               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40583

LACEY MARK SIVAK,                                 )     2014 Unpublished Opinion No. 375
                                                  )
       Petitioner-Appellant,                      )     Filed: February 13, 2014
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
       County. Hon. Ronald J. Wilper, District Judge.

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

       Lacey Mark Sivak, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; L. LaMont Anderson, Deputy
       Attorney General, Chief, Capital Litigation Unit, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Lacey Mark Sivak appeals from the district court’s judgment summarily dismissing his
third successive petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       In 1981, Sivak was found guilty of robbery, felony murder, and possession of a firearm
during the commission of a robbery for an incident resulting in the death of Dixie Wilson. The
district court sentenced Sivak to death for the murder. The Idaho Supreme Court affirmed
Sivak’s convictions and sentence. State v. Sivak (Sivak I), 105 Idaho 900, 674 P.2d 396 (1983).
Sivak filed his initial petition for post-conviction relief in September 1984, which was denied by
the district court following an evidentiary hearing.      On appeal, the Idaho Supreme Court
addressed Sivak’s double jeopardy claim, holding that Sivak’s robbery conviction merged as a
lesser included offense into his felony murder conviction. Sivak v. State (Sivak II), 112 Idaho



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197, 211, 731 P.2d 192, 206 (1986). The Supreme Court also reversed Sivak’s death sentence
because the district court denied Sivak’s motion to present additional mitigation evidence. Id. at
203, 731 P.2d at 198. On remand, the district court again sentenced Sivak to death. However,
on appeal, the Supreme Court again reversed the sentence because the district court failed to
properly weigh the aggravating factors against the mitigating factors. State v. Sivak (Sivak III),
119 Idaho 320, 321-22, 806 P.2d 413, 414-15 (1990).
       Sivak was again sentenced to death on remand. He filed a successive post-conviction
petition, which the district court denied. The Idaho Supreme Court affirmed the death sentence
and the denial of post-conviction relief. State v. Sivak (Sivak IV), 127 Idaho 387, 901 P.2d 494
(1995). Sivak then commenced federal habeas proceedings. During the pendency of the federal
proceedings, Sivak filed his second successive post-conviction petition, which the district court
denied. The Supreme Court affirmed the denial. Sivak v. State (Sivak V), 134 Idaho 641, 644, 8
P.3d 636, 639 (2000).
       The federal district court denied Sivak all habeas relief. The Ninth Circuit Court of
Appeals affirmed the federal district court on all guilt-phase issues, but reversed the death
sentence due to evidentiary errors that occurred at sentencing. Sivak v. Hardison, 658 F.3d 898
(9th Cir. 2011).
       Once the case was remanded to the state district court, the State filed a notice of intent to
seek the death penalty. Prior to his resentencing, Sivak filed a third successive petition for
post-conviction relief, which is at issue in this appeal. Although difficult to decipher, the basis
of the petition is apparently a contention that his double jeopardy rights were violated because he
was acquitted of premeditated murder, but convicted of felony murder.            The State filed a
response, asserting Sivak’s successive petition was premature because he had not yet been
resentenced and, pursuant to Idaho Code § 19-2719(6), appeals from a death sentence and denial
of post-conviction relief must be consolidated. Alternatively, the State asserted that Sivak’s
successive petition was untimely because it raised an issue that should have been filed within
forty-two days of the entry of the judgment of conviction and was a claim that was known or
reasonably could have been know when his prior post-conviction petitions were filed. The State
also disputed the substantive assertion of the petition.
       The district court issued a notice of intent to dismiss, advising Sivak that his successive
petition would be dismissed unless he provided the court “with evidence in the form of [an]


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affidavit or other admissible evidence to support his Petition.” Sivak responded with a number
of virtually illegible pleadings. The district court issued an order dismissing Sivak’s successive
petition, indicating that because resentencing was still pending, it was “untimely because a
sentence of death is possible and if a death sentence is imposed, the time for filing a petition for
post-conviction relief would then begin to run.” Sivak now appeals the summary dismissal of his
third successive post-conviction petition.
                                                II.
                                             ANALYSIS
A.     Post-Conviction Petition
       Sivak contends the district court erred by summarily dismissing his third successive
petition for post-conviction relief that advanced his claim that he was unconstitutionally
subjected to double jeopardy. 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 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
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


                                                 3
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. Hayes, 146 Idaho at 355, 195 P.2d at 714.
       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
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. 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 v. State, 146 Idaho 101, 104, 190
P.3d 920, 923 (Ct. App. 2008); Roman, 125 Idaho at 647, 873 P.2d at 901. Over questions of


                                                  4
law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069
(2009).
          Among other responses to Sivak’s appeal, the State contends the district court was correct
in determining that Sivak’s petition was premature since he had not been resentenced at the time
it was filed. However, we note that even assuming the petition was not premature, Sivak is still
precluded from raising the double jeopardy claim because, regardless of the outcome of his
resentencing, the claim was not raised within the limit limits set forth in the applicable statutes.
Idaho Code § 19-2719 sets forth special appellate and post-conviction procedures applicable to
capital cases. Fields v. State, 151 Idaho 18, 23, 253 P.3d 692, 697 (2011). The statute does not
eliminate the applicability of the Uniform Post-Conviction Procedure Act to capital cases, but
acts as a modifier and supersedes the Act to the extent their provisions conflict. McKinney v.
State, 133 Idaho 695, 700, 992 P.2d 144, 149 (1999). Section 19-2719(3) requires that within
forty-two days after the judgment imposing the punishment of death, “the defendant must file
any legal or factual challenge to the sentence or conviction that is known or reasonably should be
known.” If the defendant fails to apply for relief within the applicable time limits, “he shall be
deemed to have waived such claims for relief as were known, or reasonably should have been
known.” I.C. § 19-2719(5). To warrant a hearing on a claim in a successive post-conviction
petition, the defendant must show that he or she did not know and reasonably could not have
known of the claim within those time limits. I.C. § 19-2719(5). Additionally, claims that were
not known or that could not have been reasonably known within forty-two days of judgment
must be asserted within a reasonable time after they are known or reasonably could have been
known. McKinney, 133 Idaho at 701, 992 P.2d at 150. If a petitioner fails to comply with the
requirements of section 19-2719, the issues are deemed to have been waived and “[t]he courts of
Idaho shall have no power to consider any such claims for relief as have been so waived or grant
any such relief.” I.C. § 19-2719(5).
          It is indisputable that the basis of Sivak’s double jeopardy claim--his acquittal of
premeditated murder and conviction for felony murder--was known to Sivak at the time the jury
returned the verdict. He has not asserted, nor could he reasonably do so, that he did not know or
reasonably could not have known this information at the time he filed his initial post-conviction
petition. Thus, section 19-2719 dictates that this issue is waived. This conclusion is consistent
with our Supreme Court’s repeated assertions that Sivak is foreclosed from further attacking his


                                                  5
conviction (as distinguished from his sentence). See Sivak IV, 127 Idaho at 390, 901 P.3d at 497
(“We note that the remand granted in Sivak III was for the limited purpose of resentencing and,
therefore, a challenge to a jury instruction given at trial which could have been raised in the
appeal of the conviction (Sivak I ) is no longer a viable issue.”); Sivak III, 119 Idaho at 326, 806
P.2d at 419 (“The remand in Sivak II was only for the purpose of resentencing, not to allow
Sivak to begin again his assault on his conviction.”).
       The State indicates in its brief that it is no longer seeking the death penalty at Sivak’s
resentencing. Nonetheless, it asserts that section 19-2719 continues to be applicable to this
appeal because the State’s withdrawal of its notice of intent to seek the death penalty was filed
after Sivak’s third successive petition for post-conviction relief was litigated before the district
court. We need not decide the issue, however, because even if the statutory time limits imposed
upon noncapital post-conviction cases are applicable, Sivak has still waived the double jeopardy
issue asserted in his petition. Pursuant to Idaho Code § 19-4908, if an initial post-conviction
action was timely filed, an inmate may file a subsequent petition outside of the one-year
limitation period if the court finds a ground for relief asserted that for sufficient reason was not
asserted or was inadequately raised in the original, supplemental, or amended petition. I.C.
§ 19-4908; Charboneau, 144 Idaho at 904, 174 P.3d at 874. As we indicated above, Sivak does
not identify a valid reason why this double jeopardy claim was not raised in his initial application
given that the facts underlying the claim were clearly known upon the jury’s issuance of its
verdict.   Accordingly, the district court did not err in summarily dismissing Sivak’s third
successive petition for post-conviction relief.
B.     Costs and Attorney Fees
       The State requests an award of costs and attorney fees incurred in connection with this
appeal. The request for attorney fees is based upon Idaho Code § 12-121 and Idaho Appellate
Rule 41.    Reasonable attorney fees will only be awarded to the prevailing party under
section 12-121 when the court is left with the abiding belief the appeal was brought, pursued or
defended frivolously, unreasonably and without foundation. Rhoades, 148 Idaho at 253, 220
P.3d at 1072.
       As we indicated above, Sivak has been given numerous indications from our Supreme
Court that he is procedurally foreclosed from further appealing any issues related to his
underlying conviction. Despite these explanations, he filed yet another post-conviction petition


                                                  6
and asserted a claim clearly foreclosed by applicable law. Cf. Rhoades, 148 Idaho at 254, 220
P.3d at 1073 (declining to award attorney fees because although the petitioner’s claims were
unsuccessful they were “not so wholly without merit as to warrant an award of fees” since the
standard governing the substantive issue had never been clearly spelled out and its application to
many of the issues raised by the petitioner was a matter of first impression). As the State points
out, Sivak is “not a novice to the judicial system,” but has been, and continues to be, a prolific
litigator in both the state and federal courts. For these reasons, we are convinced this appeal was
pursued frivolously, unreasonably, or without foundation and award attorney fees to the State.
       Idaho Appellate Rule 40 provides that “[c]osts shall be allowed as a matter of course to
the prevailing party unless otherwise provided by law or order of the Court.” As a petition for
post-conviction relief is a civil matter and because the State is the prevailing party on appeal, we
award costs to the State. See Rhoades, 148 Idaho at 254, 220 P.3d at 1073.
                                                 III.
                                          CONCLUSION
       Because Sivak has not shown he did not know, or reasonably could not have known,
about the facts underlying his claim of double jeopardy when he filed his initial post-conviction
petition, he is not entitled to file a successive petition raising the issue for the first time. Given
that Sivak has repeatedly been instructed that he is foreclosed from further appealing issues
related to his underlying conviction, and this present appeal presents no viable issue, we grant
the State’s request for attorney fees and costs on appeal.           The district court’s judgment
summarily dismissing Sivak’s third successive petition for post-conviction relief is affirmed.
       Judge LANSING and Judge GRATTON CONCUR.




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