               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 36547

THOMAS HALBESLEBEN,                              )     2010 Unpublished Opinion No. 635
                                                 )
       Petitioner-Appellant,                     )     Filed: September 9, 2010
                                                 )
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STATE OF IDAHO,                                  )     THIS IS AN UNPUBLISHED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. Michael R. McLaughlin, District Judge.

       Order dismissing petition for post-conviction relief, affirmed.

       Thomas Halbesleben, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

LANSING, Chief Judge
       Thomas Halbesleben appeals from the district court‟s dismissal of his petition for post-
conviction relief. We affirm.
                                                I.
                                       BACKGROUND
       Halbesleben pleaded guilty to three counts of injury to a child, Idaho Code § 18-1501(1),
and was sentenced to consecutive unified terms of ten years with five years fixed, making the
aggregate term thirty years with fifteen years fixed. Subsequently, he filed a pro se petition for
post-conviction relief alleging that his guilty plea was “not made with adequate knowledge” and
was not voluntary, that his counsel was ineffective, that the State engaged in prosecutorial
misconduct, and that the court engaged in “judicial misconduct” or abused its discretion. The
State filed an answer and a motion to dismiss.        Through newly appointed post-conviction




                                                1
counsel, Halbesleben filed an amended post-conviction petition alleging various grounds for
ineffective assistance of counsel1 and withdrawing all other claims from the post-conviction
action. In the amended petition Halbesleben requested that the district court vacate his judgment
of conviction and allow Halbesleben to withdraw his guilty plea so that he could proceed to trial.
The State again filed an answer and moved to dismiss.
       The district court entered an order partially granting summary dismissal of some of
Halbesleben‟s ineffective assistance of counsel claims unless he provided specific facts
supporting the claims within ninety days of the order. Halbesleben filed an affidavit in support
of the claims. At the start of the evidentiary hearing the court initially summarily dismissed the
ineffective assistance of counsel claims relating to an alleged failure to advise Halbesleben of his
“rights or options regarding the proceedings” and lack of access to discovery materials, but then
decided to allow an evidentiary hearing on all Halbesleben‟s claims. After the hearing, the court
denied Halbesleben‟s post-conviction petition.
       Halbesleben now appeals pro se the denial of his petition. Halbesleben lists three issues
for appeal: whether the court erred in “denying to „talk about‟ certain claims in Petitioner‟s post-
conviction evidentiary hearing”; whether the district court erred in denying his post-conviction
claims; and whether the district court erred in finding that the State‟s witness, Craig Steveley,
one of Halbesleben‟s trial attorneys, was credible. As the second issue encompasses the third
issue, this Court will address them together.




1
        These grounds included that counsel failed to adequately advise Halbesleben of the
nature surrounding the criminal proceedings, failed to properly advise him of the discovery and
evidence against him, failed to file motions or otherwise defend against the allegations, failed to
spend adequate time with Halbesleben so as to adequately inform him and allow him to assist in
the preparation of his case and defense, failed to subpoena or produce favorable witnesses on his
behalf, failed to appropriately object to improper statements by the prosecuting attorney, failed to
object to the prosecuting attorney‟s discussions of and reference to dismissed charges and
allegations, coerced him into pleading guilty even though he wanted to go to trial, failed to
properly object to information in the PSI, failed to present mitigating evidence at sentencing,
failed to adequately raise mental health issues at sentencing, and failed to object to the court
proceeding to sentencing without abiding by the statutory requirements of I.C. § 19-2522.
                                                 2
                                                 II.
                                          DISCUSSION
A.      All Claims Except Ineffective Assistance of Counsel Were Expressly Withdrawn
        Halbesleben argues that the district court erred in not hearing evidence at the post-
conviction evidentiary hearing concerning prosecutorial misconduct and errors by the district
court at sentencing. This argument is not supported by the record as these claims, indeed all
claims other than those relating to ineffective assistance of counsel, were withdrawn by the
amended petition as stated by Halbesleben‟s counsel at the February 13, 2008, hearing.
Accordingly, these other claims were not at issue during the hearing and there could be no error
on this basis.
B.      The District Court Did Not Err in Denying Halbesleben’s Post-conviction Claims
        Halbesleben argues that the court erred in determining that Steveley was credible.
Halbesleben also reiterates his stated grounds for post-conviction relief in his appellate brief.
Specifically, Halbesleben states that: he did not have knowledge of the contents of the PSI, he
was denied access to discovery, and he was coerced into pleading guilty. 2            Although not
expressly stated, it appears that Halbesleben is attempting to argue that the district court erred in
finding he had not supported these claims.
        In order to prevail in a post-conviction proceeding, the applicant must prove the
allegations upon which the request for post-conviction relief is based by a preponderance of the
evidence. I.C. § 19-4907; Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004);
McKinney v. State, 133 Idaho 695, 699-700, 992 P.2d 144, 148-49 (1999). When reviewing a
decision denying post-conviction relief after an evidentiary hearing, an appellate court will not
disturb the lower court‟s factual findings unless they are clearly erroneous. I.R.C.P. 52(a);
Boman v. State, 129 Idaho 520, 525, 927 P.2d 910, 915 (Ct. App. 1996); Russell v. State, 118
Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to



2
        Halbesleben also argues that the district judge erred in presiding over his case because the
judge was also presiding over his ex-wife‟s case, and in not allowing the discussion of his
children‟s molestation while they were in foster care as this was mitigating evidence. As stated
in Section A, all claims other than ineffective assistance of counsel were expressly withdrawn
and therefore were not made to, or ultimately addressed by, the district court. As these
arguments were not raised below they will not be addressed for the first time on appeal. See
State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 (1992).
                                                 3
be given to their testimony, and the inferences to be drawn from the evidence are all matters
solely within the province of the district court. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Queen
v. State, 146 Idaho 502, 504, 198 P.3d 731, 733 (Ct. App. 2008); Larkin v. State, 115 Idaho 72,
73, 764 P.2d 439, 440 (Ct. App. 1988).          We exercise free review of the district court‟s
application of the relevant law to the facts. Dunlap, 141 Idaho at 56, 106 P.3d at 382; Queen,
146 Idaho at 504, 198 P.3d at 733.
       To prevail on an ineffective assistance of counsel claim in a post-conviction action, the
defendant must show that the attorney‟s performance was deficient, and that the defendant was
prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hassett v.
State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the
applicant 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);
Suits v. State, 143 Idaho 160, 162, 139 P.3d 762, 764 (Ct. App. 2006). To establish prejudice,
the applicant must show a reasonable probability that, but for the attorney‟s deficient
performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760
P.2d at 1177; Suits, 143 Idaho at 162, 139 P.3d at 764.           Bare assertions and speculation,
unsupported by specific facts, do not make out a prima facie case for ineffective assistance of
counsel. Roman v. State, 125 Idaho 644, 649, 873 P.2d 898, 903 (Ct. App. 1994).
       We hold that the district court‟s decision, that Halbesleben failed to support his claims
after the opportunity for an evidentiary hearing, was not clearly erroneous. As stated in Dunlap,
Queen, and Larkin, credibility is a determination for the trial court, and the district court here did
not err in holding that Steveley‟s recollection and testimony was more credible than
Halbesleben‟s. Steveley testified that Halbesleben was forwarded all discovery received and that
counsel went over it with Halbesleben, who in turn stopped discussing witnesses for trial and
started discussing getting the best plea deal. Steveley also stated that Halbesleben was given a
copy of the PSI. Steveley testified that he never coerced Halbesleben into pleading guilty and
discussed all the ramifications of the plea agreement with Halbesleben extensively before
Halbesleben pleaded guilty. As stated by the district court, Steveley‟s version of events was
clear, specific, detailed, and well-documented with notes in his file. Halbesleben‟s testimony on
the other hand was vague and often contradictory. For example, in support of his claim that
counsel did not inform him of the circumstances and consequences of his plea agreement,

                                                  4
Halbesleben testified that he had not met with his counsel on the day he pleaded guilty prior to
his plea, but when informed that security cameras could show a meeting with counsel he
recanted, stating that he did meet with his attorneys but that they did not discuss the plea deal.
He also testified on direct that he had not received certain reports before his guilty plea that
could have proven him innocent, but then recanted this testimony when he was reminded that he
had already testified on direct that he had received those reports prior to pleading guilty.
Because we do not find error in the court‟s holding that counsel was more credible than
Halbesleben, and because Halbesleben‟s claims of ineffective assistance of counsel were
supported solely by Halbesleben‟s testimony, which was rebutted by counsel‟s testimony to the
contrary, we hold that the district court did not err in finding that Halbesleben failed to prove his
allegations of ineffective assistance of counsel.
                                                III.
                                         CONCLUSION
       Halbesleben has failed to show that the district court erred in denying his petition for
post-conviction relief. The order of dismissal is therefore affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




                                                    5
