               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 38425

TIMOTHY PAUL JOHNSON,                             )     2012 Unpublished Opinion No. 353
                                                  )
       Petitioner-Appellant,                      )     Filed: February 3, 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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
       County. Hon. Cheri C. Copsey, District Judge.

       Judgment dismissing post-conviction action, affirmed.

       Timothy Paul Johnson, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Timothy Paul Johnson appeals from the summary dismissal of his petition for post-
conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                        BACKGROUND
       A jury found Johnson guilty of felony driving under the influence, with a persistent
violator enhancement, and Johnson was sentenced to a unified term of life imprisonment, with
twenty years determinate.     The judgment of conviction and sentence were affirmed in an
unpublished opinion. State v. Johnson, Docket No. 35236 (Ct. App. Oct. 13, 2009). Johnson
filed a petition for post-conviction relief, vaguely asserting nearly fifty claims of district court
error and ineffective assistance of counsel, such as: “denied a fair trial, erroneous exclusion of
all defense witnesses and evidence, including eye witness testimony”; “bias [sic] judge”;
“fundamental error, miscarriage of justice”; and “failure to investigate a viable defense.” The



                                                 1
petition was supported only by a short affidavit in which Johnson primarily asserted legal
conclusions, including:     “that the petitioner was denied defense counsel, amounting to a
constitutional violation of inefective [sic] assistance of defense counsel” and “the Petitioner is
innocent of the charges by acting out in ‘necessity.’” The district court appointed counsel to
assist Johnson with his petition. Johnson then filed an amended petition, supplementing the
original petition with several additional claims of ineffective assistance of counsel. No affidavits
were provided in support of the amended petition.
        The district court entered a lengthy, thorough, and exceptionally detailed order
conditionally dismissing all the claims in Johnson’s petition and amended petition as conclusory
and unsupported. The order also provided alternate rulings, dismissing many of the claims as
illogical, disproven by the record, incomplete, waived, barred, or without merit. Johnson filed an
objection to summary dismissal, along with an affidavit from Rudi Bangi that, according to
Johnson, supported his claim of a necessity defense. While still represented by counsel, Johnson
filed two documents pro se: (1) a motion for leave to amend his petition a second time; and (2) a
memorandum which the court described as a “rambling seventy-three (73) page, hand-written
document that generally restated his earlier pro se Petition.” In a written order, the district court
struck the documents Johnson filed pro se and, after considering the witness affidavit, again
provided notice of its intent to dismiss. Neither party responded, and the district court dismissed
all claims in both the petition and the amended petition without holding an evidentiary hearing.
Johnson appeals.
                                                 II.
                                            ANALYSIS
        Johnson asserts that the district court erred by dismissing his petition and amended
petition without an evidentiary hearing. His appellate brief generally restates most of the issues
raised in his petitions.
        An application for post-conviction relief initiates a civil, rather than criminal, proceeding,
which is 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 applicant 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


                                                  2
Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). An application for post-conviction relief
differs from a complaint in an ordinary civil action in that it 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).
State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); 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 application
must be verified with respect to facts within the personal knowledge of the applicant, and
affidavits, records or other evidence supporting its allegations must be attached, or the
application must state why such supporting evidence is not included with the application. I.C.
§ 19-4903. In other words, the application must present or be accompanied by admissible
evidence supporting its allegations, or the application will be subject to dismissal.
       Idaho Code § 19-4906 authorizes summary dismissal of an application for post-
conviction relief, either pursuant to motion of a party or upon the court’s own initiative.
Summary dismissal of an application is the procedural equivalent of summary judgment under
I.R.C.P. 56. “A claim for post-conviction relief will be subject to summary dismissal . . . if the
applicant has not presented evidence making a prima facie case as to each essential element of
the claims upon which the applicant 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 applicant’s evidence has raised
no genuine issue of material fact that, if resolved in the applicant’s favor, would entitle the
applicant 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 an application for post-conviction relief may be appropriate,
however, even where the State does not controvert the applicant’s evidence because the court is
not required to accept either the applicant’s mere conclusory allegations, unsupported by
admissible evidence, or the applicant’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).
       Johnson’s original petition, which included a list of incomplete and vague issue
statements, was dismissed by the district court as unsupported and conclusory. The petition
included no account of any facts to support the claims. The affidavit attached to the petition
included only irrelevant facts, legal conclusions, and the assertion “that all statements made in




                                                  3
the attached petition are true and correct to the best of my knowledge and belief.” Thus, it did
not establish a factual basis for any of the grounds for relief raised in the petition.
        Johnson argues, however, that the district court erred in striking his pro se memorandum
in support of his petition which, Johnson asserts, identified information in the record of the
criminal case that supported his claims.          At the time Johnson filed the memorandum--
approximately six months after filing the petition--he was represented by counsel. Therefore, it
was within the discretion of the trial court to require all documents to be filed by Johnson’s legal
representative. United States v. George, 85 F.3d 1433, 1439 (9th Cir. 1996) (“The decision to
allow a pro se litigant to proceed with some form of hybrid representation [co-counsel or
advisory counsel] is reviewed for abuse of discretion.”); United States v. Bergman, 813 F.2d
1027, 1030 (9th Cir. 1987) (finding no error with district court’s refusal to acknowledge
defendant’s pro se filings when defendant was represented); United States v. Halbert, 640 F.2d
1000, 1009 (9th Cir. 1981) (“A criminal defendant does not have an absolute right to both self-
representation and the assistance of counsel.”).        Because Johnson provided no evidentiary
support for the claims in his amended petition, either in the petition itself or in the affidavit filed
with the petition, and because his memorandum opposing summary disposition was properly
struck by the district court, the claims in Johnson’s original petition were appropriately
dismissed.
        Johnson’s amended petition raised several claims of ineffective assistance of counsel. To
prevail on such a claim, the petitioner 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, 687-88 (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).        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. Id. at 761, 760 P.2d at 1177. 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. Howard v.
State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).




                                                   4
       Johnson appears to assert that trial counsel was ineffective for failing to investigate
Johnson’s necessity defense but, again, he does not support the claim with evidence. At trial, the
State presented evidence that a law enforcement officer initiated a traffic stop after observing
Johnson driving on the wrong side of a busy street in Boise. The officer smelled alcohol, noticed
Johnson’s eyes were glassy and bloodshot, and that he was slurring his speech. The officer
testified that in response to questioning, Johnson explained that he was driving on the wrong side
of the road because “they moved the road on him.” Johnson failed multiple sobriety tests, and a
blood test later revealed the presence of alcohol above the legal limit.          At trial, Johnson
attempted to raise a necessity defense, contending that he drove the vehicle only because his
female passenger, who passed away shortly before trial, had a medical emergency and needed to
be transported to the hospital. However, the officer testified at trial that Johnson had said that he
was giving a friend a ride to a store so he could cash a check and buy alcohol, and that Johnson
never mentioned a medical emergency. Additionally, the entire conversation between Johnson
and the police was recorded and played before the jury. At no point was Johnson heard to
mention a medical emergency.
       In his post-conviction action, Johnson asserts that his male passenger, Rudi Bangi, could
have verified that there was in fact a medical emergency. Johnson first argues that counsel was
deficient in failing to contact Bangi as part of the investigation of Johnson’s necessity defense.
Evidence of this is absent, however, and the audio recording of Johnson’s trial indicates the
contrary. On the first day of trial, defense counsel told the court that she had contacted Bangi,
but had not yet decided whether to call him as a witness. In an unsworn written objection to
summary dismissal, Johnson stated, “Petitioner has testified under oath that his attorney did not
contact Rudy Bangi in advance of trial to investigate his necessity defense.” However, we are
not able to locate any such sworn statement. Johnson did file an affidavit of Rudi Bangi, but it
does not indicate whether he was ever contacted by defense counsel. Because Johnson failed to
present any facts to support his assertion that counsel did not contact Bangi prior to trial, he did
not raise a material issue of fact to be resolved at an evidentiary hearing.
       Johnson also asserts that defense counsel’s failure to call Bangi as a witness at trial
constituted deficient performance. Again, the recording of Johnson’s trial illuminates the issue.
Defense counsel told the court that when she spoke to Bangi on the telephone he said he did not
remember very well the events surrounding Johnson’s DUI arrest. Defense counsel also said that


                                                  5
in these conversations, Bangi was largely incoherent. She said that Bangi may have some
helpful information, but “I don’t know how helpful that’ll be if the rest of his answers are
incoherent on the stand.”
       We have held that “trial counsel’s decision of which witnesses to call is encompassed in
that aspect of trial counsel’s role denominated ‘trial tactics’ or ‘strategic choices’” that will not
be second-guessed by a court. Campbell v. State, 130 Idaho 546, 548, 944 P.2d 143, 145 (Ct.
App. 1997). Johnson has not demonstrated that defense counsel’s decision not to call Bangi was
anything other than a valid strategic choice. Instead, Johnson merely asserts that the district
court erred by taking judicial notice of the audio recording of the proceedings in which defense
counsel indicated that she had contacted Bangi and that he was incoherent. First, we note that
this argument is raised for the first time on appeal as Johnson did not object to the district court
taking judicial notice. Generally, issues not raised below may not be considered for the first time
on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Additionally,
Johnson fails to present any argument or authority to support his assertion. A trial court may
take judicial notice of records or transcripts from a separate case, and may do so sua sponte, so
long as the court identifies the specific documents or items that are so noticed. Idaho Rule of
Evidence 201(c). Here, the district court plainly specified that it was taking judicial notice of
comments made by Johnson’s defense attorney on the record in his criminal case, and so notified
Johnson in the court’s initial order of conditional dismissal, thus allowing him an opportunity to
respond. Johnson presented no evidence that contradicts the statements his counsel made to the
court regarding her contact with Bangi. Although Bangi’s affidavit purports to set forth his
recollection of events surrounding Johnson’s arrest, it does not dispute defense counsel’s
assertion that when she contacted him he claimed little memory of the events and was largely
incoherent. Therefore, Johnson has not demonstrated deficient performance of his counsel.
       Johnson has not presented evidence sufficient to raise a genuine factual issue as to
whether his defense attorney was ineffective for failing to contact Bangi or for failing to call him
at trial. The remaining claims in Johnson’s amended petition were unsupported and conclusory,
and thus, were properly dismissed by the district court. We decline to further address the




                                                 6
remaining issues in Johnson’s appellate brief and reply brief because they were not raised below,
and have no merit. 1
                                               III.
                                        CONCLUSION
       Johnson’s petition and amended petition for post-conviction relief were unsupported and
conclusory. Accordingly, the district court’s judgment of dismissal is affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




1
       For example, Johnson asserts that the prosecution failed to prove that Johnson did not act
out of necessity, that discovery should have been reopened, and that the district court failed to
recognize that Johnson “fired” defense counsel.

                                                7
