               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43463

TIMOTHY ANDREW KELLIS,                           )    2016 Unpublished Opinion No. 609
                                                 )
       Petitioner-Appellant,                     )    Filed: July 19, 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STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED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 Second Judicial District, State of Idaho,
       Latah County. Hon. John R. Stegner, District Judge.

       Judgment summarily dismissing successive petition for post-conviction relief,
       affirmed.

       Timothy Andrew Kellis, Orofino, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Timothy Andrew Kellis appeals from the district court’s order summarily dismissing his
successive petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Kellis was found guilty by a jury of nine counts of lewd conduct with a minor under
sixteen, I.C. § 18-1508; one count of attempted lewd conduct with a minor under sixteen,
I.C. §§ 18-306 and 18-1508; and two counts of sexual abuse of a child, I.C. § 18-506. This
Court affirmed Kellis’s judgments of convictions and sentences. State v. Kellis, 148 Idaho 812,
229 P.3d 1174 (Ct. App. 2010). Kellis filed a petition for post-conviction relief, asserting a
number of claims of ineffective assistance of counsel, which were summarily dismissed by the



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district court for failure to present facts to support his claims. This Court affirmed in an
unpublished opinion. Kellis v. State, Docket No. 31034 (Ct. App. Aug. 15, 2014).
       Kellis filed a successive petition for post-conviction relief, asserting numerous claims of
ineffective assistance of trial counsel. The district court appointed counsel to represent Kellis.
Kellis’s counsel filed a motion to withdraw, citing potential ethical concerns associated with
representing Kellis. At the same time, Kellis filed a motion requesting that the district court
appoint substitute counsel. After a hearing, the district court denied both motions. The district
court then entered a notice of intent to dismiss Kellis’s successive petition. Kellis’s counsel filed
a renewed motion to withdraw, and Kellis filed a motion for reconsideration of the district
court’s order denying his motion for appointment of substitute counsel. Without conducting an
additional hearing, the district court granted counsel’s motion to withdraw and denied Kellis’s
motion for reconsideration. Kellis filed a pro se amended successive petition for post-conviction
relief, adding two claims of ineffective assistance of appellate counsel. Kellis filed motions to
depose and to hire a special investigator, both of which were denied. After providing notice, the
district court summarily dismissed all eight claims in Kellis’s successive petition. The district
court held that Kellis’s claims were barred by the doctrine of res judicata and I.C. § 19-4908.
Kellis appeals.
                                                 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 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


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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.




                                                  3
       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).
                                               III.
                                           ANALYSIS
A.     Conflict Counsel
       Kellis alleges that the district court erred in failing to appoint conflict counsel after
granting post-conviction counsel’s motion to withdraw. 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, 140 Idaho at 792, 102 P.3d at 1111. In determining whether to appoint
counsel pursuant to Section 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


                                                4
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.
       In this case, the district court exercised its discretion to appoint Kellis counsel on his
successive petition for post-conviction relief. The district court denied Kellis’s motion for
substitute counsel on two bases. First, the district court held that Kellis failed to show that his
counsel had a conflict of interest.1 Second, the district court, citing Murphy v. State, 156 Idaho
389, 327 P.3d 365 (2014), explained that a post-conviction petitioner does not have a right to
counsel. The issue here is whether the district court erred in failing to assign substitute counsel
upon granting Kellis’s counsel’s motion to withdraw. The decision of whether to appoint
substitute counsel lies within the discretion of the trial court and will only be reviewed for an
abuse of discretion. State v. Lippert, 152 Idaho 884, 887, 276 P.3d 756, 759 (Ct. App. 1994).
When a trial court’s discretionary decision is reviewed on appeal, the appellate court conducts a
multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as
one of discretion; (2) whether the lower court acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it; and (3) whether
the court reached its decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho
Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
       The district court perceived the decision of whether to appoint substitute counsel as one
of discretion and explained that its decision to deny Kellis’s motion was an exercise of such
discretion. In addition, the district court’s denial of Kellis’s motion for substitute counsel was
consistent with applicable legal standards. Kellis alleges that he had a statutory right to counsel
and to be represented by conflict-free counsel, citing I.C. § 19-852. However, that section is not
applicable to post-conviction petitioners. As stated above, a post-conviction proceeding is civil

1
         Kellis alleges that his attorney’s conflict of interest was based upon Kellis’s request for
counsel to make certain legal arguments and counsel’s refusal. Kellis’s counsel explained to the
district court that she felt constrained by the rules of professional conduct to decline to make the
legal arguments requested by Kellis. It is clear that there was a conflict between Kellis and his
counsel based upon a disagreement about which claims were appropriate and could be ethically
made. However, the conflict does not constitute a conflict of interest. A conflict of interest is
active representation of competing interests not mere disagreements between a petitioner and
counsel. State v. Wood, 132 Idaho 88, 98, 967 P.2d 702, 712 (1998).

                                                 5
in nature.    Accordingly, the rights applicable to criminal defendants do not apply to
post-conviction petitioners. A petitioner is entitled to conflict-free and effective counsel only
when he or she has a constitutional or statutorily guaranteed right to counsel. See Hall v. State,
155 Idaho 610, 616, 315 P.3d 798, 804 (2013). On the other hand, a petitioner is not entitled to
conflict-free or effective counsel when the trial court has discretion to appoint counsel, as in
noncapital post-conviction proceedings. See Murphy, 156 Idaho at 394-95, 327 P.3d at 370-70.
Because Kellis had no right to counsel, he had no right to conflict-free counsel to assist with his
post-conviction petition. Finally, the district court’s decision was reached by an exercise of
reason. Having determined that Kellis failed to show that his counsel had a conflict of interest
and that he was entitled to conflict-free counsel, the district court held that Kellis was not entitled
to substitute counsel.    The district court exercised reason in denying Kellis’s motion for
appointment of substitute counsel since Kellis provided no basis for the appointment of
substitute counsel. Accordingly, Kellis has not shown that the district court abused its discretion
in denying his motion for substitute counsel.
B.     Hearing on Motion to Withdraw
       Kellis’s counsel filed a motion to withdraw. At the same time, Kellis filed a motion for
appointment of substitute counsel. The district court held a hearing on the motion. Kellis’s
counsel explained that she believed the Idaho Rules of Professional Conduct required her to
withdraw from Kellis’s representation. In justification of his motion, Kellis explained that he did
not believe his counsel adequately represented his needs, describing a lack of communication
and several legal arguments he believed counsel should have made. The district court denied
both motions. With regard to counsel’s motion to withdraw, the district court explained that
counsel showed good cause to withdraw but, nonetheless, denied the motion to withdraw. The
district court reasoned that allowing Kellis’s counsel to withdraw would result in a delay of
disposition of Kellis’s post-conviction proceedings, explaining:
       The Court is simultaneously issuing a notice of its intent to dismiss the underlying
       petition in this case with this Order. While the rules provide for a twenty day
       stay, that is clearly insufficient time to grant Kellis if [counsel] is granted leave to
       withdraw.




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Over the following two months, Kellis made several pro se filings with the district court.
Kellis’s counsel filed a renewed motion to withdraw, which the district court granted without
holding a hearing.
       Kellis alleges that the district court erred in granting his counsel’s renewed motion to
withdraw without a hearing, citing to I.R.C.P. 11(b)(2).2 That rule provides in relevant part:
       [N]o attorney may withdraw as an attorney of record for any party to an action
       without first obtaining leave and order of the court upon a motion filed with the
       court, and a hearing on the motion after notice to all parties to the action,
       including the client of the withdrawing attorney. Leave to withdraw as a counsel
       of record may be granted by the court for good cause and upon such conditions or
       sanctions as will prevent any delay in determination and disposition of the
       pending action and the rights of the parties.
       The plain language of I.R.C.P. 11(b)(2) did not require the district court to conduct an
additional hearing when Kellis’s counsel renewed her motion to withdraw. Counsel’s renewed
motion was not a new, distinct, or separate motion. Rather, it repeated the grounds set forth in
the initial motion. The district court had already concluded that Kellis’s counsel had shown good
cause for withdrawal. The district court initially denied counsel’s motion in order to prevent
delay of the disposition of Kellis’s case. However, when it became clear that the disposition of
Kellis’s case would be delayed nonetheless, the district court granted counsel’s renewed motion
to withdraw. We hold that the district court’s hearing on Kellis’s initial motion to withdraw was
sufficient to satisfy the hearing requirement of I.R.C.P. 11(b)(2). Accordingly, Kellis has not
shown that the district court erred in allowing his counsel to withdraw without holding an
additional hearing.
C.     Discovery Request
       Kellis alleges the district court erred in denying Kellis’s motion to depose and motion for
an investigator. Kellis alleges that, by denying his motions, Kellis was denied the opportunity to
obtain the necessary evidence in support of his claims. Any error or defect in the proceeding
which does not affect the substantial rights of the parties will be disregarded. I.R.C.P. 61. In


2
        On July 1, 2016, I.R.C.P. 11(b) was amended and renumbered to I.R.C.P. 11.3.
However, the amendments were not in effect at the time of Kellis’s proceedings. Accordingly,
this opinion cites the rules as they were in effect at the time Kellis’s counsel was allowed to
withdraw.

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other words, this Court will disregard harmless error. Even assuming the district court erred in
denying Kellis’s motions, the error was harmless. As explained above, all eight issues raised in
Kellis’s successive petition were dismissed on procedural grounds. Not a single issue was
dismissed because Kellis lacked evidence to support his claim. Accordingly, assuming, without
deciding, that the district court erred in denying Kellis’s motion to depose and motion to hire an
investigator, Kellis cannot show he was prejudiced by the error.
D.     Summary Dismissal
       Kellis alleges the district court erred in summarily dismissing his successive petition for
post-conviction relief. If an initial post-conviction action was timely filed, an inmate may file a
subsequent petition outside of the one-year limitation period if the court finds a ground for relief
asserted which for sufficient reason was not asserted or was inadequately raised in the original,
supplemental, or amended petition. I.C. § 19-4908; Charboneau v. State, 144 Idaho 900, 904,
174 P.3d 870, 874 (2007). Kellis raised eight issues in his successive petition. The district court
dismissed six of the issues on the basis that they had been previously decided and, therefore,
were barred by the principle of res judicata. The remaining issues were dismissed by the district
court on the basis that Kellis failed to provide a sufficient reason why the issues were not raised
in his prior post-conviction petitions.
         Res judicata prevents the litigation of causes of action which were finally decided in a
previous suit. Gubler By and Through Gubler v. Brydon, 125 Idaho 107, 110, 867 P.2d 981, 984
(1994). The review of a trial court’s ruling on whether an action is barred by res judicata is a
question of law over which this Court has de novo review. Ticor Title Co. v. Stanion, 144 Idaho
119, 122, 157 P.2d 613, 616 (2007). The principles of res judicata apply when a petitioner
attempts to raise the same issues previously ruled upon on direct appeal or in a subsequent
petition for post-conviction relief. Knutsen v. State, 144 Idaho 433, 439, 163 P.3d 222, 228 (Ct.
App. 2007). As the district court explained below, six of the eight issues raised in Kellis’s
successive petition were raised and dismissed in Kellis’s prior petition for post-conviction relief.
Accordingly, the issues are barred by res judicata.       Thus, the district court did not err in
dismissing those claims.
       In addition to the claims being barred by res judicata, the district court held that Kellis
failed to provide a sufficient reason why any of the eight issues were not raised in his prior


                                                 8
petition. Kellis had the burden of providing a sufficient reason the issues raised in his successive
petition were not raised or were inadequately raised in his prior petition for post-conviction
relief. See I.C. § 19-4908; Charboneau, 144 Idaho at 904, 174 P.3d at 874. The sole reason
Kellis provided the district court for raising the eight issues in a successive petition is that his
prior post-conviction counsel failed to adequately present the issues. The state argues that
ineffective assistance of counsel is not a sufficient reason for a successive petition for
post-conviction relief, citing Murphy, 156 Idaho 389, 327 P.3d 365. However, Kellis argues that
Murphy is not controlling in his case because he is not raising a claim of ineffective assistance of
post-conviction counsel.     Rather, Kellis argues his counsel’s ineffectiveness is a mere
explanation for why the issues were not adequately raised in his first post-conviction petition,
satisfying his burden under I.C. 19-4908.
       Kellis’s efforts to distinguish his case from Murphy is unavailing. The issues in Murphy
were strikingly similar to the issues here. In that case, Murphy filed a successive petition for
post-conviction relief raising a number of claims of ineffective assistance of trial counsel.
Murphy asserted that her claims were properly before the district court on successive petition
because her previous counsel failed to raise them or failed to adequately present them in her first
post-conviction proceeding. The Idaho Supreme Court held that ineffective assistance of counsel
is not a sufficient reason to file a successive petition for post-conviction relief. Murphy, 156
Idaho at 395, 327 P.3d at 371. Despite Kellis’s effort to distinguish this case from the holding in
Murphy, that case controls the outcome here. Just as ineffective assistance was not a sufficient
reason to file a successive petition for post-conviction relief in Murphy, it is not a sufficient
reason here. Accordingly, Kellis has not shown that the district court erred in summarily
dismissing his successive petition for post-conviction relief.
                                                IV.
                                         CONCLUSION
       Kellis has not shown that the district court erred in denying his motion for appointment of
substitute counsel. In addition, Kellis has not shown the district court erred in granting his
post-conviction counsel’s renewed motion to withdraw without holding an additional hearing on
the motion. Assuming the district court erred in denying Kellis’s motions to depose and hire an
investigator, Kellis has not shown he was prejudiced by the error. Finally, Kellis has not shown


                                                 9
that the district court erred in summarily dismissing his successive petition for post-conviction
relief. Therefore, we affirm the district court’s order summarily dismissing Kellis’s successive
petition for post-conviction relief. No costs or attorney fees are awarded on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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