               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42935

NICHOLAS DAVID JOHNSON, aka                       )    2016 Unpublished Opinion No. 744
MEEKS,                                            )
                                                  )    Filed: October 21, 2016
       Petitioner-Appellant,                      )
                                                  )    Stephen W. Kenyon, 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                                                  )    THIS IS AN UNPUBLISHED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. Molly J. Huskey, District Judge.

       Order summarily dismissing petition for post-conviction relief, affirmed.

       Nicholas David Johnson, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Judge
       Nicholas David Johnson appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. We affirm.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In the underlying criminal case, a jury found Johnson guilty of second degree murder,
Idaho Code § 18-4001. The district court imposed a unified life sentence with fifteen years
determinate. Johnson filed an Idaho Criminal Rule 35 motion for reduction of his sentence,
which was denied by the district court. Johnson filed a timely notice of appeal from the
judgment of conviction and the order denying his Rule 35 motion. This Court affirmed both
Johnson’s conviction and order denying his Rule 35 motion. State v. Johnson, No. 39573 (Ct.
App. Nov. 1, 2013) (unpublished).


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       Thereafter, Johnson filed two pro se motions for a new trial that the district court treated
as a single petition for post-conviction relief. The State filed a motion for summary dismissal on
the grounds that it was not supported with evidence and was not verified. Johnson filed an
amended petition with the assistance of counsel, to which the State responded with an amended
motion for summary dismissal. The district court ultimately granted the State’s motion for
summary dismissal. Johnson timely appeals.

                                                 II.
                                           ANALYSIS
       Johnson asserts the district court erred in summarily dismissing his petition for post-
conviction relief. 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

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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
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).



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        As an initial matter, Johnson argues the district court’s notice of intent to dismiss his
petition for post-conviction relief was insufficient because it did not inform him what he needed
to do to avoid summary dismissal. First, the district court did not file a notice of intent to
dismiss but, instead, granted the State’s motion for summary dismissal. Second, in DeRushé, the
Court held that the question of specificity of notice must be raised in the trial court and may not
be raised for the first time on appeal. DeRushé, 146 Idaho at 602, 200 P.3d at 1151. Third,
where the district court dismisses on grounds stated in the party’s motion, there is no additional
notice requirement because the party’s motion to dismiss serves as the notice itself. Workman v.
State, 144 Idaho 518, 524, 164 P.3d 798, 804 (2007). Fourth, so long as the district court
dismisses a petition for post-conviction relief based in part on the arguments presented by the
State, this is sufficient to meet the notice requirements. Kelly, 149 Idaho at 523, 236 P.3d at
1283.
        In this case, the State filed a motion for summary dismissal. It based its motion on
Johnson’s failure to state claims for which relief may be granted, failed to provide sufficient and
admissible evidence for each claim including ineffective assistance of counsel, and failed to
satisfy the prongs of the Strickland1 standard requiring petitioner to show that the attorney’s
performance was deficient and the petitioner was prejudiced by the deficiency. Thus, the motion
did, in fact, advise Johnson of the deficiencies he needed to cure to avoid dismissal. Moreover,
in granting the State’s motion to summarily dismiss Johnson’s petition for post-conviction relief,
the district court found that Johnson had failed to establish ineffective assistance of counsel,
failed to support his claims with admissible evidence, and failed to show resulting prejudice by
counsel’s performance. Because the district court granted the State’s motion to summarily
dismiss on grounds asserted by the State in its motion, the court was not required to provide
twenty days’ notice of its intent to dismiss Johnson’s petition for post-conviction relief.
Therefore, Johnson’s argument that the district court’s notice of intent to dismiss his petition for
post-conviction relief was insufficient fails.2



1
        Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
2
        Although we address the specific arguments raised by Johnson in his brief, we note that
his appellate brief contains no citations to the record. A party waives an issue on appeal if either
authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996).
                                                  4
       As to specific claims, Johnson argues that he received ineffective assistance of counsel
due to counsel’s failure to inform him of a plea deal and because his counsel waived an
evidentiary hearing without consulting with him, thus precluding him from presenting evidence
of self-defense. 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). 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).
       Johnson relies on Lafler v. Cooper, ____ U.S. ____, 132 S. Ct. 1376 (2012), which holds
that a defendant has the right to effective assistance of counsel in considering whether to accept a
plea bargain that has been offered. Id. at ___, 132 S. Ct. at 1387. It further holds that prejudice
can be shown if that right is denied and results in convictions on more serious charges or the
imposition of a more severe sentence. Id. To establish Strickland prejudice, a defendant must
“show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Lafler, ___ U.S. at ____, 132 S. Ct. at
1384. In Lafler, all parties agreed the performance of defendant’s counsel was deficient when he
advised respondent to reject the plea offer on the grounds he could not be convicted at trial. Id.
Further, he was able to establish that he received a sentence at trial that was three and one-half
times more severe than he likely would have received by pleading guilty. Id. at ____, 132 S. Ct.
at 1386. In the present case, the parties have not agreed that Johnson’s counsel was deficient.

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Johnson has not set forth any admissible evidence as to the contents of the plea offer, when it
was made, or whether he would have accepted it; thus, he has not shown that the result of the
proceeding would have been different but for counsel’s actions. Therefore, he has not met the
Strickland threshold as applied in Lafler and the district court did not err in granting the State’s
motion as to this claim.
       Next, Johnson argues his counsel was ineffective because he waived an evidentiary
hearing without consulting with Johnson, thus precluding Johnson from presenting evidence of
self-defense. Johnson does not challenge the district court’s finding of fact that Johnson himself
consented to the waiver of the evidentiary hearing, and therefore, his claim is belied by the
record. Moreover, Johnson fails to submit any evidence that his waiver was invalid. In addition,
the district court correctly noted, “where at a fair trial the accused is found guilty upon sufficient
evidence to sustain the verdict, the judgment will not be overturned for defects in proof at the
preliminary hearing.” State v. Streeper, 113 Idaho 662, 664-65, 747 P.2d 71, 73-74 (1987). In
the present case, Johnson’s strategy at trial was to argue that his actions were in self-defense. He
was found guilty of second degree murder after a jury trial which included witness testimony.
He has failed to allege which testimony would have been different had the preliminary hearing
not been waived. The district court found that only one witness provided testimony that differed
from a previous statement and he was cross-examined about the change in his testimony.
Johnson fails to establish any prejudice, including to his strategy of arguing self-defense, resulted
from the waiver of the preliminary hearing. Therefore, the district court did not err in granting
the State’s motion to summarily dismiss this claim.
       Johnson also contends that the district court erred in summarily dismissing claims (c), (i),
(j), (k), (m), (n), (o), (p), (q), and (v). As an initial matter, the district court held that Johnson
failed to establish deficient performance as to each of these claims because the subject matter of
the evidence at issue in each claim related to Johnson as the killer, the manner of death, or the
identity of the victim. Since Johnson did not deny any of these issues, the evidence was not
germane to his claim of self-defense, and therefore, counsel was not deficient in challenging the
evidence. Having reviewed these claims, we agree that except for claim (c), each claim relates to
evidence of Johnson having stabbed the victim and none of the evidence relates to Johnson’s




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state of mind or other elements of self-defense.3 Therefore, counsel’s handling of the evidence
was consistent with the trial strategy of presenting a case of self-defense and Johnson’s claims
fail to establish deficient performance or prejudice.
       In regard to claim (c), Johnson asserted that counsel was deficient in failing to call
Johnson’s girlfriend who would have explained the context of a text message that Johnson sent
to her on the night of the incident, corroborating his testimony. The text message said “Fuck
you, asshole. I’m fighting right now?” Johnson testified that he did not mean to send it, he was
intoxicated and he maybe mis-typed or left out some words. His girlfriend submitted an affidavit
that she and Johnson had been arguing about whether she would be able to get to the party and
that when he texted the term “fighting,” it referred to the verbal argument between the two of
them. The district court discussed this information in conjunction with other evidence in the
record regarding verbal jabs between Johnson and the victim. The court held that “even if it was
deficient performance not to call [girlfriend] as a witness, Petitioner has failed to establish by
admissible evidence a reasonable probability the outcome of the case would have been
different.” On appeal, Johnson only includes this claim with the others discussed above. He has
not directly addressed this issue or demonstrated that the district court’s finding regarding a lack
of prejudice is erroneous.
       In his appellate brief, Johnson also references his claims that trial counsel failed to spend
enough time with him and failed to give him all of the discovery. The argument appears to relate
to claims (d) and (e) in the petition. The district court directly addressed these claims and held:
       Taking those facts as true, Petitioner has failed to allege by admissible evidence
       that having a copy of the discovery would have aided him in assisting his attorney
       prepare a self-defense, thus he has not established he suffered any prejudice.
       Further, he does not establish how spending more time with his attorney would
       have resulted in a different outcome.




3
        Johnson’s only complaint on appeal, is that the district court, in describing counsel’s
theory of the case was that Johnson “had caused the death of the victim with malice aforethought
but that the killing was done in self-defense.” Johnson contends that contesting malice
aforethought is not inconsistent with self-defense. Despite the district court’s characterization of
the defense, the evidence at issue neither goes to malice aforethought nor any state of mind.
Moreover, Johnson has not pointed to anything in the record or transcript where defense counsel
actually admitted to or failed to contest evidence regarding malice aforethought.
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In his brief, Johnson only claims that the alleged failures to spend more time and deliver
discovery led to all of the other failures alleged in the petition. His conclusory assertion is
insufficient to demonstrate any error in the district court’s determination regarding lack of
prejudice.
       Finally, Johnson claims Idaho is constructively denying assistance of counsel for his
claims of ineffective assistance of trial counsel. He argues this is a result of the State Appellate
Public Defenders’ (SAPD) policy of not bringing ineffective assistance of counsel claims on
direct appeal. He contends that the SAPD’s policy of not raising ineffective assistance of trial
counsel claims on direct appeal, where he is entitled to effective assistance of counsel, leaves no
option but to pursue ineffective assistance of trial counsel claims in post-conviction, where he is
not entitled to the effective assistance of counsel. Thus, he claims that he is denied assistance of
counsel regarding such claims. The SAPD’s policy is consistent with this Court’s holdings.
This Court has consistently held that a claim of ineffective assistance of counsel is an issue rarely
appropriate on direct appeal from a judgment of conviction; rather, the appropriate procedure for
criminal defendants is to bring an ineffective assistance of counsel claim through an application
for post-conviction relief where a more complete evidentiary record can be developed. State v.
Doe, 136 Idaho 427, 433, 34 P.3d 1110, 1116 (Ct. App. 2001). The record for review of claims
of ineffective assistance of counsel is rarely adequate for review on direct appeal, and the
absence of any record supporting the claims would generally require the court to reach a decision
adverse to the party making the claim. State v. Saxton, 133 Idaho 546, 549, 989 P.2d 288, 291
(Ct. App. 1999). An adverse decision after a review on the merits if it were reviewed on direct
appeal would become res judicata, thus barring the claim in a post-conviction action. Id. The
reasoning for the practice of bringing such claims on a post-conviction relief motion rings true in
the instant action, as evidenced by the fact that the very claims of ineffective assistance of
counsel that Johnson asserts require record development. Johnson’s complaint is really with the
Supreme Court’s determination that he is not entitled to the effective assistance of counsel in
post-conviction, which this Court has no ability to address. The policy of the SAPD did not
constructively deprive Johnson of assistance of counsel.




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                                             III.
                                      CONCLUSION
       Johnson has failed to show error in the district court’s order summarily dismissing his
petition for post-conviction relief, and therefore, the order is affirmed. Costs on appeal to
respondent.
       Chief Judge MELANSON and Judge GUTIERREZ CONCUR.




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