               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 40162

DAVID WAYNE VOGEL,                                )     2013 Unpublished Opinion No. 685
                                                  )
       Petitioner-Appellant,                      )     Filed: October 2, 2013
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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, Cassia
       County. Hon. Michael R. Crabtree, District Judge.

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

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       David Wayne Vogel appeals from the district court’s order summarily dismissing his
petition for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Vogel pled guilty to possession of methamphetamine in 2010 after a glass pipe in his
possession tested positive for the drug. The glass pipe was analyzed by the Idaho State Police
forensic laboratory in Pocatello. Vogel was sentenced to a unified term of seven years, with a
minimum period of confinement of three years. He subsequently learned of misconduct at the
Pocatello laboratory through letters sent by the Idaho State Police to Idaho prosecutors. The
letters indicated that employees at the Pocatello laboratory--including the employee that had
conducted the test in Vogel’s case--had clandestinely maintained a box of unaccounted-for
controlled substances in the laboratory, which they used for training purposes and tour displays.



                                                 1
       After learning of these issues, Vogel filed a petition for post-conviction relief. In his
petition and supporting affidavit, Vogel alleged ineffective assistance of counsel and his belief
that the controlled substance testing in his case was flawed as a result of the misconduct at the
Pocatello laboratory. The district court appointed counsel, who then filed an affidavit with
attached exhibits of the letter from the Idaho State Police and the original test results showing
which employee had processed the evidence in Vogel’s case. The state moved to dismiss the
petition under I.C. § 19-4906(b) and (c), arguing that the claims were bare and conclusory, Vogel
had failed to present evidence in support of his claims, and he had failed to raise a genuine issue
of material fact. The district court granted the state’s motion for summary dismissal of Vogel’s
claim of ineffective assistance of counsel, but allowed Vogel to amend his petition regarding his
claim of misconduct at the Pocatello laboratory. Vogel filed an amended petition that restated
both his ineffective assistance of counsel argument and his belief that the controlled substance
testing was flawed. Vogel also filed a motion for retesting of the evidence in his case at state
expense. However, he presented no further evidence in support of either the motion or the
amended petition. As a result, the district court denied the motion and summarily dismissed
Vogel’s amended petition. Vogel appeals.
                                                II.
                                  STANDARD OF REVIEW
       A petition for post-conviction relief initiates a proceeding that is civil in nature. 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. I.C. § 19-
4907; 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


                                                2
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 motion of a party or upon the court’s own initiative, if it
appears from the pleadings, depositions, answers to interrogatories, and admissions and
agreements of facts, 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. at 355, 195 P.3d 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 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


                                                   3
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).
                                               III.
                                           ANALYSIS
       Vogel asserts that the district court abused its discretion and denied his substantial rights
by denying his motion for retesting of the evidence in his case. He contends that he provided
sufficient evidence that the original controlled substance testing in his case was flawed through
the letter and original test results attached as exhibits to the affidavit of counsel. When a trial
court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered
inquiry to determine: (1) whether the lower court correctly perceived the issue as one of
discretion; (2) whether the lower court acted within the boundaries of such discretion and
consistently with any legal standards applicable to the specific choices before it; and (3) whether
the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598,
600, 768 P.2d 1331, 1333 (1989).
       In Vogel’s motion, he requested that the state bear the expense of retesting the evidence
in his case pursuant to I.C. § 19-4904, which provides that a court may order payment of certain
costs and expenses for an indigent petitioner in a post-conviction action.         This Court has
previously analogized a request for reexamination of physical evidence under Section 19-4904 to
a request for discovery in a post-conviction action. See Murphy v. State, 143 Idaho 139, 147-48,
139 P.3d 741, 749-50 (Ct. App. 2006). When a petitioner believes discovery is necessary for
acquisition of evidence to support a claim for post-conviction relief, the petitioner must obtain
authorization from the court to conduct discovery. I.C.R. 57(b); Raudebaugh v. State, 135 Idaho
602, 605, 21 P.3d 924, 927 (2001). Whether to authorize discovery is a matter directed to the
discretion of the district court. Raudebaugh, 135 Idaho at 605, 21 P.3d at 927; Fairchild v. State,
128 Idaho 311, 319, 912 P.2d 679, 687 (Ct. App. 1996). Discovery in a post-conviction action is


                                                4
not required unless necessary to protect a petitioner’s substantial rights. Murphy, 143 Idaho at
148, 139 P.3d at 750; Griffith v. State, 121 Idaho 371, 375, 825 P.2d 94, 98 (Ct. App. 1992). The
district court may permit reasonable discovery subject to its supervision and firm control.
Murphy, 143 Idaho at 148, 139 P.3d at 750; Merrifield v. Arave, 128 Idaho 306, 310, 912 P.2d
674, 678 (Ct. App. 1996). “Fishing expeditions” should not be allowed, as post-conviction
actions provide a forum for known grievances, not an opportunity to research for grievances.
Murphy, 143 Idaho at 148, 139 P.3d at 750. Hence, a post-conviction action is not a vehicle for
unrestrained testing or retesting of physical evidence introduced at the criminal trial. Murphy,
143 Idaho at 148, 139 P.3d at 750.
       The Idaho Supreme Court established a test for determining whether denial of a post-
conviction discovery request for reexamination or retesting of physical evidence is an abuse of
discretion in Raudebaugh, 135 Idaho at 604-05, 21 P.3d at 926-27. Raudebaugh sought release
of the murder weapon and state funding to retain an expert to examine it for fingerprint evidence
that he asserted could have assisted him at his trial for second degree murder. But, he made no
showing that the original fingerprint testing was flawed or that there was new technology that
would make current testing more reliable. The Court held that the district court had not abused
its discretion in denying Raudebaugh’s request because his allegations were merely speculative
and unsupported by admissible evidence. Id. at 605, 21 P.3d at 927.
       The issue here is similar to the issue in Raudebaugh. Vogel’s motion for retesting was
made after the district court allowed him to amend his petition so that he could allege admissible
evidence in support of his claim that the original test results in his case were flawed, tainted, or
otherwise unreliable as a result of the misconduct at the forensic laboratory in Pocatello.
However, the district court found that Vogel had not provided any admissible evidence of this in
his amended petition or in support of his motion. Instead, the district court found that Vogel’s
claim remained bare, conclusory, and unsubstantiated. The letter outlining the misconduct at the
Pocatello laboratory and the original test results indicating that an employee involved in the
misconduct performed the original tests in Vogel’s case fail to indicate any flaws in the original
testing as a result of the misconduct at the Pocatello laboratory. Indeed, the reported misconduct
did not involve test procedures at the laboratory. Vogel also alleges that the district court failed
to recognize that it had discretion to grant his motion for retesting, but the record reflects the
contrary. The record indicates that Vogel sought to retest the glass pipe in hopes of discovering


                                                 5
evidence that might warrant retesting, as he acknowledged that the test may prove or disprove his
allegations. Thus, Vogel’s request for retesting was nothing more than a fishing expedition and
his assertions, like those in Raudebaugh, are merely speculative and unsupported by admissible
evidence. Accordingly, without evidence of flaws in the original testing, the discovery was not
necessary to protect Vogel’s substantial rights, and the district court did not err in denying his
motion for retesting.
                                               IV.
                                        CONCLUSION
       The district court did not abuse its discretion in denying Vogel’s motion for retesting
because he provided no evidence that the original testing in his case was flawed. Thus, Vogel
has failed to assert facts supported by admissible evidence creating a genuine dispute that would
entitle him to an evidentiary hearing.      Accordingly, we affirm the district court’s order
summarily dismissing Vogel’s petition for post-conviction relief. No costs or attorney fees are
awarded on appeal.
       Chief Judge GUTIERREZ and Judge LANSING, CONCUR.




                                                6
