                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38505

LEO LEE FISHER,                                   )      2012 Unpublished Opinion No. 444
                                                  )
       Petitioner-Appellant,                      )      Filed: April 12, 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STATE OF IDAHO,                                   )      THIS IS AN UNPUBLISHED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 Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Stephen S. Dunn, District Judge.

       Order summarily dismissing post-conviction petition, affirmed.

       Leo L. Fisher, St. Anthony, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Leo Lee Fisher appeals from the district court’s order summarily dismissing his petition
for post-conviction relief. Specifically, Fisher asserts the district court erred because there was a
genuine issue of fact as to whether his defense counsel provided ineffective assistance by failing
to object to improper prior act evidence or to strike jurors from the panel. For the reasons set
forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       An Idaho State Police officer pulled Fisher over for driving without an operational
passenger-side taillight. After approaching the vehicle, the officer noticed a strong odor of
alcohol emanating from Fisher and that Fisher slurred his words and had bloodshot eyes. The
officer conducted field sobriety tests, which Fisher failed.          Fisher then submitted to a
breathalyzer test, with test results indicating he was driving with a blood alcohol content of .22.
The officer arrested Fisher for excessive driving under the influence (DUI).


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       A jury found Fisher guilty after a trial on part I of the information charging felony DUI,
Idaho Code §§ 18-8004, 18-8005(5). After the court entered the verdict, Fisher pled guilty to
part II of the information, being a repeat offender. The district court imposed a unified sentence
of nine years, with three years determinate. This Court affirmed Fisher’s judgment of conviction
and sentence on direct appeal. State v. Fisher, Docket No. 34769 (Ct. App. July 22, 2009)
(unpublished).
       Thereafter, Fisher filed a pro se petition for post-conviction relief, supported with an
affidavit. The district court characterized Fisher’s numerous assertions as three basic ineffective
assistance of counsel claims: (1) defense counsel failed to object to Idaho Rule of Evidence
404(b) evidence; (2) defense counsel failed to move the court to suppress, strike, and/or
challenge the selection of the jury under Idaho Code § 19-2001; and (3) defense counsel failed to
abide by Fisher’s wishes in filing a petition for review on appeal.
       The district court issued notice of its intent to dismiss, having found Fisher failed to state
facts amounting to a claim for relief. Fisher responded to the notice by asserting substantially
the same facts as in the original petition without further explanation. Accordingly, the district
court summarily dismissed Fisher’s petition. Fisher timely appeals.
                                                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. 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
the 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; 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). However, 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) (quoting Goodwin, 138 Idaho at 271, 61 P.3d at 628). The 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). 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


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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.
       Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction
relief, either pursuant to motion of a party or upon the court’s own initiative. Summary dismissal
of a petition is the procedural equivalent of summary judgment under Idaho Rule of Civil
Procedure 56. A claim for post-conviction relief will be subject to summary dismissal if the
petitioner “has not presented evidence making a prima facie case as to each essential element of
the claims upon which the applicant bears the burden of proof.” DeRushé v. State, 146 Idaho
599, 603, 200 P.3d 1148, 1152 (2009) (quoting Berg v. State, 131 Idaho 517, 518, 960 P.2d 738,
739 (1998)). Thus, summary dismissal is permissible when the petitioner’s evidence has raised
no genuine issue of material fact that, if resolved in the petitioner’s favor, would entitle the
petitioner to the requested relief. If such a factual issue is presented, an evidentiary hearing must
be conducted. Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at
629.   Summary dismissal of an application for post-conviction relief may be appropriate,
however, even where the State does not controvert the petitioner’s evidence because 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 v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994).
       When reviewing a district court’s order of summary dismissal in a post-conviction relief
proceeding, we apply the same standard as that applied by the district court. Ridgley v. State,
148 Idaho 671, 675, 227 P.3d 925, 929 (2010). On review of dismissal of a post-conviction
relief petition without an evidentiary hearing, we determine whether a genuine issue of material
fact exists based on the pleadings, depositions and admissions, together with any affidavits on
file. Rhoades v. State, 148 Idaho 247, 220 P.3d 1066 (2009); Ricca v. State, 124 Idaho 894, 896,
865 P.2d 985, 987 (Ct. App. 1993). However, “while the underlying facts must be regarded as
true, the petitioner’s conclusions need not be so accepted.” Rhoades, 148 Idaho at 250, 220 P.3d
at 1069 (quoting Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985)); see also Hayes v.
State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). As the trial court rather than a
jury will be the trier of fact in the event of an evidentiary hearing, summary dismissal is


                                                 3
appropriate where the evidentiary facts are not disputed, despite the possibility of conflicting
inferences to be drawn from the facts, for the court alone will be responsible for resolving the
conflict between those inferences. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Hayes, 146
Idaho at 355, 195 P.3d at 714. That is, the judge in a post-conviction action is not constrained to
draw inferences in favor of the party opposing the motion for summary disposition, but rather is
free to arrive at the most probable inferences to be drawn from uncontroverted evidentiary facts.
Hayes, 146 Idaho at 355, 195 P.3d at 714.
                                               III.
                                         DISCUSSION
       All of Fisher’s claims relate to ineffective assistance of counsel. 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 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); Barcella, 148 Idaho at 477, 224 P.3d at 544. To establish a
deficiency, the petitioner has the burden of showing that the attorney’s representation fell below
an objective standard of reasonableness. Gonzalez v. State, 151 Idaho 168, 172, 254 P.3d 69, 73
(Ct. App. 2011). To establish prejudice, the petitioner must show a reasonable probability that,
but for the attorney’s deficient performance, the outcome of the proceeding would have been
different. Id. 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. Id.
       Fisher argues he received ineffective assistance of counsel because “defense counsel
fail[ed] to object to move to strike and for the jury to be admonished, I.C. 19-2001 which led to a
fundamentally unfair trial.” Fisher also asserts a failure of defense counsel “to move to suppress
improperly obtained jury selections.” Though not clearly discerned from one another, as the
district court did, we treat these as arguments of counsel’s ineffective assistance in failing to




                                                4
make motions in regards to Rule 404(b) evidence and the jury selection. 1 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. Boman v.
State, 129 Idaho 520, 526, 927 P.2d 910, 916 (Ct. App. 1996).
A.     Rule 404(b) Evidence
       In support of his Rule 404(b) claim, Fisher appears to challenge probable cause for either
the traffic stop or the arrest. The majority of his argument focuses on counsel’s ineffective
assistance because counsel failed to seek suppression of evidence on the ground the officer did
not reveal himself to be an officer. Apparently, the arresting officer was wearing “a Hat not that
of the Idaho State Police,” and Fisher believes such conduct amounts to a misrepresentation.
Fisher argues:
       [The] recording device in [the officer’s] car, (vehicle) that records audio/video,
       reveals the officer [ ] character evidence to prove the officers [sic] conduct, to up
       hold [sic] the state law, the (Exhibit 2 of Trial Proceedings) clearly shows the
       pertinent of officers [sic] part, the unprofessional error of Officer Mike Winans,
       would not have been admitted undermining Probable Cause nor would the only
       direct incriminating evidence have been admitted as it was the fruit of an
       unconstitutional act. Defense counsel did not object in any manner, the Court did
       not intervene in any way, nor did the prosecutor. This evidence was simply
       ignored by everyone. Which was a clear violation of Idaho R. Evid. 404(b)[.]
       Fisher’s argument exposes a fundamental misunderstanding of Rule 404(b) because the
argument relates to whether a court should suppress evidence unconstitutionally seized. Rule
404(b) prohibits the use of evidence of other crimes, wrongs, or acts to show a person is likely to
have acted that same way in the situation in question. In contrast, where an officer conducts an
unconstitutional search or seizure, as argued by Fisher, a motion to suppress evidence recovered
as a result is the appropriate action to keep out evidence of the crime presently being charged.
See BLACK’S LAW DICTIONARY 1039 (8th ed. 2004) (defining motion to suppress as, “A request
that the court prohibit the introduction of illegally obtained evidence at a criminal trial.”).
Although a Rule 404(b) motion may have the effect of keeping evidence out like a motion to
suppress might, the two types of motions are based on vastly different reasons for keeping the
evidence out, and the type of evidence is different as well.

1
       Fisher does not reassert, to this Court, his claim of ineffective assistance of counsel based
on counsel’s failure to abide by the wishes of Fisher on direct appeal.

                                                 5
       Even if this Court treats Fisher’s argument as a claim that defense counsel should have
filed a motion to suppress evidence, Fisher’s arguments have no merit. Unquestionably, a traffic
stop by an officer constitutes a seizure of the vehicle’s occupants and implicates the Fourth
Amendment’s prohibition against unreasonable searches and seizures. Delaware v. Prouse, 440
U.S. 648, 653 (1979); State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App.
1996). Yet, under the Fourth Amendment, an officer may stop a vehicle to investigate possible
criminal behavior if there is a reasonable and articulable suspicion that the vehicle is being
driven contrary to traffic laws. United States v. Cortez, 449 U.S. 411, 417 (1981); State v.
Flowers, 131 Idaho 205, 208, 953 P.2d 645, 648 (Ct. App. 1998).
       The arresting officer in this case had a reasonable and articulable basis for pulling Fisher
over because Fisher was driving without an operational taillight on the passenger side. The
officer pulled Fisher over using a marked state patrol car, and when the officer approached the
vehicle and spoke with Fisher, the officer identified himself both as law enforcement and by
name. Despite the allegation the officer was wearing a hat “not that of the Idaho State Police,”
we find no misrepresentation.      Fisher makes no other assertions as to how the stop, the
administration of the breath test, or the arrest were otherwise unconstitutional. Accordingly,
defense counsel was not deficient in failing to make a motion to suppress evidence.
       Fisher does make some passing statements in regards to his Rule 404(b) claim, which
relate to that rule’s purpose. Fisher asserts that (presumably) the State attempted “to prove his
criminal propensity to his alcohol use based upon other illegal activity” and counsel failed to
move to suppress incriminating evidence of past criminal conduct and did not object in any
manner to the introduction of such evidence.
       Fisher does not give any specifics as to what the supposed Rule 404(b) evidence
was--whether it was evidence of prior DUIs or some other crimes, wrongs, or acts. Additionally,
Fisher’s trial was bifurcated, and it is not clear whether Fisher argues about Rule 404(b) evidence
purportedly introduced during the trial for felony DUI or whether he complains of the past DUI
convictions brought forth with regard to part II of the information to establish that Fisher was a
repeat offender. The trial transcript and minute entry show that the only evidence introduced to
the jury in the trial on the felony DUI was testimony from the arresting officer and the video
recording of the traffic stop and arrest. As stated above, this was not improper other act evidence
falling within Rule 404(b), but rather was evidence of the crime presently being charged. We


                                                6
conclude the district court did not err in summarily dismissing Fisher’s claim where the record
reflects Fisher failed to raise a genuine issue of material fact showing his defense counsel was
deficient in not pursuing a motion to exclude Rule 404(b) evidence.
B.     Jury Selection
       Fisher argues his defense counsel provided ineffective assistance because counsel failed
to peremptorily challenge any individual jurors or challenge the jury panel as a whole as
authorized under Idaho Code § 19-2001. Fisher argues the jury, as a result, was not impartial
because of alleged actual bias resulting from the acquaintances of jury members with law
enforcement officers, attorneys, and DUI offenders and because of the racial make-up of the
jury. We first address the arguments regarding juror bias.
       1.      Actual bias
       Fisher runs through the list of jurors, pointing out various acquaintances individual jurors
had with attorneys, the court or particular judges, law enforcement officers, and persons charged
with or convicted of DUI. Fisher argues these acquaintances create juror bias and that defense
counsel provided ineffective assistance by failing to exercise peremptory challenges to exclude
unacceptable jurors. The State responds that Fisher’s litany of claimed grounds for challenging
jurors does not demonstrate bias by the jurors and some of Fisher’s allegations regarding the
jurors are disproven by the record. The State asserts Fisher, without establishing bias, cannot
show counsel was deficient or any prejudice resulting from the jury selection.
       A criminal defendant has a constitutional right to a trial by an impartial jury. U.S.
CONST. amends. V, VI, XIV; IDAHO CONST. art. 1, §§ 7, 13; State v. Hauser, 143 Idaho 603, 609,
150 P.3d 296, 302 (Ct. App. 2006). To protect the right to jury impartiality, the Idaho Code
provides procedural methods and standards for striking potential jurors for actual or implied bias.
I.C. §§ 19-1902, 19-2019, 19-2020. Here, Fisher only alleged actual bias. Actual bias of a juror
is the “existence of a state of mind on the part of the juror in reference to the case, or to either of
the parties, which, in the exercise of a sound discretion on the part of the trier, leads to the
inference that he will not act with entire impartiality.” I.C. § 19-2019(2). Disqualification is not
required when any potential juror expresses bias toward a party; a court may rely on assurance
from potential jurors concerning partiality or bias. Hauser, 143 Idaho at 609, 150 P.3d at 302.
The mere existence of any preconceived notion as to the guilt or innocence of an accused,
without more, is not sufficient to rebut the presumption of a prospective juror’s impartiality. Id.


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(quoting State v. Hairston, 133 Idaho 496, 506, 988 P.2d 1170, 1180 (1999)). It is enough if the
juror can lay aside his impression or opinion and render a verdict based on the evidence
presented in court. Id. Whether a juror can render a fair and impartial verdict is a determination
left to the sound discretion of the trial court. Id.
        In Medrano v. State, 127 Idaho 639, 903 P.2d 1336 (Ct. App. 1995), the defendant
asserted two jury members had actual bias and claimed ineffective assistance of counsel because
his attorney failed to challenge for cause those members of the jury.            In rejecting this
post-conviction claim, this Court concluded:
        [A] challenge for cause of a prospective juror falls within the wide range of trial
        strategy. 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. Howard v. State, 126 Idaho 231,
        233, 880 P.2d 261, 263 (Ct. App. 1994); Davis v. State, 116 Idaho 401, 406, 775
        P.2d 1243, 1248 (Ct .App. 1989).
                Here, Medrano did not provide any evidence with his petition to support
        his conclusory allegation that prospective jurors were prejudiced against him or
        may have reached their verdict because of some reason other than the evidence
        presented at Medrano’s criminal trial. We conclude that the district court
        correctly dismissed this claim upon Medrano’s failure to raise a genuine issue of
        material fact showing that his attorney’s performance was deficient or that
        Medrano was thereby prejudiced.
Medrano, 127 Idaho at 647, 903 P.2d at 1344.
        The circumstance here is substantially similar because Fisher does not provide any
evidence to support his allegations of actual bias by jury members against him. Fisher is correct
in asserting that many jury members had acquaintances with law enforcement, attorneys, and
persons convicted of or charged with DUI. However, no member of the jury knew anything
about the case through personal knowledge or public information.           No jury member was
acquainted with Fisher or with the arresting officer, who was also the State’s primary witness.
Upon each assertion of a relationship with a law enforcement officer, an attorney, or a person
charged with DUI, the court asked whether the relationship would affect the potential juror’s
decision in this case, and each time, the potential juror answered no and that he or she could
render a fair and impartial verdict. The only instance in which this did not happen was with a
potential juror who had lost two children to drunk drivers. The potential juror stated, “I am just
so dead against anybody drinking and driving,” and the court thereafter excused him. In the
exercise of peremptory challenges, a number of other jurors presenting possible partiality,

                                                       8
despite their assurances, were excused: one who had previously been convicted of two DUI
charges, had been through drug court, and was now sober; one who did not drink for religious
reasons; one who did not drink at all for personal reasons and had a spouse with two prior DUI
convictions who had been through drug court; another who had a close relationship with an area
judge; one who was acquainted with the defense counsel and other attorneys in the same office;
and two others with a close personal relationship to law enforcement officers in the area.
       We fail to find any of the jurors who served in Fisher’s case harbored a preconceived
notion about Fisher’s guilt or innocence. Each member of the jury gave assurances that other
relationships with law enforcement, attorneys, or other persons convicted or charged with DUI
would not affect his or her impartiality--assurances on which the court and counsel were entitled
to rely. As to whether counsel’s use or lack of peremptory challenges rendered his assistance
ineffective, we conclude there was no inadequate preparation, ignorance of relevant law, or other
shortcomings capable of objective evaluation. We consider the use of peremptory challenges to
be a tactical decision and, finding no evidence giving reason to second guess those decisions, we
conclude no genuine issue of material fact as to defense counsel’s deficiency has been shown.
       2.      Racial discrimination
       Lastly, Fisher argues arbitrary discrimination in the selection of the jury. He asserts he is
entitled to a jury that is a fair cross-section of the relevant community, that a person’s right to an
impartial jury includes a requirement that the pool of potential jurors fairly represent the
composition of the jurisdiction’s population, and that representation of each group must be fair
with no groups systematically excluded or underrepresented.
       A defendant is entitled to a jury chosen from the relevant community on a
nondiscriminatory, neutral basis. Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). A defendant
has no right, though, to a petit jury composed in whole or in part of persons of his own race. Id.
at 85. To show that a jury was not a fair cross-section of the relevant community, a defendant
must show: (1) the allegedly excluded group is distinctive; (2) representation of this group in
venires from which juries are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) the underrepresentation is due to systematic exclusion of the
group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 364 (1979). Where a
defendant does not establish or allege facts supporting each of the requirements above, a
challenge to the make-up of the jury will not prevail. See State v. Dambrell, 120 Idaho 532, 536,


                                                  9
817 P.2d 646, 650 (1991) (finding the facts did not allege that representation of American
Indians was not fair or reasonable in relation to the number of American Indians in the county,
and there was no allegation the exclusion was systematic).
       Here, Fisher makes only brief statements regarding the make-up of the jury. He points
out that most members were Caucasian (some jurors are not identified with a race) and recites
law relevant to the composition of a jury. Nonetheless, he does not identify his own race or the
group of jurors allegedly excluded because of their race. Without identifying a distinctive,
allegedly excluded group, Fisher cannot meet the first requirement listed in Duren, nor the
second or third. The district court did not err in finding that Fisher failed to show the jury was
not a fair cross-section of the community or systematic exclusion of a particular group. The
district court also did not err in finding no genuine issue of material fact that defense counsel was
deficient for failing to move to quash the jury or object to its selection exists.
                                                  III.
                                          CONCLUSION
       We conclude Fisher failed to establish that defense counsel was deficient for failing to
object to evidence, as the evidence did not fall within Rule 404(b) and was not unconstitutionally
seized. We further conclude Fisher did not show any deficiency by his defense counsel in failing
to strike individual jurors or object to the jury as a whole, as there was no actual bias or
discrimination. Accordingly, the district court did not err in summarily dismissing Fisher’s
petition for post-conviction relief, finding no genuine issue of material fact regarding Fisher’s
ineffective assistance of counsel claims. Therefore, we affirm the order summarily dismissing
Fisher’s post-conviction petition.
       Chief Judge GRATTON and Judge MELANSON CONCUR.




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