               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43251

MARK LEE ELLIS,                                   )   2016 Unpublished Opinion No. 443
                                                  )
       Petitioner-Appellant,                      )   Filed: March 22, 2016
                                                  )
v.                                                )   Stephen W. Kenyon, Clerk
                                                  )
STATE OF IDAHO,                                   )   THIS IS AN UNPUBLISHED
                                                  )   OPINION AND SHALL NOT
       Respondent.                                )   BE CITED AS AUTHORITY
                                                  )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

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

       Mark Lee Ellis, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

MELANSON, Chief Judge
       Mark Lee Ellis appeals from the district court’s judgment summarily dismissing his
petition for post-conviction relief. For the reasons set forth below, we affirm.
       Pursuant to a plea agreement, Ellis pled guilty to two counts of possession of sexually
exploitive material in exchange for the dismissal of eight additional counts and a sentencing
enhancement for a prior conviction of a registerable sex offense. On appeal, this Court affirmed
Ellis’s judgment of conviction. State v. Ellis, 155 Idaho 584, 314 P.3d 639 (Ct. App. 2013).
Ellis filed a timely pro se petition for post-conviction relief alleging multiple claims of
ineffective assistance of counsel and asserting his guilty plea was not entered knowingly or
voluntarily. Ellis filed a motion for appointment of counsel, which the district court denied. The
state filed an answer and motion for summary dismissal arguing that Ellis failed to assert facts




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sufficient to give rise to his claims. Following Ellis’s responsive affidavit, the district court
summarily dismissed his petition for post-conviction relief. Ellis appeals.
       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 I.R.C.P. 8(a)(1).
Rather, a petition for post-conviction relief must be verified with respect to facts within the
personal knowledge of the petitioner, and affidavits, records, or other evidence supporting its
allegations must be attached or the petition must state why such supporting evidence is not
included with the petition. I.C. § 19-4903. In other words, the petition must present or be
accompanied by admissible evidence supporting its allegations or the petition will be subject to
dismissal. Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011).
       Idaho Code 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


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inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify
them. Id.
       Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven
by the record of the criminal proceedings, if the petitioner has not presented evidence making a
prima facie case as to each essential element of the claims, or if the petitioner’s allegations do
not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281
(2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary
dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a
matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in
the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be
appropriate even when the state does not controvert the petitioner’s evidence. See Roman, 125
Idaho at 647, 873 P.2d at 901. Conversely, if the petition, affidavits, and other evidence
supporting the petition allege facts that, if true, would entitle the petitioner to relief, the
post-conviction claim may not be summarily dismissed. Charboneau v. State, 140 Idaho 789,
792, 102 P.3d 1108, 1111 (2004); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct.
App. 2008). If a genuine issue of material fact is presented, an evidentiary hearing must be
conducted to resolve the factual issues. Goodwin, 138 Idaho at 272, 61 P.3d at 629.
       On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925,
929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
       Here, citing a lack of understanding of legal paperwork, Ellis relies on two briefs
previously submitted to the district court alleging multiple claims of ineffective assistance of
counsel and asserting that his guilty plea was not entered knowingly or voluntarily.
       Ellis has failed to present any issue on appeal, offer any argument or authority, or assign
any specific error to the district court related to the dismissal of Ellis’s post-conviction petition.
A party waives an issue on appeal if either authority or argument is lacking. Powell v. Sellers,
130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997). Pro se litigants are held to the same


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standards as those litigants represented by counsel. Golay v. Loomis, 118 Idaho 387, 392, 797
P.2d 95, 100 (1990). Pro se litigants are not excused from abiding by procedural rules simply
because they are appearing pro se and may not be aware of the applicable rules.          See id.
Therefore, we do not address the merits of Ellis’s appeal. Accordingly, the district court’s
judgment dismissing Ellis’s petition for post-conviction relief is affirmed. No costs or attorney
fees are awarded on appeal.
       Judge GUTIERREZ and Judge GRATTON, CONCUR.




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