                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39271

MICHAEL ALAN McCALL,                              )    2012 Unpublished Opinion No. 564
                                                  )
       Petitioner-Appellant,                      )    Filed: July 25, 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STATE OF IDAHO,                                   )    THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. John K. Butler, District Judge.

       Order dismissing petition for post-conviction relief, affirmed.

       Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Michael Alan McCall appeals from the order dismissing his petition for post-conviction
relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       In 2007, McCall drove to his landlord’s house located on the 600 block of a street. After
McCall departed that house, he was pulled over by an officer for allegedly failing to signal when
leaving the 500 block of that street from a parked position. I.C. § 49-808. The officer called for
assistance from a second officer. When the second officer arrived, he walked his drug dog
around McCall’s vehicle.     After the dog indicated that she detected an odor of controlled
substances, the second officer searched McCall’s vehicle.
       McCall was charged with two counts of possession of a controlled substance with intent
to deliver. A public defender was appointed to represent McCall; however, McCall later retained
private counsel. The information was amended to include a persistent violator enhancement.


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McCall’s retained counsel was permitted to withdraw and a public defender was reappointed. A
jury found McCall guilty of one count of possession of a controlled substance with intent to
deliver and not guilty of the other count. The jury also found McCall to be a persistent violator.
The district court sentenced McCall to a unified term of life imprisonment, with a minimum
period of confinement of ten years. McCall appealed. In an unpublished opinion, this Court
affirmed McCall’s judgment of conviction and sentence. State v. McCall, Docket No. 36538 (Ct.
App. Dec. 16, 2009).
       McCall filed a petition for post-conviction relief along with an affidavit, a supplemental
affidavit, and memorandum in support of his petition. McCall alleged that the officer violated
McCall’s Fourth Amendment rights by making the initial traffic stop and that his counsel was
ineffective for failing to file a motion to suppress evidence. McCall also asserted several other
claims. The district court entered a notice of intent to dismiss McCall’s petition except as to the
claim that McCall’s counsel was ineffective. McCall filed a response to the notice of intent to
dismiss together with an affidavit of his landlord. The district court entered an order partially
dismissing McCall’s petition and scheduled an evidentiary hearing on McCall’s claim regarding
ineffective assistance of counsel. After the hearing, the district court entered an order dismissing
McCall’s petition. McCall appeals.
                                                II.
                                   STANDARD OF REVIEW
       A petition for post-conviction relief initiates a proceeding that is civil in nature. 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. I.C. § 19-
4907; 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). 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


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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).
       When reviewing a decision denying post-conviction relief after an evidentiary hearing, an
appellate court will not disturb the lower court’s factual findings unless they are clearly
erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990).
The credibility of the witnesses, the weight to be given to their testimony, and the inferences to
be drawn from the evidence are all matters solely within the province of the district court.
Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We exercise free review
of the district court’s application of the relevant law to the facts. Nellsch v. State, 122 Idaho 426,
434, 835 P.2d 661, 669 (Ct. App. 1992).
       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. Aragon v. State, 114 Idaho
758, 760, 760 P.2d 1174, 1176 (1988).
                                                 III.
                                            ANALYSIS
       Central to McCall’s argument is his claim that he signaled and pulled away from the curb
in front of his landlord’s house in the 600 block and did not stop again until he was pulled over
by the police in the 500 block. He so testified at the evidentiary hearing. This testimony was
inconsistent with his affidavit filed in support of his petition in which he averred that he signaled
before he pulled away from the curb in the 500 block. McCall’s landlord testified that he
observed McCall signal and pull away from the curb in the 600 block, but that he did not see
whether McCall stopped in the 500 block before he was pulled over by the officers.        The officer
who stopped McCall testified that McCall pulled away from the curb in the 500 block without
signaling.




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       McCall argues that the district court erred by rejecting his claim of ineffective assistance
of counsel for failing to file a motion to suppress and, therefore, dismissing his petition for post-
conviction relief. In the district court’s memorandum in support of its order dismissing McCall’s
petition, the district court summarized the testimony presented at the evidentiary hearing on
McCall’s claim. The district court then addressed whether McCall’s counsel was ineffective for
failing to file a motion to suppress. The district court explained that, pursuant to Boman v. State,
129 Idaho 520, 526, 927 P.2d 910, 916 (Ct. App. 1996), in a post-conviction proceeding
challenging an attorney’s failure to pursue a motion in the underlying criminal action, the district
court may consider the probability of success of the motion in question in determining whether
the attorney’s inactivity constituted incompetent performance. The district court also explained
that, pursuant to Wolf, 152 Idaho at 67-68, 266 P.3d at 1172-73 where the alleged deficiency is
counsel’s failure to file a motion, a conclusion that the motion, if pursued, would not have been
granted by the trial court, is generally determinative of both prongs of the Strickland test.
Therefore, the district court concluded that, to prevail on his petition, McCall would have to
prove by a preponderance of the evidence that if the motion to suppress had been pursued, it
would have been granted.
       The district court then explained:
                The Fourth Amendment safeguards citizens against unreasonable searches
       and seizures. A traffic stop is considered a seizure, and triggers the Fourth
       Amendment’s constitutional protections requiring that such seizure be reasonable.
       “When the purpose of the detention is to investigate a possible traffic offense or
       other crime, it must be based upon reasonable, articulable suspicion of criminal
       activity.” State v. Gutierrez, 137 Idaho 647, 650, 51 P.3d 461 (Ct. App. 2002).
       “An investigative stop must be justified by a reasonable suspicion, derived from
       specific articulable facts, that the detained person has committed or is about to
       commit a crime.” State v. Brumfield, 136 Idaho 913, 915, 42 P.3d 706 (Ct. App.
       2002); Florida v. Royer, 460 U.S. 491, 498 (1983). “Reasonable suspicion
       requires less than probable cause but more than speculation or instinct on the part
       of the officer.” State v. McCarthy, 133 Idaho 119, 124, 982 P.2d 954 (Ct. App.
       1999). An officer is allowed to draw reasonable inferences from the known facts
       and based on the officer’s experience and training. State v. Roe, 140 Idaho 176,
       180, 90 P.3d 926 (Ct. App. 2004). The Court must determine from the totality of
       the circumstances whether reasonable suspicion existed at the time of the stop.
       McCarthy, 133 Idaho at 124. An “officer’s factual mistake regarding the
       circumstances that he believes justify a warrantless search or seizure does not ipso
       facto render the search or seizure unlawful.” Id. [McCall] argues that his counsel
       should have filed a motion to suppress on the basis that he did not commit the
       traffic infraction testified to by [the officer] . . . .

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               I.C. § 49-808 requires a driver to signal when moving right or left or
       leaving a parked position. “[A] traffic stop will not violate the Fourth
       Amendment if the officer reasonably suspects a violation of traffic laws even if
       later investigation dispels the suspicion.” State v. Horton, 150 Idaho 300, 246
       P.3d 673, 675-76 (Ct. App. 2010). Therefore, even if the officer was mistaken,
       his belief that McCall violated a traffic law provided reasonable suspicion for the
       stop.
               ....
                [McCall] alleges that trial counsel was ineffective in that counsel should
       have filed a motion to suppress on the basis that [McCall] did not commit the
       traffic violation that was the basis of the stop. Not only has [McCall] not
       provided any evidence that a motion to suppress would have been granted, he has
       also not presented any evidence that there were any suppressible issues. The crux
       of [McCall’s] argument is that when he pulled away from the residence of [his
       landlord] in the 600 block that he used his turn signal and the landlord also
       testified that [McCall] used his turn signal. After [McCall] left the landlord did
       not observe [McCall] further since he returned to his home. [McCall’s landlord]
       does not know if [McCall] made any other stops. [McCall] testified that he made
       no other stops, however, [McCall] testified in his affidavit that at the time of the
       traffic stop he was pulling away from the curb in the 500 block which is
       consistent with what [the officer] observed.

Indeed, in McCall’s affidavit filed in support of his petition, McCall asserted that, at the time of
the alleged traffic violation, he was pulling away from the curb in the 500 block. At McCall’s
evidentiary hearing, the officer testified that he initiated a traffic stop of McCall’s vehicle
because he observed McCall pull away from the curb of the 500 block without signaling. The
district court additionally explained that McCall’s counsel considered the viability of a
suppression motion and determined that such motion would not be viable.
       In concluding that McCall’s claim of ineffective assistance of counsel for failure to file a
motion to suppress failed, the district court determined that McCall had not provided any
evidence that the officer or attorneys testified falsely and had not provided evidence of any
suppressible issues. The district court also determined that McCall had not demonstrated that his
Fourth Amendment rights were violated by the traffic stop because the officer’s testimony that
he believed McCall violated a traffic law provided reasonable suspicion for the stop. Thus, the
district court concluded that McCall had not met his burden to show by a preponderance of the
evidence that a motion to suppress would have been granted and, therefore, had not demonstrated
that his counsel was ineffective for failing to file such motion. Thereafter, the district court
entered an order dismissing McCall’s petition.


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       On appeal, McCall argues that, contrary to the district court’s determination, by his own
testimony and that of his landlord at the evidentiary hearing, McCall provided evidence that
there was a suppressible issue related to the traffic stop by the officer. McCall further argues that
the district court failed to determine if the traffic violation for which the officer pulled him over
actually occurred and, if it did not, whether the officer’s mistaken belief that the violation
actually occurred was objectively reasonable as required by State v. Horton, 150 Idaho 300, 302-
03, 246 P.3d 673, 675-76 (Ct. App. 2010) and State v. Kimball, 141 Idaho 489, 492-93, 111 P.3d
625, 628-29 (Ct. App. 2005). He asserts that the district court made a mistake of law and failed
to determine whether there was valid reasonable suspicion for the traffic stop. Thus, McCall
asserts, his case must be remanded to the district court for factual determinations with reference
to the correct law. The state asserts that McCall has failed to show error by the district court
because the record establishes that the district court found that McCall’s evidence of signaling
while pulling into traffic on the 600 block was irrelevant to a suppression motion challenging the
officer’s decision to stop McCall for a traffic violation on the 500 block.
       The district court did not explicitly make a finding of fact that McCall’s evidence of
signaling while pulling into traffic on the 600 block was irrelevant to the suppression motion.
However, the failure to make explicit findings of fact is not fatal. State v. Birkla, 126 Idaho 498,
501, 887 P.2d 43, 46 (Ct. App. 1994). Instead, we examine the record to determine the implicit
findings which underlie the district court’s order. Id. This Court gives due deference to any
implicit findings of the district court supported by substantial evidence. State v. Brauch, 133
Idaho 215, 218, 984 P.2d 703, 706 (1999).
       As described above in the district court’s memorandum decision, the district court
concluded that McCall had not provided any evidence that a motion to suppress would have been
granted and had not presented any evidence that there were any suppressible issues. Specifically,
the district court determined that McCall’s argument hinged on evidence he presented, by way of
his testimony and that of his landlord at the evidentiary hearing, that he used his turn signal when
pulling away from his landlord’s house on the 600 block. The district court explained that the
landlord testified he did not observe McCall after he left the 600 block and did not know if
McCall made other stops. The district court also explained that, while McCall testified that he
made no other stops after leaving the 600 block, McCall averred in his affidavit filed in support
of his petition that he was pulling away from the 500 block at the time of the traffic stop. The


                                                 6
district court determined that McCall’s assertion in his affidavit was consistent with the
testimony of the officer at the evidentiary hearing and found that McCall had not presented any
evidence to show the officer testified falsely.
       We conclude that the district court implicitly found that the officer’s testimony was
credible and, therefore, McCall was pulled over by the officer for failing to use his signal when
pulling away from the 500 block, not the 600 block. This implicit finding is supported by
substantial evidence. Accordingly, McCall’s evidence of signaling while pulling into traffic on
the 600 block was irrelevant to a suppression motion challenging the officer’s decision to stop
McCall for a traffic violation on the 500 block. We also conclude that, by determining McCall
provided no evidence that the officer testified falsely, the district court implicitly found that the
officer’s testimony that McCall failed to use his signal when pulling away from the 500 block
was credible and, therefore, McCall failed to use his turn signal.         This implicit finding is
supported by substantial evidence. Thus, contrary to McCall’s assertion on appeal, the district
court did not fail to determine whether the traffic violation for which the officer pulled McCall
over actually occurred. Further, because the district court implicitly found that McCall failed to
use his turn signal, the officer did not make a mistake of fact by believing that McCall failed to
use his signal. Consequently, this is not a case like Horton or Kimball such that the district court
was required to determine whether the officer’s mistake of fact that a traffic violation actually
occurred was objectively reasonable. See Horton, 150 Idaho at 302-03, 246 P.3d at 675-76;
Kimball, 141 Idaho at 492-93, 111 P.3d at 628-29. 1 Finally, because McCall was pulled over for
failing to use his turn signal, such failure provided reasonable suspicion for the traffic stop.
Therefore, as the district court found, McCall failed to provide evidence showing that there were
any suppressible issues and failed to meet his burden to prove by a preponderance of the
evidence that a motion to suppress would have been granted. Accordingly, the district court did


1
        We note that, to the extent the district court’s memorandum indicates that even if the
officer made a mistake of fact his subjective belief that McCall violated a traffic law provided
reasonable suspicion for the traffic stop, such indication is contrary to this Court’s
determinations in Horton and Kimball. Specifically, subjective good faith on the part of the
officer is not enough to satisfy the reasonableness requirement of the Fourth Amendment and the
mistake must be one that would be made by a reasonable person acting on the facts known to the
officer. See Horton, 150 Idaho at 302-03, 246 P.3d at 675-76; Kimball, 141 Idaho at 492-93, 111
P.3d at 628-29.


                                                  7
not err by rejecting McCall’s claim that counsel was ineffective for failing to file a motion to
suppress.
                                              IV.
                                       CONCLUSION
       Because McCall failed to provide evidence showing that there were any suppressible
issues, McCall failed to meet his burden to prove by a preponderance of the evidence that a
motion to suppress would have been granted. Accordingly, the district court did not err by
rejecting McCall’s claim that counsel was ineffective for failing to file a motion to suppress.
Thus, the district court’s order dismissing McCall’s petition for post-conviction relief is
affirmed. No costs or attorney fees are awarded on appeal.
       Chief Judge GRATTON and Judge LANSING, CONCUR.




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