               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38629

KANAY A. MUBITA,                                  )     2012 Unpublished Opinion No. 531
                                                  )
       Petitioner-Appellant,                      )     Filed: June 22, 2012
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Second Judicial District, State of Idaho,
       Latah County. Hon. John R. Stegner, District Judge.

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

       Kanay A. Mubita, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Judge
       Kanay A. Mubita appeals from the district court’s judgment summarily dismissing his
successive petition for post-conviction relief. Mubita asserts he presented an issue of material
fact and, therefore, the district court erred in summarily dismissing his petition. We affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       On March 30, 2006, a jury found Mubita guilty of eleven felony counts of transfer of
bodily fluid which may contain the human immunodeficiency virus (HIV), in violation of Idaho
Code § 39-608. The district court imposed consecutive unified sentences of four years, with four
months determinate, for each count. Mubita filed a petition for post-conviction relief and a
direct appeal of his conviction. The district court stayed the petition pending resolution of the
appeal. In June 2008, the Idaho Supreme Court upheld Mubita’s conviction, concluding: (1) the
district court did not err in denying Mubita’s motion to suppress documents from the Health

                                                 1
Department released to the prosecutor’s office; (2) it was harmless error to admit certain
laboratory test results under the business records exception to the hearsay rule; (3) oral-genital
contact between Mubita and one of his victims was factually sufficient to violate Idaho Code
§ 39-608; and (4) the jury instructions did not violate Mubita’s due process rights. State v.
Mubita, 145 Idaho 925, 188 P.3d 867 (2008), abrogated on other grounds by Verska v. Saint
Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).
       Through counsel appointed by the district court, Mubita thereafter filed an amended
petition for post-conviction relief asserting he was denied an interpreter; documents used at trial
to show he was HIV positive and aware of his HIV status were fraudulent; his request for an HIV
test was denied; he was denied access to his medical records; his counsel at trial represented him
ineffectively; and his counsel on his direct appeal had a conflict of interest with his trial counsel
because both were county public defenders. Mubita also claimed he was not HIV positive. The
State filed a motion for summary disposition, and after conducting a hearing, the district court
issued an order dismissing all but two of Mubita’s claims--that Mubita was not HIV positive and
that he needed an interpreter during the criminal proceedings. After providing Mubita notice and
opportunity to supplement his petition, the court dismissed Mubita’s claim that he was not HIV
positive because Mubita failed to submit additional evidentiary support. The court held an
evidentiary hearing on Mubita’s need for an interpreter and later issued an order dismissing that
claim as well. Mubita appealed the dismissal of his initial post-conviction petition only on the
ground that the district court erred in denying the motion by post-conviction counsel asking for
leave to withdraw. This Court affirmed in an unpublished decision. Mubita v. State, Docket
No. 36913 (Ct. App. Apr. 11, 2011).
       During the pendency of his appeal on the initial post-conviction petition, Mubita filed a
successive petition for post-conviction relief on July 9, 2010, accompanied with a motion
requesting appointment of post-conviction counsel. In the successive petition, Mubita asserted
five claims: (1) he was denied the right to testify at his trial; (2) trial counsel failed to subpoena
a witness for trial; (3) trial counsel failed to communicate with him prior to trial; (4) counsel
(Mubita does not specify which) failed to call in a handwriting expert to verify whether certain
documents used as evidence in his trial were fraudulent; and (5) post-conviction counsel gave
ineffective assistance by failing to follow up on Mubita’s ability to read English, the denial of his
right to testify, and trial counsel’s failure to subpoena a witness. The district court denied the
                                                  2
request for appointment of counsel and gave notice of its intent to dismiss, finding the claims
were frivolous either because they facially lacked merit or because they had been previously
raised and Mubita did not show a sufficient reason to raise them again in a successive petition.
Mubita responded to the notice of intent to dismiss, alleging some additional facts and providing
an affidavit in support. The district court found Mubita failed to supply facts sufficient to create
any genuine issue of material fact and summarily dismissed Mubita’s successive petition.
Mubita timely appeals.
                                                II.
                                          DISCUSSION
A.     Standard of Review for Successive Post-Conviction Petition
       A petition for post-conviction relief initiates a civil, rather than criminal, proceeding,
governed by the Idaho Rules of Civil Procedure. 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
the 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. I.C. § 19-4907; 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). However, 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) (quoting Goodwin, 138 Idaho at 271, 61 P.3d at 628). The petition must contain much
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 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.
       Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction
relief, either pursuant to motion of a party or upon the court’s own initiative. Summary dismissal
of a petition is the procedural equivalent of summary judgment under Idaho Rule of Civil
Procedure 56. A claim for post-conviction relief will be subject to summary dismissal if the
                                                 3
petitioner “has not presented evidence making a prima facie case as to each essential element of
the claims upon which the [petitioner] bears the burden of proof.” DeRushé v. State, 146 Idaho
599, 603, 200 P.3d 1148, 1152 (2009) (quoting Berg v. State, 131 Idaho 517, 518, 960 P.2d 738,
739 (1998)). Thus, summary dismissal is permissible when the petitioner’s evidence has raised
no genuine issue of material fact that, if resolved in the petitioner’s favor, would entitle the
petitioner to the requested relief. If such a factual issue is presented, an evidentiary hearing must
be conducted. Payne, 146 Idaho at 561, 199 P.3d at 136; Goodwin, 138 Idaho at 272, 61 P.3d at
629. Summary dismissal of a petition for post-conviction relief may be appropriate, however,
even where the State does not controvert the petitioner’s evidence because 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 v. State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994). “[W]hen reviewing a
district court’s order of summary dismissal in a post-conviction relief proceeding, we apply the
same standard as that applied by the district court.” Ridgley v. State, 148 Idaho 671, 675, 227
P.3d 925, 929 (2010). On review of dismissal of a post-conviction relief petition without an
evidentiary hearing, we determine whether a genuine issue of material fact exists based on the
pleadings, depositions and admissions, together with any affidavits on file. Rhoades v. State,
148 Idaho 247, 220 P.3d 1066 (2009); Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.
App. 1993). However, “while the underlying facts must be regarded as true, the petitioner’s
conclusions need not be so accepted.” Rhoades, 148 Idaho at 250, 220 P.3d at 1069 (quoting
Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985)); see also Hayes v. State, 146 Idaho
353, 355, 195 P.3d 712, 714 (Ct. App. 2008). As the trial court rather than a jury will be the trier
of fact in the event of an evidentiary hearing, summary dismissal is appropriate where the
evidentiary facts are not disputed, despite the possibility of conflicting inferences to be drawn
from the facts, for the court alone will be responsible for resolving the conflict between those
inferences. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Hayes, 146 Idaho at 355, 195 P.3d at
714. That is, the judge in a post-conviction action is not constrained to draw inferences in favor
of the party opposing the motion for summary disposition, but rather is free to arrive at the most
probable inferences to be drawn from uncontroverted evidentiary facts. Yakovac, 145 Idaho at
444, 180 P.3d at 483; Hayes, 146 Idaho at 355, 195 P.3d at 714.


                                                 4
       If an initial post-conviction action was timely filed, an inmate may file a successive
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 v. State, 144 Idaho 900, 904,
174 P.3d 870, 874 (2007). There is no constitutionally protected right to the effective assistance
of counsel in post-conviction relief proceedings and such an allegation, in and of itself, is not
among the permissible grounds for post-conviction relief. See Follinus v. State, 127 Idaho 897,
902, 908 P.2d 590, 595 (Ct. App. 1995); Wolfe v. State, 113 Idaho 337, 339, 743 P.2d 990, 992
(Ct. App. 1987). Ineffective assistance of prior post-conviction counsel may, however, provide
“sufficient reason” for permitting newly asserted allegations or allegations inadequately raised in
the initial petition to be raised in a subsequent post-conviction petition. Schwartz v. State, 145
Idaho 186, 189, 177 P.3d 400, 403 (Ct. App. 2008). See also Palmer v. Dermitt, 102 Idaho 591,
596, 635 P.2d 955, 960 (1981); Hernandez v. State, 133 Idaho 794, 798, 992 P.2d 789, 793 (Ct.
App. 1999). Failing to provide a post-conviction petitioner with a meaningful opportunity to
have his or her claims presented by effective counsel may be violative of due process. Schwartz,
145 Idaho at 189, 177 P.3d at 403; Hernandez, 133 Idaho at 799, 992 P.2d at 794. See also
Abbott v. State, 129 Idaho 381, 385, 924 P.2d 1225, 1229 (Ct. App. 1996); Mellinger v. State,
113 Idaho 31, 35, 740 P.2d 73, 77 (Ct. App. 1987) (Burnett, J., concurring). Thus, when a
second or successive petition alleging ineffectiveness of the initial post-conviction counsel is
filed outside of the initial one-year limitation period, application of the relation-back doctrine
may be appropriate. See Hernandez, 133 Idaho at 799, 992 P.2d at 794.
       Analysis of “sufficient reason” permitting the filing of a successive petition also includes
an analysis of whether the claims being made were asserted within a reasonable period of time.
Charboneau, 144 Idaho at 905, 174 P.3d at 875. In determining what a reasonable time is for
filing a successive petition, we will consider it on a case-by-case basis. Id.
B.     Issues Preserved for Appellate Review
       As a preliminary matter, the State argues that Mubita fails to assign any error in the
district court’s decision to summarily dismiss his successive post-conviction petition, and
therefore, this Court should decline any appellate review. We do not accept this invitation,
however, because Mubita filed a timely notice of appeal that contains a list of issues, among
which he asserts that he presented an issue of material fact, and thereby suggests the district
                                                  5
court erred in summarily dismissing his successive post-conviction petition. Although Mubita
does not reassert this primary error within his opening brief, he presents three issues in the brief,
each in support of this suggestion that he raised a material issue of fact. Therefore, this is not a
case where the appellant either fails to identify the factual issues raised in the post-conviction
petition, see Smith v. State, 129 Idaho 162, 165, 922 P.2d 1088, 1091 (Ct. App. 1996), or leaves
this Court to search the record for unspecified errors, see State v. Crawford, 104 Idaho 840, 841,
663 P.2d 1142, 1143 (Ct. App. 1983).            Moreover, Mubita filed a motion to submit a
nonconforming brief, which the Idaho Supreme Court granted, and within the brief submitted,
Mubita presents argument and authority on each of the factual issues he asserts. The State has
had an adequate opportunity to respond. The principle behind not reviewing unspecified error is
that the other party is unable to respond to issues not raised in an opening brief. State v. Watkins,
148 Idaho 418, 422, 224 P.3d 485, 489 (2009). That circumstance is not present here, and
accordingly, we may review the district court’s judgment summarily dismissing Mubita’s
successive post-conviction petition on the grounds presented by Mubita on appeal. See id.
(reviewing an issue not raised in an opening brief where the respondent had the opportunity to
respond in supplemental briefing).
C.     The Successive Petition was Properly Dismissed.
       Although Mubita asserted five claims to the district court in his successive
post-conviction petition, he argues only three issues to this Court: (1) whether he was denied his
right to testify at trial; (2) whether trial counsel provided ineffective assistance by failing to
subpoena an unidentified witness; and (3) related to the second issue, whether the district court
erred in admitting business documents at trial. 1
       1.      The right to testify
       Mubita asserted in his successive petition that “my trial counsel denied me of my right to
testify. [Post-conviction counsel’s] failure to raise this issue was neglegent [sic].” The State

1
        Mubita also argues in his brief that certain testimony was hearsay and should have been
excluded from trial. We agree with the State that he did not raise this claim to the district court,
and therefore, we will not review it because it was raised for the first time on appeal. Row v.
State, 135 Idaho 573, 580, 21 P.3d 895, 902 (2001). We consider the arguments only to the
extent they support Mubita’s claim that trial counsel provided ineffective assistance by failing to
subpoena the unidentified witness referenced in the “hearsay” testimony.


                                                    6
argues that Mubita has waived this issue because it was not brought on direct appeal or in the
initial petition for post-conviction relief and Mubita provides no sufficient reason for why it was
not previously raised.
       An argument that a defendant was denied the right to testify may be brought in
post-conviction proceedings as a constitutional issue, as a claim based on ineffective assistance
of counsel, or both. Cootz v. State, 129 Idaho 360, 368-70, 924 P.2d 622, 630-32 (Ct. App.
1996). A constitutional argument that a defendant was denied the right to testify on his own
behalf and did not knowingly or voluntarily waive the right is analyzed pursuant to the
Chapman 2 harmless error standard. State v. Darbin, 109 Idaho 516, 522, 708 P.2d 921, 927 (Ct.
App. 1985). Under this analysis, the defendant has the burden to show he was deprived of the
right to testify, and the State must then show beyond a reasonable doubt that the deprivation did
not contribute to the defendant’s conviction, i.e., it was harmless error. Id. An argument that a
defendant was denied the right to testify based on ineffective assistance of counsel is analyzed
using the Strickland 3 standard. Under the Strickland standard, the defendant has the burden to
show that counsel’s conduct was deficient and that the deficiency prejudiced the defendant.
Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995); Darbin, 109 Idaho at
522, 708, P.2d at 927. 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.
       Additionally, Idaho Code § 19-4901(b) provides in relevant part:
               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.



2
       See Chapman v. California, 386 U.S. 18 (1967).
3
       See Strickland v. Washington, 466 U.S. 668 (1984).

                                                 7
Idaho Code § 19-4908 provides that any ground for relief not raised in an original petition or
waived in the proceeding that resulted in the conviction may not be the basis for a subsequent
post-conviction petition, unless there is a sufficient reason as to why it was not asserted or was
inadequately raised in the original petition.
        To begin, Mubita does not allege any reason as to why this claim was not raised on direct
appeal or in his initial post-conviction petition other than to say his failure to raise it earlier was a
result of his post-conviction counsel’s negligence. As to whether this allegation provides a
sufficient reason to now raise the claim, the district court determined that Mubita failed to allege
facts sufficient to support a finding that post-conviction counsel was ineffective. Our cases
demonstrate that a sufficient reason based on ineffective assistance of post-conviction counsel
requires more than a bare assertion of deficient performance. See Palmer, 102 Idaho at 595-96,
635 P.2d at 959-60 (finding an allegation of ineffective assistance of post-conviction counsel
may provide a sufficient reason where the issues were raised in the original petition but omitted
by post-conviction counsel in an amended petition without the petitioner’s knowledge or
consent); Hernandez, 133 Idaho at 798-99, 992 P.2d at 793-94 (finding that alleging specific
facts known to post-conviction counsel, which if presented would have prevented summary
dismissal of initial petition, may constitute a sufficient reason). Mubita’s conclusory statement
that post-conviction counsel was negligent does not suffice because Mubita makes no assertion
that he requested post-conviction counsel to raise the issue of Mubita’s right to testify 4 or that
post-conviction counsel’s failure to raise the issue was of no fault of Mubita. Therefore, Mubita
does not allege or show a sufficient reason to bring this issue in a successive post-conviction
petition.
        Even if we were to assume Mubita provides a sufficient reason under Idaho Code
§ 19-4908, he fails to overcome the bar in Idaho Code § 19-4901(b), whether his argument is
brought as a constitutional issue or as a claim based on ineffective assistance of counsel. Under
an analysis of the right to testify as a constitutional argument, Mubita does not establish through
any supporting evidence that he desired to testify at trial and was denied that right. The evidence

4
         In fact, the transcripts in the appellate record demonstrate that during the pendency of the
initial post-conviction petition, Mubita specifically requested his post-conviction counsel to raise
certain questions before the court, but none of those questions were regarding Mubita’s right to
testify.

                                                   8
provided merely establishes that trial counsel wished to keep Mubita off of the stand in order to
prevent Mubita from committing perjury. However, there is also no evidence in the appellate
record demonstrating whether Mubita knew the decision to testify was ultimately his, as the
defendant. A valid waiver of the right to testify depends on whether the defendant knew he had
the ultimate authority to decide whether to testify. State v. Hoffman, 116 Idaho 689, 691-92, 778
P.2d 811, 813-14 (Ct. App. 1989). However, even if the record does not show the defendant was
aware of his or her right to testify, an infringement upon a defendant’s right to testify may be
treated as a harmless error if the appellate court is satisfied, beyond a reasonable doubt, that the
error did not affect the jury’s verdict. Id. In a harmless error analysis, the burden of proof is on
the State to show the error was harmless, but in a post-conviction petition, the burden is on the
petitioner to prove error, see Roman, 125 Idaho at 648, 873 P.2d at 902, and the issue of the right
to testify is forfeited unless the defendant can show it would create substantial doubt as to his
guilt, I.C. § 19-4901(b). Here, the district court noted that “[t]he evidence of Mubita’s guilt at
trial was overwhelming” and that the evidence included admissions by Mubita that he was aware
of his HIV status and had engaged in sexual contact with certain victims. Mubita does not allege
to what he would have testified or how it would have refuted his previous admissions. Because
Mubita does not provide any such allegations, he also cannot establish that trial counsel was
deficient for wishing to keep Mubita off the stand to prevent an act of perjury. A defendant has
no constitutionally protected right to commit perjury. Hoffman, 116 Idaho at 691, 778 P.2d at
813 (citing Nix v. Whiteside, 475 U.S. 157 (1986)). We find no error in the district court’s
determination that Mubita failed to meet his burden of showing how a denial of his right to
testify would create any substantial doubt as to Mubita’s guilt and that the issue could not, in the
exercise of due diligence, have been brought earlier.
       2.      Failure to subpoena an unidentified witness and admission of documents
               at trial
       In his second and third claims, Mubita asserts that his trial counsel provided ineffective
assistance by failing to subpoena a witness and that counsel (Mubita does not specify which)
failed to call in a handwriting expert to verify whether certain documents used as evidence in his
trial were fraudulent. Mubita also claims his post-conviction counsel failed to follow up on his
trial counsel’s failure to subpoena the unidentified witness. The State argues Mubita cannot



                                                 9
show error because these issues have been previously raised and Mubita does not show a
sufficient reason for addressing them in a successive petition.
       Mubita’s second and third claims stem from testimony (which he contends was hearsay)
in regards to certain documents used to show Mubita was HIV positive and was aware of that
fact. The witness, in support of admission of the documents, testified she may have filled out
one or more of the three documents offered, but someone else may have filled out the other one.
Because the witness referenced another person in relation to evidence used at trial and counsel
failed to subpoena that person, Mubita argues he was denied his right to cross-examine the
witness.
       In his initial post-conviction petition, Mubita asserted these documents should not have
been included as evidence and that trial counsel gave ineffective assistance by failing to move
for their exclusion. He argued deficiency by trial counsel on two bases: (1) that the witness
called to lay foundation for admissibility of the forms testified that a coworker had filled out one
or more of the forms; and (2) that Mubita’s signature on the forms was forged. The district court
found that simply because the witness testified that one of her coworkers filled out one or more
the forms did not lead to the conclusion that Mubita’s signatures were forged. The only support
for this notion was Mubita’s bald assertions. Further, trial counsel cross-examined the witness as
to how she knew Mubita had signed the forms and attempted to call into doubt the forms’
reliability. The district court could not conclude that trial counsel’s performance was deficient.
Moreover, the district court determined Mubita could not establish prejudice because, even
absent the forms, there was overwhelming evidence of Mubita’s guilt.
       In the successive petition, the district court dismissed these claims because they had been
addressed in the initial post-conviction petition and Mubita failed to show a sufficient reason to
raise them again. We agree with both bases the district court cited to support its order of
dismissal. Mubita does not allege how these issues were inadequately raised other than to state
post-conviction counsel did not follow up on them. As stated above, a conclusory statement
such as this is inadequate to support a sufficient reason based on ineffective assistance of
post-conviction counsel. See Palmer, 102 Idaho at 595-96, 635 P.2d at 959-60; Hernandez, 133
Idaho at 798-99, 992 P.2d at 793-94.




                                                10
                                                III.
                                         CONCLUSION
       We conclude Mubita failed to establish a sufficient reason to raise the issue of his right to
testify in a successive petition. Consequently, the issue is forfeited because it was not brought on
direct appeal. We further conclude Mubita failed to establish a sufficient reason to re-raise
issues regarding an alleged failure to subpoena a witness and exclude documents during trial.
Accordingly, we affirm the district court’s judgment summarily dismissing Mubita’s successive
petition for post-conviction relief.
       Judge LANSING and Judge MELANSON CONCUR.




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