                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 43508

EVIN DEVAN,                                      ) 2017 Opinion No. 29
                                                 )
       Petitioner-Appellant,                     ) Filed: June 9, 2017
                                                 )
v.                                               ) Stephen W. Kenyon, Clerk
                                                 )
STATE OF IDAHO,                                  )
                                                 )
       Respondent.                               )
                                                 )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Christopher S. Nye, District Judge.

       Order denying motion for relief from post-conviction judgment, affirmed.

       Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney
       General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Evin Devan appeals from the district court’s order denying his motion for relief from
post-conviction judgment pursuant to Idaho Rule of Civil Procedure 60(b). We affirm.
                                                 I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       A judgment of conviction was entered against Devan after a jury found him guilty of
conspiracy to commit burglary, Idaho Code §18-1701; burglary, I.C. § 18-1401; and
misdemeanor trespassing, I.C. § 18-7011. Devan appealed and in an unpublished decision this
Court affirmed the conviction. State v. Devan, Docket No. 39853 (Ct. App. Nov. 7, 2013).
Devan filed a petition for post-conviction relief alleging that counsel in the underlying case was
ineffective for failing to secure witnesses, failing to object, and failing to investigate a defense.




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Devan also asserted there was new evidence in the case. The State filed a motion for summary
dismissal, which the district court subsequently granted. Devan filed a notice of appeal. 1
       Devan filed a pro se motion and memorandum for relief from judgment or order under
I.R.C.P. 60(b)(6). In his motion, Devan claimed that he was entitled to relief from the order
dismissing his petition for post-conviction relief as there had been an absence of meaningful
representation by his appointed counsel, and Devan had a meritorious claim. Devan argued that
his post-conviction counsel failed to submit evidence that would have withstood summary
dismissal; specifically, an affidavit by Mr. Jones which Devan believed established an alibi for
his underlying convictions. Further, Devan asserted that his appointed counsel failed to file an
amended petition or a response to the State’s motion for summary dismissal, and that counsel did
not inform Devan that the State had filed a motion for summary dismissal. Counsel was
appointed to replace the post-conviction counsel against whom Devan directed the allegations.
After a hearing, the district court denied Devan’s motion for relief. Devan timely appeals.
                                                  II.
                                             ANALYSIS
       Devan argues that the district court erred in denying his Rule 60(b)(6) motion. Devan
asserts the district court abused its discretion in finding that there was not a complete absence of
meaningful representation by his post-conviction counsel. Further, Devan asserts the district
court impermissibly addressed the credibility of the proffered evidence in determining that it did
not constitute a meritorious claim.
       Idaho Rule of Civil Procedure 60(b) gives the district court authority to grant relief from
a judgment in limited circumstances. The Rule states, in relevant part: “On motion and just
terms, the court may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons . . . (6) any other reason that justifies relief.”
       A trial court enjoys broad discretion when deciding whether to grant relief pursuant to
I.R.C.P. 60(b).
               A trial court’s decision whether to grant relief pursuant to I.R.C.P. 60(b) is
       reviewed for abuse of discretion. The decision will be upheld if it appears that the
       trial court (1) correctly perceived the issue as discretionary, (2) acted within the

1
       The Idaho Supreme Court suspended Devan’s appeal of the district court’s summary
dismissal of his petition for post-conviction relief pending the ruling on his motion for relief
from post-conviction judgment.
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       boundaries of its discretion and consistent with the applicable legal standards, and
       (3) reached its determination through an exercise of reason. A determination
       under Rule 60(b) turns largely on questions of fact to be determined by the trial
       court. Those factual findings will be upheld unless they are clearly erroneous. If
       the trial court applies the facts in a logical manner to the criteria set forth in
       Rule 60(b), while keeping in mind the policy favoring relief in doubtful cases, the
       court will be deemed to have acted within its discretion.
Eby v. State, 148 Idaho 731, 734, 228 P.3d 998, 1001 (2010) (quoting Waller v. State, Dep’t of
Health & Welfare, 146 Idaho 234, 237-38, 192 P.3d 1058, 1061-62 (2008)).
       On appeal, Devan argues that the district court abused its discretion in denying his
motion for relief under I.R.C.P. 60(b)(6) because he was prejudiced by an absence of meaningful
representation by his appointed counsel and demonstrated a potentially meritorious defense.
Devan argues that his case rises to the level of “unique and compelling circumstances” found in
Eby. In Eby, the petitioner’s case received “shocking and disgraceful neglect” by a series of
attorneys appointed to represent him. Eby, 148 Idaho at 732, 228 P.3d at 999. The petitioner’s
third appointed attorney filed a motion pursuant to I.R.C.P. 60(b) to set aside a previous
dismissal for inactivity pursuant to I.R.C.P. 41(e). 2 On appeal, the Idaho Supreme Court noted
that a petitioner could not claim ineffective assistance of counsel in a post-conviction
proceeding, as there is no constitutional right to counsel in such proceedings. Eby, 148 Idaho at
737, 228 P.3d at 1004. However, the Court recognized that the Uniform Post-Conviction
Procedure Act is the exclusive means for challenging the validity of a conviction or sentence
other than by direct appeal. Id. As a result, the Court concluded that given the unique status of a
post-conviction proceeding and the complete absence of meaningful representation, the case
possibly presented the “unique and compelling circumstances” in which Rule 60(b)(6) relief was
potentially warranted. Eby, 148 Idaho at 737, 228 P.3d at 1004. The Court then vacated and
remanded the case to the trial court to use its discretion to determine if Eby should be granted
relief under Rule 60(b)(6). Eby, 148 Idaho at 737, 228 P.3d at 1004.
       Devan’s reliance on Eby is misplaced. In denying Devan’s motion, the district court
distinguished Eby because Devan acknowledged “multiple contacts between [Devan] and his
counsel’s office reflecting ongoing communications” and also “a meeting between [Devan] and
counsel wherein the affidavit of Mr. Jones . . . was discussed.” Further, the district court noted at
the hearing on the motion for summary dismissal, Devan’s post-conviction counsel indicated that

2
       Idaho Rule of Civil Procedure 41(e) was adopted and renumbered in 2016.
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he had met with Devan but “was unable to find any meritorious claims.” Thus, the district court
found that “there was communication between counsel and [Devan], specifically there was
communication regarding the potential alibi, and that counsel considered this information and
determined that there was no meritorious claim.” The district court concluded that “there was
sufficient communication between the parties and consideration of the issue by counsel that there
was not a complete lack of meaningful representation.” We agree.
       The circumstances of Devan’s case do not rise to the level of unique and compelling
circumstances found in Eby. This is true even if we consider that Devan’s post-conviction
counsel failed to file a response to the State’s motion to dismiss or to present evidence at the
hearing on the State’s motion to dismiss. Devan’s motion does not allege a complete absence of
post-conviction representation, nor does the record support such a finding.          Devan’s post-
conviction counsel met with Devan, reviewed the case to determine whether to file an amended
petition with knowledge of the Jones affidavit, and appeared at the summary dismissal hearing
on Devan’s behalf.
       A post-conviction petitioner is not entitled to the effective assistance of post-conviction
counsel, and thus, “petitioner cannot claim constitutionally ineffective assistance of counsel in
such proceedings.” Murphy v. State, 156 Idaho 389, 394, 327 P.3d 365, 370 (2014) (quoting
Coleman v. Thompson, 501 U.S. 722, 752 (1991)). We do not read Eby to open the door to
challenge the effectiveness of post-conviction counsel by virtue of a Rule 60(b) motion. In Eby,
the case was dismissed for inactivity, pursuant to I.R.C.P. 41(e), after over four years and several
attorneys who did nothing but attempt to forestall such dismissal. Eby, 148 Idaho at 733, 228
P.3d at 1000. Only after the petition was dismissed did yet another lawyer make any attempt to
advance a claim. Id. at 733-34, 228 P.3d at 1000-01. Our Supreme Court’s reference to “the
complete absence of meaningful representation” reflected these “unique and compelling
circumstances.” Id. at 737, 228 P.3d at 1004. 3
         Unlike the petitioner in Eby, Devan did not experience a “complete absence of
meaningful representation.” Eby, 148 Idaho at 737, 228 P.3d at 1004. Devan’s dissatisfaction
with his post-conviction counsel’s performance does not constitute the unique and compelling

3
        We hasten to add, however, that even though a post-conviction petitioner is not entitled to
the effective assistance of post-conviction counsel, such does not relieve post-conviction counsel
of his or her obligations in representing his or her client.


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circumstances required before a court may grant relief under I.R.C.P. 60(b). 4 The district court
did not err in denying Devan’s Rule 60(b) motion.
                                               III.
                                        CONCLUSION
       Devan failed to demonstrate that the district court abused its discretion in denying his
Rule 60(b) motion. The district court’s denial of the motion for relief from post-conviction
judgment is affirmed.
       Judge GUTIERREZ and Judge MELANSON CONCUR.




4
        Devan further cites to Martinez v. Ryan, 566 U.S. 1 (2012); see also Trevino v. Thaler,
___ U.S. ____, 133 S. Ct. 1911 (2013) as cases which “emphasize the importance of a
defendant’s rights to a full and fair opportunity to bring ineffective assistance of trial counsel
claims on post-conviction.” However, Martinez and Trevino create narrow exceptions for
overcoming procedural bars in a federal habeas corpus proceeding and simply do not apply to a
state post-conviction case.


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