                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45402

ROBERT BENJAMIN BRACKETT,                        )
                                                 )    Filed: January 23, 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                                                 )    THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Eric J. Wildman, District Judge.

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

       Robert Benjamin Brackett; Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Robert Benjamin Brackett appeals from the district court’s order summarily dismissing
his petition for post-conviction relief. Brackett raises numerous claims of ineffective assistance
of trial and appellate counsel, as well as errors by the district court. Because the claims are
untimely, are not supported by the record, could have been or were raised in one of Brackett’s
three direct appeals, or are not supported by legal authority on appeal, we affirm the district
court’s order dismissing Brackett’s petition for post-conviction relief.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       This is the fifth appeal arising from the facts of Brackett’s case. Brackett now appeals
from the denial of his petition for post-conviction relief. The facts of Brackett’s criminal case,
which this Court has previously noted, are as follows:



                                                 1
               In January 2011, a minor reported to authorities that she had a sexual
       relationship with forty-six-year-old Brackett. At the time of the relationship, the
       minor was sixteen years old. Officers recovered a camera containing many
       sexually explicit photos of the minor, which the minor claimed were taken by
       Brackett and some of which depicted her having sexual contact with Brackett.
       Brackett was charged with eight counts of possession of sexually exploitive
       materials, I.C. § 18-1507A, and eight counts of sexual battery on a minor child of
       sixteen or seventeen, I.C. § 18-1508A. Brackett’s first trial ended in a mistrial
       after Brackett, during his opening statement, violated the district court’s pretrial
       order. After his second trial, Brackett was found guilty by a jury of eight counts
       of possession of sexually exploitive materials and five counts of sexual battery on
       a minor child of sixteen or seventeen.
State v. Brackett, 160 Idaho 619, 624, 377 P.3d 1082, 1087 (Ct. App. 2016).
       Brackett appealed from his judgment of conviction and this Court affirmed. Id. Brackett
has filed, among other motions, four motions for new trial. He did not appeal the denial of his
first motion for new trial. In two separate appeals, this Court affirmed the district court’s denial
of Brackett’s second and third motions for new trial. State v. Brackett, Docket No. 44143 (Ct.
App. Nov. 8, 2017) (unpublished); State v. Brackett, Docket No. 45071 (Ct. App. May 10, 2018)
(unpublished). Brackett filed another appeal from the denial of his fourth motion for new trial
and that appeal is currently pending in State v. Brackett, Docket No. 45566.
       Following his unsuccessful attempts to prevail on direct appeal, Brackett filed the current
pro se petition for post-conviction relief. Therein, Brackett raised the following claims: (1) his
appointed counsel in CR-2011-692 1 rendered deficient performance by failing to request the
charges be dismissed with prejudice; (2) counsel in CR-2011-8021 had a conflict of interest prior
to withdrawing from the case; (3) counsel in CR-2011-8021 rendered ineffective assistance of
counsel at the sentencing hearing for failing to adequately argue mitigation, file a proper appeal,
and file an Idaho Criminal Rule 35 motion on the grounds of excessive sentence; (4) appellate
counsel was ineffective for failing to raise various claims on direct appeal; (5) Brackett’s Fourth
Amendment rights were violated in the course of his arrest; (6) Brackett’s Fifth Amendment
rights were violated as a result of the district court’s process of randomly pre-seating the jury;
1
       Brackett was initially charged in CR-2011-692 with various charges of sexual battery of a
minor child and kidnapping. The case was subsequently dismissed. While CR-2011-692 was
pending, Brackett was charged with various counts of possession of sexually exploitative
material in CR-2011-6155. That case was also subsequently dismissed. Ultimately, Brackett
was charged with a combination of the charges from CR-2011-692 and CR-2011-6155 in CR-
2011-8021. The first trial in CR-2011-8021 ended in a mistrial. Thereafter, Brackett was
convicted by a jury of various counts.
                                                 2
(7) Brackett’s Sixth Amendment rights were violated by the trial court permitting numerous
counsel to withdraw from the case; (8) Brackett’s Fourteenth Amendment rights were violated
based upon a trial issue related to an SD card; (9) Idaho Code § 19-1508A is unconstitutional;
(10) I.C.R. 48 is unconstitutional; (11) the State committed various Brady 2 violations; (12) the
jury selection process violated Brackett’s due process rights; (13) the prosecutor committed
misconduct by failing to disclose an SD memory card; (14) the prosecutor committed vindictive
prosecution; (15) the district court committed error in instructing the jury; (16) the district court
erred in making various evidentiary rulings; (17) I.C.R. 16(m) is unconstitutional;
(18) Brackett’s rights to a speedy and fair trial were violated; (19) Brackett’s Fifth Amendment
rights were violated based on double jeopardy; (20) Brackett was prejudiced by the State
dismissing the charges in CR-2011-6155 and refiling the charges in CR-2011-8021; (21) the
presentence investigation report was falsified; (22) the district court erred by failing to provide a
jury instruction on a lesser-included charge; (23) the district court failed to properly warn
Brackett of the dangers of self-representation; (24) the district court failed to inform Brackett of
“new laws” (I.C.R. 16(m) and I.C.R. 12.2); and (25) the district court erred by failing to order an
evaluation to determine Brackett’s competence to stand trial.
        The district court issued a notice of intent to dismiss and addressed each claim. The court
found that any claims related to CR-2011-692 were not timely filed. As to the remainder of the
claims, the district court found the claims were not supported by the record, were not supported
by admissible evidence, could have been raised on direct appeal but were not, and Brackett did
not establish a prima facie case of either deficient performance or prejudice. As a result, the
district court gave notice of its intent to dismiss all claims in the petition.
        Brackett thereafter filed a notice of appeal, which was stayed pending an order dismissing
the petition and a final judgment. Brackett also filed an objection to the district court’s notice of
intent to dismiss, arguing that he was entitled to an evidentiary hearing and restating the claims
from his petition. Brackett did not respond to the substantive issues in the notice of intent to
dismiss. The district court dismissed Brackett’s petition for post-conviction relief and Brackett’s
appeal resumed.      Brackett was appointed counsel on appeal but counsel was subsequently
granted leave to withdraw.



2
        Brady v. Maryland, 373 U.S. 83 (1963).
                                                    3
                                                 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 Rules 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 Section 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



                                                 4
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).
                                                 III.
                                            ANALYSIS
       In this case, the district court correctly dismissed Brackett’s petition for post-conviction
relief. The scope of post-conviction relief is limited. Knutsen v. State, 144 Idaho 433, 438, 163
P.3d 222, 227 (Ct. App. 2007). Idaho Code Section 19-4901(a) states: “Any person who has
been convicted of, or sentenced for, a crime, and who claims . . . [t]hat the conviction or the
sentence was in violation of the constitution of the United States . . . may institute . . . a

                                                  5
proceeding under this act to secure relief.” However, a petition for post-conviction relief is not a
substitute for an appeal. I.C. § 19-4901(b). A claim or issue that was or could have been raised
on appeal may not be considered in post-conviction proceedings. Id.; Mendiola v. State, 150
Idaho 345, 348-49, 247 P.3d 210, 213-14 (Ct. App. 2010).
       The district court found that Claim 1 was not timely because CR-2011-692 was dismissed
without prejudice on September 2, 2011, and the petition was not filed until February 9, 2017.
See I.C. § 19-4902(a) (“An application may be filed at any time within one (1) year from the
expiration of the time for appeal or from the determination of an appeal or from the
determination of a proceeding following an appeal, whichever is later.”). The district court was
correct in this regard and Brackett does not challenge this determination on appeal.
       The district court found that Claims 5-12, 14-17, and 19-25 were all claims that could
have or should have been raised on direct appeal. Brackett provides no argument and authority
to explain why the district court erred in finding those claims could have or should have been
raised on direct appeal. As with any issue raised on appeal, an appellant asserting error must
support his argument with propositions of law, authority, and argument, otherwise it will not be
considered. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996). A party waives an
issue on appeal if either argument or authority is lacking. Powell v. Sellers, 130 Idaho 122, 128,
937 P.2d 434, 440 (Ct. App. 1997). As such, any challenges to the district court’s determination
that Brackett forfeited those claims in post-conviction proceedings have been waived on appeal.
       Similarly, the district court held that Claims 2, 3, 4, 7, 8, 11, 13, and 23 were not
supported by the record. Brackett does not challenge that finding and consequently, has waived
any claim of error on appeal. The district court further held that other claims, including Claim
18, were addressed in a previous direct appeal. Brackett fails to provide argument and authority
regarding this determination and thus, has waived any claim of error on appeal.
                                                IV.
                                         CONCLUSION
       Because Brackett failed to assign specific error to the district court’s notice of intent to
dismiss his post-conviction petition and failed to provide argument and legal authority in his
argument on appeal, we affirm the district court’s order summarily dismissing Brackett’s petition
for post-conviction relief.
       Judge LORELLO and Judge BRAILSFORD CONCUR.

                                                 6
