               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 46415

NICOLAS CAMARGO, JR.,                           )
                                                )     Filed: August 8, 2019
       Petitioner-Appellant,                    )
                                                )     Karel A. Lehrman, Clerk
v.                                              )
                                                )     THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                 )     OPINION AND SHALL NOT
                                                )     BE CITED AS AUTHORITY
       Respondent.                              )
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. George A. Southworth, District Judge.

       Judgment of the district court summarily dismissing petition for post-conviction
       relief, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Jenny C. Swinford,
       Deputy Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Nicolas Camargo, Jr. appeals from the district court’s judgment dismissing his petition
for post-conviction relief. Camargo argues that the district court erred in summarily dismissing
his petition because he presented genuine issues of material fact as to one of his ineffective
assistance of trial counsel claims. For the reasons set forth below, we affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In July 2016, pursuant to a plea agreement, Camargo pled guilty to felony operating a
vehicle without the owner’s consent, Idaho Code § 49-227. The district court imposed a unified
term of three and one-half years with one and one-half years determinate. Thereafter, Camargo
filed an Idaho Criminal Rule 35 motion asking the court to retain jurisdiction. The district court



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denied the motion. Camargo filed a direct appeal challenging the denial of his Rule 35 motion
and his sentence. However, pursuant to a motion by Camargo, his appeal was dismissed.
       In November 2016, Camargo filed a verified pro se petition for post-conviction relief and
an affidavit in support of his petition. The State responded with an answer. Camargo was
appointed post-conviction counsel.     Thereafter, the district court filed a notice of intent to
dismiss the case for inactivity and the parties stipulated to a continuance of the dismissal.
Through post-conviction counsel, Camargo filed a first amended verified petition for
post-conviction relief. As relevant to his claim on appeal, Camargo alleged that his trial counsel
was ineffective for failing to file a motion to suppress statements that Camargo made after
waiving his Miranda 1 rights. In response, the State filed a motion for summary dismissal and an
answer to Camargo’s amended petition. Thereafter, the district court filed a second notice of
intent to dismiss Camargo’s claim. Following a hearing on the district court’s second notice of
intent to dismiss, the district court entered an order dismissing Camargo’s petition for the reasons
set forth in the notice and a final judgment dismissing the case with prejudice. Camargo timely
appeals.
                                                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); 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

1
       Miranda v. Arizona, 384 U.S. 436 (1966).
                                                 2
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 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 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



                                                  3
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
       Camargo asserts the district court erred by summarily dismissing his petition for
post-conviction relief because he raised genuine issues of material fact on whether he received
ineffective assistance of counsel. The State asserts the district court did not err in dismissing
Camargo’s petition for post-conviction relief. We agree with the State.
       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 petitioner must show
that the attorney’s performance was deficient and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578,
580, 181 P.3d 504, 506 (Ct. App. 2007). 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); Knutsen v. State, 144 Idaho
433, 442, 163 P.3d 222, 231 (Ct. App. 2007).
       In his post-conviction petition, Camargo alleged that his trial counsel was ineffective for
failing to file a motion to suppress his post-Miranda statements. The Idaho Supreme Court has
recently outlined a two-part inquiry for determining whether the failure to file a motion to
suppress satisfies Strickland’s deficiency prong.     First, the threshold issue is “whether the
motion, if filed, should have been granted.” Wurdemann v. State, 161 Idaho 713, 717, 390 P.3d
439, 443 (2017) (quoting State v. Dunlap, 155 Idaho 345, 385, 313 P.3d 1, 41 (2013)). A motion
that would not have been granted by the trial court ends the inquiry, as counsel’s conduct cannot
have fallen below a reasonable standard for failing to object to admissible evidence.

                                                4
Payne, 146 Idaho 548, 562, 199 P.3d 123, 137 (2008). Second, if the motion would have been
granted, “the petitioner is still required to overcome the presumption that the decision not to file
the motion ‘was within the wide range of permissible discretion and trial strategy.’”
Wurdemann, 161 Idaho at 71, 390 P.3d at 443 (quoting Estrada v. State, 143 Idaho 558, 561, 149
P.3d 833, 836 (2006)).
       Camargo contended below, as he does on appeal, that he did not provide a knowing,
voluntary, and intelligent Miranda waiver because he was intoxicated from daily
methamphetamine and heroin use. Camargo repeated this assertion in the affidavit that he filed
in support of his petition. Based on his petition and affidavit, he claims that his counsel’s failure
to move to suppress confessions made after he waived Miranda fell below an objective standard
of reasonableness, and if counsel had moved to suppress the statements, the outcome would have
been different. The district court found that Camargo’s allegation was belied by the record.
       We conclude that the district court did not err in summarily dismissing Camargo’s
post-conviction petition because (1) his allegation is bare and conclusory, and (2) he failed to
present evidence making a prima facie showing as to each essential element of the claim.
       First, Camargo’s allegation is bare and conclusory.           Although Camargo made the
assertion that he was too intoxicated to provide a knowing and voluntary Miranda waiver in his
verified petition and then alleged the same in an affidavit, he has failed to support this assertion
with admissible evidence. Idaho Code § 19-4903 specifies:
       Facts within the personal knowledge of the applicant shall be set forth separately
       from other allegations of facts and shall be verified as provided in section
       19-4902. Affidavits, records, or other evidence supporting its allegations shall be
       attached to the application or the application shall recite why they are not
       attached.
Thus, petitions for post-conviction relief require more than a verified petition alleging facts
within the personal knowledge of the petitioner and an affidavit from the petitioner alleging
those same facts.     I.C. § 19-4903.      Evidence supporting, not reiterating, the petitioner’s
allegations must be attached. Id. Camargo has failed to meet the required standard. While his
affidavit is evidence of intoxication, it does not, by itself, present a genuine issue of material fact
that his statements were unknowing or involuntary.           He has not supported the conclusory
allegation in his verified petition with specific facts demonstrating that his trial counsel’s
performance was deficient or that he was prejudiced by counsel’s decisions. Because bare
assertions and speculation, unsupported by specific facts, do not suffice to show ineffectiveness
                                                  5
of counsel and do not entitle a post-conviction applicant to an evidentiary hearing, the district
court did not err in dismissing Camargo’s petition. State v. Rendon, 107 Idaho 425, 427, 690
P.2d 360, 362 (Ct. App. 1984).
       Second, Camargo failed to present evidence making a prima facie showing as to each
essential element of the claim. Kelly, 149 Idaho at 521, 236 P.3d at 1281. A party claiming
ineffective assistance of counsel for failure to file a motion must present facts sufficient to
overcome the presumption that the decision not to file the motion “was within the wide range of
permissible discretion and trial strategy.” Wurdemann, 161 Idaho at 718, 390 P.3d at 444.
However, Camargo does not mention the presumption below or allege any facts supporting an
argument to overcome the presumption that his trial counsel’s decision not to file the motion was
within the wide range of permissible discretion and trial strategy. Therefore, this argument is not
preserved for appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992). 2 Thus,
Camargo failed to make a prima facie case as to each essential element of the ineffective
assistance of counsel claim.       See Black, 165 Idaho at 100, 439 P.3d at 1279; see also
Wurdemann, 161 Idaho at 718, 390 P.3d at 444.
                                                   IV.
                                          CONCLUSION
       The district court did not err in summarily dismissing Camargo’s petition for post-
conviction relief. Therefore, the judgment of the district court summarily dismissing Camargo’s
petition for post-conviction relief is affirmed.
       Judge HUSKEY and Judge LORELLO CONCUR.




2
       Moreover, the district court noted that given the existing case law and the lack of any
evidence beyond intoxication, it could only conclude that any decision not to file the motion
must be tactical.
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