               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                      Docket No. 37344

MARCUS D. McGRAY,                               )     2011 Unpublished Opinion No. 396
                                                )
       Petitioner-Appellant,                    )     Filed: March 16, 2011
                                                )
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STATE OF IDAHO,                                 )     THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho,
       Boundary County. Hon. Steven C. Verby, District Judge.

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

       Marcus D. McGray, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       Marcus D. McGray appeals the district court’s summary dismissal of his application for
post-conviction relief. We affirm.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       McGray pled guilty to one count of felony driving under the influence (DUI), Idaho Code
§§ 18-8004, 18-8005(7), in a Bonner County case, transferred by stipulation to Boundary
County, and one count of felony DUI in a Boundary County case. The district court imposed
concurrent unified sentences of ten years with four years determinate. Due to a change in the
DUI sentencing law between the two arrests, McGray filed an Idaho Criminal Rule 35 motion to
correct an illegal sentence in the Bonner County case and a Rule 35 motion for reduction of
sentence in the Boundary County case. The district court heard oral argument on the motions
without McGray’s presence. The court granted the Bonner County case motion and reduced




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McGray’s sentence to five years with four years determinate, and denied the Boundary County
case motion.
       On appeal, this Court affirmed the denial of the Boundary County case Rule 35 motion,
but remanded the Bonner County case for resentencing with McGray present. State v. McGray,
Docket Nos. 34169/35244 (Ct. App. April 20, 2009) (unpublished). A resentencing hearing was
held and the district court again imposed a unified sentence of five years with four years
determinate. McGray filed a Rule 35 motion for reduction of sentence which was denied. This
Court affirmed the district court’s order denying McGray’s Rule 35 motion. State v. McGray,
Docket No. 36795 (Ct. App. March 25, 2010) (unpublished).
       In August 2009, McGray filed the instant application for post-conviction relief. In his
application, McGray stated as claims for relief:           (1) violation of constitutional rights
(unconstitutional statute); (2) ineffective assistance of counsel; and (3) failure to bring up issues
at presentence proceedings. Specifically, in regard to the ineffective assistance of counsel claim,
McGray asserted that counsel: (1) failed to bring up issues at discovery and presentence;
(2) failed to have presentence report, psychological evaluation, drug and alcohol reports at
presentence proceedings; and (3) failed to defend his constitutional rights.
       The district court appointed counsel.         The State filed an answer and a motion for
summary dismissal with supporting brief. The district court filed a notice of intent to dismiss.
The district court notified McGray that he had twenty days to file an affidavit of facts to support
the allegations in the application. McGray’s counsel filed a reply stating that McGray did not
intend to file anything else in support of his petition. 1 The district court noted that McGray’s
counsel had stated in the reply that counsel had researched the possible constitutional issues as
well as the concerns raised by McGray, and after discussing the matter with McGray, determined
to file no response to the court’s notice of intent to dismiss. The district court dismissed
McGray’s application. McGray appeals pro se.




1
         The documents referred to in this paragraph are not contained in the record on appeal, but
are listed in the register of action and/or referred to by the district court in its order summarily
dismissing McGray’s application.

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                                                II.
                                            ANALYSIS
        An application for post-conviction relief initiates a civil, rather than criminal,
proceeding, governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437,
443, 180 P.3d 476, 482 (2008); see also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646
(2008). Like the 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; Stuart v. State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); 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) (quoting Goodwin, 138 Idaho at 271, 61 P.3d at 628)). The 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). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008);
Goodwin, 138 Idaho at 271, 61 P.3d at 628. The application 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 § 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 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) (quoting Berg v. State, 131 Idaho 517, 518, 960 P.2d 738,
739 (1998)). 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. Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at
629.   Summary dismissal of an application for post-conviction relief may be appropriate,


                                                 3
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. Payne, 146 Idaho at 561, 199 P.3d at
136; Roman v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
       “When reviewing a district court’s order of summary dismissal in a post-conviction relief
proceeding, we apply the same standard as that applied by the district court.” Ridgley v. State,
148 Idaho 671, 675, 227 P.3d 925, 929 (2010). On review of dismissal of a post-conviction
relief application without an evidentiary hearing, we determine whether a genuine issue of
material fact exists based on the pleadings, depositions, and admissions together with any
affidavits on file. Rhoades v. State, 148 Idaho 247, 220 P.3d 1066 (2009); Ricca v. State, 124
Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). However, “while the underlying facts must
be regarded as true, the petitioner’s conclusions need not be so accepted.” Rhoades, 148 Idaho at
250, 220 P.3d at 1069 (quoting Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985));
see also Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). As the trial
court rather than a jury will be the trier of fact in the event of an evidentiary hearing, summary
dismissal is appropriate where the evidentiary facts are not disputed, despite the possibility of
conflicting inferences to be drawn from the facts, for the court alone will be responsible for
resolving the conflict between those inferences. Yakovac, 145 Idaho at 444, 180 P.3d at 483;
Hayes, 146 Idaho at 355, 195 P.3d at 714. That is, the judge in a post-conviction action is not
constrained to draw inferences in favor of the party opposing the motion for summary disposition
but rather is free to arrive at the most probable inferences to be drawn from uncontroverted
evidentiary facts. Id.
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
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 (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


                                                4
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).
       As set forth above, McGray was required to submit facts in support of the allegations in
his application in order to avoid summary dismissal by the district court. He did not. In his brief
on appeal, McGray attempts to assert additional claims or arguments, including that: (1) he
accepted the plea agreement assuming the sentences in both cases would be the same and the
Boundary County sentence should have been reduced; (2) the Idaho Court of Appeals’ opinion
conflicts with the Idaho Supreme Court precedent regarding mitigation factors in sentencing;
(3) his attorney failed to properly discuss the case with him and advise of the probable
consequences of a guilty plea; (4) his attorney failed to negotiate specific sentencing terms;
(5) his plea was not voluntary due to un-kept promises of counsel; (6) his attorney failed to
correct the presentence investigation report; (7) his attorney failed to present mitigation
evidence; and (8) his attorney failed to obtain a plea agreement that actually benefitted him.
These assertions, most of which were not raised in the district court and are not properly
considered on appeal, do not provide factual support for the claims appropriately raised. Without
such facts, McGray has failed to meet his burden of making a prima facie case for post-
conviction relief and summary dismissal was appropriate.
                                               III.
                                        CONCLUSION
       McGray failed to support his claims with any factual evidence and, therefore, the district
court’s order dismissing McGray’s application for post-conviction relief is affirmed. No costs or
attorney fees are awarded on appeal.
       Judge LANSING and Judge MELANSON CONCUR.




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