               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38591

ALBERT R. MOORE,                                   )    2012 Unpublished Opinion No. 637
                                                   )
       Petitioner-Appellant,                       )    Filed: September 17, 2012
                                                   )
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STATE OF IDAHO,                                    )    THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
       County. Hon. Ronald J. Wilper, District Judge.

       Judgment dismissing petition for post-conviction relief, affirmed.

       Albert R. Moore, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Albert R. Moore appeals from the district court’s judgment dismissing his petition for
post-conviction relief. Moore asserts the district court erred because he raised a genuine issue of
material fact primarily in regards to various claims of prosecutorial misconduct and ineffective
assistance of counsel. Moore also asserts claims relating to violations of his speedy trial rights,
vindictive prosecution, double jeopardy, improper jury instructions, false arrest, and other
constitutional violations including application of impermissible ex post facto laws. For the
reasons set forth below, we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       In September 2006, the State charged Moore, after his arrest, with misdemeanor driving
under the influence (DUI). The State later filed an amended complaint enhancing the charge to a
felony (the first case) because Moore had two previous convictions for DUI within the previous
ten years, occurring in North Dakota in 1999 and in Idaho earlier in 2006. In April 2007, while


                                                1
the first case was pending, police again arrested Moore for DUI, and the State charged Moore
with a second felony DUI (the second case). Moore exercised his right to a jury trial in the
second case. The trial proceeded in two phases: the first phase related to whether Moore was
driving under the influence prior to the time of his arrest; the second phase related to whether
there was sufficient evidence of two prior DUI convictions within ten years supporting the felony
enhancement. In the first phase of trial, the jury found Moore guilty of DUI. As to the second
phase of the trial, Moore argued in a motion in limine prior to trial that the North Dakota
conviction could not be used to enhance the Idaho DUI charge to a felony because the North
Dakota statute did not substantially conform to Idaho’s DUI statute and the North Dakota
conviction was constitutionally defective. Moore also objected to the admission of documents
pertaining to the North Dakota conviction. The district court denied Moore’s motion in limine
and overruled his objection to the evidence. The jury thereafter found Moore guilty of the felony
enhancement based on the two prior DUI convictions, and in July 2008, the district court entered
a judgment of conviction. The first case had been delayed for various reasons. It was not until
December 2008, after conviction in the second case, that Moore entered a conditional guilty plea
to the first charge of felony DUI, reserving the right to appeal the denial of his motion to dismiss
on speedy trial grounds and the issue of whether the North Dakota conviction could be used to
enhance the DUI charge to a felony. After conviction in each case, the district court imposed
concurrent, unified sentences of six years, with one year determinate. Moore appealed both
cases, which the court consolidated for purposes of appeal.
       On appeal, this Court concluded the district court was correct in finding the North Dakota
statute substantially conformed to Idaho’s DUI statute and that the out-of-state conviction was
not constitutionally defective. However, we determined the district court erroneously allowed
the admission of evidence regarding the prior, out-of-state conviction in the trial of the second
case because the documents were not properly authenticated. We vacated that judgment of
conviction. We rejected Moore’s claims of error in the first case relating to violation of his
speedy trial rights, but we remanded the case for determination as to whether Moore was entitled
to withdraw his conditional guilty plea because of the vacation of the judgment of conviction in
the second case. See generally State v. Moore, 148 Idaho 887, 231 P.3d 532 (Ct. App. 2010).
       On remand, the district court found Moore’s reservations in his guilty plea in the first
case did not include evidentiary errors with respect to improperly authenticated documents


                                                 2
showing the North Dakota conviction and effectively denied Moore’s motion to withdraw his
guilty plea. 1 The district court entered an amended judgment of conviction and later entered a
second amended judgment of conviction to correct the sentence. Moore appealed from his
second amended judgment of conviction and this Court affirmed. State v. Moore, 152 Idaho 203,
206, 268 P.3d 471, 474 (Ct. App. 2011).
        Moore thereafter filed a petition for post-conviction relief, asserting at least five claims in
relation to the second case, in which he went to trial. In his first and second claims, Moore
asserted prosecutorial misconduct in that the State secured his conviction through perjury and
both the State and the court withheld evidence by not allowing police reports to be submitted to
the jury during deliberations. In his third, fourth, and fifth claims, Moore asserted his counsel
provided ineffective assistance by failing to obtain a mistrial, failing to obtain an out-of-state
court transcript showing his prior conviction was not for DUI, and failing to obtain affidavits
proving certain police were not present when Moore was arrested. In relation to the first case, in
which Moore pled guilty, Moore claimed the prosecution was vindictive for pursuing the case
after the statutory time for a speedy trial had run. Throughout his many filings to the court,
however, Moore also argued violations of his speedy trial rights, double jeopardy, improper jury
instructions, false arrest, and other constitutional violations.
        The district court granted Moore’s motion for appointment of counsel. The State then
moved for summary dismissal. It argued in support that Moore’s petition asserted claims that
should have been or were in fact addressed in the criminal case or on appeal, and were, therefore,
either waived or barred. The State further asserted that even if not barred, Moore failed to raise
any genuine issue of material fact as to any claim. After a hearing, the court granted the State’s
motion and summarily dismissed the petition. Moore timely appeals.
                                                  II.
                                    STANDARD OF REVIEW
        A petition 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

1
        The disposition of the second case upon remand is unclear from the record. The State
asserts the charge was reduced to a misdemeanor; the transcript from the post-conviction hearing
on the State’s motion to dismiss indicates there was a misdemeanor conviction on the second
offense, but also indicates there may have been a new trial on a felony charge.

                                                   3
plaintiffs in other civil actions, the petitioner must prove by a preponderance of evidence the
allegations upon which the request for post-conviction relief is based. Idaho Code § 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). A petition for post-conviction relief differs from a
complaint in an ordinary civil action, however, in that it must contain 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). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138
Idaho at 271, 61 P.3d at 628. The petition 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. I.C. § 19-4903. In other words, the petition must present or be accompanied by
admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State,
152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873
P.2d 898, 901 (Ct. App. 1994).
       Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction
relief, either pursuant to motion of a party or upon the court’s own initiative, if “it appears from
the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts,
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.” I.C. § 19-4906(c). 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. Payne, 146 Idaho at
561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district
court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district
court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the
most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at
483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; 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. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036,
1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at 714; Farnsworth v. Dairymen’s Creamery
Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).


                                                  4
       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); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146
Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d
870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State,
143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924
P.2d 622, 630 (Ct. App. 1996). 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 Payne, 146 Idaho at 561, 199 P.3d at 136; 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);
Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283,
1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman,
125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary
hearing must be conducted to resolve the factual issues. Kelly, 149 Idaho at 521, 236 P.3d at
1281; Payne, 146 Idaho at 561, 199 P.3d at 136; 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); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at
923; Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of law, we exercise free review.
Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 136 Idaho
367, 370, 33 P.3d 841, 844 (Ct. App. 2001); Martinez v. State, 130 Idaho 530, 532, 944 P.2d
127, 129 (Ct. App. 1997).




                                                5
       Claims in a post-conviction petition are also subject to dismissal if they are either barred
under principles of res judicata or have been forfeited. Res judicata applies to claims in a
post-conviction petition that have been previously addressed on direct appeal. State v. LePage,
138 Idaho 803, 811, 69 P.3d 1064, 1072 (Ct. App. 2003). Idaho Code § 19-4901(b) provides,
“Any issue which could have been raised on direct appeal, but was not, is forfeited and may not
be considered in post-conviction proceedings . . . .” Such an issue may only be considered if the
court determines that the asserted basis for relief raises a substantial doubt as to the reliability of
the defendant’s guilt, and could not, in the exercise of due diligence have been brought earlier.
I.C. § 19-4901(b).
                                                 III.
                                           DISCUSSION
       As stated above, Moore asserts numerous claims in his petition for post-conviction relief,
including prosecutorial misconduct, ineffective assistance of counsel, violations of his right to a
speedy trial, vindictive prosecution, double jeopardy, improper jury instructions, false arrest, and
other various grounds. The State responds that Moore has shown no error in the summary
dismissal of his petition because all of his claims were forfeited or resolved in the criminal case
or on appeal, are without factual basis, or both. We address each claim in turn.
A.     Prosecutorial Misconduct
       Moore asserts the prosecution committed misconduct by introducing perjured testimony
and withholding evidence.       Without objection at trial, a conviction will be reversed for
prosecutorial misconduct only if the conduct is sufficiently egregious so as to result in
fundamental error. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). Even when
prosecutorial misconduct has resulted in fundamental error, the conviction will not be reversed
when that error is harmless. State v. Perry, 150 Idaho 209, 228, 245 P.3d 961, 980 (2010). The
State may not knowingly use false evidence to obtain a conviction, including false testimony that
the prosecution allows to go uncorrected. Sivak v. State, 134 Idaho 641, 649, 8 P.3d 636, 644
(2000) (citing Napue v. Illinois, 360 U.S. 264, 269 (1959)). Such nondisclosure of material
evidence affecting a witness’s credibility, when the reliability of the witness may determine the
guilt or innocence of the defendant, justifies a new trial irrespective of the good or bad faith of
the prosecution. Id. (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)). A stricter
materiality standard is used in cases involving the prosecution’s knowing use of false testimony


                                                  6
than in cases where the prosecution has failed to disclose exculpatory evidence. Id. Because a
conviction obtained by the knowing use of perjured testimony is fundamentally unfair, the
conviction will be set aside if there is any reasonable likelihood that the false testimony could
have affected the judgment of the jury. Id. (citing United States v. Bagley, 473 U.S. 667, 678
(1985)). Similar to the harmless error analysis of claims of prosecutorial misconduct without
objection, perjured testimony will not be considered material if its use was harmless beyond a
reasonable doubt. Id.
       There are numerous defects in Moore’s claim of prosecutorial misconduct by use of false
testimony. The testimony Moore refers to is that testimony from witnesses indicating that
Meridian police were on site when Moore was arrested. Moore asserts the Meridian police were
not present and the State had an obligation to correct the false testimony. Though Moore
included his own affidavit stating the Meridian police were not present, despite the conflict with
testimony of the witnesses, there is nothing more than Moore’s bald assertion to support that the
witnesses testified falsely. Moore also presented evidence from the Meridian Police Department
indicating that the agency has no record of responding to an incident at the location of Moore’s
arrest on the date that he was arrested. However, that evidence also shows that such record may
not be available, even when police did respond to a dispatch, if the police from that agency took
no action. By Moore’s own assertions, Meridian police did not have jurisdiction in the area
where Moore was arrested and he infers it was not the Meridian police who made the arrest.
Although Moore concludes the lack of police records necessarily shows the Meridian police
were not present, we need not accept Moore’s conclusion based on his inferences from the record
when it is equally likely that the police were present but took no action--resulting in the lack of
police records. Even if we were to conclude the evidence supported a finding that the testimony
was in fact false, Moore makes no claim as to the materiality of this evidence. From our review
of the record, we find nothing that would make the presence or absence of Meridian police at the
scene of Moore’s arrest material to Moore’s guilt or innocence on the charge of felony DUI.
Therefore, Moore fails to raise a genuine issue of material fact.
       Next, Moore claims prosecutorial misconduct due to the withholding of evidence by the
prosecution and the court. This claim by Moore is based on the fact that documents, particularly
police reports, used by a witness to refresh his recollection, were not provided to the jury when




                                                 7
requested during deliberations. Moore asserts this is both a Brady 2 violation, and an arbitrary
denial of the right to present evidence to the jury that is material and trustworthy. He also argues
this violated Idaho Rule of Evidence 612(a)-(c) and, overall, resulted in manifest injustice
requiring complete reversal of all charges.
       Moore misunderstands the nature of a Brady violation. A Brady violation occurs where
there was evidence favorable to the defendant, either because it is exculpatory or impeaching, the
State purposefully or inadvertently suppressed the evidence, and prejudice ensued. Roeder v.
State, 144 Idaho 415, 418, 162 P.3d 794, 797 (Ct. App. 2007). Here, the State did not fail to
disclose or suppress the evidence contained within the police report. Rather, that evidence was
brought forward through testimony of the State’s witness. Therefore, there is no basis to assert a
Brady violation. This is also not an arbitrary denial of a defendant’s right to produce evidence
that is material and trustworthy, as again, the evidence was actually presented to the jury through
testimony. Furthermore, by the wording of Idaho Rule of Evidence 612, an adverse party is
entitled to have the writing or object used to refresh a witness’s memory produced “at the trial,
hearing, or deposition in which the witness is testifying.” I.R.E. 612(a) and (b). This rule
provides no requirement that the writing or object be produced after testimony or during jury
deliberations, and accordingly, we find no violation of the rule.
       Though Moore does not assert that the defense requested the police report or portions
thereof to be introduced as evidence or that the police report itself was actually admitted, we will
assume as much for the sake of argument. Nevertheless, it is Moore’s burden to show that the
failure of the district court (or prosecution) to provide the jury evidence, here copies of the police
report, during deliberations was prejudicial error. State v. Whiteley, 124 Idaho 261, 269, 858
P.2d 800, 808 (Ct. App. 1993). Without showing prejudice, any error will be deemed harmless.
Id. In Whiteley, this Court determined that, unlike a case where evidence was not admitted at all
during trial, where there was an absence of a tape player to allow the jury to again listen to
evidence it had already heard, we determined the district court did not abuse its discretion and
the alleged error was harmless. Id. at 270, 858 P.2d 809. Without additional facts from Moore
as to how the failure to produce the police report to the jury actually prejudiced him, we
conclude that Moore raises no genuine issue of material facts as to whether the district court
abused its discretion in denying the jury copies of that report, where the facts contained within

2
       See Brady v. Maryland, 373 U.S. 83 (1963).

                                                  8
the report had been testified to, and whether the alleged error by the district court was otherwise
prejudicial.
B.     Ineffective Assistance of Counsel
       Moore asserts his trial counsel provided ineffective assistance by failing to obtain a
mistrial; by failing to obtain an out-of-state court transcript showing his prior conviction was not
for DUI, but rather for a lesser included offense; and by failing to obtain affidavits proving
certain police were not present when Moore was arrested.
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). 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); Barcella, 148 Idaho at 477,
224 P.3d at 544. To establish a deficiency, the petitioner has the burden of showing that the
attorney’s representation fell below an objective standard of reasonableness. Gonzales v. State,
151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011). To establish prejudice, the petitioner must
show a reasonable probability that, but for the attorney’s deficient performance, the outcome of
the proceeding would have been different. Id. 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. Id. To survive a motion for summary disposition,
a post-conviction petitioner must establish a genuine issue of fact as to both deficiency and
prejudice. Pratt v. State, 134 Idaho 581, 583, 6 P.3d 831, 833 (2000).
       As to the issue of a mistrial, Moore makes no assertions as to what trial errors were so
egregious as to warrant a mistrial or on what basis counsel was deficient by failing to move for a
mistrial. Consequently, Moore raises no issue of material fact as to that ground for relief.
Moore’s claim that counsel 3 was ineffective by failing to obtain a transcript from the North
Dakota court is largely an extension of Moore’s assertion that his North Dakota conviction was
not substantially conforming to Idaho’s DUI statute. He also continues to argue the Idaho felony
conviction, based on the unconstitutional North Dakota conviction, cannot stand, and he


3
       It is unclear whether Moore attributes this failure to trial counsel or appellate counsel.

                                                 9
recommends a review of the entire out-of-state transcript to “back [his] accusations up” that the
sentence in this case was based on a prior unconstitutional conviction. The substance of this
argument rests on Moore’s contention that he was convicted in North Dakota of “actual physical
control” of a vehicle. Moore contends that “actual physical control” of a vehicle (presumably
while under the influence) is a lesser included offense of DUI, and that because he was convicted
of “actual physical control,” not a DUI, in North Dakota, the North Dakota conviction could not
be used to enhance the Idaho DUI charge to a felony. He asserts that had the prosecution or trial
counsel properly investigated the North Dakota conviction, his Idaho DUI charge would not have
been enhanced to a felony. While Moore now frames these arguments as a claim of ineffective
assistance of counsel, both the constitutional and the substantially conforming arguments were
addressed at the trial court level and again on direct appeal of Moore’s criminal case. In Moore’s
first criminal appeal, this Court specifically found that his North Dakota conviction was not
constitutionally defective and that the North Dakota statute was substantially conforming to
Idaho’s DUI statute. We also made clear in that opinion that we would not base a conclusion
that a foreign statute is substantially conforming on the interpretation of the courts of that state,
but rather on the plain language of the statute. Moore, 148 Idaho at 898, 231 P.3d at 543.
Accordingly, any argument Moore makes now that the North Dakota conviction was for a lesser
included offense, rather than DUI, based on North Dakota courts’ interpretation of its own DUI
statutes, is of no consequence in this action. Additionally, based on the resolution of these issues
on direct appeal, Moore raises no genuine issue of material fact because he cannot show any
deficiency by counsel in failing to obtain the North Dakota court transcript or any prejudice
resulting therefrom. Finally, Moore’s claim of ineffective assistance due to counsel’s failure to
obtain affidavits, proving certain police were not present when Moore was arrested, also lacks
any genuine issue of fact because, as noted above, Moore cannot show how this evidence was
material, nor has he alleged any prejudice resulting from the allegedly false testimony.
C.     Other Alleged Grounds for Post-Conviction Relief
       Moore asserts violations of his right to a speedy trial, vindictive prosecution, double
jeopardy, improper jury instructions, false arrest, and other constitutional violations including
application of improper ex post fact laws. We find each of these claims to be without merit. The
issue of Moore’s right to a speedy trial is barred because it was resolved in prior criminal
proceedings and this Court found no violation. See Moore, 148 Idaho 887, 213 P.3d 532. This


                                                 10
claim also largely forms the basis for Moore’s claim of vindictive prosecution; however, as there
was no violation of his right to a speedy trial, such an assertion is unsupported by anything in the
record. The other basis for Moore’s assertion of vindictive prosecution, which is blurred with his
claim of being put in double jeopardy, is an alleged violation of Idaho Criminal Rule 48. Idaho
Criminal Rule 48 bars prosecution for the same offense after dismissal if it is a misdemeanor, but
not if it is a felony. However, the only evidence Moore provides shows an amended complaint
enhancing the misdemeanor DUI charge to a felony and a court register of actions indicating a
subsequent dismissal of what appears to be that felony DUI charge.            There are no court
documents showing dismissal of a misdemeanor and subsequent cases brought upon the same
conduct. We cannot, therefore, conclude from the record there was any violation of Rule 48, that
Moore was twice put in jeopardy for the same conduct, or that the prosecution was vindictive in
pursuing charges.
       Finally, Moore’s claims of false arrest, improper jury instruction, and ex post facto issues
are without either legal or factual basis in the record. For example, Moore provides no context
as to his asserted “false arrest” except to maintain that he “did not drive” and he makes
conflicting statements, sometimes asserting there was no second arrest and in other places in the
record asserting that arrest was improper. Moore’s jury instructions argument--that the jury was
not properly instructed on the elements of the crime or on the previous DUI convictions--stems
from Moore’s belief that “actual, physical control” is a lesser included offense of DUI in North
Dakota. He provides no Idaho legal authority to support this proposition, and again, we reiterate
that we will not look to North Dakota courts’ interpretations of its DUI statute to determine
whether a prior conviction is substantially conforming to Idaho’s DUI statute. In his ex post
facto challenge, Moore makes no attempt to explain how application of the DUI statute violated
the prohibition against ex post facto laws. It may be inferred that Moore’s assertion is based on
the amendment to the DUI statute changing the felony enhancement from two prior DUIs within
five years, to two prior DUIs within ten years. This Court has already clearly determined that
application of the amendment does not violate the constitutional provision against ex post facto
laws. State v. Lamb, 147 Idaho 133, 135-36, 206 P.3d 497, 499-500 (Ct. App. 2009). Moore
fails to raise a genuine issue of fact on any of these claims.




                                                  11
                                                III.
                                         CONCLUSION
          We conclude Moore failed to raise any issue of genuine fact in his post-conviction
petition, and accordingly, the district court did not err in granting the State’s motion for summary
dismissal. Therefore, we affirm the judgment dismissing Moore’s petition for post-conviction
relief.
          Chief Judge GRATTON and Judge LANSING CONCUR.




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