                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 41676

MARKCUS RAYMOND MAY,                              )    2015 Unpublished Opinion No. 456
                                                  )
          Petitioner-Appellant,                   )    Filed: April 7, 2015
                                                  )
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STATE OF IDAHO,                                   )    THIS IS AN UNPUBLISHED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, Twin
          Falls County. Hon. Randy J. Stoker, District Judge.

          Judgment denying petition for post-conviction relief, affirmed.

          Markcus Raymond May, Boise, pro se appellant.

          Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
          Attorney General, Boise, for respondent.
                    ________________________________________________

MELANSON, Chief Judge
          Markcus Raymond May appeals from the district court’s judgment denying his petition
for post-conviction relief following an evidentiary hearing. For the reasons set forth below, we
affirm.
                                                  I.
                                    FACTS AND PROCEDURE
          The facts of May’s underlying criminal charge were outlined in our opinion from May’s
direct appeal:
                 May was charged with aggravated battery, Idaho Code §§ 18-903, 18-
          907(1)(b); aggravated assault, I.C. § 18-901; burglary, I.C. § 18-1401; and
          eluding a peace officer, I.C. § 49-1404(2); and the State sought sentence
          enhancements for the use of a firearm during the commission of a felony, I.C.
          § 19-2520. After two previous plea offers, the State and May reached a plea
          agreement under which he would plead guilty to aggravated battery with a deadly

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       weapon enhancement and misdemeanor eluding a peace officer, in exchange for
       which the State would dismiss the remaining counts. The State agreed to
       recommend a thirty-year unified sentence consisting of ten years determinate
       followed by twenty years indeterminate to be served for aggravated battery, and a
       concurrent six months in county jail for misdemeanor eluding a peace officer.
               On January 27, 2011, pursuant to the plea agreement, May pleaded guilty
       to aggravated battery with a deadly weapon enhancement and misdemeanor
       eluding a peace officer. Approximately six weeks after pleading guilty, May
       received conflict counsel. On April 22, 2011, conflict counsel filed a motion to
       withdraw May’s guilty pleas. Thereafter, a hearing was held on May’s motion, at
       which May and his previous defense counsel testified.
               During the evidentiary hearing, May testified that he pleaded guilty only
       because of threats and pressure from his attorney. He also testified that he had not
       understood that the plea agreement involved a potential thirty-year prison
       sentence for the aggravated battery charge, instead believing that a unified
       sentence of thirty years with ten years determinate meant that twenty years of the
       sentence would be “erased,” leaving a ten-year sentence. May argued that he
       should have been allowed to withdraw his guilty pleas for two reasons:
       (1) because he was pressured into pleading guilty; and (2) that he did not
       understand legal terms in the plea agreement describing the sentence.
               The district court found that May did not establish a “just reason” to
       withdraw his guilty pleas and denied his motion to withdraw. May was sentenced
       to a unified term of thirty years with ten years determinate for aggravated battery
       with a weapon enhancement, and six months in jail for eluding.
               On appeal, May contends that the district court abused its discretion when
       it denied his motion to withdraw his guilty pleas because he was pressured, he did
       not understand the terms of the plea agreement, and the district court’s
       consideration of certain factors prescribed by a federal circuit court was
       erroneous.
State v. May, Docket No. 38835 (Ct. App. July 31, 2012) (unpublished). We affirmed May’s
judgment of conviction, concluding that the district court had not abused its discretion in denying
May’s motion to withdraw his guilty plea, as the record reflected “that May was not pressured,
that he understood the sentencing terms, and that his acceptance of the plea agreement was made
voluntarily and knowingly.”
       May filed a pro se petition for post-conviction relief. In it, he alleged various claims of
ineffective assistance of counsel, his actual innocence, and that the district court erred by
denying his motion to withdraw his guilty plea because it was not knowing, intelligent, and




                                                2
voluntary. 1 Counsel was appointed to represent May. Following an evidentiary hearing, the
district court denied May’s post-conviction petition, finding that all of May’s claims were
previously adjudicated in his motion to withdraw his guilty plea except his claim of actual
innocence and the appeal that affirmed his conviction. 2 The district court noted that all of the
facts comprising May’s claim of actual innocence were known before the change of plea hearing
and could have been raised in his motion to withdraw his guilty plea or on direct appeal, but
were not. Thus, the district court concluded that all of May’s claims were barred by I.C. § 19-
4901(b). 3   The district court also concluded that May’s claims of ineffective assistance of
counsel and actual innocence were clearly disproven by the record. May appeals.


1
        May asserts ineffective assistance of counsel claims against the attorney who assisted
May prior to his motion to withdraw his guilty plea and the attorney who assisted May with that
motion and at sentencing. The claims against initial counsel include: a personal conflict of
interest with counsel that was not addressed; counsel’s failure to investigate and use important
evidence in pursuing defenses or object to improper evidence or testimony; counsel’s failure to
properly advise May regarding the consequences of his plea; and counsel’s failure to request a
competency hearing or challenge the weapon enhancement. The claims against subsequent
counsel include: counsel’s failure to submit mitigating letters from friends and family at
sentencing; counsel’s failure to properly prepare May for the hearing on his motion to withdraw
his guilty plea; counsel’s failure to communicate with May; counsel’s failure to raise certain
issues during the hearing on the motion to withdraw his guilty plea; and counsel’s failure to
object to admission of a recorded phone call between May and his mother or to call May’s
mother as a witness. At the evidentiary hearing, May limited his issues with subsequent counsel
to his failure to submit mitigating letters and his failure to properly prepare May for the hearing.
2
        May claims that the district court erred in failing to hold an evidentiary hearing. The
record clearly disproves this claim and shows that an evidentiary hearing was held. Seemingly
realizing this, May also claims that he was prevented from introducing the evidence necessary to
support his claim. However, he fails to identify what evidence he was prevented from
introducing or how this evidence would have supported his claims. Moreover, the record belies
May’s contentions and shows that he was afforded a full and fair opportunity to present all
relevant evidence at the evidentiary hearing.
3
       Idaho Code Section 19-4901(b) provides, in pertinent part:
                This remedy is not a substitute for nor does it affect any remedy incident
       to the proceedings in the trial court, or of an appeal from the sentence or
       conviction. Any issue which could have been raised on direct appeal, but was
       not, is forfeited and may not be considered in post-conviction proceedings, unless
       it appears to the court, on the basis of a substantial factual showing by affidavit,

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                                                II.
                                   STANDARD OF REVIEW
       In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865,
869, 801 P.2d 1216, 1220 (1990). When reviewing a decision denying post-conviction relief
after an evidentiary hearing, an appellate court will not disturb the lower court’s factual findings
unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d
654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their
testimony, and the inferences to be drawn from the evidence are all matters solely within the
province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App.
1988). We exercise free review of the district court’s application of the relevant law to the facts.
Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).
                                                III.
                                           ANALYSIS
       May reasserts on appeal many of the arguments raised in his petition for post-conviction
relief, including some of his claims of ineffective assistance of both the counsel who assisted him
before the motion to withdraw his guilty plea and the counsel who assisted him thereafter. 4
However, May adds the claim that the district court erred in denying his motion to withdraw his
guilty plea and contends that his counsel’s ineffective assistance made his guilty plea not




       deposition or otherwise, that the asserted basis for relief raises a substantial doubt
       about the reliability of the finding of guilt and could not, in the exercise of due
       diligence, have been presented earlier.
4
       May also asserts claims of ineffective assistance of appellate counsel. However, these
claims were not raised in his petition for post-conviction relief. Generally, issues not raised
below may not be considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322,
815 P.2d 1061, 1062 (1991); Joyner v. State, 156 Idaho 223, 230, 322 P.3d 305, 312 (Ct. App.
2014). As a result, we will not consider these claims on appeal.



                                                 4
knowing, intelligent, or voluntary. 5    The state contends that May’s claims regarding the
performance of his initial counsel and the denial of his motion to withdraw his guilty are barred
by the doctrine of res judicata.
A.     Res Judicata
       The scope of post-conviction relief is limited. Rodgers v. State, 129 Idaho 720, 725, 932
P.2d 348, 353 (1997). A petition for post-conviction relief is not a substitute for an appeal.
I.C. § 19-4901(b). A claim or issue which was or could have been raised on appeal may not be
considered in post-conviction proceedings. Id.; Whitehawk v. State, 116 Idaho 831, 832-33, 780
P.2d 153, 154-55 (Ct. App. 1989). Moreover, the doctrine of res judicata applies when a
petitioner attempts to raise the same issues previously ruled upon on direct appeal in a
subsequent petition for post-conviction relief. Knutsen v. State, 144 Idaho 433, 439, 163 P.3d
222, 228 (Ct. App. 2007). Indeed, when legal issues are decided in a criminal action on direct
appeal, the petitioner is barred by the doctrine of res judicata from raising them again in a post-
conviction relief proceeding. State v. Beam, 115 Idaho 208, 210, 766 P.2d 678, 680 (1988);
State v. Fetterly, 115 Idaho 231, 233, 766 P.2d 701, 703 (1988).
       The issues May raised in his post-conviction petition and reasserted at the evidentiary
hearing are identical to the issues he raised at the hearing on his motion to withdraw his guilty
plea. At the post-conviction evidentiary hearing, May acknowledged during direct examination
that his testimony there “essentially parrots” his testimony at the hearing on his motion to
withdraw his guilty plea. May did not raise any new issues regarding his initial counsel that had
not previously been addressed at the hearing on the motion to withdraw his guilty plea and
affirmed on appeal. Moreover, May had a full and fair opportunity to address the issues he
raised regarding his initial counsel’s representation and his desire to withdraw his guilty plea at
the hearing on that motion. Indeed, May conceded during closing argument at the evidentiary
hearing that most of the issues he was asserting were previously raised and fully addressed in the
hearing on the motion to withdraw his guilty plea. Following that hearing, the district court
denied May’s motion, and we affirmed that decision on appeal. Because all of May’s claims


5
       May also adds the claim that he was not given access to the record to prepare for this
appeal. However, May provides no evidence to support this conclusory allegation. Accordingly,
we will not address it further.

                                                5
regarding the denial of his motion to withdraw his guilty plea, including the issues encompassing
his claims of ineffective assistance of his initial counsel, were raised and resolved at the hearing
on May’s motion to withdraw his guilty plea and the appeal therefrom, those issues are barred
from relitigation by the doctrine of res judicata. Moreover, May has provided no argument
establishing why any issues that were not raised could not have been; thus, any such issues were
waived under I.C. § 19-4901(b). Accordingly, we will not address these issues further.
B.     Ineffective Assistance of Counsel
       May’s claims regarding ineffective assistance of his subsequent counsel, who assisted
with his motion to withdraw his guilty plea and sentencing, and his claim of actual innocence are
addressed for the first time in his post-conviction petition. Accordingly, we review the district
court’s resolution of those claims.
       A claim of ineffective assistance of counsel may properly be brought under the post-
conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct.
App. 1992). 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); 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). To establish
prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient
performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177.
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).
       Here, May alleged various ways that his subsequent counsel’s representation was
ineffective during the hearing on the motion to withdraw his guilty plea and sentencing. Both
May and his subsequent attorney testified at the evidentiary hearing. However, the district court
found May’s testimony incredible and unsupported by the record and found his subsequent




                                                 6
attorney’s testimony credible and consistent with the factual record. As stated by the district
court:
                  May’s claims against [his subsequent counsel] are likewise meritless. He
         says that [his counsel] did not properly “prep” him for the hearing where he
         testified in support of his motion to withdraw plea. The Court finds that this
         claim is frivolous and unsupported by the record. [His counsel] testified that he
         spent considerable time with May preparing for the hearing. It is not an
         attorney’s job to tell a client what to say in court, and indeed [his counsel] did not.
         He explained the law to May and gave him every opportunity to state his reasons
         for withdrawing his plea. May clearly responded to questions asked by [his
         counsel] and was given the opportunity to expand on other factors constituting
         “just cause” for withdrawal of his plea. . . .
                  May claims that [his subsequent counsel] did not present character
         evidence at sentencing but does not provide in this record what that evidence
         would have shown or how that could have affected the sentence. [His counsel]
         clearly testified that he would have presented any character evidence that in his
         opinion was meritorious if that evidence was made available to him. The decision
         to present evidence at sentencing is a strategic decision. May has not carried his
         burden of proving either ineffective assistance of counsel or prejudice on this
         issue.
We agree with the district court’s conclusions.          May’s assertions of objectively deficient
performance and prejudice are unsupported by the record; indeed, in many respects, his claims
are disproven by the record, as the district court noted. As a result, May has failed to establish
ineffective assistance of his subsequent counsel.
C.       Actual Innocence
         May also alleges that he is actually innocent of the crimes to which he pled guilty and
that the district court erred by not applying an actual innocence standard at the evidentiary
hearing. He asserts that he has valid claims to self-defense, mental incapacity, lack of intent, and
accident. 6 These claims are based upon his revised recollection of how the incident took place,


6
        On appeal, May appears to have abandoned his insanity and diminished capacity claims,
as applied to his guilt or innocence, asserting that he was not hallucinating or otherwise laboring
under a mental defect when he committed the offense. He made this assertion, despite claiming
in his petition for post-conviction relief that he had been awake for twelve days prior to the
incident and admitting that he was “highly intoxicated under alcohol and other drugs” at the time
of the incident. Instead, he contends that his intoxication and mental instability were relevant to
sentencing. However, May does not argue the issue of sentencing on appeal, so we need not
address it.

                                                   7
which drastically differs from that reported by every other witness to the incident, including most
of May’s several prior accounts of what took place, as testified to by his prior counsel. May
contends that he was driving down the road when the victim and his two friends blocked the road
and prevented him from driving through. These “highwaymen,” as May calls them, had intent to
do him harm and threatened him. Because he allegedly feared for his safety, May retrieved a
handgun from his vehicle and fired several shots at the empty vehicle these “highwaymen” were
standing near to warn them off. According to May--but unsupported by any evidence--the victim
was struck in the leg by a ricocheting bullet, not a direct shot. Thus, in May’s mind, he was the
true victim and was entitled to defend himself by brandishing a weapon and firing “warning”
shots in their general direction.
       We are not persuaded. Setting aside, for a moment, May’s knowing, voluntary, and
intelligent admissions of guilt at the change of plea hearing and his failure to raise this issue on
direct appeal, his account of events is entirely unsupported and controverted by the record.
Indeed, May has provided no evidence to corroborate his account, nor has he identified any such
evidence. On the contrary, May’s testimony at the evidentiary hearing and at the hearing on the
motion to withdraw his guilty plea, in which he admitted that he voluntarily stopped his vehicle
to confront the victim, largely belies this newfound account of events. Thus, even if the district
court failed to apply an actual innocence standard--whatever that might be--May failed to
establish even a prima facie showing, much less by a preponderance of the evidence, that he was
actually innocent of the crimes charged.
                                                IV.
                                           CONCLUSION
       May failed to establish that his prior counsel provided him with ineffective assistance.
He further failed to establish that he was actually innocent of the crimes to which he pled guilty.
Accordingly, the district court’s judgment denying May’s petition for post-conviction relief is
affirmed. No costs or attorney fees are awarded on appeal.
       Judge LANSING and Judge GUTIERREZ, CONCUR.




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