               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 39996

BRYAN LEE ATWELL,                                )      2013 Unpublished Opinion No. 480
                                                 )
       Petitioner-Appellant,                     )      Filed: May 3, 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STATE OF IDAHO,                                  )      THIS IS AN UNPUBLISHED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 Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. Randy J. Stoker, District Judge.

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

       Greg S. Silvey, Star, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
MELANSON, Judge
       Bryan Lee Atwell appeals from the summary dismissal of his petition for post-conviction
relief. For the reasons set forth below, we affirm.
                                                I.
                                  FACTS AND PROCEDURE
       Atwell pled guilty to conspiracy to commit injury to children. I.C. §§ 18-1501(1), 18-
1701. The district court imposed a determinate term of ten years and retained jurisdiction.
Following the period of retained jurisdiction, the district court relinquished jurisdiction but
reduced the sentence to a unified term of ten years, with a minimum period of confinement of
seven years. Atwell appealed the order relinquishing jurisdiction. This Court affirmed the
decision and a remittitur was issued on December 16, 2010. Atwell filed his petition for post-
conviction relief in this case on December 1, 2011. The district court issued a notice of intent to
dismiss on the ground that the petition was not timely filed. However, the district court also
provided alternate grounds for dismissal, addressing each of the issues raised by Atwell in his


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petition. Atwell incorrectly agreed that the petition was not timely but argued that the district
court should have applied equitable tolling. Atwell did not address the alternate grounds for
dismissal and the district court dismissed his petition. Atwell appeals.
                                                 II.
                                   STANDARD OF REVIEW
       A petition for post-conviction relief initiates a proceeding that is civil in nature. 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 upon which the request for post-conviction relief is based. I.C. § 19-
4907; 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 that would suffice for a complaint under I.R.C.P. 8(a)(1). Rather, a
petition for post-conviction relief 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. 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 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. 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. Roman v. State, 125
Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715
P.2d 369, 372 (Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained
to draw inferences in favor of the party opposing the motion for summary disposition; rather, the


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district court is free to arrive at the most probable inferences to be drawn from uncontroverted
evidence. 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. Id.
       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); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary
dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a
matter of law, that 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 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.
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, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
                                                 III.
                                            ANALYSIS
A.     Timeliness of Petition
       On appeal, the parties agree that the district court erred in its timeliness analysis. At the
time of Atwell’s judgment of conviction, I.A.R. 14(a) provided, in pertinent part:


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       In a criminal case, the time to file an appeal is enlarged by the length of time the
       district court actually retains jurisdiction pursuant to Idaho Code. When the court
       releases its retained jurisdiction or places the defendant on probation, the time
       within which to appeal shall commence to run.

Regarding Atwell’s appeal, a remittitur was issued on December 16, 2010. Atwell filed this
petition for post-conviction relief on December 1, 2011. Therefore, Atwell’s petition was timely
and the district court erred in dismissing the petition on that ground.
B.     Unchallenged Alternate Grounds
       Next, the state argues that the decision to dismiss should be affirmed because Atwell has
failed to challenge the alternate grounds for dismissal articulated by the district court. Atwell
argues that dismissing on unchallenged alternate grounds would be inequitable and that the
matter should be remanded to the district court to start again. Where the trial court’s decision is
based upon alternative grounds and only one ground is challenged on appeal, this Court will not
presume that the unchallenged grounds were erroneous and will uphold the trial court’s decision.
See State v. Goodwin, 131 Idaho 364, 366, 956 P.2d 1311, 1313 (Ct. App. 1998). In this case,
Atwell recognizes that this Court can affirm on the alternate grounds. However, Atwell argues
that he received ineffective assistance of post-conviction counsel and, therefore, it would be
inequitable and a waste of judicial resources to affirm (thereby requiring Atwell to file a
successive petition for post-conviction relief).
       Atwell cites to Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012), asserting that it
highlights the importance of competent post-conviction counsel where certain claims concerning
matters outside the record may only be raised for the first time in a post-conviction proceeding.
However, as Atwell acknowledges in his brief, Martinez does not have direct application here.
Martinez, in short, stands for the following proposition:
               Where, under state law, claims of ineffective assistance of trial counsel
       must be raised in an initial-review collateral proceeding, a procedural default will
       not bar a federal habeas court from hearing a substantial claim of ineffective
       assistance at trial if, in the initial-review collateral proceeding, there was no
       counsel or counsel in that proceeding was ineffective.

Martinez, ___ U.S. at ___, 132 S. Ct. at 1320. Martinez only stands for the narrow proposition
that a federal court in a habeas corpus case may excuse a procedural default of an ineffective
assistance of trial counsel claim when the claim was not properly presented because of
ineffective assistance of post-conviction counsel. Thus, Martinez allows a federal court to

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consider the merits of a claim that otherwise would have been procedurally defaulted. Despite
Atwell’s argument that judicial economy favors this Court adjudicating his ineffective assistance
of post-conviction counsel claims, the appropriate method for Atwell to bring such claims is
through a successive petition under I.C. § 19-4908.
                                               IV.
                                        CONCLUSION
       Atwell failed to challenge the alternate grounds the district court provided for dismissal
of his petition for post-conviction relief. We will not presume the unchallenged grounds were
erroneous. Therefore, the district court’s order dismissing Atwell’s petition for post-conviction
relief is affirmed. No costs or attorney fees are awarded on appeal.
       Chief Judge GUTIERREZ and Judge GRATTON, CONCUR.




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