                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 37706

PAUL JAMES CAVANAUGH,                              )       2013 Unpublished Opinion No. 443
                                                   )
       Petitioner-Appellant,                       )       Filed: April 11, 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STATE OF IDAHO,                                    )       THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho,
       Bonner County. Hon. Steven C. Verby, District Judge.

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

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

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GUTIERREZ, Chief Judge
       Paul James Cavanaugh appeals from the district court’s judgment summarily dismissing
his petition for post-conviction relief in part. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       On March 10, 2005, a pedestrian was struck by a pickup truck at approximately 6:30 in
the evening while she was walking along a dirt road. The pedestrian later died from her injuries.
Cavanaugh, who was the registered owner of the truck, emerged several minutes later from the
dark wooded area the truck had swerved into after striking the victim. He was charged with
vehicular manslaughter, Idaho Code § 18-4006, and leaving the scene of an accident, I.C.
§ 18-8007. A jury found Cavanaugh guilty as charged.
       Cavanaugh did not directly appeal his conviction, but filed a motion for a new trial,
which the district court denied. This Court affirmed. State v. Cavanaugh, Docket No. 33657

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(Ct. App. Feb. 10, 2009) (unpublished). Thereafter, Cavanaugh filed a pro se petition for
post-conviction relief, asserting a variety of ineffective assistance of counsel claims, including
that his trial counsel was ineffective for failing to use a peremptory challenge to exclude an
allegedly biased juror during voir dire and for failing to file a direct appeal. After a hearing on
the latter issue, the district court granted relief, entering an order allowing Cavanaugh a renewed
period of time to file a direct appeal. 1 The district court summarily dismissed the remaining
claims. Cavanaugh now appeals the summary dismissal of his claim that counsel was ineffective
at voir dire.
                                                 II.
                                           ANALYSIS
        Cavanaugh asserts the district court erred in concluding there was no genuine issue of
material fact with respect to his allegation that he received ineffective assistance of counsel at
voir dire. 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
plaintiffs in other civil actions, 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). A petition for post-conviction relief differs from a complaint
in an ordinary civil action, however, in that it must contain 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. I.C. § 19-4903. In other words, the petition must present or be accompanied by
admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State,
152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873
P.2d 898, 901 (Ct. App. 1994).

1
        Cavanaugh filed a direct appeal and this Court affirmed his judgment of conviction.
State v. Cavanaugh, Docket No. 37705 (Ct. App. Oct. 26, 2011) (unpublished).

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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, 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.” I.C. § 19-4906(c). 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. Payne, 146 Idaho at
561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district
court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district
court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the
most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at
483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; 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. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036,
1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d 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 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); Murphy v. State, 143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006). Thus,
summary dismissal of a claim for post-conviction relief is appropriate when the court can
conclude, as a matter of law, 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 Payne, 146 Idaho at 561, 199 P.3d at 136; 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.


                                                  3
Kelly, 149 Idaho at 521, 236 P.3d at 1281; Payne, 146 Idaho at 561, 199 P.3d at 136; 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 v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State,
136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
       A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show
the attorney’s performance was deficient and 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 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). To establish prejudice, the petitioner 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; Knutsen, 144 Idaho at
442, 163 P.3d at 231. This Court has long adhered to the proposition that tactical or strategic
decisions of trial counsel will not be second-guessed on appeal unless those decisions are based
on inadequate preparation, ignorance of relevant law, or other shortcomings capable of objective
evaluation. Gonzales v. State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011).
       Cavanaugh’s claim pertains to his trial counsel’s failure to use a peremptory challenge to
exclude a potential juror, R.H. During voir dire, shortly before R.H. was called to join the first
group of jurors, the district court asked the first group whether anyone had “any bias or prejudice
either for or against Mr. Cavanaugh at this time.” The district court also asked whether they
would be willing to follow the court’s instructions on the law even if they believed the law
should be different. Just before R.H. was selected to join the first group, the district court asked
the group: “Are there any of you if selected as a juror in this case who is unwilling or unable to
render a fair and impartial verdict based upon the evidence presented in this courtroom and the


                                                 4
law as instructed to you by the court?” Once R.H. joined the first group, he was asked whether
he would have answered “yes” to any of the previously asked questions, to which he answered in
the affirmative. The following colloquy ensued:
       [The Court]: And do you know something about this case or have you read
                    something about this case?
       [R.H.]:      I did. Where I work is just a short distance on this particular road
                    from the event. Yes. My daughter worked with [the victim]. I
                    know one of the individuals they intend on calling as a witness.
                    Do I think that I could judge fairly? Yes. But I don’t know. . . .
                    [W]hat I’ve heard here by the prosecuting attorney and the defense
                    attorney already today has changed my vision of what I believed
                    happened so . . .
       [The Court]: Knowing--or having heard about this case, do you feel that you
                    could set aside what you’ve heard about this case and decide the
                    case based solely upon the evidence that’s presented during the
                    course of this trial?
       [R.H.]:      I believe that I could.
       [The Court]: And with regard to the individuals that you know of who may be a
                    witness in this case or witnesses, do you feel that you would give
                    that person or persons greater weight than you would someone
                    else? Or lesser weight? Either one.
       [R.H.]:      I--it would--I would say greater weight. Yes. Probably.
       [The Court]: Would this knowledge prevent you from acting with impartiality in
                    this case?
       [R.H.]:      I don’t believe so. Like I said . . . the knowledge that I had until
                    today has already been changed by what I have seen here.
       [The Court]: Any other questions that you would have responded yes to?
       [R.H.]:      No.
       ....
       [R.H.]:      Well, only that one question that I do . . . know personally one of
                    the individuals that you intend on calling and my daughter worked
                    with [the victim] . . . . I did not know [the victim]. I work with
                    people who did know her. All right. And this happened close to
                    where I work.
In its order summarily dismissing all but one of Cavanaugh’s post-conviction claims, including
the claim at issue in this appeal, the district court addressed them generally:
       To survive the State’s motion, Mr. Cavanaugh must establish that there are
       material issues of fact which preclude the granting of the motion for summary
       dismissal. There has been no showing that his lawyers’ actions fell below an
       objective standard of reasonableness. There has been an inadequate showing that
       the conduct of his lawyers so undermined the proper functioning of the
       adversarial process that the trial cannot be relied upon as having produced a just
       result. The petition and other documents submitted by Mr. Cavanaugh, together


                                                  5
       with his argument at the hearing, failed to show that his trial counsel were
       ineffective before trial, during trial, and/or at sentencing, and that there is a
       reasonable probability that but for the conduct of his counsel, the outcome of the
       trial would have been different.
       On appeal, Cavanaugh contends that, by presenting “unrebutted evidence that his
attorney failed to strike a juror who admitted that he would be biased in favor of one of the
witnesses” and this juror served on the jury that convicted Cavanaugh, he presented a prima facie
case that his counsel was ineffective. Thus, he argues, he was entitled to an evidentiary hearing
and summary dismissal of this issue was erroneous. We need not reach the question of whether
Cavanaugh established a genuine issue of material fact as to whether counsel’s failure to utilize a
peremptory strike to exclude R.H. was deficient performance because we conclude that, even
assuming deficient performance, Cavanaugh has not succeeded in presenting an issue of material
fact as to the second Strickland prong--prejudice. As previously stated, a petitioner claiming that
his counsel’s deficient performance was prejudicial 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; Curless v. State, 146 Idaho 95, 100, 190 P.3d 914,
919 (Ct. App. 2008).      A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694; Curless, 146 Idaho at 100, 190 P.3d at
919. A court determining whether the petitioner has met his burden must consider the totality of
the evidence presented at trial. Strickland, 466 U.S. at 694-95; Curless, 146 Idaho at 100, 190
P.3d at 919. A verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support. Strickland, 466 U.S. at 696;
Curless, 146 Idaho at 100, 190 P.3d at 919. Circumstantial evidence and direct evidence
inherently possess the same probative value. State v. Glass, 146 Idaho 77, 85 190 P.3d 896, 904
(Ct. App. 2008).     Here we conclude that, given the overwhelming evidence at trial of
Cavanaugh’s guilt, there is no reasonable probability the outcome would have been different
even had R.H. been excluded from the jury.
       Cavanaugh’s defense at trial was that he was merely a passenger in his truck that struck
the victim. Although there was no testimony that anyone had actually seen him driving at the
time, the State presented extensive circumstantial evidence that Cavanaugh, the registered owner
of the vehicle, was culpable. As we stated above, such evidence carries the same weight as
direct evidence. Id. The victim’s boyfriend, who witnessed the incident, identified Cavanaugh


                                                6
as the only person he saw emerging from the truck after it struck the victim and swerved off the
road. The witness also observed that when Cavanaugh approached the scene, Cavanaugh was
acting intoxicated and smelled of alcohol. In addition, the witness testified that when he told
Cavanaugh that Cavanaugh had killed his girlfriend, Cavanaugh responded: “I know. I will die
with her.” The witness’s foster mother, who came upon the scene shortly after the incident, also
identified Cavanaugh as having been on the scene and saying, “I’m sorry” and “I didn’t mean
to.” She testified Cavanaugh smelled heavily of alcohol and was acting intoxicated. Two other
witnesses who arrived on the scene shortly after the incident also identified Cavanaugh as having
been there, smelling of alcohol, and acting intoxicated. Additionally, an officer testified that
when questioned by a police officer several hours after the incident, Cavanaugh told the officer
“he may have hit somebody” and no one else had been in the vehicle with him at the time. The
officer observed that Cavanaugh appeared to be intoxicated. In a call to dispatch on the night of
the incident, the tape of which was played for the jury, Cavanaugh stated he thought he may have
hit someone. 2
        Cavanaugh’s evidence to rebut the State’s case included his testimony that, although he
remembered very little from the time before and after the incident due to his consumption of a
large amount of alcohol earlier in the day, he had a vivid memory of being in the passenger seat
of the truck at some point. It is questionable whether Cavanaugh’s testimony would have very
much persuasive value, if any, given his claim that he could remember very little about the hours
surrounding the incident, that he could not identify who would have been driving his vehicle at
the time, and his testimony that he had been at the scene and he had been drinking heavily that
day. He also argued that his assertion that he was not driving was supported by evidence that
only the passenger side door of the truck was open when it was approached by officers after the
incident, he only had wounds on the right side of his head, and the only blood inside the truck
cabin was on the passenger side. The State rebutted this evidence, arguing it did not explain how
the alleged other driver exited and that Cavanaugh just as easily could have exited from the
passenger side given that he was likely thrown in that direction when the truck violently veered
to the left after hitting the victim.



2
       The recording of the dispatch call, although referred to in the trial transcript, is not
contained in the record on appeal.

                                               7
       In sum, it was Cavanaugh’s truck that struck the victim and a witness watched as
Cavanaugh was the only person to exit the truck immediately afterwards. Cavanaugh essentially
admitted to having struck the victim to several people at the scene, never mentioning that
someone else was driving, and went so far as to state he “may” have been the driver to both
dispatch and an officer several hours later. He also told the officer unequivocally that he had
been the only one in the vehicle at the time. He presented no plausible evidence at trial as to
who could have been driving his truck, if not him, but merely asserted he had an isolated
memory of being in the passenger seat. In the face of this evidence, including that of several
witnesses who substantiated each other’s testimony, there is no reasonable probability that a
juror who may have been more likely to credit one certain witness’s testimony 3 would have
changed the outcome. In addition, R.H. specifically stated when questioned that he would be
able to assess the case impartially. Given these factors, we conclude, even assuming counsel
performed deficiently by failing to strike R.H. from the jury pool, 4 Cavanaugh has not shown
there is a reasonable probability that, but for the deficient performance, the outcome of the trial
would have been different. See Curless, 146 Idaho at 101, 190 P.3d at 920 (affirming dismissal
of Curless’s post-conviction claim of ineffective assistance of counsel for failure to obtain
admission of certain evidence because, among other reasons, Curless had not shown prejudice as
a result of the alleged deficient performance where there was significant evidence of his guilt
presented at trial and there was no reasonable probability that the excluded evidence would not
have changed the outcome). Accordingly, we conclude no material issues of fact existed that


3
       The record on appeal does not identify the witness to which R.H. was referring; therefore,
we do not know whether the witness actually testified.
4
       We note that whether counsel actually performed deficiently would be difficult for
Cavanaugh to establish. It is well-settled that a challenge for cause of a prospective juror falls
within the wide range of trial strategy, and therefore, such decisions will not be second-guessed
on appeal unless based on inadequate preparation, ignorance of relevant law, or other
shortcomings capable of objective evaluation. Medrano v. State, 127 Idaho 639, 647, 903 P.2d
1336, 1344 (Ct. App. 1995). As we recognized in State v. Adams, 147 Idaho 857, 861, 216 P.3d
146, 150 (Ct. App. 2009), in assessing whether to challenge a particular juror, attorneys must not
only weigh the perceived negative features against the favorable features of that particular juror,
they must also consider whether eliminating the juror could result in an even less acceptable
individual moving into that position on the jury panel. Here, where R.H. offered assurances he
could act impartially, it would be a tall order for Cavanaugh to demonstrate actual deficient
performance.

                                                8
would warrant an evidentiary hearing. See Kuehl v. State, 145 Idaho 607, 611, 181 P.3d 533,
537 (Ct. App. 2008).       The district court’s judgment summarily dismissing Cavanaugh’s
post-conviction petition in part is affirmed.
       Judge LANSING and Judge GRATTON CONCUR.




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