                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 39080

DAVID A. SAXTON,                                 )     2012 Unpublished Opinion No. 561
                                                 )
       Petitioner-Appellant,                     )     Filed: July 24, 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STATE OF IDAHO,                                  )     THIS IS AN UNPUBLISHED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 Seventh Judicial District, State of Idaho,
       Jefferson County. Hon. Dane H. Watkins, Jr., District Judge.

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

       Thompson Smith Woolf & Anderson, PLLC; Stevan H. Thompson, Idaho Falls,
       for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Chief Judge
       David A. Saxton appeals from the district court’s dismissal of his petition for post-
conviction relief.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Although the record in this matter is limited, it appears from the registry of action 1 that
Saxton pled guilty to one count of battery with intent to commit a serious felony, Idaho Code
§ 18-911. In June 2007, the district court sentenced Saxton to a unified term of ten years with
two years determinate, but suspended the sentence and placed Saxton on probation for a period
of fifteen years. During the period of probation, various probation violations occurred and in
January 2009, the district court revoked probation and executed the original sentence.


1
        The Idaho Supreme Court granted the State’s motion to take judicial notice of the registry
of action.

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       Saxton filed a pro se petition for post-conviction relief claiming ineffective assistance of
counsel for failure to file an appeal. The district court entered a notice of intent to dismiss the
petition, explaining that Saxton failed to state the underlying basis for his claim as required by
I.C. § 19-4903. The notice required Saxton to provide the court, within twenty days, the grounds
upon which his petition was based or his petition would be dismissed. Saxton did not provide
further evidence or argument and, consequently, the district court entered an order dismissing
Saxton’s petition. Saxton timely appealed.
                                                II.
                                           ANALYSIS
       Saxton argues that the district court erred by dismissing his petition for post-conviction
relief. Saxton asserts he sufficiently alleged a claim of ineffective assistance of counsel based
upon counsel’s failure to file a direct appeal. The State contends that Saxton failed to set forth a
valid claim upon which relief can be granted in his 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.




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       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
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).
       When 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).
       Saxton’s affidavit in support of his petition for post-conviction relief states: “On the 4th
day of January, 2008 I had informed my attorney that I wanted him to file an appeal, and he
refused to file notice of appeal, which denied me my [rights].” Saxton relies on Beasley v. State,
126 Idaho 356, 883 P.2d 714 (Ct. App. 1994), for the proposition that failure of counsel to
perfect an appeal when expressly requested requires reinstatement of the right to appeal, with no


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need to demonstrate prejudice. In Beasley, we held that the loss of the opportunity to appeal was
itself sufficient prejudice. Id. at 362, 883 P.2d at 720. We noted that “under the facts in this
case, counsel did not act to adequately protect Beasley’s right to appeal.” Id. at 363, 883 P.2d at
721. The difference between this case and Beasley, is that at the time Saxton states he demanded
that his counsel appeal, he had no right to appeal. On appeal, Saxton acknowledges as much,
stating that on January 4, 2008, “he was still caught up in the midst of various probation
violation proceedings and there had not yet been an order entered imposing his sentence.” No
order had been filed within forty-two days of January 4, 2008, a prerequisite to appeal. See
Idaho Appellate Rule 14(a). Beasley does not stand for the proposition that an untimely demand
to appeal, or a demand to appeal when the “opportunity” to appeal does not exist, requires
automatic reinstatement of appellate rights in post-conviction relief proceedings. Based on these
facts, it cannot be said that counsel failed to adequately protect any right to appeal that Saxton
enjoyed.
       Saxton contends, however, that his own affidavit creates a factual ambiguity as to “why
the appellant would have asked his attorney to file an appeal on January 4, 2008,” thus raising an
issue of fact as to the time frame in which he asked his counsel to file an appeal. Saxton’s
affidavit is unambiguous as to the date on which he asserts that he requested his counsel to file a
notice of appeal. No appeal could have vested jurisdiction in the appellate court at that time and,
therefore, Saxton cannot contend that failure to file an appeal occasioned a loss of his
opportunity to appeal. Saxton failed to provide any further information to the district court to
further illuminate the issue. Consequently, the district court did not err in dismissing Saxton’s
petition for post-conviction relief.
                                               III.
                                        CONCLUSION
       The district court did not err in dismissing Saxton’s petition for post-conviction relief.
Accordingly, the district court’s order summarily dismissing Saxton’s petition for post-
conviction relief is affirmed.
       Judge LANSING and Judge GUTIERREZ CONCUR.




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