               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 45942

DARRYL HENDERSON,                                 )
                                                  )    Filed: April 14, 2020
       Petitioner-Appellant,                      )
                                                  )    Karel A. Lehrman, Clerk
v.                                                )
                                                  )    THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                   )    OPINION AND SHALL NOT
                                                  )    BE CITED AS AUTHORITY
       Respondent.                                )
                                                  )

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

       Order denying motion to amend petition for post-conviction relief and judgment
       dismissing petition for post-conviction relief, affirmed.

       Greg S. Silvey, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

BRAILSFORD, Judge
       Darryl Henderson appeals from the district court’s order denying his motion to amend his
previously amended petition for post-conviction relief and the judgment dismissing his amended
petition for post-conviction relief. We affirm.
                                                  I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Henderson’s petition for post-conviction relief relates to three underlying criminal cases.
In March 2010, the State filed a complaint charging Henderson with three counts of lewd
conduct with a minor child under sixteen and one count of delivery of a controlled substance.
I.C. § 18-1508; I.C. § 37-2732(a)(1)(A).       Additionally, the State alleged Henderson was a
persistent violator of the law. I.C. § 19-2514. These charges related to Henderson, who was
forty-six years old at the time, having sex multiple times with a fourteen-year-old runaway and

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exchanging methamphetamine for sex. In May 2010, the State filed a second complaint charging
Henderson with additional counts of possession of methamphetamine and of possession of drug
paraphernalia. I.C. § 37-2732(a)(1)(A); I.C. § 37-2734A(3). A day later, the State filed a third
complaint charging Henderson with three counts of possession of a forged check. I.C. § 18-
3605.
        The parties entered into a single plea agreement to resolve all three of these criminal
cases. Under this agreement, Henderson agreed to plead guilty to one count of lewd conduct and
one count of possession of a forged check. In exchange, the State agreed to drop all other
remaining counts in all three criminal cases, including the allegation that Henderson was a
persistent violator. Further, the State agreed to recommend concurrent sentences of twenty-five
years with five years determinate for lewd conduct and seven years with three years determinate
for possession of a forged check. At the sentencing hearing, Henderson admitted to having
sexual relations with the victim, and the district court imposed concurrent sentences of twenty-
five years with five years determinate for lewd conduct and ten years with three years
determinate for possession of a forged check. The district court denied Henderson’s motion
challenging his sentences under Idaho Criminal Rule 35, and this Court affirmed the district
court’s judgment of conviction and sentences. State v. Henderson, Docket Nos. 38088/38089
(Ct. App. May 12, 2011) (unpublished).
        In May 2012, Henderson filed a pro se petition for post-conviction relief and his
supporting affidavit.    In this petition, Henderson alleged numerous claims of ineffective
assistance of counsel.    In response, the State filed an answer and also the affidavit of
Henderson’s trial counsel denying Henderson’s allegations. Thereafter in August, Henderson
filed an amended pro se petition alleging additional claims that his trial counsel was ineffective,
including for failing to investigate the authenticity of the victim’s statements regarding
Henderson’s lewd conduct. In support of this amended petition, Henderson filed the victim’s
affidavit. In this affidavit, the victim recanted her prior statements that she and Henderson had
sexual relations, and she attested the police coerced her into accusing Henderson of lewd
conduct.
        The State responded to Henderson’s amended petition requesting that the district court
“consider the matter of amending petitions closed.” Further, the State notified the court that a
grand jury had indicted Henderson for suborning perjury by coercing his victim into signing the

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affidavit in support of Henderson’s amended petition. As a result, the court stayed Henderson’s
post-conviction case until the resolution of the suborning perjury charge. Eventually, Henderson
pled guilty to amended charges of bribing and intimidating a witness.
       Sometime thereafter, in October 2016, the district court issued a notice of intent to
dismiss Henderson’s amended petition for post-conviction relief.           The court excluded the
victim’s coerced affidavit and concluded Henderson failed to offer any admissible evidence that
his trial counsel performed deficiently. In response, Henderson retained counsel, who filed a
document entitled “Objection to Notice of Intent to Dismiss and Motion to Amend.” Despite the
document’s title, Henderson offered no argument in response to the court’s notice of intent to
dismiss his pending claims. Instead, Henderson’s filing focused exclusively on his proposed
amended claim, namely that his counsel erroneously advised Henderson regarding a possible
sentence enhancement if he were convicted as a persistent violator.
       In support of this motion to amend, Henderson filed his affidavit attaching a document he
claimed his trial counsel gave to Henderson before he entered his guilty pleas in the 2010
criminal cases. Among other things, this document stated, “Plus you are facing the Habitual
violator of the law. This is an automatic 5Fixed to Life.” Based on this language, Henderson
alleged his trial counsel advised Henderson that if he went to trial and was convicted as a
persistent violator, he would automatically be sentenced to an indeterminate life sentence with a
five-year fixed term. Henderson alleged this advice was incorrect because, under Idaho law, a
conviction as a persistent violator does not result in an automatic life sentence. Rather, the term
of a persistent violator’s sentence “shall be for not less than five (5) years and . . . may extend to
life.” I.C. § 19-2514 (emphasis added).
       In April 2017, the State opposed Henderson’s motion to amend, arguing Henderson’s
proposed amended claim lacked merit and, in particular, failed to allege any prejudice as a result
of his trial counsel’s purported erroneous legal advice. Further, the State moved for summary
judgment on all Henderson’s pending claims because he failed to address the deficiencies
identified in the court’s notice of intent. Henderson never replied to the State’s opposition.
Nearly a year later, in March 2018, the district court issued an order dismissing Henderson’s
amended petition and denying his motion to amend.             The district court accepted as true
Henderson’s allegations that his trial counsel provided erroneous advice but ruled Henderson
failed to show any resulting prejudice. Henderson timely appeals.

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                                                 II.
                                   STANDARD OF REVIEW
       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 on 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 than would suffice for a complaint under Idaho Rule of Civil
Procedure 8(a)(1). Rather, a petition for post-conviction relief must be verified with respect to
the facts within the personal knowledge of the petitioner, and affidavits, records, or other
evidence supporting the 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 party’s motion or on the court’s own initiative, if it appears
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. Further, I.C. § 19-4906 offers guidance for a petition’s amendment. Cole v. State, 135
Idaho 107, 110, 15 P.3d 820, 823 (2000). The court may make appropriate orders for a petition’s
amendment and may grant leave to amend a petition following the petitioner’s opportunity to
respond to a notice of intent to dismiss. I.C. § 19-4906(a), (b).
       Generally, when an amendment requires the court’s leave, the court shall liberally grant
such leave.    See I.R.C.P. 15(a)(2) (“The court should freely give leave when justice so
requires.”); see also Taylor v. McNichols, 149 Idaho 826, 847, 243 P.3d 642, 663 (2010)
(“[M]otions for leave to amend pleadings are to be liberally granted.”). In determining whether
to allow an amended claim, the court may consider whether the proposed claim states a valid
claim. Black Canyon Racquetball Club, Inc. v. Idaho First Nat. Bank, N.A., 119 Idaho 171, 175,

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804 P.2d 900, 904 (1991). If the proposed amendment does not state a valid claim and would be
futile, the trial court does not abuse its discretion by denying the amendment. Id.
                                                III.
                                           ANALYSIS
         On appeal, Henderson challenges only the district court’s denial of his motion to amend
to allege that his trial counsel was ineffective for erroneously advising Henderson regarding a
possible sentence enhancement if he were convicted as a persistent violator. To prevail on an
ineffective assistance of counsel claim, the petitioner must show that the attorney’s performance
was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington,
466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App.
2007).    “To avoid summary dismissal, a post-conviction claim of ineffective assistance of
counsel must sufficiently allege facts under both prongs of the test.” Roman v. State, 125 Idaho
644, 649, 873 P.2d 898, 903 (Ct. App. 1994). To establish a deficiency, the petitioner has the
burden of showing the attorney’s representation fell below an objective standard of
reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v.
State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007).
         If the petitioner pled guilty, the prejudice element requires the petitioner to show a
reasonable probability the petitioner would not have pled guilty and would have insisted on
going to trial but for his counsel’s errors. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633
(Ct. App. 2006). A reasonable probability is a probability sufficient to undermine confidence in
the case’s outcome and requires a substantial not just a conceivable likelihood of a different
result. Cullen v. Pinholster, 563 U.S. 170, 189 (2011). To show prejudice, the petitioner should
draw a causal connection between his attorney’s alleged deficient performance and the
petitioner’s decision to plead guilty. Ridgley v. State, 148 Idaho 671, 677, 227 P.3d 925, 931
(2010). To obtain relief, the petitioner must convince the court a decision to reject the plea
bargain would have been rational under the circumstances. Padilla v. Kentucky, 559 U.S. 356,
372 (2010). The focus is on the petitioner’s state of mind when choosing to plead guilty and
how the erroneous advice affected his state of mind. Booth v. State, 151 Idaho 612, 622, 262
P.3d 255, 265 (2011).
         In support of his motion to amend, Henderson alleged that “[t]he reason I chose to plead
guilty was to avoid a life sentence” and “[h]ad I known I was not facing a fixed life

                                                 5
sentence[1] . . . I would have never [pled] guilty.”     The district court rejected Henderson’s
allegations as conclusory.    Henderson challenges this ruling on numerous grounds.           First,
Henderson argues that “the district court simply disregarded the direct evidence of prejudice, to
wit, [Henderson’s] sworn statement that he pled guilty based on the erroneous advice and [that]
he would not have but for the incorrect advice.” This argument fails for the same reason that
Henderson’s allegations fail to show prejudice: “Bare or conclusory allegations, unsubstantiated
by any fact, are inadequate to entitle a petitioner to an evidentiary hearing.” Takhsilov v. State,
161 Idaho 669, 673, 389 P.3d 955, 959 (2016).           Likewise, a conclusory argument about
conclusory allegations is inadequate.
       Second, Henderson contends the district court’s rejection of his sworn statement was
erroneously based on “the court’s . . . perception of the value of the plea bargain” versus
Henderson’s perception of that value. Specifically, Henderson challenges the court’s conclusion
that he received “an enormous benefit from the plea deal.” Henderson disputes this benefit
arguing that “the benefit of the plea agreement was largely illusory” and that the charges against
him “were not indefensible.” In support of this latter assertion, Henderson identifies what he
characterizes as “good facts” for his defense including that (1) there was an absence of “tangible
proof” he had sexual intercourse with the victim, such as DNA evidence or his own admission of
sexual relations;2 (2) the victim was reluctant to testify, initially denied having sexual relations
with Henderson, was “locked up” when she testified before the grand jury, and had mental health
issues; and (3) the forged checks were written to another individual.
       Notably, however, Henderson never alleged his trial counsel’s erroneous legal advice
prejudiced Henderson because the charges against him were defensible. Nor did Henderson raise
this argument in reply to the State’s opposition to his amendment, wherein the State directly
challenged Henderson’s failure to allege prejudice. Having failed to raise the argument before
the district court, this Court will not consider it on appeal. See State v. Fodge, 121 Idaho 192,




1
        This allegation of being subject to a fixed life sentence is inconsistent with Henderson’s
allegation that his trial counsel advised Henderson the court would sentence him to “an
automatic life sentence indeterminate.” (Emphasis added.)
2
        Henderson’s assertion on appeal that he did not admit to sexual relations with the victim
is belied by Henderson’s admission during the sentencing hearing that he did.
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195, 824 P.2d 123, 126 (1992) (ruling issues not previously raised may not be considered on
appeal).
        Finally, Henderson challenges the district court’s reliance on Cosio-Nava v. State, 161
Idaho 44, 383 P.3d 1214 (2016). In that case, Cosio-Nava, a Mexican citizen, pled guilty to
felony domestic battery with a traumatic injury. Id. at 46, 383 P.3d at 1216. As a result of his
plea, the federal immigration authorities removed Cosio-Nava from the United States. Id. at 46-
47, 383 P.3d at 1216-17. Cosio-Nava filed a petition for post-conviction relief, alleging his trial
counsel did not adequately advise Cosio-Nava about the immigration consequences of a guilty
plea. Id. at 47, 383 P.3d at 1217. The district court dismissed Cosio-Nava’s petition, ruling he
failed to show deficient performance and any resulting prejudice. Id.
        On appeal, the Idaho Supreme Court concluded Cosio-Nava failed to meet his burden of
showing his trial counsel’s performance was deficient. Id. at 49, 383 P.3d at 1219. Further, the
Court concluded Cosio-Nava also failed to show he was prejudiced by any alleged deficiency.
Id. Regarding this latter conclusion, the Court reasoned that Cosio-Nava failed to show an
alternative plea deal allowing him to avoid removal from the United States was a realistic option.
Id. Accordingly, the Court concluded Cosio-Nava failed to show that “rejecting the plea bargain
would have been rational under the circumstances.” Id. (quotations and brackets omitted).
        Henderson asserts Cosio-Nava is distinguishable because the district court in that case
held an evidentiary hearing and, unlike Cosio-Nava, Henderson is alleging he would have gone
to trial but for his counsel’s purported erroneous advice. These distinctions aside, the district
court did not err by relying on Cosio-Nava. The district court’s reliance on Cosio-Nava was
focused on the rule that “‘to obtain relief on this type of claim [involving a guilty plea], a
petitioner must convince the court that a decision to reject the plea bargain would have been
rational under the circumstances.’” Id. at 48, 383 P.3d at 1218 (quoting Padilla, 559 U.S. at
372).
        Based on this rule cited in Cosio-Nava, the district court concluded:
        Like Cosio-Nava, Henderson has failed to present evidence that rejecting the plea
        bargain would have been rational under the circumstances he was facing. In this
        case, where the plea deal significantly reduced Henderson’s total exposure,
        dismissed multiple felony charges and ensured the State would cap their
        recommendations, Henderson cannot simply make the conclusory allegation that
        he would not have accepted the plea deal but for the incorrect advice.



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In reaching this conclusion, the district court properly focused on Henderson’s state of mind at
the time he pled guilty and whether rejecting the plea bargain would have been rational. See
Booth, 151 Idaho at 622, 262 P.3d at 265 (noting analysis focuses on petitioner’s state of mind
when pleading guilty); see also Padilla, 559 U.S. at 372 (noting analysis focuses on whether
rejecting plea bargain would have been rational).
          Further, we reject Henderson’s argument that the district court’s ruling was inconsistent
with Booth, 151 Idaho 612, 262 P.3d 255. In that case, the Idaho Supreme Court stated that “the
fact that Booth may have benefited by pleading guilty instead of going to trial is not relevant to
whether he was prejudiced by [his counsel’s] deficient performance.” Id. at 622 n.9, 262 P.3d at
265 n.9. Henderson contends that, contrary to this statement that a plea bargain’s benefit is not
relevant to determining prejudice, the district court concluded Henderson was not prejudiced
because he benefited from the plea agreement.          This argument, however, misconstrues the
district court’s analysis. Although the district court referred to the plea bargain’s benefit to
Henderson, this reference was in the context of analyzing whether his rejection of the plea
bargain would have been rational. Accordingly, the court’s analysis is not inconsistent with
Booth.
          In summary, we hold that the district court did not abuse its discretion by denying
Henderson’s motion to amend. Henderson’s proposed claim did not state a valid claim for relief
but rather was futile because he failed to allege anything other than bare, conclusory allegations
of prejudice. Further, we agree with the district court that Henderson’s rejection of the plea
bargain would not have been rational under the circumstances.
                                                 IV.
                                          CONCLUSION
          Based on the foregoing, we affirm the district court’s denial of Henderson’s motion to
amend and its final judgment dismissing Henderson’s amended petition for post-conviction
relief.
          Judge GRATTON and Judge LORELLO CONCUR.




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