               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40527

DANIEL CHIPPEWA,                                )     2014 Opinion No. 62
                                                )
       Petitioner-Appellant,                    )     Filed: August 13, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )
                                                )
       Respondent.                              )
                                                )

       Appeal from the District Court of the Seventh Judicial District, State of Idaho,
       Bingham County. Hon. Darren B. Simpson, District Judge.

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

       Sara B. Thomas, State Appellate Public Defender; Shawn F. Wilkerson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Daniel Chippewa appeals from the judgment of the district court summarily dismissing
his petition for post-conviction relief. The issue raised on appeal is whether the district court
erred when it summarily dismissed Chippewa’s post-conviction claim that he received
ineffective assistance of counsel because he was represented by conflicted counsel. For the
reasons that follow, we affirm.
                                               I.
                                  FACTS AND PROCEDURE
       Underlying this post-conviction action is Chippewa’s conviction for felony driving under
the influence and subsequent probation violations. Chippewa was charged with felony driving
under the influence and an attorney (a former prosecutor) was appointed to represent him. Less
than a week later, the former prosecutor moved to withdraw because she had previously
prosecuted Chippewa and noted that Chippewa’s conviction for which she served as the



                                               1
prosecutor may have been used in the pending charge as an enhancement. After the court
granted the former prosecutor’s motion to withdraw, Chippewa was appointed new counsel and
pleaded guilty to felony driving under the influence. The court imposed a unified sentence of
nine years, with six years determinate, but suspended the sentence and placed Chippewa on
probation for five years. Chippewa violated his probation, admitted to the violation, and the
court revoked probation, executed his sentence, and retained jurisdiction.
       At a review hearing on Chippewa’s retained jurisdiction, the former prosecutor was again
appointed to represent Chippewa, which she did. Subsequently, the court granted Chippewa
probation for a second time. Chippewa again violated his probation, admitted to the violation,
and was represented by the former prosecutor at the probation revocation hearing. The court
decided to revoke probation and executed Chippewa’s original sentence. A week after the court
revoked Chippewa’s probation, the former prosecutor filed an Idaho Criminal Rule 35 motion for
relief from the sentence. After considering the motion, the district court denied the Rule 35
motion 1 and entered an amended judgment.
       Approximately a year after the court denied Chippewa’s Rule 35 motion, he filed a pro se
petition for post-conviction relief alleging three claims of ineffective assistance of counsel,
including with the petition an affidavit with factual support. Relevant to this appeal, one claim in
the petition alleged, “Presumptive prejudice: counsel was previous prosecutor in my case, she
was asked to withdraw, did so, but th[e]n assigned again at the sentencing stage, creating gross
conflict of interest, against objection.” The State filed a motion for summary dismissal, and at a
hearing on that motion, the court determined that the State’s motion was not timely filed.
Subsequently, the court granted Chippewa’s petition for post-conviction relief in part, 2 but
summarily dismissed Chippewa’s two remaining claims, including the claim that he received
ineffective assistance of counsel because he was represented by conflicted counsel. Chippewa
appeals.




1
       Although the Idaho Criminal Rule 35 motion was not included in the record on appeal,
the motion was, presumably, seeking a reduction in sentence. I.C.R. 35(b).
2
       The district court granted relief on Chippewa’s claim that defense counsel failed to file an
appeal of Chippewa’s amended judgment and the denial of the Rule 35 motion.

                                                 2
                                                  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. I.C. § 19-4907; 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 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. 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 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
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


                                                  3
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).
       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


                                                4
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). We also note that an appellate court may affirm a lower court’s
decision on a legal theory different from the one applied by that court. In re Estate of Bagley,
117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct. App. 1990).
                                                III.
                                           ANALYSIS
       The sole issue raised by Chippewa on appeal is whether the district court erred when it
summarily dismissed his post-conviction claim that he received ineffective assistance of counsel
because he was represented by conflicted counsel. A petition for post-conviction relief may raise
the issue of conflicted counsel under a claim of ineffective assistance of counsel. E.g., Nevarez
v. State, 145 Idaho 878, 885, 187 P.3d 1253, 1260 (Ct. App. 2008) (analyzing a claim of
ineffective assistance of counsel that alleged a conflict of interest due to multiple representations
of the defendant by defense counsel). Generally, 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).
       Although the Strickland rule applies to ineffective assistance of counsel claims alleging
conflicted counsel, “[t]here is an exception to this general rule,” according to the United States
Supreme Court:
       We have spared the defendant the need of showing probable effect upon the
       outcome, and have simply presumed such effect, where assistance of counsel has
       been denied entirely or during a critical stage of the proceeding. When that has
       occurred, the likelihood that the verdict is unreliable is so high that a case-by-case
       inquiry is unnecessary. But only in “circumstances of that magnitude” do we
       forgo individual inquiry into whether counsel’s inadequate performance
       undermined the reliability of the verdict.
               We have held in several cases that “circumstances of that magnitude” may
       also arise when the defendant’s attorney actively represented conflicting interests.
Mickens v. Taylor, 535 U.S. 162, 166 (2002) (citations omitted). The cases giving rise to
“circumstances of that magnitude” identified by the Court in Mickens were Holloway v.
Arkansas, 435 U.S. 475 (1978), Cuyler v. Sullivan, 446 U.S. 335 (1980), and Wood v. Georgia,
450 U.S. 261 (1981). In Holloway, the Court created an exception to Strickland where the trial

                                                 5
court improperly required joint representation over timely objection. Holloway, 435 U.S. at 488;
Mickens, 535 U.S. at 167-68. In Sullivan, the Court clarified that if a trial court knows or
reasonably should know that a conflict of interest exists, the court has a duty to inquire into the
conflict. Sullivan, 446 U.S. at 347; Mickens, 535 U.S. at 168. Additionally, Sullivan set forth a
standard for defendants who claimed they were improperly subject to joint representation, but
did not object at trial, creating another exception to Strickland. Sullivan at 348-49; Mickens, 535
U.S. at 168-69. In Wood, a case with jointly-represented defendants, the Court remanded the
case for the court to apply the Sullivan standard. Wood, 450 U.S. at 272-74; Mickens, 535 U.S.
at 169-72.
       In creating the exceptions, both Holloway and Sullivan “stressed the high probability of
prejudice arising from multiple concurrent representation, and the difficulty of proving that
prejudice.” Mickens, 535 U.S. at 175. Thus, the purpose behind the Holloway and Sullivan
exceptions “is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in
situations where Strickland itself is evidently inadequate to assure vindication of the defendant’s
Sixth Amendment right to counsel.” Mickens, 535 U.S. at 176. The United States Supreme
Court has thus far declined to determine whether the Sullivan (or Holloway) exception applies to
cases of successive representation. Mickens, 535 U.S. at 176; Houston v. Schomig, 533 F.3d
1076, 1081 (9th Cir. 2008) (“The Supreme Court, however, has left open the question whether
conflicts in successive representation that affect an attorney’s performance require a showing of
prejudice for reversal.”). This case involves a situation where the former prosecutor may have
had an obligation to her former client, the State, and then had assumed duties to her new client,
Chippewa. Accordingly, this case involves an issue related to successive representation, rather
than joint representation. See Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006) (“‘In successive
representation, conflicts of interest may arise if the cases are substantially related or if the
attorney reveals privileged communications of the former client or otherwise divides his
loyalties.’” (quoting Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988)). Therefore, it is not
settled whether the Holloway or Sullivan exceptions apply to Chippewa’s case. 3



3
        The Kansas Supreme Court has referred to this situation as involving the “Mickens
reservation” because in a situation “where a ‘conflict is rooted in counsel’s obligations to former
clients,’” the United States Supreme Court has “reserved for another case consideration of a test
to be applied to determine if a defendant is entitled to relief.” State v. Galaviz, 291 P.3d 62, 72

                                                6
       We begin our analysis with a fact raised in Chippewa’s post-conviction affidavit, but
unaddressed by Chippewa’s counsel, the State, and the district court. In his affidavit, Chippewa
avers that he objected to the appointment of the former prosecutor, although it is unclear whether
he is referring to his objection during his felony driving under the influence trial or whether he
objected during his probation revocation hearing. 4 Assuming that Chippewa did object at the
probation revocation hearing, we are not persuaded that the Holloway exception would apply,
given the Supreme Court’s statements in Mickens, which explained that the exception grew out
of the high probability of prejudice in joint representation and the difficulty of proving prejudice
in joint representation cases. We need not decide whether the Sullivan exception applies to this
case, however, because we begin and end our analysis by determining whether Chippewa has
established deficient performance. 5




(Kan. 2012) (quoting Mickens v. Taylor, 535 U.S. 162, 174 (2002)). That court has
differentiated cases involving the Mickens reservation from those involving either the Holloway
or Sullivan exception. See Galaviz, 291 P.3d at 70-74.
4
       In his affidavit of facts, Chippewa raises several points and asserts facts related to the
claim of conflicted counsel:
               That I was previously punished by probation and parole for an incident of
       drinking while on probation in 2010, a full year before the new violation. That I
       provided counsel with an alternative treatment plan, asked to be allowed to enter
       treatment, and was denied. That I objected to [the former prosecutor] being my
       counsel due to a gross conflict of interests [sic], her refusal to work with me, or
       raise any of my issues at sentencing. She was previously a prosecutor in my case,
       and prosecuted me for felony eluding, which was used against me in the new
       charges for misdemeanor eluiding [sic] allegattions [sic] in the probation violation
       on this new charge and sentence, which is very prejudicial to my best interests
       and due processes. That I asked her to file an appeal which she refused to do, and
       so I was denied my right to raise the issue of excessive sentence, (9 years was
       imposed for a misdemeanor probation violation allegation. That my right to fair
       due processes, equal protection of law, and effective assistance of counsel has
       been violated, and that due to these violations, I did not make a knowing and
       willing, and informed plea of guilty.
               I assert that I objected at trial to the appointment of the conflicted counsel.
5
        Under the Cuyler v. Sullivan, 446 U.S. 335 (1980), exception, the petitioner must
establish deficient performance, but need not establish prejudice. Id. at 348-50.


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       In order to establish deficient performance, Chippewa “must establish that an actual
conflict of interest adversely affected his lawyer’s performance.” Sullivan, 446 U.S. at 350;
accord Mickens, 535 U.S. at 173-74; United States v. Dehlinger, 740 F.3d 315, 322 (4th Cir.
2014); Nevarez, 145 Idaho at 885, 187 P.3d at 1260. An actual conflict requires a showing that
defense counsel “actively represented conflicting interests.” Sullivan, 446 U.S. at 350. The
second element, an adverse effect, has been summarized by the Fourth Circuit and by the United
States District Court for the District of Idaho in a three-prong test:
       First, the [defendant] must identify a plausible alternative defense strategy or
       tactic that his defense counsel might have pursued. Second, the [defendant] must
       show that the alternative strategy or tactic was objectively reasonable under the
       facts of the case known to the attorney at the time of the attorney’s tactical
       decision. . . . Finally, the [defendant] must establish that the defense counsel’s
       failure to pursue that strategy or tactic was linked to the actual conflict.
Dehlinger, 740 F.3d at 322 (alterations in original) (quoting Mickens v. Taylor, 240 F.3d 348,
361 (4th Cir. 2001) (en banc); accord United States v. Swisher, 790 F. Supp. 2d 1215, 1229-31
(D. Idaho 2011); see also Hovey, 458 F.3d at 908. 6
       The second element of deficient performance, the adverse effect component, is
determinative of this issue. Chippewa’s brief does not identify a plausible alternative defense
strategy or tactic that the former prosecutor might have used at the probation revocation hearing
or in the Rule 35 motion. Rather, Chippewa’s brief focuses on whether a conflict existed and
whether the conflict persisted. Stated differently, Chippewa has argued that there was an actual
conflict, but he has not articulated how he was adversely affected. Therefore, Chippewa has not
sustained his burden. For this reason, the district court did not err when it summarily dismissed
Chippewa’s post-conviction claim that he received ineffective assistance of counsel because he
was represented by conflicted counsel. The judgment summarily dismissing Chippewa’s petition
for post-conviction relief is therefore affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.


6
        The Ninth Circuit analyzed the two deficient performance elements concurrently in
Hovey v. Ayers, 458 F.3d 892, 908 (9th Cir. 2006), while the Fourth Circuit analyzed the two
elements separately in United States v. Dehlinger, 740 F.3d 315, 322-23 (4th Cir. 2014).
Nevertheless, as the Fourth Circuit recognized, “The requirements for establishing an actual
conflict and an adverse effect on the lawyer’s performance ‘are often intertwined, making the
factual analyses of them overlap.’” Id. (quoting United States v. Tatum, 943 F.2d 370, 375 (4th
Cir. 1991)).

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