               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 37206

ERNESTO GARZA LOPEZ,                              )     2011 Unpublished Opinion No. 383
                                                  )
       Petitioner-Appellant,                      )     Filed: March 11, 2011
                                                  )
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STATE OF IDAHO,                                   )     THIS IS AN UNPUBLISHED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 Third Judicial District, State of Idaho,
       Canyon County. Hon. Thomas J. Ryan, District Judge.

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

       Molly J. Huskey, State Appellate Public Defender; Heather M. Carlson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
       Attorney General, Boise, for respondent.
                  ______________________________________________
MELANSON, Judge
       Ernesto Garza Lopez appeals from the district court’s order summarily dismissing his
application for post-conviction relief. For the reasons set forth below, we affirm.
                                                 I.
                                  FACTS AND PROCEDURE
       Lopez pled guilty to felony domestic battery. I.C. §§ 18-903(b) and 18-918(2)(a)-(b).
Lopez was sentenced to a unified term of ten years, with a minimum term of six years.
Subsequently, Lopez filed an application for post-conviction relief pursuant to I.C. §§ 19-4901 to
19-4911. In his application Lopez asserted six grounds for relief, but only Lopez’s fifth and
sixth claims are at issue in this appeal. Lopez’s fifth claim alleged ineffective assistance of
counsel because his trial counsel coerced his guilty plea which resulted in Lopez being denied
the right to confront his accuser.     Lopez’s sixth claim alleged that his trial attorney was
ineffective for failing to correct errors in the presentence investigation report that was relied on



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at sentencing. In response to Lopez’s application for post-conviction relief, the state filed an
answer, a motion for summary dismissal, and a memorandum in support of its motion. The
state’s motion and memorandum generally addressed Lopez’s ineffective assistance of counsel
claims, but it did not specifically address Lopez’s fifth and sixth claims. At a status hearing, the
district court ordered the state to address Lopez’s fifth and sixth claims, but the state never did
so. Eventually a hearing was held on the state’s motion for summary dismissal. The district
court issued a memorandum decision and order dismissing all of Lopez’s claims. Lopez appeals.
                                                II.
                                   STANDARD OF REVIEW
       An application 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 applicant 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).
An application 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). An application 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, an application for post-conviction relief 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 Section 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 pursuant to I.C. § 19-4906 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). Thus, summary dismissal is


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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. 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. 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).
        On review of a dismissal of a post-conviction relief application without an evidentiary
hearing, we determine whether a genuine issue of fact exists based on the pleadings, depositions,
and admissions together with any affidavits on file. Rhoades, 148 Idaho at 250, 220 P.3d at
1069; Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). In post-conviction
actions, 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 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).
                                                  III.
                                             ANALYSIS
        On appeal, Lopez argues that the district court erred in summarily dismissing his
application for post-conviction relief. Specifically, Lopez argues that the district court erred
when it summarily dismissed his fifth and sixth claims because the state did not provide him with
notice as required by I.C. § 19-4906(b). Lopez asserts that the state’s failure to specifically
address his fifth and sixth arguments constituted no notice. Lopez also argues that the district
court erred when it summarily dismissed his fifth and sixth claims because the district court
entered its dismissal on grounds other than those alleged by the state but did not provide twenty
days’ notice as required by I.C. § 19-4906(c).
        Idaho Code Section 19-4906(b)-(c) provides that notice must be given to an applicant
prior to summary dismissal of an application for post-conviction relief. The notice procedures
contained in I.C. § 19-4906(b)-(c) provide an applicant an opportunity to respond to a motion for
summary dismissal and to establish a material issue of fact if one exists. Flores v. State, 128


                                                   3
Idaho 476, 478, 915 P.2d 38, 40 (Ct. App. 1996). Pursuant to I.C. § 19-4906(b), the district court
may sua sponte dismiss an applicant’s post-conviction claims if the court provides the applicant
with notice of its intent to do so, the ground or grounds upon which the claim is to be dismissed,
and twenty days for the applicant to respond. Pursuant to I.C. § 19-4906(c), the district court
may dismiss an applicant’s post-conviction claims on the motion of either party. If the state files
and serves a properly supported motion to dismiss, further notice from the court is ordinarily
unnecessary. Martinez v. State, 126 Idaho 813, 817, 892 P.2d 488, 492 (Ct. App. 1995). The
reason that subsection (b), but not subsection (c), requires a twenty-day notice by the court of
intent to dismiss is that, under subsection (c), the “motion itself serves as notice that summary
dismissal is being sought.” Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798
(1995).
A.        Claim under I.C. § 19-4906(c)
          Lopez argues that the state’s motion for summary dismissal did not provide proper notice
pursuant to I.C. § 19-4906(c). The notice requirement of I.C. § 19-4906(c) is met if “the notice
is sufficient that the other party cannot assert surprise or prejudice.” DeRushé, 146 Idaho at 601,
200 P.3d at 1150. Because a post-conviction proceeding is governed by the Idaho Rules of Civil
Procedure, a motion for summary dismissal must, pursuant to I.R.C.P 7(b)(1), state the grounds
for dismissal with particularity. Id. at 601, 200 P.3d at 1150. For example, to prevail on an
ineffective assistance of counsel claim, a defendant 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). Reasonable particularity only requires pointing out that there is a lack of evidence
showing deficient performance or prejudice. See DeRushé, 146 Idaho at 601-02, 200 P.3d at
1150-51. It “does not require explaining what further evidence is necessary” to substantiate an
applicant’s claim. Id. at 602, 200 P.3d at 1151. If an applicant believes the grounds for
dismissal alleged by the state in its motion for summary dismissal are insufficient, he or she must
object in the court below. Kelly v. State, 149 Idaho 517, 522 n.1, 236 P.3d 1277, 1282 n.1
(2010). An applicant for post-conviction relief cannot challenge the sufficiency of the state’s
grounds for dismissal for the first time on appeal. DeRushé, 146 Idaho at 602, 200 P.3d at 1151.
However, an applicant may assert for the first time on appeal that his or her post-conviction
claims were dismissed without any notice at all. Kelly, 149 Idaho at 522, 236 P.3d at 1282.


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       Here, the fifth and sixth claims of Lopez’s application for post-conviction relief alleged
ineffective assistance of counsel. The state’s motion for summary dismissal stated that Lopez’s
ineffective assistance of counsel claims failed to raise a genuine issue of material fact regarding
both deficient performance and resulting prejudice. In its memorandum in support of its motion
for summary dismissal, the state provided the legal standards governing ineffective assistance of
counsel claims, noting that an applicant must prove both deficient performance and prejudice.
The state then went on to address Lopez’s first four claims in separate paragraphs. The state did
not, however, separately address Lopez’s fifth and sixth claims.
       Lopez argues that, because the state’s motion and memorandum in support of summary
dismissal did not address his fifth and sixth claims with specificity, he received no notice under
I.C. § 19-4906(c). Lopez’s argument on appeal, however, is properly characterized as asserting
insufficient notice rather than no notice. The state’s motion and memorandum identified two
grounds for dismissal--failure to set forth an issue of material fact with regard to deficient
performance and failure to set forth an issue of material fact with regard to prejudice. The
motion set forth these two grounds for dismissal, and Lopez cannot claim that there was no
notice of the grounds on which his fifth and sixth ineffective assistance of counsel claims would
be dismissed. Although the state did not address Lopez’s fifth and sixth claims in separate
paragraphs, that does not demonstrate Lopez did not receive any notice at all. The separate
paragraphs would have served only to further particularize the grounds for dismissal. As noted
in DeRushé, reasonable particularity only required the state to point out there was a lack of
evidence showing deficient performance or prejudice. It does not require that the state explain
precisely what evidence was lacking. The record demonstrates that the state’s motion and
memorandum provided Lopez with notice of the grounds on which his ineffective assistance of
counsel claim would be dismissed irrespective of whether that notice was sufficient. This Court
will not engage in a sufficiency of notice analysis under the guise of considering whether an
applicant was provided no notice all. Kelly, 149 Idaho at 522, 236 P.3d at 1282. The record
demonstrates that Lopez was represented by counsel during his post-conviction proceedings, but
his counsel did not object to the sufficiency of the state’s notice in the court below. Under
DeRushé, Lopez is precluded from asserting insufficient notice for the first time on appeal.
Therefore, we decline to address this argument on appeal.




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B.     Claim under I.C. § 19-4906(b)
       Lopez also argues that the district court erred in dismissing his fifth and sixth claims
without providing twenty days’ notice pursuant to I.C. § 19-4906(b). Specifically, Lopez asserts
that, because the district court dismissed his application for post-conviction relief on grounds
different than those asserted by the state, the district court was required, pursuant to I.C. § 19-
4906(b) to provide him with twenty days’ notice. Where “the state has filed a motion for
summary disposition, but the court dismisses the application on grounds different from those
asserted in the state’s motion, it does so on its own initiative and the court must provide twenty
days notice.” Saykhamchone, 127 Idaho at 322, 900 P.2d at 798. If the district court dismisses
on grounds not contained in the state’s motion, the applicant has no opportunity to respond and
attempt to establish a material issue of fact. See Garza v. State, 139 Idaho 533, 537, 82 P.3d 445,
449 (2003).
       The Idaho Supreme Court recently held that, when a district court summarily dismisses a
post-conviction application relying in part on the same grounds presented by the state in its
motion for summary dismissal, the notice requirement has been met. Kelly, 149 Idaho at 523,
236 P.3d at 1283. Kelly argued that the district court erred in dismissing his application for post-
conviction relief because the state’s motion for summary dismissal contained no notice of the
grounds on which his claim was dismissed and the district court dismissed several of his claims
on grounds entirely different than the grounds argued by the state. The state’s motion sought
dismissal on the grounds that there was no evidentiary basis to support Kelly’s claims and the
state supported its conclusion citing extensively from Idaho law. Id. at 522, 236 P.3d at 1282.
The district court considered Kelly’s application under several grounds not raised by the state,
but it also dismissed Kelly’s claims on the ground that Kelly did not provide facts sufficient to
support his claims. On appeal, the Idaho Supreme Court held that Kelly was afforded sufficient
notice because, when a trial court summarily dismisses an application for post-conviction relief
based in part on the arguments presented by the state, the notice requirements of I.C. § 19-
4906(b) are satisfied. Id. at 523, 236 P.3d at 1283.
       As noted above, the state’s motion and memorandum identified two grounds for
dismissal--failure to set forth an issue of material fact with regard to deficient performance and
failure to set forth an issue of material fact with regard to prejudice. The district court’s order
dismissing Lopez’s post-conviction claims stated the legal standard regarding ineffective


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assistance of counsel claims and also stated, in general terms, that Lopez’s ineffective assistance
of counsel claims did not raise a genuine issue of material fact.         The district court also
specifically addressed Lopez’s fifth and sixth claims in separate paragraphs. The district court
found Lopez’s fifth and sixth claims did not raise a genuine issue of material fact because Lopez
failed to set forth any facts or admissible evidence to support his allegations. Although the
district court stated some grounds for dismissal which were not specifically mentioned in the
state’s motion, it dismissed Lopez’s claims at least in part because, as alleged by the state, he
failed to raise a genuine issue of material fact. Thus, the record demonstrates that the district
court based its dismissal, in part, on grounds set forth by the state’s motion for summary
dismissal. Therefore, we hold that the district court did not err in failing to give Lopez twenty
days’ notice of its intent to dismiss his post-conviction claims.
                                                 IV.
                                         CONCLUSION
       Lopez’s claim that the state’s motion for summary dismissal failed to provide him with
any notice is more properly characterized as a claim of insufficient notice. Lopez failed to raise
the issue of insufficient notice in the court below, and we decline to address it on appeal. The
district court did not err in summarily dismissing Lopez’s application for post-conviction relief
without providing twenty days’ notice because the district court based its dismissal, in part, on
the grounds set forth by the state in its motion for summary dismissal. Accordingly, the district
court’s order summarily dismissing Lopez’s application for post-conviction relief is affirmed.
No costs or attorney fees are awarded on appeal.
       Judge LANSING and Judge GUTIERREZ, CONCUR.




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