               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 44314

SHAUN PATRICK CONLEY,                           )   2018 Unpublished Opinion No. 456
                                                )
       Petitioner-Appellant,                    )   Filed: May 16, 2018
                                                )
v.                                              )   Karel A. Lehrman, Clerk
                                                )
STATE OF IDAHO,                                 )   THIS IS AN UNPUBLISHED
                                                )   OPINION AND SHALL NOT
       Respondent.                              )   BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. David C. Nye, District Judge.

       Order denying motion for appointment of counsel, affirmed; order summarily
       dismissing petition for post-conviction relief, affirmed.

       Shaun P. Conley, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

HUSKEY, Judge
       Shaun Patrick Conley appeals from the district court’s summary dismissal of his petition
for post-conviction relief.    He also contends the court erred by denying his motion for
appointment of post-conviction counsel and his motion to take judicial notice of the underlying
criminal record. The district court’s summary dismissal of Conley’s petition for post-conviction
and his motion for appointment of counsel are affirmed. 1




1
         The issue of Conley’s motion for judicial notice is moot, as explained below, because the
district court relied upon Conley’s underlying criminal record in rendering its summary dismissal
and it was relied upon by both parties in this appeal. State v. Long, 153 Idaho 168, 170, 280 P.3d
195, 197 (Ct. App. 2012) (quoting State v. Manzanares, 152 Idaho 410, 419, 272 P.3d 382, 391
(2012)). Thus, the issue presents no justiciable controversy. Id.


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                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2012, Conley was charged with lewd conduct with a child under sixteen, Idaho
Code § 18-1508, and being a persistent violator, I.C. § 19-2514. A preliminary hearing was held
in December 2012. In 2013 Conley was charged in a separate case with fourteen counts of
sexual exploitation of a child, I.C. § 18-1507(2)(a), and being a persistent violator, I.C. § 19-
2514. Conley entered into a plea agreement which encompassed both cases and he filled out a
guilty plea questionnaire. On the questionnaire, Conley answered nine questions which indicated
he was satisfied with his attorney’s assistance. Additionally, Conley told the district court he
was satisfied with his attorney’s representation. Pursuant to the plea agreement, Conley pleaded
guilty to lewd conduct with a child under sixteen in the 2012 case and to three counts of sexual
exploitation of a child in the 2013 case. The State dismissed the persistent violator charges and
the remaining eleven counts of sexual exploitation of a child. The district court imposed two
unified sentences of fifteen years, with five years determinate, to run concurrently.
       Conley appealed both sentences, which this Court affirmed in a consolidated appeal.
State v. Conley, Docket Nos. 41399/41400 (Ct. App. Sept. 12, 2014) (unpublished). While the
appeal was pending, Conley filed an Idaho Criminal Rule 35 motion for a reduction of his
sentence, jointly addressing both of his criminal cases, which the district court denied. Conley
then filed a motion to withdraw his guilty plea, which the district court denied. Next, Conley
filed a motion for appointment of counsel for post-conviction, a petition for post-conviction
relief, and a motion requesting the district court take judicial notice of the underlying records
from his criminal cases. The district court denied Conley’s motion for appointment of counsel,
summarily dismissed his petition for post-conviction relief, and denied his request to take
judicial notice of the underlying criminal records.      Conley timely appeals these last three
decisions.
                                                II.
                                   STANDARD OF REVIEW
       If a post-conviction petitioner is unable to pay for the expenses of representation, the trial
court may appoint counsel to represent the petitioner in preparing the petition in the trial court
and on appeal. I.C. § 19-4904. The decision to grant or deny a request for court-appointed
counsel lies within the discretion of the district court. Grant v. State, 156 Idaho 598, 603, 329

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P.3d 380, 385 (Ct. App. 2014). When a district court is presented with a request for appointed
counsel, the court must address this request before ruling on the substantive issues in the case.
The district court abuses its discretion where it fails to determine whether a petitioner for post-
conviction relief is entitled to court-appointed counsel before denying the petition on the merits.
Id.
       In determining whether to appoint counsel pursuant to I.C. § 19-4904, the district court
should determine if the petitioner is able to afford counsel and whether the situation is one in
which counsel should be appointed to assist the petitioner. Grant, 156 Idaho at 603, 329 P.3d at
385. In its analysis, the district court should consider that petitions filed by a pro se petitioner
may be conclusory and incomplete. Facts sufficient to state a claim may not be alleged because
they do not exist or because the pro se petitioner does not know the essential elements of a claim.
Id. Some claims are so patently frivolous that they could not be developed into viable claims
even with the assistance of counsel. Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct.
App. 2004). However, if a petitioner alleges facts that raise the possibility of a valid claim, the
district court should appoint counsel in order to give the petitioner an opportunity to work with
counsel and properly allege the necessary supporting facts. Grant, 156 Idaho at 603, 329 P.3d at
385.
       A petition for post-conviction relief initiates a proceeding that is civil in nature.
I.C. § 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v.
Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921,
828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove
by a preponderance of evidence the allegations upon which the request for post-conviction relief
is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition
for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State,
141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short
and plain statement of the claim that would suffice for a complaint under Idaho Rule of Criminal
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



                                                 3
present or be accompanied by admissible evidence supporting its allegations or the petition will
be subject to dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
       Idaho Code Section 19-4906 authorizes summary dismissal of a petition for post-
conviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if it
appears from the pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. When considering
summary dismissal, the district court must construe disputed facts in the petitioner’s favor, but
the court is not required to accept either the petitioner’s mere conclusory allegations,
unsupported by admissible evidence, or the petitioner’s conclusions of law. Roman v. State, 125
Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715
P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained
to draw inferences in favor of the party opposing the motion for summary disposition; rather, the
district court is free to arrive at the most probable inferences to be drawn from uncontroverted
evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such
inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.
       The scope of post-conviction relief is limited. Knutsen v. State, 144 Idaho 433, 438, 163
P.3d 222, 227 (Ct. App. 2007). A petition for post-conviction relief is not a substitute for an
appeal. I.C. § 19-4901(b). A claim or issue that was or could have been raised on appeal may
not be considered in post-conviction proceedings. Id.; Mendiola v. State, 150 Idaho 345, 348-49,
247 P.3d 210, 213-14 (Ct. App. 2010).
                                                III.
                                           ANALYSIS
       Conley makes various arguments on appeal which are best summarized as supporting the
claims in his petition for post-conviction relief: (1) ineffective assistance of counsel for failure
to suppress an overbroad warrant; (2) prosecutorial misconduct because the prosecutor, who was
once a public defender involved with Conley’s case, used confidential information obtained
during their attorney-client relationship during Conley’s sentencing hearing; and (3) ineffective
assistance of counsel for coercing Conley’s guilty plea. Conley contends a transcript, which was



                                                 4
not prepared for appeal, and judicial notice of his underlying criminal record are necessary to
support his arguments.
A.      Motion for Judicial Notice
        Preliminarily, we recount the procedural history regarding Conley’s motion for judicial
notice as it bears upon Conley’s other arguments. Idaho Rule of Evidence 201(b) provides that a
court may take judicial notice of a fact when the fact is capable of accurate determination by
resort to sources whose accuracy cannot reasonably be questioned. A court must take judicial
notice if requested by a party and supplied with the necessary information. I.R.E. 201(d). A
district court may take judicial notice of its own record in the case before it. Larson v. State, 91
Idaho 908, 909, 435 P.2d 248, 249 (1967); Newman v. State, 149 Idaho 225, 227, 233 P.3d 156,
158 (Ct. App. 2010). It is error, however, for the district court to base its decision on judicial
notice of the judge’s personal recollection of events in the criminal proceeding. Matthews v.
State, 122 Idaho 801, 807-08, 839 P.2d 1215, 1221-22 (1992).
        When Conley filed his petition for post-conviction relief, he attached his own affidavit,
the search warrant and related documents, three additional affidavits from other individuals, a
police incident report, the Bannock County Child Abuse Protocol agreement, letters from the
public defender appointed to represent Conley, a few emails, and a letter from a federal
prosecutor. Conley did not attach any relevant portions of any transcript from his underlying
consolidated criminal cases. However, he filed a motion requesting the district court take
judicial notice of his underlying criminal record. In its denial of Conley’s motion for judicial
notice, the district court noted it:
        did not rely on the underlying criminal record in its decision regarding Conley’s
        post-conviction relief petition, rather utilizing all files, briefing, and material
        submitted in the civil file, and thus finds it unnecessary to take notice of such.
        That being said, any document specifically referenced by either party will be
        made part of the official record.
However, the district court’s summary dismissal of Conley’s petition for post-conviction relief
shows the district court, in fact, did rely on Conley’s underlying criminal record in reaching its
decision, which the State concedes on appeal.
        The district court’s contradictory actions--denying the motion for judicial notice, yet
reviewing the underlying criminal record--create a problem for this Court, as it is unclear to this
Court which documents the district court relied upon in granting summary dismissal. It appears
the district court relied on, at a minimum: (1) the guilty plea questionnaire; (2) the transcript of
                                                 5
the guilty plea hearing, held April 8, 2013; (3) the motion to withdraw the guilty plea; and (4) the
order denying that motion. We do not know if the district court reviewed any other documents
from the underlying criminal cases for purposes of granting summary judgment in the post-
conviction case. Generally speaking, a post-conviction court should not take judicial notice of
the underlying criminal file without specifying which documents it is reviewing. See Fortin v.
State, 160 Idaho 437, 442, 374 P.3d 600, 605 (Ct. App. 2016) (holding that blanket requests for a
district court to take judicial notice of an entire underlying criminal record in a post-conviction
case are improper).
       Despite the district court denying the motion to take judicial notice, but looking at the
criminal files nonetheless, the Idaho Supreme Court took judicial notice of the appellate record
from Conley’s previous appeals, which contained much of the information from the underlying
criminal files. 2 Conley objected to the appellate record, arguing that even with the previous
records from his direct appeals, the post-conviction appellate record lacked a transcript of the
hearing held the morning of Conley’s preliminary hearing which was essential to establish his
claim of ineffective assistance of counsel. Conley did not object that his motion to withdraw his
guilty plea or the order on that motion were missing from the records in the underlying criminal
cases. The Supreme Court understood Conley’s request for the transcript for the morning of the
date of Conley’s preliminary hearing to be a request for the afternoon preliminary hearing
transcript, initially denying Conley’s request, but later mailing the afternoon preliminary hearing
transcript to Conley because the transcript was contained in Conley’s previous appellate record.
The morning transcript was never prepared, was not reviewed by the district court, and is not part
of the appellate record before this Court.
       Conley could have also requested the appellate record in this case include the motion to
withdraw his guilty plea and the district court’s order from the underlying criminal case but he
failed to do so. Moreover, Conley has not alleged the district court erred in relying on the
motion to withdraw his guilty plea and the order denying that motion when it denied his motion


2
        Conley’s direct appeals from his underlying convictions were in Supreme Court Docket
Nos. 41399 and 41400. The clerk’s records in those cases were served on October 18, 2013.
Conley filed his motion to withdraw his guilty plea on July 7, 2014, and the motion was denied
on September 25, 2014. Thus, the motion to withdraw the guilty plea and the subsequent order
were not included in the initial clerk’s record in Docket Nos. 41399 and 41400, nor were they
later augmented into the records.
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to appoint counsel and dismissed the petition. As such, he has waived any claim of error in that
regard. State v. Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (“A party waives an issue
cited on appeal if either authority or argument is lacking.”).
       Both parties relied upon the post-conviction record and Conley’s previous appellate
records. Thus, despite any procedural errors, the parties have waived any objection to the
propriety of this Court’s review of the portions of the underlying criminal record contained in the
previous appellate record. I.R.C.P. 15(b)(2); Monahan v. State, 145 Idaho 872, 875, 187 P.3d
1247, 1250 (Ct. App. 2008) (“The purpose of Rule 15(b) is to allow cases to be decided on the
merits, rather than upon technical pleading requirements.”).
       Perhaps because of this unorthodox procedure, the record still does not contain crucial
information which the parties reference in their appellate briefs: Conley’s motion to withdraw
his guilty plea and the district court’s denial of that motion. When the parties discuss Conley’s
attempt to withdraw his guilty plea, they reference the district court’s summary dismissal of
Conley’s petition for post-conviction, which states that one of Conley’s claims of ineffective
assistance of counsel--the prosecutorial misconduct claim (also characterized as a violation of the
attorney-client privilege claim)--“was addressed in detail in the Court’s decision on Conley’s
Motion to withdraw his guilty plea.” While these documents are not in the appellate record of
the underlying criminal cases, they may have been in the physical case file reviewed by the
district court. This Court cannot review documents that are not present in the record before the
Court. It is the responsibility of the appellant to provide a sufficient record to substantiate his or
her claims on appeal. State v. Murinko, 108 Idaho 872, 873, 702 P.2d 910, 911 (Ct. App. 1985).
In the absence of an adequate record on appeal to support the appellant’s claims, we will not
presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009, 1011 (Ct. App. 1991).
Thus, to the extent Conley’s motion to withdraw his guilty plea factors into the arguments below,
we presume the absences from the record support the district court’s orders. 3
B.     Motion for Appointment of Counsel and Petition for Post-Conviction Relief
       Considering this procedural history, we now turn to the claims made in Conley’s motion
for appointment of counsel and his petition for post-conviction relief. In doing so, we evaluate,

3
       Conley has moved this Court to expand the issues on appeal to include a claim regarding
the withdrawal of his guilty plea. However, that claim was never presented to the district court
and we decline the invitation to address it for the first time on appeal. State v. Fodge, 121 Idaho
192, 195, 824 P.2d 123, 126 (1992).
                                                  7
first, whether Conley has shown his claims can be developed with the assistance of counsel and
second, whether those claims allege genuine issues of material fact.
         1.     Ineffective assistance of counsel claims
         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 in failing to
interview witnesses, a petitioner must establish that the inadequacies complained of would have
made a difference in the outcome of trial. It is not sufficient merely to allege that counsel may
have discovered a weakness in the State’s case. We will not second-guess trial counsel in the
particularities of trial preparation. Id.
         In a post-conviction proceeding challenging an attorney’s failure to pursue a motion in
the underlying criminal action, the district court may consider the probability of success of the
motion in question in determining whether the attorney’s inactivity constituted ineffective
assistance. Lint v. State, 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 2008). Where the
alleged deficiency is counsel’s failure to file a motion, a conclusion that the motion, if pursued,
would not have been granted by the trial court, is generally determinative of both prongs of the
Strickland v. Washington, 466 U.S. 668 (1984) test--a showing of deficiency and prejudice. Lint,
145 Idaho at 477-78, 180 P.3d at 516-17.
         Conley’s petition for post-conviction relief alleges two claims of ineffective assistance of
counsel. The first alleges Conley’s trial counsel failed to adequately investigate the affidavit of
probable cause and search warrant because of counsel’s ignorance of the law. A competent
attorney, Conley argues, would have realized the affidavit and search warrant were overbroad
and filed a motion to suppress the warrant. The second ineffective assistance claim alleges
Conley’s trial counsel coerced Conley into a guilty plea because he had not adequately
investigated Conley’s criminal cases and was attempting to conceal his lack of preparation for
trial.
         Conley’s petition for post-conviction relief does not allege sufficient facts to raise the
possibility that either of these claims are valid. The attachments to Conley’s petition do not
show that the warrant was overbroad or that Conley would have received a more favorable
outcome if the motion to dismiss had been granted. At best, the attachments argue counsel

                                                  8
should have been aware of a non-binding decision from the Ninth Circuit Court of Appeals and
allege facts about coercion that are not supported in the record. Because these claims cannot be
viably developed, even with the assistance of counsel, the district court did not abuse its
discretion in denying appointment of counsel for these claims.
        Even if Conley had met his burden and was appointed counsel, the record disproves his
claims of ineffective assistance. Conley filled out a guilty plea questionnaire where he indicated
he was satisfied with his attorney’s assistance. He made the same representation to the district
court verbally. While Conley’s motion to withdraw his guilty plea and the district court’s denial
of that motion could possibly offer contrary evidence, its absence from the record reinforces the
voluntariness of the statements Conley made about the performance of his counsel. This lends
further support to the conclusion that the district court did not abuse its discretion in denying
Conley’s request for appointment of counsel.
        2.      Prosecutorial misconduct claim
        While our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and
required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id.
        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, 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.
I.C. § 19-4901(b).
        Conley’s petition for post-conviction relief alleges the prosecutor, who was once a public
defender involved with Conley’s case, used confidential information obtained during their
attorney-client relationship at Conley’s sentencing hearing and that doing so amounts to
prosecutorial misconduct. Conley’s petition for post-conviction relief does not allege sufficient
facts to raise the possibility that this claim is valid. First, Conley was given permission to file
supplemental briefing on the issue of prosecutorial misconduct in his direct appeal. Conley
explained the issue was not raised in his direct appeal because his appellate counsel declined to
raise the issue. However, Conley does not allege or factually support a claim that appellate

                                                       9
counsel rendered ineffective assistance of counsel for failing to pursue the issue. As such,
Conley has waived consideration of that issue in his post-conviction petition. Additionally,
although the record does not contain Conley’s motion to withdraw his guilty plea, that motion
provided another opportunity where Conley could have raised his prosecutorial misconduct
claim. Because Conley cannot overcome this procedural bar, the district court did not abuse its
discretion in denying appointment of counsel for this claim.
       Although Conley cannot overcome the procedural bar, his claim also fails on the merits.
Even if the prosecutor did obtain confidential information during his alleged short visit as a
public defender with Conley before his preliminary hearing--where Conley was represented by a
different public defender--the transcript of the sentencing hearing shows that the prosecutor did
not use any confidential information in his argument.          Instead, the prosecutor relied upon
information from Conley’s presentence investigation report. Thus, if there was any misconduct,
it was harmless as Conley received a lesser sentence than sought by the prosecutor.
       Because none of Conley’s claims overcome the initial burden of proof in order to secure
post-conviction counsel, they necessarily cannot overcome the higher burden of proof requiring a
showing of an issue of material fact. Workman v. State, 144 Idaho 518, 522-23, 164 P.3d 798,
802-03 (2007). Therefore, the district court did not abuse its discretion when it summarily
dismissed Conley’s petition for post-conviction relief.
                                               IV.
                                         CONCLUSION
       Conley has not shown that his post-conviction claims can be viably developed by counsel
or raise an issue of material fact. We affirm the district court’s denial of appointment of counsel
and its summary dismissal of Conley’s petition for post-conviction.
       Chief Judge GRATTON and Judge GUTIERREZ CONCUR.




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