               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 43336

JOHNNY JAY DIAMOND,                            ) 2016 Opinion No. 59
                                               )
       Petitioner-Appellant,                   ) Filed: September 12, 2016
                                               )
v.                                             ) Stephen W. Kenyon, Clerk
                                               )
STATE OF IDAHO,                                )
                                               )
       Respondent.                             )
                                               )

       Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

       Judgment summarily dismissing petition for post-conviction relief, reversed and
       case remanded.

       Eric D. Fredericksen, Interim State Appellate Public Defender; Justin M. Curtis,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Johnny Jay Diamond appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. We reverse the judgment and remand the case for further
proceedings.
                                               I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Diamond pled guilty to aiding and abetting robbery, Idaho Code §§ 18-204, 18-306, 18-
6501, 18-6502. The sentencing court placed Diamond on probation. Diamond appealed, and
this Court affirmed his judgment of conviction and sentence. See State v. Diamond, Docket No.
34554 (Ct. App. May 7, 2008) (unpublished). Diamond violated his probation by failing to pay
restitution. The sentencing court entered an order revoking his probation and imposing his
sentence. Diamond did not appeal the sentencing court’s order revoking probation.

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       Diamond filed a pro se petition for post-conviction relief, seeking release and alleging his
continued incarceration violated the Eighth Amendment and his trial counsel was ineffective for
failing to file an appeal. The district court appointed counsel and ordered Diamond to amend his
petition. The court’s order required the amended petition to “1) fully comply with the required
format of I.C.R. 57(a); 2) specifically set forth the grounds upon which the [petition] is based;
and 3) clearly state the relief desired as required by Idaho Code § 19-4903.”
       Diamond amended his petition. The amended petition stated that Diamond had appealed
his judgment of conviction and sentence, incorporated his original petition and affidavit into the
amended petition by reference, and requested that the district court vacate his order of
commitment and place him back on probation. Further, the amended petition added a claim that
Diamond’s trial counsel was ineffective for failing to inform him that his inability to pay
restitution would be a defense to his probation violation.
       The State answered the amended petition, asserting “that the incorporation of the original
pro-se Petition and Affidavit [would be] inappropriate” in light of the court’s order and
requesting “that the Court not consider the prior filing.”
       The district court noticed its intent to dismiss the amended petition. The court noted that
the amended petition contained “one claim: that [Diamond] was never advised that inability to
pay was a defense to a probation violation for failure to pay restitution.” The court explained its
intent to dismiss that claim, noting that the record contradicted Diamond’s claim that his counsel
had not informed him that his inability to pay restitution would be a defense to his probation
violation. The court did not say anything about the claims incorporated by reference into the
amended petition.
       Diamond responded to the district court’s notice of intent to dismiss, addressing the
court’s argument regarding the claim raised in the amended petition. Diamond’s response also
stated that the amended petition “incorporated his original Petition and Affidavit,” but did not
challenge the court’s conclusion that his amended petition contained only one claim.
       The district court dismissed Diamond’s amended petition, finding Diamond’s response
regarding the claim raised in the amended petition to be “bare and conclusory.” The court did
not say anything about the claims incorporated by reference into the amended petition. Diamond
timely appeals.



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                                                 II.
                                           ANALYSIS
       Diamond asserts the district court erred in summarily dismissing his amended petition
without addressing the claims raised in his original petition and incorporated by reference into
his amended petition. 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 Rule 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 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 court is free to arrive at the

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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).
        If a district court determines claims alleged in a petition do not entitle a petitioner to
relief, the court must provide notice of its intent to dismiss and allow the petitioner twenty days
to respond with additional facts to support his or her claims. I.C. § 19-4906(b); Crabtree v.
State, 144 Idaho 489, 494, 163 P.3d 1201, 1206 (Ct. App. 2006). The court’s notice of intent to
dismiss should provide sufficiently particular information regarding the basis for its ruling so as



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to enable the petitioner to supplement the petition with the necessary additional facts, if they
exist. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004).
       Here, the amended petition expressly set forth only one claim: that Diamond’s trial
counsel was ineffective for failing to inform him that his inability to pay restitution would be a
defense to his probation violation. However, the amended petition incorporated by reference the
claims in the original petition. Although the district court’s notice of intent to dismiss addressed
the claim raised in Diamond’s amended petition, it did not address the claims raised in the
original petition and incorporated by reference into the amended petition. Thus, Diamond asserts
the notice of intent to dismiss failed to specify the basis for dismissal or address with
particularity the deficiencies in each of his claims. Accordingly, Diamond asserts the notice of
intent to dismiss was insufficient to allow him a meaningful opportunity to respond to the
intended dismissal.
       While it appears the intent of the district court’s order requiring Diamond to amend his
original petition was for Diamond to clearly and specifically set out all of his claims in his
amended petition, the court did not prohibit Diamond from incorporating his original petition
into his amended petition. Moreover, despite the State’s explicit objection to the incorporation,
the court did not address the incorporation in either the notice of intent to dismiss or order
summarily dismissing Diamond’s petition. See Crabtree, 144 Idaho at 495, 163 P.3d at 1207
(“[Although] a district court is free to adopt into a notice of intent to dismiss the arguments set
forth by the state’s answer to [a petition] for post-conviction relief[,] . . . the district court must
do so explicitly . . . .”). Thus, we are left without a holding from the court regarding the
incorporation. Further, the State has not cited any rule of civil procedure or case law that
prohibits incorporation of a petitioner’s original petition into his amended petition. Although
this Court strongly opposes the practice of incorporating by reference a petitioner’s entire
original petition into his amended petition for the very concerns this case presents, in the absence
of authority prohibiting such a practice, we are constrained to hold that Diamond properly
incorporated his original petition into his amended petition. Thus, the court’s notice of intent to
dismiss did not address each of the claims in Diamond’s amended petition. While the notice of
intent to dismiss addressed the claim raised in Diamond’s amended petition, it did not address
the claims raised in the original petition and incorporated by reference into the amended petition.
Thus, the court’s reasoning for its intended dismissal failed to identify with particularity why

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each of Diamond’s claims were unsupported or without merit. Accordingly, the court’s notice of
intent to dismiss was insufficient to allow Diamond a meaningful opportunity to respond to the
intended dismissal.
       The State argues that although the amended petition incorporated by reference the claims
in the original petition, the amended petition effectively eliminated those claims. The amended
petition stated that Diamond appealed his judgment of conviction and sentence. Thus, the State
asserts the amended petition contradicted Diamond’s claim that his trial counsel failed to file an
appeal, effectively eliminating that claim.     Further, because the amended petition sought
probation instead of release, the State asserts the amended petition effectively eliminated
Diamond’s claim that his continued incarceration violated the Eighth Amendment. The State
also argues Diamond essentially waived consideration of claims raised in his original petition by
failing to challenge the court’s conclusion that the amended petition contained only one claim.
       We do not find the State’s arguments persuasive. Diamond’s amended petition did state
that he appealed his judgment of conviction and sentence. However, Diamond’s amended
petition did not state that he appealed the sentencing court’s order revoking probation.
Diamond’s original and amended petitions addressed issues arising in the probation violation
proceedings. Thus, Diamond’s claim that his trial counsel was ineffective for failing to file an
appeal referred to an appeal from the order revoking probation.          Accordingly, Diamond’s
amended petition did not effectively eliminate the claim in the original petition that his trial
counsel failed to file an appeal. Further, Diamond’s original petition sought release in its
conclusion. Diamond incorporated his entire original petition into his amended petition. Thus,
the claims and request for relief in the original petition carried over to the amended petition.
Therefore, Diamond’s amended petition did not effectively eliminate the claim in the original
petition that his continued incarceration violated the Eighth Amendment.
       More important, the State’s arguments are irrelevant to Diamond’s claim on appeal that
the district court’s notice of intent to dismiss was insufficient to allow Diamond a meaningful
opportunity to respond to the intended dismissal. The statutory duty to specify the reasons for
the proposed dismissal under I.C. 19-4906(b) rests solely with the district court and it is the
district court alone who is responsible for drafting the notice of intent to dismiss. Crabtree, 144
Idaho at 494, 163 P.3d at 1206. Thus, Diamond’s amended petition and actions (or inaction) in



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the court below did not relieve the court of the necessity of specifying the reasons for the
proposed dismissal of each claim in the amended petition, including those incorporated therein.
       Accordingly, we hold the notice of intent to dismiss was insufficient to allow Diamond a
meaningful opportunity to respond to the intended dismissal and remand for consideration of the
claims Diamond raised in his original petition and incorporated by reference into the amended
petition. However, our decision does not preclude another summary dismissal on remand based
upon grounds adequately articulated in a notice of intent to dismiss or in a motion from the State
properly granted by the district court.
                                               III.
                                          CONCLUSION
       The district court did not address the claims in Diamond’s original petition that were
incorporated into the amended petition by reference. Thus, the court’s notice of intent to dismiss
was insufficient to allow Diamond a meaningful opportunity to respond. The court’s judgment
summarily dismissing Diamond’s petition for post-conviction relief is reversed and the case is
remanded for further proceedings consistent with this opinion.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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