               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41547

MAROFF OUEDRAOGO,                               )    2015 Unpublished Opinion No. 370
                                                )
       Plaintiff-Respondent,                    )    Filed: February 25, 2015
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )    THIS IS AN UNPUBLISHED
                                                )    OPINION AND SHALL NOT
       Defendant-Appellant.                     )    BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Michael E. Wetherell, District Judge.

       Order summarily dismissing petition for post-conviction relief, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Jason C. Pintler, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Maroff Ouedraogo appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. Specifically, he claims that he raised a genuine issue of
material fact as to whether his trial counsel affirmatively misadvised him of the immigration
consequences of his guilty plea. For the reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       Ouedraogo was originally charged with possession of a controlled substance (marijuana)
with intent to deliver, second degree kidnapping, and domestic violence. Pursuant to a plea
agreement, Ouedraogo pled guilty to possession of a controlled substance with intent to deliver,
I.C. § 37-2732(a)(1)(A), and the remaining charges were dismissed. Because of Ouedraogo’s
immigration status, Ouedraogo’s trial counsel advised him that his guilty plea could result in

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deportation. 1   The district court also advised Ouedraogo of the potential immigration
consequences of his guilty plea before accepting it. The district court then sentenced Ouedraogo
to a unified term of five years, with a minimum period of confinement of two years and six
months, and retained jurisdiction. Following the period of retained jurisdiction, the district court
placed Ouedraogo on probation for four years. Ouedraogo did not appeal his judgment of
conviction or sentence.
        Ouedraogo subsequently filed a petition for post-conviction relief alleging ineffective
assistance of trial counsel. Specifically, Ouedraogo claimed that his trial counsel affirmatively
misadvised him of the immigration consequences of his guilty plea. Ouedraogo did not include
an affidavit in support of his petition. The district court gave notice of its intent to summarily
dismiss Ouedraogo’s petition based on his failure to allege how his trial counsel had
affirmatively misadvised him of the immigration consequences of his plea, thereby failing to
raise a genuine issue of material fact as to whether his trial counsel’s performance was
objectively deficient. Ouedraogo then filed an affidavit alleging that his trial counsel had told
him that he “would have to plead guilty and then have an immigration attorney fight to keep
[him] from being deported.” This, Ouedraogo alleged, was incorrect because he was informed
during his first appearance in immigration court that he could not avoid deportation as a result of
the nature of his conviction. Ouedraogo asserted that he was unaware of this consequence of his
guilty plea and, had he been properly advised, he would not have pled guilty. The district court
subsequently entered an order summarily dismissing Ouedraogo’s petition, concluding that he
had failed to establish that he was affirmatively misadvised.        Moreover, the district court
determined that Ouedraogo’s assertion that his trial counsel had told him he would need to have
an immigration attorney fight to keep him from being deported amounted to a concession that
Ouedraogo had been advised that he was “presumptively deportable,” thereby fulfilling his trial
counsel’s duty. 2 As a result, the district court determined that Ouedraogo could not show
objectively deficient performance and dismissed his petition. Ouedraogo appeals.


1
       Neither party included Ouedraogo’s actual immigration status, either before or after his
conviction, in its statement of facts.
2
       The district court also noted in its order summarily dismissing Ouedraogo’s petition that,
as a result of Ouedraogo’s affidavit, he had abandoned his original claim of affirmative
misadvice and instead raised a new claim that his trial counsel’s advice did not go far enough.
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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); 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



Because this was not the basis of the district court’s decision below and is unnecessary to our
holding, we offer no opinion on the accuracy of the district court’s statements.
                                                3
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).
                                                 III.
                                            ANALYSIS
       Ouedraogo claims that, because he raised a genuine issue of material fact as to the
effectiveness of his trial counsel in advising him regarding the immigration consequences of his
guilty plea, the district court erred in summarily dismissing his petition for post-conviction relief.
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Specifically, Ouedraogo alleges that his trial counsel’s performance was deficient under the
standards announced in Padilla v. Kentucky, 559 U.S. 356 (2010), which held that trial counsel is
required to give accurate advice regarding the immigration consequences of pleading guilty.
       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 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 (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 that the attorney’s
representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-
88; Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). 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. State v. Dunlap, 155 Idaho
345, 383, 313 P.3d 1, 39 (2013); Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct.
App. 1994).
       This Court recently summarized the Padilla opinion in the following way:
               In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme
       Court determined the standard of representation required when a guilty plea could
       have potential immigration consequences. The Court first held that under the
       Sixth Amendment right to counsel, as articulated in Strickland, counsel may have
       a duty to provide advice relating to deportation. Id. at 366. The Court then held
       that “when the deportation consequence is truly clear, as it was in [Padilla’s] case,
       the duty to give correct advice is equally clear.” Id. at 369. On the other hand,
       when the law is less clear or uncertain “a criminal defense attorney need do no
       more than advise a noncitizen client that pending criminal charges may carry a
       risk of adverse immigration consequences.” Id. Padilla had pled guilty to
       distributing drugs. Federal law required automatic deportation for any conviction
       relating to controlled substances other than simple possession of marijuana
       offenses. Thus, because on the face of the immigration law itself the federal
       deportation law was “succinct, clear, and explicit,” Padilla’s counsel had a duty to
       give correct advice about the immigration consequences. Id. at 368-69.
Popoca-Garcia v. State, 157 Idaho 150, 152, 334 P.3d 824, 826 (Ct. App. 2014).




                                                 5
       The district court determined that Ouedraogo’s trial counsel had provided sufficient
advice under the heightened standard of Padilla. 3 This was based, in part, on Ouedraogo’s
assertion in his affidavit that his trial counsel advised him that he would “have to plead guilty
and then have an immigration attorney fight to keep [him] from being deported.” The district
court interpreted this statement as indicating that Ouedraogo’s trial counsel had advised him that
“he would be deported if an immigration specialist could not avert that outcome.” In the district
court’s view, this advice effectively informed Ouedraogo that he was “presumptively
deportable,” thereby meeting the heightened standard for advice under Padilla.
       As previously noted, the district court, as the trier of fact, is not constrained to draw
inferences in Ouedraogo’s favor; rather, the district court is free to draw the most probable
inferences available from the uncontroverted evidence. Hayes, 146 Idaho at 355, 195 P.3d at
714. We will not disturb such inferences on appeal if the uncontroverted evidence is sufficient to
justify them. Id. Here, Ouedraogo initially alleged in his affidavit that his trial counsel told him
she did not know what immigration consequences could result from his guilty plea. However, as
noted by the district court, Ouedraogo conceded only a few lines later in his affidavit that his trial
counsel specifically advised him that he was, at the very least, eligible for deportation. The
district court inferred from the uncontroverted evidence provided in Ouedraogo’s affidavit that
his trial counsel met the higher standard under Padilla by effectively advising Ouedraogo that he
was “presumptively deportable.” This inference was justified by the uncontroverted evidence, as
Ouedraogo’s claim that his trial counsel told him that he would need to hire an immigration
attorney to fight to keep him from being deported could reasonably mean that he was told he
would be deported unless an immigration specialist could avoid that outcome. Thus, we will not
disturb the district court’s reasonable inference.      Ouedraogo provided no other admissible
evidence supporting his claim, only conclusory allegations about his trial counsel’s knowledge of


3
        The district court did not address whether the immigration consequences of Ouedraogo’s
conviction were “succinct, clear, and explicit,” Padilla, 559 U.S. at 368; instead, the district
court’s decision assumed that Ouedraogo’s trial counsel was required to “provide competent
assistance to [Ouedraogo] regarding the clear immigration consequences of his conviction.”
(Emphasis added.) Although Ouedraogo failed to allege any facts or provide any admissible
evidence establishing that his deportation was “practically inevitable,” Padilla, 559 U.S. at 364,
such as that his crime constituted an “aggravated felony,” the state did not challenge this
assumption by the district court on appeal. Accordingly, we assume--without deciding--that
Ouedraogo’s trial counsel was required to meet the heightened standard of advice under Padilla.
                                                6
immigration law. Accordingly, Ouedraogo failed to raise a genuine issue of material fact as to
whether his trial counsel provided deficient performance, and the district court did not err in
summarily dismissing Ouedraogo’s petition for post-conviction relief on that basis.
                                              IV.
                                        CONCLUSION
       Ouedraogo failed to raise a genuine issue of material fact that his trial counsel’s advice
regarding the immigration consequences of his guilty plea constituted objectively deficient
performance under the standards enunciated in Padilla. Accordingly, the district court’s order
summarily dismissing Ouedraogo’s petition for post-conviction relief is affirmed. No costs or
attorney fees are awarded on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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