                 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45752

GREGORY RAYMOND HIGGINS, JR.,                     )
                                                  )    Filed: May 17, 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                                                  )    THIS IS AN UNPUBLISHED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. Davis F. VanderVelde, District Judge.

       Order dismissing petition for post-conviction relief, affirmed.

       Nevin, Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin, Boise, for
       appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

BRAILSFORD, Judge
       Gregory Raymond Higgins, Jr. appeals from the district court’s order dismissing his
petition for post-conviction relief. We affirm.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       A jury convicted Higgins of first degree murder.           During trial, the State admitted
Exhibit 5, a DVD containing footage of a police interview with Higgins.             Exhibit 5 was
published to the jury, and during the recorded interview, a police detective referenced Higgins’
silence, stating “[there were] things I didn’t get to ask you, maybe I did, but you didn’t answer.”
This statement implicitly indicated that Higgins had invoked his Fifth Amendment right to
remain silent.



                                                  1
       Whether defense counsel was aware the footage contained the statement before Exhibit 5
was published to the jury is unclear. Regardless, after Exhibit 5’s publication, the trial court
provided a curative instruction stating, “Any reference or testimony that the Defendant may have
invoked his Fifth Amendment right is to be stricken and is not to be considered by you for any
purpose during your deliberation.” Later, after the close of evidence and before the jury’s
deliberations, the trial court gave this same instruction again. Further, the trial court also ordered
the State to redact the statement from Exhibit 5 to create Exhibit 5A for purposes of sending a
corrected exhibit to the jury room.
       After this Court affirmed Higgins’ judgment of conviction and sentence, Higgins timely
filed a petition for post-conviction relief and, eventually, an amended petition. Higgins alleges
two claims. He contends his counsel was ineffective (1) for failing to review and object to
Exhibit 5 and (2) for failing to move for a mistrial after the publication of Exhibit 5. The district
court issued a notice of intent to dismiss Higgins’ amended petition, in which it articulated its
preliminary reasoning for dismissing the petition, and Higgins filed a response. Following a
hearing, the district court dismissed Higgins’ amended petition.
       Regarding Higgins’ first claim, the district court assumed his counsel’s performance was
deficient for failing to review Exhibit 5 and moving to exclude it. The district court noted
Higgins did not allege prejudice as a result of his counsel’s failure. Nonetheless, the district
court analyzed the possibility of prejudice under Strickland v. Washington, 466 U.S. 668, 687-88
(1984), namely whether there was a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the trial would have been different. See, e.g., Aragon v. State, 114
Idaho 758, 761, 760 P.2d 1174, 1177 (1988). The district court concluded that, even if the
implicit reference to Higgins’ right to remain silent in Exhibit 5 had never been published to the
jury, the jury would have found Higgins guilty regardless based upon the “overwhelming”
evidence against him, and therefore Higgins failed to show prejudice.
       Regarding Higgins’ second claim, the district court considered whether a motion for
mistrial would have been granted, assuming Higgins’ counsel had made such a motion. Based
on the trial court’s curative instructions, its requirement of a redacted Exhibit 5 and the implicit
(versus explicit) reference to Higgins’ silence, the district court concluded the trial court would
not have granted a motion for mistrial. Citing Padilla v. State, 158 Idaho 184, 187, 345 P.3d
243, 246 (Ct. App. 2014), the district court noted this conclusion was determinative of both

                                                  2
prongs of Strickland. The district court also rejected Higgins’ argument that he did not have to
show prejudice because his counsel’s errors were fundamental in nature and amounted to
structural error. Higgins timely appeals.
                                                II.
                                  STANDARD OF REVIEW
       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, 466 U.S. at 687-88; 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, 114 Idaho
at 760, 760 P.2d at 1176; Knutsen v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App.
2007). To establish prejudice, the petitioner must show a reasonable probability that, but for the
attorney’s deficient performance, the outcome of the trial would have been different. Aragon,
114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at 442, 163 P.3d at 231. 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. Gonzales v. State, 151
Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
       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 ineffective
assistance. Lint v. State, 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 2008). 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. Lint, 145 Idaho at 477-78, 180 P.3d at 516-17.




                                                3
                                                 III.
                                            ANALYSIS
A.      Proof of Ineffective Assistance of Counsel Requires a Showing of Prejudice
        On appeal, Higgins focuses exclusively on the prejudice prong of the Strickland analysis.
Higgins argues the district court incorrectly held that “Strickland prejudice always means the
existence of a reasonable probability that, but for counsel’s . . . errors, the result of the
proceeding would have been different.” Higgins contends there is no requirement of showing
prejudice if counsel’s deficient performance “renders the proceedings fundamentally unfair.”
        In support, Higgins cites Weaver v. Massachusetts, ___ U.S. ___, 137 S. Ct. 1899 (2017).
Weaver, however, did not rule that fundamental unfairness supplants the necessity of showing
prejudice to support a claim for ineffective assistance of counsel. Rather, the Weaver Court
simply assumed that possibility for purposes of its analysis, but it expressly declined to consider
the issue:
        Petitioner . . . argues that under a proper interpretation of Strickland, even if there
        is no showing of a reasonable probability of a different outcome, relief still must
        be granted if [he] shows that attorney errors rendered the trial fundamentally
        unfair. For the analytical purposes of this case, the Court will assume that
        petitioner’s interpretation of Strickland is the correct one. In light of the Court’s
        ultimate holding, however, the Court need not decide the question here.
Id. at ___, 137 S. Ct. at 1911 (emphasis added). Despite this assumption that fundamental
unfairness might in some instances replace prejudice, the Weaver Court noted, “The prejudice
showing is in most cases a necessary part of a Strickland claim.” Weaver, ___ U.S. at ___, 137
S. Ct. at 1910. Ultimately, the Court rejected the petitioner’s claim for post-conviction relief
because he failed to show prejudice. Id. at ___, 137 S. Ct. at 1913. As the concurrence noted,
the Court’s assumption was not “necessary to its result.” Id. at ___, 137 S. Ct. at 1914 (Thomas,
J.; Gorsuch, J. concurring).
        While Weaver assumed a fundamentally unfair error might conceivably relieve a
petitioner of the burden under Strickland to show prejudice, the Court did not reach this issue,
and Weaver does not support Higgins’ assertion that he need not show prejudice in this case.
Moreover, Higgins neither argues nor cites any authority for the proposition that the implicit
reference to his Fifth Amendment right to remain silent in Exhibit 5 rises to the level of a
fundamentally unfair error. Instead, he appears to concede that it does not. Accordingly,
Weaver is inapposite, and the district court relied on the correct test for prejudice, i.e., whether

                                                  4
there was a reasonable probability that, but for the attorney’s deficient performance, the outcome
of the trial would have been different. See, e.g., Aragon, 114 Idaho at 761, 760 P.2d at 1177.
Applying this test, the district court correctly concluded Higgins failed to show prejudice.
B.     The Trial Court Gave Curative Instructions
       Higgins also argues on appeal that the prejudice Exhibit 5 caused “was not ameliorated
by a cautionary instruction” and that the jury “was not instructed it could not draw . . . an
inference [of guilt] from his assertion of [his] Fifth Amendment right[] in Exhibit 5.” Because
the district court correctly concluded Higgins failed to show any prejudice, we do not need to
address this argument. Regardless, Higgins is incorrect. The trial court twice instructed the jury
that any reference to Higgins’ invocation of his Fifth Amendment right was stricken and not to
be considered during deliberations--once shortly after Exhibit 5’s publication and again before
the jury’s deliberations. Although Higgins failed to allege and show prejudice, these instructions
cured any possible unfair prejudice the error caused. See, e.g., State v. Johnson, 163 Idaho 412,
422, 414 P.3d 234, 244 (2018) (“Error in admission of evidence may be cured by proper
instruction, and it must be presumed that the jury obeyed the trial court’s direction.”).
                                                IV.
                                         CONCLUSION
       Higgins has the burden to show he was prejudiced by his counsel’s deficient
performance, and he has failed to make this showing. Moreover, to the extent there was any
prejudice, the trial court cured the error through jury instructions. Accordingly, the district
court’s dismissal of Higgins’ petition for post-conviction relief is affirmed.
       Chief Judge GRATTON and Judge LORELLO CONCUR.




                                                  5
