               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 40068

KENNETH D. RAWLEY,                               )     2013 Unpublished Opinion No. 767
                                                 )
       Petitioner-Appellant,                     )     Filed: November 26, 2013
                                                 )
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STATE OF IDAHO,                                  )     THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho,
       Bonner County. Hon. Jeff M. Brudie, District Judge.

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

       Kenneth D. Rawley, Orofino, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Kenneth D. Rawley appeals from the district court’s summary dismissal of his petition
for post-conviction relief. We affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       This Court reviewed the circumstances of Rawley’s conviction in State v. Rawley, Docket
No. 32440 (Ct. App. Aug. 27, 2008) (unpublished):
               Early in the morning on New Year’s Day, a fight broke out in a bar in
       Northern Idaho. The fight resulted in the victim being stabbed in the neck with a
       sharp object. The stab wound required the victim to be flown to Spokane for
       several hours of emergency surgery. Based on the incidents surrounding the fight,
       Rawley was charged with three counts of misdemeanor battery for punching three
       individuals and one count of aggravated battery for stabbing the victim. Rawley
       pled not guilty and the case proceeded to trial.
               Shortly before Rawley’s trial, a retired Emergency Medical Technician
       (the EMT) was disclosed to be called as a witness by the state. On the second
       day of Rawley’s trial, the EMT arrived and spoke to the prosecutor in the hall.


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       After discussing the matter, the EMT did not testify at that time and was told by
       the prosecutor that her testimony was no longer needed. Rawley’s counsel then
       spoke with the EMT, and she subsequently testified on Rawley’s behalf. The
       EMT testified that, as she went to render aid to the victim, she bumped into a man
       who had tattoos on his arms and face, had blood on his hands and face, and was
       carrying what looked like it could have been a knife. Despite the similarities
       between the man the EMT described and Rawley, the EMT testified that the man
       she bumped into was not Rawley. Several other witnesses testified that Rawley
       provoked the fight inside the bar, that Rawley was the only individual involved in
       the fight with the victim the evening in question, and that Rawley punched the
       victim in the jaw seconds before the victim’s stab wound in his neck was
       discovered.
               A jury found Rawley guilty of all counts, including the aggravated battery
       charge at issue in this appeal. I.C. §§ 18-903, 18-907. The district court entered a
       judgment of conviction and sentenced Rawley to a unified term of fifteen years,
       with a twelve-year minimum period of confinement. Rawley appeals, challenging
       the denial of his motion for a mistrial, asserting claims of prosecutorial
       misconduct, contending the cumulative errors deprived him of due process, and
       challenging the excessiveness of his sentence.

We affirmed Rawley’s judgment of conviction.
       Rawley subsequently filed a pro se petition for post-conviction relief and after counsel
was appointed, two amended petitions were filed.        Rawley alleges he obtained ineffective
assistance of trial counsel. The State filed a motion for summary dismissal which the district
court granted. Rawley timely appeals.
                                                II.
                                           ANALYSIS
       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 I.R.C.P. 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,

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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
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.” 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
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


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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
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).
       Rawley’s post-conviction petition alleges his trial counsel provided 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 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


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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).
       Determining whether an attorney’s pretrial preparation falls below a level of reasonable
performance constitutes a question of law, but is essentially premised upon the circumstances
surrounding the attorney’s investigation. Thomas v. State, 145 Idaho 765, 769, 185 P.3d 921,
925 (Ct. App. 2008). To prevail on a claim that counsel’s performance was deficient for failing
to interview witnesses, a petitioner must establish that the inadequacies complained of would
have made a difference in the outcome of trial. Id. It is not sufficient merely to allege that
counsel may have discovered a weakness in the State’s case. Id. We will not second-guess trial
counsel in the particularities of trial preparation. Id. It is not enough to allege that a witness
would have testified to certain events, or would have rebutted certain statements made at trial,
without providing through affidavit, nonhearsay evidence of the substance of the witnesses’
testimony. Id. at 770, 185 P.3d at 926.
       Rawley alleges his trial counsel were ineffective in failing to investigate roughly twenty-
seven to fifty witnesses who were at the bar that could have offered exculpatory evidence. The
district court found that the investigation by Rawley’s attorneys fell within the scope of
reasonable conduct, and that Rawley failed to show how witness interviews would have
impacted the outcome of his trial. Rawley’s attorneys investigated several witnesses, utilized
police reports, and prepared a sound defense strategy. And as Rawley points out, multiple
witnesses who were not interviewed provided testimony at the preliminary hearing describing the
events of the altercation.   Rawley’s attorneys’ conduct fell within the reasonable scope of
professional conduct.   Additionally, Rawley offered no admissible evidence to support his
assertion that these witnesses would have offered exculpatory evidence. Whether the witnesses
would have provided exculpatory evidence is speculation and is not sufficient to survive
summary dismissal.




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         Rawley also contends that his attorneys provided ineffective assistance of counsel by
failing to interview the EMT when they learned (four days prior to trial) that she was a potential
witness. The district court found Rawley presented no evidence that he was prejudiced at trial by
his attorneys for not interviewing the EMT before trial. Rawley claims that if his attorneys had
interviewed the EMT, they could have more effectively prepared the defense since the EMT
testified that the man she bumped into with bloody arms was not Rawley. However, Rawley
failed to present evidence of how interviewing the EMT before trial would have led to a different
defense or affected the result of his trial.
         In addition, Rawley claims his attorneys should have accepted the court’s offer of a
continuance when they learned of the EMT’s exculpatory testimony. In a deposition, Rawley’s
attorneys indicated that in hindsight, they should have asked for more time to prepare and
interview the EMT before calling her as a witness. Yet, as noted by the district court in its
findings, Rawley’s attorneys interviewed the EMT before calling her as a witness. Rawley
acknowledges that the EMT’s testimony would not have been different. Instead, again, he
asserts that a different defense may have been developed, perhaps pointing to the man the EMT
saw.     However, Rawley’s mere assertion that a continuance should have been obtained to
conduct a further interview with the EMT, in the hopes of developing a different defense
strategy, is insufficient to raise a genuine issue of fact as to the ineffective assistance of counsel
claim.
         Finally, Rawley asserts his post-conviction counsel failed to present the necessary
evidence to avoid summary dismissal and did not raise key issues in his post-conviction petition.
There is no constitutionally-protected right to the effective assistance of counsel in post-
conviction relief proceedings. Rios-Lopez v. State, 144 Idaho 340, 343, 160 P.3d 1275, 1278 (Ct.
App. 2007). Thus, such an allegation, in and of itself, is not among the permissible grounds for
post-conviction relief. See Griffin v. State, 142 Idaho 438, 441, 128 P.3d 975, 978 (Ct. App.
2006); Wolfe v. State, 113 Idaho 337, 339, 743 P.2d 990, 992 (Ct. App. 1987). Ineffective
assistance of prior post-conviction counsel may, however, provide sufficient reason for
permitting newly-asserted allegations or allegations inadequately raised in the initial petition to
be raised in a subsequent post-conviction petition. Schwartz v. State, 145 Idaho 186, 189, 177
P.3d 400, 403 (Ct. App. 2008). See also Palmer v. Dermitt, 102 Idaho 591, 596, 635 P.2d 955,
960 (1981); Hernandez v. State, 133 Idaho 794, 798, 992 P.2d 789, 793 (Ct. App. 1999).


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Rawley’s appeal of the order summarily dismissing his petition for post-conviction relief does
not properly bring before this Court the issue of whether his post-conviction counsel was
ineffective. 1
        Throughout his appeal, Rawley makes numerous other challenges that were not raised in
his petition for post-conviction relief or addressed by the district court. Generally, issues not
raised below may not be considered for the first time on appeal. State v. Fodge, 121 Idaho 192,
195, 824 P.2d 123, 126 (1992). We decline to address Rawley’s other claims not considered by
the district court.
                                               III.
                                        CONCLUSION
        The district court did not err by dismissing Rawley’s petition for post-conviction relief.
Therefore, the order summarily dismissing Rawley’s petition for post-conviction relief is
affirmed.
        Judge LANSING and Judge MELANSON CONCUR.




1
        Rawley relies on Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 (2012), in support of his
request to have this Court review his claim of ineffective post-conviction counsel. Martinez is
inapposite to this case. The United States Supreme Court decided a question of access to a
federal habeas proceeding denied by a procedural default; the decision was based on equitable
principles and not on constitutional principles. Id. at __, 132 S. Ct. at 1319. Martinez had no
effect on state court post-conviction review.

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