                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 42351

VALENTINO ALEX HERRERA,                          )    2016 Unpublished Opinion No. 447
                                                 )
       Petitioner-Appellant,                     )    Filed: March 25, 2016
                                                 )
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STATE OF IDAHO,                                  )    THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Cassia
       County. Hon. Michael R. Crabtree, District Judge.

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

       Silvey Law Office, Ltd.; Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

WALTERS, Judge Pro Tem
       Valentino Alex Herrera appeals from the district court’s judgment summarily dismissing
his petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
               FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       In the underlying criminal action, Herrera was charged with battery on a peace officer
and the persistent violator sentencing enhancement. Herrera and the victim, a former sheriff’s
deputy and bailiff, were both incarcerated for unrelated criminal charges. While the victim was
wiping down tables after breakfast, he moved Herrera’s coffee cup, angering Herrera, who
commented to another inmate that the victim had previously “put [Herrera] in prison” and “cost
[Herrera] five years.” Herrera threw hot coffee in the victim’s face, hit him in the face with the
coffee mug, punched him in the face, and gouged his eye. During the altercation, Herrera called
the victim a “narc cop.” A jury found Herrera guilty of the charges and he appealed. Herrera’s



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judgment of conviction was affirmed by this Court in State v. Herrera, 152 Idaho 24, 266 P.3d
499 (Ct. App. 2011).
       Herrera filed a pro se petition for post-conviction relief, alleging numerous claims for
relief, including various claims of ineffective assistance of counsel. The district court granted
the State’s motion for summary disposition and summarily dismissed all of Herrera’s claims.
Herrera timely appeals.
                                                 II.
                                   STANDARD OF REVIEW
       A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho
Code § 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 § 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

                                                 2
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).
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Murray, 121 Idaho at 924-25, 828 P.2d at 1329-30. To prevail
on an ineffective assistance of counsel claim, the petitioner must show that the attorney’s

                                                  3
performance was deficient and that the petitioner was prejudiced by the deficiency. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221,
224 (Ct. App. 1995). 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). 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).
        However, in limited circumstances, prejudice may be presumed when the “circumstances
that are so likely to prejudice the accused that the cost of litigating their effect in a particular case
is unjustified.” Zepeda v. State, 152 Idaho 710, 713, 274 P.3d 11, 14 (Ct. App. 2012) (quoting
United States v. Cronic, 466 U.S. 648, 658 (1984)). The United States Supreme Court has
identified those circumstances as the following: (1) where there is a “complete denial” of
counsel at a critical stage of trial; (2) where “counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing”; and (3) where, “although counsel is available to assist
the accused during trial, the likelihood that any lawyer, even a fully competent one, could
provide effective assistance is so small that a presumption of prejudice is appropriate.” Id.
(quoting Cronic, 466 U.S. at 658-60).
                                                  III.
                                               ANALYSIS
A.      Ineffective Assistance of Pretrial Counsel and Denial of Counsel
        Herrera argues that the district court erred in summarily dismissing his claim that he was
denied effective assistance of counsel at a critical stage of his criminal proceedings, specifically,
the initial appearance and district court arraignment. His petition asserts that he did not have
counsel until his preliminary hearing. Then, in one of his sworn affidavits, he more specifically
contends that he was “present, without counsel, for the first district court arraignment,” at which
point the court scheduled the entry of plea.
        The Sixth Amendment to the United States Constitution guarantees a criminal defendant
the right to counsel during all critical stages of the adversarial proceedings against him or her.
Estrada v. State, 143 Idaho 558, 562, 149 P.3d 833, 837 (2006) see also United States v. Wade,


                                                   4
388 U.S. 218, 224 (1967). A defendant’s right to effective assistance of counsel extends to all
critical stages of the prosecution where his or her substantial rights may be affected. Estrada,
143 Idaho at 562, 149 P.3d at 837. In determining whether a particular stage is critical, it is
necessary to analyze whether potential substantial prejudice to the defendant’s rights inheres in
the particular confrontation and the ability of counsel to help avoid such prejudice. Id. If the
stage is not critical, there can be no constitutional violation, no matter how deficient counsel’s
performance. Id.
       One of the circumstances upon which the court must presume prejudice is a situation
“where there is a ‘complete denial’ of counsel at a critical stage of trial.” Zepeda, 152 Idaho at
713, 274 P.3d at 14. In Missouri v. Frye, ___ U.S. ___, ___, 132 S. Ct. 1399, 1405 (2012), the
United States Supreme Court stated that “critical stages include arraignments, postindictment
interrogations, postindictment lineups, and the entry of a guilty plea.” However, the reference to
arraignments in the list refers to Hamilton v. Alabama, 368 U.S. 52 (1961). In Hamilton, the
United States Supreme Court determined an arraignment in a capital case under Alabama law is
a critical state of criminal proceedings, because it is the point at which a defendant must make a
claim of “defense of insanity” or the defense is deemed waived, only recoverable upon discretion
of a trial judge. Therefore, the Court found that “whatever may be the function and importance
of arraignment in other jurisdictions . . . in Alabama it is a critical stage in a criminal proceeding.
What happens there may affect the whole trial. Available defenses may be as irretrievably lost,
if not then and there asserted.” Hamilton, 368 U.S. at 54.
       The type of arraignment addressed in Hamilton is distinguishable from the nature of the
initial appearance and arraignment at issue in this case. Unlike Hamilton, where events in an
Alabama capital case proceeding could affect the whole trial, the events occurring in Herrera’s
initial appearance and arraignment are unlikely to affect the whole trial. Regarding an initial
appearance, I.C.R. 5(f) provides that at a defendant’s initial appearance after arrest, the
magistrate shall advise the defendant of his or her rights including the right to remain silent, to
bail, to a preliminary hearing, and to other information regarding the charged offense. The
magistrate must also advise the defendant of his or her right to counsel, including the right to
request counsel at any stage of the proceeding and to consult with counsel. Regarding an
arraignment, I.C.R. 10(b) provides that the defendant is entitled to appear with counsel at an
arraignment hearing, or the proceedings may be delayed for a reasonable period of time in order

                                                  5
for counsel to be retained or appointed.     In addition, I.C.R. 10(c) provides that a criminal
defendant must be allowed a reasonable time in which to answer the indictment or information
and to enter a plea. These criminal rules do not raise the same concerns addressed in Hamilton,
where the absence of counsel during an arraignment proceeding would have deleterious effects
on a defendant’s ability to raise a defense. Instead, these rules protect a criminal defendant’s
right to appointed counsel and to appear at the proceedings with counsel. And, the rules allow a
defendant to delay proceedings so that counsel may be appointed or allowed to appear at the
proceeding. Because the initial appearance and arraignment before the district court is not
equivalent to the arraignment in Hamilton, we conclude that the proceedings here are not a
critical stage of trial.
        Further, even if a defendant were to appear without counsel during an initial appearance
or arraignment, this does not equate to a complete denial of counsel. Under the applicable
criminal rules, the defendant has the ability to both request the appointment of counsel and
appear with counsel, or request a delay until counsel can appear. Accordingly, we hold that
prejudice will not be presumed when counsel does not appear at these proceedings, and the
Strickland analysis is the appropriate standard for determining whether counsel was ineffective at
these stages of a criminal proceeding. Thus, our inquiry turns to whether Herrera’s petition
alleged admissible evidence to make out a prima facie case of ineffective assistance of counsel.
        As to Herrera’s claim that he was denied counsel, the district court concluded that the
record contradicted Herrera’s claim that he was without counsel. The record shows Herrera was
appointed a public defender at his initial appearance, as is consistent with the requirements of
I.C.R. 5. While it appears Herrera was eventually represented by a conflict public defender at his
preliminary hearing a few weeks later, the record does not support the claim he was denied the
assistance of counsel at any critical stage of the proceeding. And, as to his claim that he was
prejudiced because the public defender did not appear at his arraignment hearing, even if we
were to presume deficiency, Herrera has not established prejudice. The record, as supplied by
Herrera, shows the district court continued the arraignment hearing so Herrera would have an
adequate opportunity to consult with counsel prior to the entry of his plea. Herrera has not
alleged actual prejudice suffered from the absence of counsel at the hearing, or that the absence
of counsel somehow impacted the outcome of his jury trial. Therefore, the district court did not
err in summarily dismissing this claim.

                                                6
B.      Ineffective Assistance of Trial Counsel
        Herrera also argues the district court erred in dismissing his claims of ineffective
assistance of trial counsel.
        1.      Failure to move to suppress
        Herrera argues the district court erred in dismissing his claim regarding trial counsel’s
failure to file a motion to suppress to exclude Herrera’s statements.         Herrera asserts the
statements he made during the investigation of the incident were obtained in violation of his
Miranda1 rights, and that he was prejudiced when the State used those statements against him
during the jury trial.
        In a post-conviction petition, to make a prima facie showing of ineffective assistance
where the alleged deficiency is counsel’s failure to move to suppress evidence, the petitioner
must allege facts that, if true, could have resulted in the court’s granting of the motion. Huck v.
State, 124 Idaho 155, 158, 857 P.2d 634, 637 (Ct. App. 1993). “If the motion lacked merit and
would have been denied, counsel ordinarily would not be deficient for failing to pursue it, and,
concomitantly, the petitioner could not have been prejudiced by the want of its pursuit.” Id. at
158-59, 857 P.2d at 637-38. On the other hand, where the record supports finding that a motion
to suppress “may well have succeeded and altered the outcome,” summary dismissal is not
appropriate. Hoffman v. State, 153 Idaho 898, 905, 277 P.3d 1050, 1057 (Ct. App. 2012).
        As to Herrera’s claim that counsel’s performance was deficient, the district court
concluded that Herrera did not provide admissible evidence to show a reasonable probability that
the suppression motion would have been granted. It is undisputed that Herrera was placed in a
holding cell immediately after the incident and that he was later taken to the booking area of the
jail. It is also undisputed that Deputy Pethel questioned Herrera about the incident, but did not
first Mirandize Herrera before questioning him. However, it is disputed whether Herrera was
handcuffed during this time. Herrera’s allegation that he was handcuffed during the questioning
is a fact within his personal knowledge, to which he attested through sworn documents, and thus
constitutes admissible evidence. See Baldwin v. State, 145 Idaho 148, 155, 177 P.3d 362, 369
(2008). Moreover, as a disputed fact, this allegation must be construed in a light most favorable
to Herrera. See Roman, 125 Idaho at 647, 873 P.2d at 901. Therefore, we must consider



1
        See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                7
whether the admissible evidence within Herrera’s petition was sufficient to show a reasonable
probability that a motion to suppress could have been successful.
       The requirement for Miranda warnings is triggered by custodial interrogation. State v.
Medrano, 123 Idaho 114, 117, 844 P.2d 1364, 1367 (Ct. App. 1992). The United States
Supreme Court equated custody with a person being deprived of his or her freedom by the
authorities in any significant way. Miranda, 384 U.S. at 478. This test has evolved to define
custody as a situation where a person’s freedom of action is curtailed to a degree associated with
formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Myers, 118 Idaho 608,
610, 798 P.2d 453, 455 (Ct. App. 1990). The initial determination of custody depends on the
objective circumstances of the interrogation, not on the subjective views harbored by either the
interrogating officers or the person being questioned. Stansbury v. California, 511 U.S. 318, 323
(1994). To determine if a suspect is in custody, the only relevant inquiry is how a reasonable
person in the suspect’s position would have understood his or her situation. Berkemer, 468 U.S.
at 442; Myers, 118 Idaho at 611, 798 P.2d at 456.
       Police questioning of an already incarcerated prisoner is not enough, by itself, to establish
that the prisoner was in custody for purposes of Miranda. Howes v. Fields, ___ U.S. ___, ___,
132 S. Ct. 1181, 1188 (2012). A court must still consider all of the circumstances surrounding
the interrogation. Id. at 1189. Factors to be considered may include the degree of restraint on
the person’s freedom of movement (including whether the person is placed in handcuffs),
whether the subject is informed the detention is more than temporary, the location and visibility
of the interrogation, whether other individuals were present, the number of questions asked, the
duration of the interrogation or detention, the time of the interrogation, the number of officers
present, the number of officers involved in the interrogation, the conduct of the officers, and the
nature and manner of the questioning. See Berkemer, 468 U.S. at 441-42; State v. James, 148
Idaho 574, 577-78, 225 P.3d 1169, 1172-73 (2010). The burden of showing custody rests on the
defendant seeking to exclude evidence based on a failure to administer Miranda warnings.
James, 148 Idaho at 577, 225 P.3d at 1172.
       In viewing the post-conviction petition allegations in a light most favorable to Herrera,
we conclude that he has provided sufficient evidence to establish a genuine issue of material fact
as to whether a suppression motion could have been successful. Based on the facts in the record,
the allegations in Herrera’s petition, and the status of the law, a court could reasonably conclude,

                                                 8
based upon the totality of the circumstances surrounding the questioning, that Herrera was in
custody and his statements were obtained in violation of Miranda. Thus, Herrera has raised a
genuine issue of material fact as to the deficiency prong of Strickland. However, to succeed on
this claim, Herrera must also establish prejudice.
       As to Herrera’s claim that he was prejudiced by counsel’s ineffective assistance, the
district court concluded that Herrera did not provide admissible evidence to show a reasonable
probability that the result of the trial would have been different if the motion had been granted.
Herrera argues that he was prejudiced by counsel’s failure because the State used Herrera’s
nonwarned statements about the motivation for the attack to enhance the charged offense to a
felony. However, even if a motion to suppress would have prevented Deputy Pethel from
testifying about Herrera’s statements, this decision would not have limited the testimony of the
other witnesses or impacted the State’s ability to charge Herrera with the felony offense. In fact,
the record indicates that another witness testified to Herrera’s animosity toward the victim,
establishing the same motivation for the attack to which Deputy Pethel testified. Thus, the
district court did not err in concluding that Herrera failed to allege sufficient evidence to show a
reasonable probability that the result of the trial would have been different. Therefore, the
district court did not err in summarily dismissing this claim.
       2.         Failure to seek continuance
       Herrera also argues the district court erred in summarily dismissing his claim that trial
counsel was ineffective for failing to request a continuance of the jury trial. He contends that
counsel’s failure prevented him from understanding the implications of the persistent violator
sentencing enhancement and that he did not have sufficient time to understand and consider the
State’s plea offer, which would have resulted in a shorter term of imprisonment by not subjecting
him to the persistent violator enhancement. Thus, Herrera argues he was prejudiced because he
rejected the plea offer and received a harsher sentence than he would have received if he had
taken the plea.
       As discussed in the previous section, to make a prima facie showing of deficiency as to
counsel’s failure to file a motion, a petitioner must allege admissible facts that could have
resulted in the court’s granting of the motion. Huck, 124 Idaho at 158, 857 P.2d at 637. As to
Herrera’s claim that counsel was deficient for failing to seek a continuance, the district court
concluded that Herrera did not provide admissible evidence to show that a continuance motion

                                                 9
would have been granted. The record indicates that although the State filed the persistent
violator sentencing enhancement against Herrera three months prior to trial, he was not arraigned
on the enhancement until the morning of trial.2 Generally, the decision to grant or deny a motion
for continuance is within the discretion of the judge. State v. Wood, 132 Idaho 88, 106, 967 P.2d
702, 720 (1998). However, a defendant must be allowed a reasonable time (not less than one
day) to answer an indictment if he or she requires additional time. I.C. § 19-1516; I.C.R. 10(c).
       Herrera’s statements in his sworn post-conviction affidavit allege that he did not
understand the possible penalty that could be imposed because of the enhancement. However,
those statements conflict with other facts in the record. On the morning of the trial, the court
explained to Herrera the nature of the charges against him, including the sentence enhancement,
and set forth the potential penalty; Herrera ultimately affirmed his understanding of both before
entering his plea of not guilty. Herrera’s other assertion is that he required additional time to
consider the plea, thus counsel should have moved for a continuance. However, he does not
support this bare and conclusory allegation with admissible evidence that counsel knew or
should have known that Herrera required additional time to consider the plea. In fact, evidence
in the record contradicts this claim as well, as Herrera himself admits to conversing with counsel
regarding the plea offer on numerous occasions. Thus, the district court properly concluded that
Herrera failed to make a prima facie case showing counsel was deficient.
       Moreover, as to the prejudice prong of Strickland, the district court concluded that
Herrera did not provide admissible evidence to show a reasonable probability that the result of
the proceedings would have been different. Herrera’s alleged prejudice is his decision not to
accept the State’s plea offer, but the record does not support either his alleged lack of
understanding of the persistent violator enhancement or his claim he had insufficient time to
consider the merits of the plea offer. On direct appeal, we addressed Herrera’s claim that he did
not have adequate opportunity to understand the sentencing enhancement or the plea offer. We
held Herrera’s own statements during the sentencing hearing “establish that Herrera did, in fact,
have an opportunity to engage in plea negotiations after learning that the State would file or had
filed the persistent violator enhancement. Thus, the factual basis for his claim of prejudice is

2
        Herrera’s attorney filed a motion to dismiss the persistent violator enhancement on the
morning of trial. On direct appeal, we upheld the district court’s denial of the motion to dismiss
the sentencing enhancement. State v. Herrera, 152 Idaho 24, 30-31, 266 P.3d 499, 505-506 (Ct.
App. 2011).
                                                10
disproven by the record.” Herrera, 152 Idaho at 31, 266 P.3d at 506. The record in this case
does not change our earlier analysis on this issue. Therefore, the district court did not err in
summarily dismissing this claim.
       3.      Failure to impeach witnesses
       Next, Herrera argues that the district court erred in summarily dismissing his claim that
trial counsel was ineffective for failing to obtain a transcript of the preliminary hearing transcript
for use during trial. The district court dismissed the claim as bare and conclusory. The court
also pointed out that Herrera did not establish how use of the transcript would have impacted the
outcome of the trial.
       In his petition, Herrera did not allege facts showing how trial counsel should have
utilized the transcript or to support finding that the transcript would have been admissible. And,
just as the district court found, the petition contained no statement as to how the outcome of the
case would have differed had trial counsel obtained and used the transcript. Moreover, on
appeal, Herrera fails to demonstrate how the district court erred in its decision. In fact, for the
first time on appeal, Herrera refines his post-conviction argument, arguing that counsel was
ineffective for failing to use the transcript to impeach the victim at trial. However, 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). Because this argument was not before the district court in the
motion for summary dismissal, we need not address its merits. Thus, we conclude that the
district court did not err in summarily dismissing this claim.
       4.      Failure to change venue
       Herrera also argues that the district court erred in summarily dismissing his claim that
counsel was ineffective for failing to file a motion to change the venue of his trial. In his
petition, Herrera argued that he was denied a fair and impartial trial because the victim, a former
court bailiff, was known to all the judges, the prosecutor, law enforcement, and other courthouse
employees. The district court concluded that Herrera did not provide admissible evidence
showing that such a motion would have been granted or that he was denied a fair trial.
       The decision to grant or deny a motion to change venue is within the discretion of the
judge. State v. Hadden, 152 Idaho 371, 376, 271 P.3d 1227, 1232 (Ct. App. 2012). The court
shall grant such motion “if the court is satisfied that a fair and impartial trial cannot be had in the
county where the case is pending.” I.C.R. 21(a). In post-conviction proceedings, “the issue of

                                                  11
whether a change of venue should be requested is a matter of trial strategy and tactical choice,
not subject to review as a claim of ineffective assistance of counsel in the absence of proof of
inadequate preparation or ignorance on counsel’s part.” Grant v. State, 156 Idaho 598, 606, 329
P.3d 380, 388 (Ct. App. 2014). In Grant, the appellant claimed counsel was ineffective for
failing to move for a change of venue because “the victim’s mother ‘was the secretary of the
local police chief’ and because of ‘how close-knit the law enforcement community is.’” Id.
However, this Court held that the petitioner in Grant failed to show prejudice from the alleged
community connection as well as the likelihood of success on such a motion. Id.
       Similar to Grant, Herrera has not alleged sufficient evidence to establish prejudice from
the alleged connection between the victim and the legal proceeding. Additionally, Herrera has
not alleged facts sufficient to show a likelihood of success if counsel had filed the motion on his
behalf. Thus, the district court did not err in summarily dismissing this claim.
       5.      Failure to prepare for trial
       Finally, Herrera argues the district court erred in summarily dismissing his claim that trial
counsel failed to properly prepare for trial. Herrera maintains that his counsel failed to properly
cross-examine witnesses, failed to adequately impeach the State’s witnesses, and failed to utilize
witnesses to corroborate Herrera’s defense. The district court dismissed this claim as bare and
conclusory because Herrera did not allege sufficient facts to show that counsel’s conduct was not
a strategic decision or that a change in conduct would have impacted the outcome of the jury
trial. On appeal, Herrera does not appear to argue the propriety of the district court’s decision,
rather, he generally reasserts a number of the claims presented in the post-conviction petition.
       Herrera has not shown that trial counsel’s conduct before and during trial amounts to
deficient performance. Nor has he shown that he was prejudiced even if counsel’s conduct fell
below the Strickland standard for deficiency. In the absence of evidence to the contrary, we
apply “a strong presumption that counsel’s performance fell within the wide range of
professional assistance.” State v. Shackelford, 150 Idaho 355, 383, 247 P.3d 582, 610 (2010);
State v. Hairston, 133 Idaho 496, 511, 988 P.2d 1170, 1185 (1999). Based on the record
presented to the district court, we cannot conclude the district court erred in summarily
dismissing this post-conviction claim.




                                                12
C.      Cumulative Error
        Finally, Herrera contends the effect of the ineffective assistance of counsel allegations
addressed above amounts to cumulative error that warrants relief. A necessary predicate to
application of the doctrine is a finding of error in the first instance. Stevens v. State, 156 Idaho
396, 421, 327 P.3d 372, 397 (Ct. App. 2013); Boman v. State, 129 Idaho 520, 527, 927 P.2d 910,
917 (Ct. App. 1996). Because Herrera has failed to make a necessary showing he is entitled to
relief on any of his ineffective assistance of counsel claims, the doctrine of cumulative error has
no applicability in this case.
                                                IV.
                                         CONCLUSION
        For the reasons set forth above, we affirm the district court’s judgment summarily
dismissing Herrera’s petition for post-conviction relief.
        Judge GUTIERREZ and Judge GRATTON CONCUR.




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