality of I.C. § 18-310(4). Absent from the
record is any indication that Boren is, or ever has been, an out-of-state resident. Therefore,
Boren has failed to demonstrate that he has the ability to contest this law on behalf of non-
residents or persons who have recently moved to Idaho and who are impacted by the provisions
of I.C. § 18-310.
       The State argues that Boren did not address the district court’s decision that he lacked
standing on appeal and urges this Court to uphold the district court’s order on this basis. In his
reply brief, Boren argues that his residency is irrelevant to the determination of whether
I.C. § 18-310(4) is unconstitutional and argues for the first time this code section creates a fixed,
permanent distinction between residents of Idaho. Generally, issues not raised in the initial brief
are considered waived and our decision is limited to those issues supported by argument and
authority. Idaho Appellate Rule 35(a)(4); State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970
(1996); State v. Raudebaugh, 124 Idaho 758, 763, 864 P.2d 596, 601 (1993); Murillo v. State,
144 Idaho 449, 453 n.3, 163 P.3d 238, 242 n.3 (Ct. App. 2007). Boren has not properly raised as
an issue whether the statute creates fixed, permanent distinctions between Idaho residents.
Instead, his argument focused on whether the statute treated non-residents differently than Idaho
residents.   Thus, this Court will not consider whether the statute creates fixed, permanent
distinctions between Idaho residents.
B.     Right to Travel
       The Idaho Supreme Court has recognized the three components of the constitutional right
to travel as explained in Saenz v. Roe, 526 U.S. 489, 500 (1999). See State v. Yeoman, 149 Idaho
505, 508, 236 P.3d 1265, 1268 (2010).
       In Saenz, the United States Supreme Court wrote:
       The “right to travel” discussed in our cases embraces at least three different
       components. It protects the right of a citizen of one State to enter and to leave
       another State, the right to be treated as a welcome visitor rather than an unfriendly
       alien when temporarily present in the second State, and, for those travelers who
       elect to become permanent residents, the right to be treated like other citizens of
       that State.

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Saenz, 526 U.S. at 500.
       At issue in this case is the third aspect of the right to travel, based upon the Privileges and
Immunities Clause of the Fourteenth Amendment, which is “the right of the newly arrived
citizen to the same privileges and immunities enjoyed by other citizens of the same State.” Id. at
502. The United States Supreme Court has held that the right to travel can be infringed when a
new resident of a state is denied rights or benefits available to longer-term residents. Yeoman,
149 Idaho at 508, 236 P.3d at 1268. However, the “lack of disparate treatment of non-residents
or recent arrivals . . . eliminates the possibility of a barrier to interstate travel.” Levanti v.
Tippen, 585 F. Supp. 499, 507 (S.D. Cal. 1984). In order to establish that a statute violates the
right to travel, the plaintiff must “establish disparate treatment of outsiders which inhibits free
passage across state borders.” Id. Statutes that have been held to violate the right to travel
include those that “penalize migration or create fixed, permanent distinctions among citizens.”
State v. Dickerson, 142 Idaho 514, 519, 129 P.3d 1263, 1268 (Ct. App. 2006). In Dickerson, we
recognized the laws that penalize migration to include:
       civil service employment preferences for veterans who resided in the state when
       they entered military service, Soto-Lopez, 476 U.S. 898, 106 S. Ct. 2317, 90 L.
       Ed. 2d 899; requirements for a period of residency before a person can secure a
       divorce in the state (although a burden, found to be constitutional), Sosna v. Iowa,
       419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975); one-year residency
       requirements before indigents become eligible for free non-emergency medical
       care, Mem’l Hosp., 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306; durational
       residency requirements as a prerequisite to register to vote, Dunn v. Blumstein,
       405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972); and durational residency
       requirements for welfare benefits, Shapiro, 394 U.S. at 624, 89 S. Ct. at 1325-26,
       22 L. Ed. 2d at 609.
Id.
       In this case, the district court determined that I.C. § 18-310(4) did not violate the right to
travel because the statute distinguishes between persons convicted of out-of-state felonies and
persons convicted of Idaho felonies, not out-of-state residents and Idaho residents.            Idaho
residents with an out-of-state conviction and persons moving to Idaho with an out-of-state
conviction are treated the same under the statute. A lifelong Idaho resident could receive a
felony conviction from Nevada and be treated in the same manner as a person who resides in
Nevada, receives a felony conviction from that state, and then moves to Idaho. Absent from
I.C. § 18-310 is the necessary “disparate treatment” required to establish a violation of the
constitutional right to travel. This statute does not penalize migration like the laws listed above,

                                                 7
because the distinction in ability to have a right to possess a firearm does not depend on the
person’s residency status in Idaho.
       The district court did not err in dismissing Boren’s claim that I.C. § 18-310(4) is
unconstitutional as a violation of the constitutional right to travel, because Boren failed to
demonstrate that he had standing to assert this claim and failed to show how the code section
provides disparate treatment between Idaho residents and out-of-state residents.
C.     Equal Protection
       Equal protection embraces the principle that all persons in like circumstances should
receive the same benefits and burdens of the law. See U.S. CONST. amend. XIV, § 1; Bon Appetit
Gourmet Foods, Inc., v. Dep’t of Emp’t, 117 Idaho 1002, 1003, 793 P.2d 675, 676, (1989).
Equal protection issues focus on classifications within statutory schemes that allocate benefits or
burdens differently among the categories of persons affected. State, Dep’t of Health and Welfare
ex rel. Martz v. Reid, 124 Idaho 908, 911, 865 P.2d 999, 1002 (Ct. App. 1993). Equal protection
claims require a three-step analysis where the reviewing court must:             first, identify the
classification that is being challenged; second, determine the standard under which the
classification will be judicially reviewed; and third, decide whether the appropriate standard has
been satisfied. State v. Mowrey, 134 Idaho 751, 754, 9 P.3d 1217, 1220 (2000) (citing Coghlan
v. Beta Theta Pi Fraternity, 133 Idaho 388, 395, 987 P.2d 300, 307 (1999)).
       Here, because we have determined that I.C. § 18-310(4) does not infringe upon the
fundamental right to travel, the classification at issue is not based upon a suspect class and does
not implicate a fundamental right. Therefore, the rational basis test is the applicable standard of
review. A classification will survive rational basis review if the classification is rationally
related to a legitimate legislative purpose. Hart, 135 Idaho at 830, 25 P.3d at 853. It is well
settled that the state has wide discretion to enact laws affecting some groups of citizens
differently than others, and the legislature is presumed to have acted within its constitutional
power despite the fact that the enforcement of a statute results in some inequality. Coghlan, 133
Idaho at 396, 987 P.2d at 308. Under this analysis, a classification challenged for a lack of equal
protection will be upheld “if there is any conceivable state of facts which will support it.” Id. at
396-97, 987 P.2d at 308-09.
       Boren’s equal protection challenge rests in his claim that I.C. § 18-310(4) allows for
disparate treatment between Idaho residents and out-of-state residents who move to Idaho with

                                                 8
out-of-state felony convictions. However, as addressed above, that statute does not treat these
two groups of felons differently because all persons residing within Idaho are subject to the same
limitations on the automatic restoration of the right to possess a firearm following an out-of-state
felony conviction. Boren has failed to demonstrate that I.C. § 18-310(4) violates his right to
equal protection, and the district court did not err in dismissing this claim for post-conviction
relief.
D.        Ineffective Assistance of Counsel
          In order to succeed on his claim that his attorney provided constitutionally deficient
representation prior to Boren entering his conditional plea of guilty, Boren must show that the
motion to dismiss the criminal action would have been successful because I.C. § 18-310(4) is
unconstitutional. We have determined that Boren has failed to demonstrate he had standing to
contest the constitutionality of I.C. § 18-310(4) as a violation of his constitutional right to travel
and that the code section does not mandate disparate treatment of Idaho residents and out-of-state
residents. Further, Boren has failed to demonstrate that I.C. § 18-310(4) violates the guarantees
of equal protection.
                                                 IV.
                                          CONCLUSION
          For the reasons set forth above, we affirm the district court’s order denying Boren’s
motion for summary disposition and granting the State’s cross-motion for summary disposition
as well as the judgment dismissing Boren’s post-conviction petition.
          Chief Judge MELANSON and Judge GRATTON CONCUR.




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