                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                          Docket No. 39745

DANIEL LEE DIXON,                                  )      2014 Opinion No. 73
                                                   )
          Petitioner-Appellant,                    )      Filed: September 8, 2014
                                                   )
v.                                                 )      Stephen W. Kenyon, Clerk
                                                   )
STATE OF IDAHO,                                    )
                                                   )
          Respondent.                              )
                                                   )

          Appeal from the District Court of the First Judicial District, State of Idaho,
          Kootenai County. Hon. Fred M. Gibler, District Judge.

          Order denying petition for post-conviction relief, affirmed; order denying
          Rule 60(b)(6) motion, affirmed.

          Nevin, Benjamin, McKay & Bartlett, LLP; Robyn A. Fyffe, Boise, for appellant.
          Robyn A. Fyffe argued.

          Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney
          General, Boise, for respondent. Mark W. Olson argued.
                    ________________________________________________
GRATTON, Judge
          Daniel Lee Dixon appeals from the denial of his petition for post-conviction relief and the
denial of his Idaho Rule of Civil Procedure 60(b)(6) motion for relief from judgment. We
affirm.
                                                  I.
                        FACTUAL AND PROCEDURAL BACKGROUND
          In 2006, Dixon was tried and convicted for lewd conduct with a minor under sixteen, first
degree kidnapping, misdemeanor possession of drug paraphernalia, and misdemeanor malicious
injury to property. The incident occurred at a Coeur d’Alene park and involved Dixon grabbing
a twelve-year-old girl, taking her to the side, placing her on his lap, and touching her vagina.




                                                   1
       Dixon’s trial was held in a courtroom in the Kootenai County Public Safety Building
(safety building), the building that also houses the county jail. 1 The safety building is a concrete
building surrounded by tall fences and razor wire. Jurors enter the building through heavily-
tinted doors and enter the courtroom by passing through a security booth protected by thick
bulletproof glass.   To get through security, the jurors must speak to jail staff through an
intercom. Inside the courtroom, the jury box is shielded on the left by thick glass, which is
presumably to protect the jury from inmates entering the courtroom from the side entrance. The
safety building is located roughly three miles away from the majority of the other courtrooms
utilized by the county.
       At trial, Dixon testified in detail about an injury to his arm and his physical limitations
resulting from the injury. Dixon’s defense was that he was unable to lift the victim as she
described due to the injury, and that another individual at the crowded Coeur d’Alene park
committed the crime. Dixon filed an appeal of his sentences, which this Court reviewed and
affirmed in an unpublished opinion. Dixon subsequently filed a petition for post-conviction
relief. He alleged, relevant to this appeal, that his trial counsel was ineffective for failing to
object to the trial being held in the same building as the county jail, and for failing to obtain an
expert witness to corroborate his defense. The district court denied Dixon’s petition for post-
conviction relief after holding an evidentiary hearing. Dixon filed an untimely appeal. He then
filed a successive petition for post-conviction relief; however, the State subsequently stipulated
to a re-entry of judgment to allow a timely appeal of his initial petition. After his post-conviction
claim was denied, Dixon also filed an I.R.C.P. 60(b)(6) motion for relief from judgment. The
district court denied the motion. Dixon timely appeals.
                                                 II.
                                           ANALYSIS
A.     Claims of Ineffective Assistance of Counsel
       In order to prevail in a post-conviction proceeding, the petitioner must prove the
allegations by a preponderance of the evidence. Idaho Code § 19-4907; Stuart v. State, 118
Idaho 865, 869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675,


1
       The Idaho Supreme Court took judicial notice of an affidavit of attorney Staci Anderson,
and documents submitted by Dixon that provided a limited description of the Kootenai County
Safety Building’s appearance.

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677 (Ct. App. 2010).      When reviewing a decision denying post-conviction relief after an
evidentiary hearing, an appellate court will not disturb the lower court’s factual findings unless
they are clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382
(2004); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of
the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the
evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56,
106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We
exercise free review of the district court’s application of the relevant law to the facts. Baxter,
149 Idaho at 862, 243 P.3d at 678.
       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
that the attorney’s performance was deficient and that 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 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); 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).
       1.      Trial within the safety building
       Dixon argues he received ineffective assistance of counsel when his attorney failed to
object to his trial being held in the courtroom located in the same building as the county jail. The
Sixth Amendment to the United States Constitution provides, in part, that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
Additionally, a defendant has the right to a fair trial guaranteed by the Fourteenth Amendment.
Estelle v. Williams, 425 U.S. 501, 503 (1976); State v. Alvarez, 138 Idaho 747, 749, 69 P.3d 167,


                                                 3
169 (Ct. App. 2003).          “The presumption of innocence, although not articulated in the
Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle,
425 U.S. at 503. The United States Supreme Court has previously identified situations where a
criminal defendant may be denied a fair trial by certain practices. See id. at 504-505 (forcing a
defendant to wear prison clothing at trial); Illinois v. Allen, 397 U.S. 337, 344, (1970) (shackling
a defendant during trial).
        Dixon argues that holding his trial in a courtroom inside the same building as the county
jail constantly reminded the jury of Dixon’s alleged dangerousness, and deprived the proceeding
of dignity and neutrality essential to the trial process. Dixon relies on several state court cases
holding that a criminal trial conducted within a prison may violate due process. See State v.
Lane, 397 N.E.2d 1338, 1340 (Ohio 1979) (conducting a trial within a prison violates a
defendant’s right to a fair trial); State v. Cavan, 98 P.3d 381, 389 (Or. 2004) (holding under the
Oregon Constitution that it is a violation of a defendant’s right to an impartial jury to have a trial
within a prison); Harper v. State, 887 So. 2d 817, 826 (Miss. Ct. App. 2004) (holding that “there
are rare circumstances that may justify a trial being held inside the confines of a prison”); State v.
Daniels, 40 P.3d 611, 616 (Utah 2002) (requiring trial courts to examine whether a trial within a
prison violates the right to fair trial). 2 These cases, which predate the trial in this case, are
specific to trials in prisons, not county jail facilities.
        Dixon also relies on a Washington Supreme Court case, State v. Jaime, 233 P.3d 554, 558
(Wash. 2010) where, on direct appeal, the divided Court held that under due process “trial courts
are obligated to undertake a careful analysis of the facts of the situation to determine whether the
extraordinary measure [of holding a trial in a jailhouse] is warranted.” See also id. at 562,
(Justice Fairhurst dissenting) (“[T]here simply is no basis to conclude that the practice of



2
         Several state courts have examined whether holding a trial within a prison is a
deprivation of a public trial. See Bright v. State, 875 P.2d 100, 110 (Alaska Ct. App. 1994)
(conducting the trial within a prison violated defendant’s “right to a public trial under the United
States Constitution and the Alaska Constitution”); Lilly v. State, 365 S.W.3d 321, 333 (Tex.
Crim. App. 2012) (“Appellant satisfied his burden to show that his trial [held in prison] was not
open to the public . . . .”); Vescuso v. Com., 360 S.E.2d 547, 552 (Va. Ct. App. 1987) (“holding
the trials in the prison courtroom, a courtroom effectively closed to the public, was not supported
by specific findings of an overriding public interest, and therefore, was an infringement of their
right to a public trial”). Dixon did not raise this argument below or on appeal.


                                                     4
conducting trials in a jail building courtroom is always and inherently prejudicial.”); id. at 565
(Justice J.M. Johnson dissenting) (“Jails and courtrooms were--and, in approximately one-third
of Washington counties, still are--located in the same county courthouses for reasons of
convenience and fiscal economy.”), and see id. at 559 (Justice Alexander concurring)
(responding to Justice J.M. Johnson and noting that in most counties where the courtroom and
jail are attached “the jail has been kept completely separate from the portion of the courthouse
that contained courtrooms and other county offices”). The Court remanded for a new trial
because the record did not support the decision to hold the trial within the jail, and the trial court
considered the convenience of holding the trial in the jail, which the Court deemed an
impermissible factor to consider.
       Here, the district court concluded that the failure to object to the trial being held at the
safety building was not objectively unreasonable. The district court reasoned that the law was
not sufficiently clear on whether, at the time of Dixon’s trial, an attorney should have known
there was a basis to object. Additionally, State v. Jaime, the case predominantly relied on by
Dixon below and now on appeal, was not published until roughly four years after his conviction.
The court also noted that Dixon’s expert witness, who testified at the post-conviction hearing,
indicated that Dixon’s attorney should have objected because “now” the case law exists that this
may be a violation. Dixon’s trial attorney also testified to the lack of authority at the time of
Dixon’s trial in answering why no objection was made, explaining that at “the time there was no
legal basis to do so.” The district court further noted that no other attorneys in the county
objected during the numerous trials previously held in the safety building. 3 Indeed, in her
affidavit, Ms. Anderson states that she represented numerous clients in jury trials in the building
without indicating she ever objected, or that it was ineffective to not do so. We agree with the
district court’s analysis. Given the state of the law at the time of Dixon’s conviction, with no
Idaho precedent or other case law dealing with holding a trial within a jail, we cannot say it is
objectively unreasonable for an attorney to have failed to object. See Hoskins v. State, 149 Idaho
815, 818, 242 P.3d 185, 188 (Ct. App. 2010) (“The Sixth Amendment entitles criminal

3
        Dixon correctly points out that a common practice of unconstitutional behavior does not
make that practice objectively reasonable. However, the significance of no other attorneys
objecting supports that at the time of Dixon’s trial, the law was not sufficiently established to
demonstrate that an attorney was deficient for failing to object to holding the trial in the safety
building.

                                                  5
defendants to reasonably competent counsel, but not perfect or prescient counsel.”). Because we
hold that Dixon failed to show that his trial counsel provided deficient representation, we need
not address whether Dixon suffered prejudice, or decide whether holding a trial within a jail
facility violates due process. 4
        2.      Expert witness
        Dixon also argues counsel was deficient for failing to obtain an expert witness to
corroborate his inability to pick up the victim due to his injury. Determining whether an
attorney’s pretrial preparation falls below a level of reasonable performance constitutes a
question of law, but is essentially premised upon the circumstances surrounding the attorney’s
investigation. Thomas v. State, 145 Idaho 765, 769, 185 P.3d 921, 925 (Ct. App. 2008). To
prevail on a claim that counsel’s performance was deficient, a petitioner must establish that the
inadequacies complained of would have made a difference in the outcome of trial. Id. It is not
sufficient merely to allege that counsel may have discovered a weakness in the State’s case. Id.
We will not second-guess trial counsel in the particularities of trial preparation. Id.
         Dixon argues his trial counsel should have obtained an expert witness who would have
testified that at the time of the offense, Dixon would not have been able to pick up the victim in
the manner she described. A local attorney testified at the post-conviction hearing that the
corroborating testimony from an expert witness was fairly crucial to establish Dixon’s defense of
mistaken identity.    Dixon also argues the expert testimony would have made a difference
because at the time of the incident his injury was more predominant, and the victim testified she
did not notice any markings on his arm, there were hundreds of people in the area, and there
were multiple ways to reach the location where the incident occurred.
        The district court denied this claim based on Dixon’s failure to submit any evidence at
the post-conviction hearing to support his contention. 5 The district court explained:
        No expert evidence was presented at Dixon’s post conviction trial. It would be
        speculative to conclude that such evidence exists or what any such expert might
        have concluded. Without admissible evidence as to what the witness would have
        said, Dixon’s claim that his counsel was deficient in failing to call the witness

4
       Though we do not decide the issue of constitutionality, we note our concern with holding
a criminal jury trial within the confines of a jail without an appropriate justification.
5
      The district court also denied Dixon’s claim because Dixon’s attorney indicated that it
was Dixon’s choice not to obtain an expert in order to have his trial as soon as possible.

                                                  6
       does not pass either prong of the Strickland test. Thomas v. Idaho, 145 Idaho 765,
       185 P.3d. 921 (Ct. App. 2008). Dixon has failed in his burden of proof on this
       issue.

Dixon argues that his own testimony offered at trial was sufficient to establish his post-
conviction claim that his trial counsel should have obtained an expert witness. However, “[i]t is
not enough to allege that a witness would have testified to certain events, or would have rebutted
certain statements made at trial, without providing through affidavit, nonhearsay evidence of the
substance of the witnesses’ testimony.” Thomas, 145 Idaho at 770, 185 P.3d at 926. Dixon’s
trial testimony may have established that an expert witness could have been pursued; however, it
does not cure Dixon’s failure to present evidence as to what an expert would have testified to in
order to support his defense. The district court properly dismissed Dixon’s claim for failing to
present admissible evidence that would support the claim.
B.     Rule 60(b)(6)
       Dixon argues the district court abused its discretion in denying his motion for relief under
I.R.C.P. 60(b)(6); the rule authorizes modification of a judgment for “any other reason justifying
relief from the operation of the judgment.” We review a trial court’s dismissal of a Rule 60(b)(6)
motion for relief for abuse of discretion. Berg v. Kendall, 147 Idaho 571, 578, 212 P.3d 1001,
1008 (2009). “[A]lthough the court is vested with broad discretion in determining whether to
grant or deny a Rule 60(b)[(6)] motion, its discretion is limited and may be granted only on a
showing of ‘unique and compelling circumstances’ justifying relief.” Miller v. Haller, 129 Idaho
345, 349, 924 P.2d 607, 611 (1996) (quoting In re Estate of Bagley, 117 Idaho 1091, 1093, 793
P.2d 1263, 1265 (Ct. App. 1990)). “The appellate courts of this state have infrequently granted
relief under Rule 60(b)(6).” Berg, 147 Idaho at 578, 212 P.3d at 1008.
       In an attempt to cure the lack of evidence submitted at the post-conviction hearing, Dixon
submitted an affidavit from a physical therapist indicating he could not have made any quick
movements or lifted any significant weight with the type of injury he suffered at the time of the
incident. 6 He also argues for the first time on appeal that his post-conviction counsel’s failure to




6
        Dixon did not attempt to provide evidence from the surgeon or physical therapist that
treated him.


                                                 7
submit medical evidence at the post-conviction hearing qualifies as a compelling circumstance
that would justify considering the physical therapist’s affidavit. 7
       Dixon relies on Eby v. State, 148 Idaho 731, 228 P.3d 998 (2010). In that case, the Idaho
Supreme Court concluded that “[g]iven the unique status of a post-conviction proceeding, and
given the complete absence of meaningful representation in the only available proceeding for
Eby to advance constitutional challenges to his conviction and sentence, we conclude that this
case may present the ‘unique and compelling circumstances’ in which I.R.C.P. 60(b)(6) relief
may well be warranted.” Id. at 737, 228 P.3d at 1004. However, as the State points out, in that
case the petitioner was denied the ability to present his post-conviction claim due to the lack of
any representation from multiple attorneys over several years. Unlike that case, Dixon’s post-
conviction attorney presented his claim, and represented him at an evidentiary hearing. While
there may have been a fatal evidentiary gap at the post-conviction trial, Rule 60(b)(6) does not
provide an avenue to retry the case or supplement the evidence. The circumstances of Dixon’s
case do not rise to the level of unique and compelling circumstances, and the district court did
not abuse its discretion in denying the Rule 60(b)(6) motion. This is true even if we consider
that Dixon’s post-conviction counsel failed to present evidence at the post-conviction hearing as
to one of the claims.
                                                 III.
                                          CONCLUSION
       Dixon has failed to show his trial attorney provided ineffective assistance of counsel.
Dixon has also failed to show the district court erred in denying his Rule 60(b)(6) motion.
Therefore, the denial of Dixon’s claim for post-conviction relief and the denial of his
Rule 60(b)(6) motion are affirmed.
       Judge LANSING and Judge MELANSON CONCUR.




7
        Dixon did not argue ineffective assistance of post-conviction counsel below. Generally,
issues not raised below may not be considered for the first time on appeal. State v. Fodge, 121
Idaho 192, 195, 824 P.2d 123, 126 (1992).

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