GRATTON, Judge.
In this consolidated case, Joshua Cabe Holman appeals the district court's summary dismissal of his applications for post-conviction relief, claiming that, in each case, his trial counsel was ineffective for failing to file a motion to suppress. In the first case Holman pled guilty to possession of a controlled substance, Idaho Code § 37-2732(c)(1), and in the second case he pled guilty to possession of a controlled substance, I.C. § 37-2732(c)(1), and grand theft by possession of stolen property, I.C. §§ 18-2403(4), 18-2407(1). We affirm.
Two officers arrived at a home to investigate allegations that drugs were being used in the presence of a child. The homeowner consented to the officers' search of the home. The officers came to a locked door, which the owner explained was the door to Holman's room. When Holman answered the door, an officer asked if he could search his room and, in response, Holman stepped aside. The search of the room produced drug paraphernalia and drugs. In case number 07-3626, Holman was arrested and charged with trafficking in methamphetamine, I.C. § 37-2732B(a)(4). He was later released on bail.
Holman failed to appear at a hearing and a bench warrant was issued for his arrest. Later, an officer recognized Holman riding as a passenger in a vehicle the officer knew to be Holman's and stopped the vehicle. After arresting Holman, the officer searched the vehicle and found drugs, drug paraphernalia, and stolen property. In case number 07-5464, Holman was charged with possession of a controlled substance, I.C. § 37-2732(c)(1), and grand theft by possession of stolen property, I.C. §§ 18-2403(4), 18-2407(1).
Pursuant to a plea agreement, the charge of trafficking in methamphetamines was reduced to possession of a controlled substance. Holman pled guilty to possession of a controlled substance in both cases and to grand theft by possession of stolen property in case number 07-5464. On each charge of possession of a controlled substance, the district court sentenced Holman to a concurrent unified sentence of seven years with three years determinate. On the grand theft charge, the district court sentenced Holman to a unified sentence of ten years with three years determinate, which was to run concurrent with his other charges. The district court suspended the sentence and placed Holman on probation. Subsequently, Holman was found to have violated the terms of his probation, and the district court consequently revoked probation. The district court sua sponte reduced Holman's grand theft sentence to a unified term of seven years, with a minimum period of confinement of three years. Thereafter, Holman filed an I.C.R. 35 motion for reduction of his sentences. The district court granted Holman's motion and reduced his sentences to unified terms of seven years, with minimum periods of confinement of two years. This Court affirmed the district court's orders revoking probation. State v. Holman, Docket Nos. 35693 and 35694 (Ct. App. May 11, 2009) (unpublished).
Shortly after his probation was revoked Holman filed an application for post-conviction relief, which was copied and filed as separate actions for each of the underlying criminal proceedings. Thereafter, the applications were handled as a single proceeding, but retained separate case numbers. The State moved for summary dismissal which the district court granted. Holman appeals.
Holman argues his counsel was ineffective in failing to file a motion to suppress in each of his two criminal cases. An application for post-conviction relief initiates a civil, rather than criminal proceeding, 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 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) (quoting Goodwin, 138 Idaho at 271, 61 P.3d at 628)). The 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). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); 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).
On review of dismissal of a post-conviction relief application without an evidentiary hearing, we determine whether a genuine issue of material fact exists based on the pleadings, depositions, and admissions together with any affidavits on file. Rhoades v. State, 148 Idaho 247, 220 P.3d 1066 (2009); Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct. App. 1993). However, "while the underlying facts must be regarded as true, the petitioner's conclusions need not be so accepted." Rhoades, 148 Idaho at 250, 220 P.3d at 1069 (quoting Phillips v. State, 108 Idaho 405, 407, 700 P.2d 27, 29 (1985)); see also Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). As the trial court rather than a jury will be the trier of fact in the event of an evidentiary hearing, summary dismissal is appropriate where the evidentiary facts are not disputed, despite the possibility of conflicting inferences to be drawn from the facts, for the court alone will be responsible for resolving the conflict between those inferences. Yakovac, 145 Idaho at 444, 180 P.3d at 483; Hayes, 146 Idaho at 355, 195 P.3d at 714. That is, the judge in a post-conviction action is not constrained to draw inferences in favor of the party opposing the motion for summary disposition but rather is free to arrive at the most probable inferences to be drawn from uncontroverted evidentiary facts. Id.
A claim of ineffective assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure Act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct. App. 1992). To prevail on an ineffective assistance of counsel claim, the 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). 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). Where, as here, the defendant was convicted upon a guilty plea, to satisfy the prejudice element, the claimant must show that there is a reasonable probability that, but for counsel's errors, he or she would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006). 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. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
In a post-conviction proceeding challenging an attorney's failure to pursue a motion in the underlying criminal action, the district court may consider the probability of success of the motion in question in determining whether the attorney's inactivity constituted incompetent performance. Boman v. State, 129 Idaho 520, 526, 927 P.2d 910, 916 (Ct. App. 1996). Where the alleged deficiency is counsel's failure to file a motion, a conclusion that the motion, if pursued, would not have been granted by the trial court, is generally determinative of both prongs of the Strickland test. Id.
On appeal, Holman argues the district court erred in dismissing his claim that in case number 07-3626 his trial counsel was ineffective for failing to file a motion to suppress the evidence officers found in his room because his consent was coerced. Although a warrantless entry or search of a residence is generally illegal and violative of the Fourth Amendment, such an entry or search may be rendered reasonable by an individual's consent. State v. Johnson, 110 Idaho 516, 522, 716 P.2d 1288, 1294 (1986); State v. Abeyta, 131 Idaho 704, 707, 963 P.2d 387, 390 (Ct. App. 1998). In such instances, the State has the burden of demonstrating consent by a preponderance of the evidence. State v. Kilby, 130 Idaho 747, 749, 947 P.2d 420, 422 (Ct. App. 1997). The State must show that consent was not the result of duress or coercion, either direct or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973); State v. Whiteley, 124 Idaho 261, 264, 858 P.2d 800, 803 (Ct. App. 1993). The voluntariness of an individual's consent is evaluated in light of all the circumstances. Whiteley, 124 Idaho at 264, 858 P.2d at 803. Consent to search may be in the form of words, gestures, or conduct. State v. Knapp, 120 Idaho 343, 348, 815 P.2d 1083, 1088 (Ct. App. 1991). Whether consent was granted voluntarily, or was a product of coercion, is a question of fact to be determined by all the surrounding circumstances. State v. Hansen, 138 Idaho 791, 796, 69 P.3d 1052, 1057 (2003).
The only evidence Holman presented to the district court on the search of his room came from his affidavit in support of his post-conviction application, which states: "I was arrested on May 25th 2007 in regards to evidence obtained by an illegal search and seizure at my legal residence where I lived and payed [sic] rent where the police entered without a search warrant." Also attached to Holman's affidavit was a letter he had written to his trial counsel requesting a motion to suppress because the police did not have a warrant. The district court took judicial notice of Officer Arredondo's affidavit in support of the complaint, which states:
Officer Arredondo found other pipes, needles, a scale with a white crystal residue on it, methamphetamines, and marijuana. Holman was then arrested.
The district court determined that Holman had not established a genuine issue of fact that would require a trial and dismissed Holman's application. In addressing Holman's claim the court stated:
Holman argues that "silently stepping backward and failing to protest in the face of a police officer's request to search, while it certainly could be construed by the fact-finder as implied consent to search, could also be construed as acquiescence to the officer's authority, depending on all of the other unique circumstances leading up to the search." Holman presented no evidence of duress or coercion. On appeal he simply asserts that an inference could be drawn that his act of stepping aside was acquiescence rather than consent. From this he argues that he was entitled to an evidentiary hearing. However, as the facts were not in dispute,
In case number 07-5464, Holman argues that the district court erred in dismissing his claim that his counsel was ineffective for not filing a motion to suppress the evidence seized from the vehicle as an illegal search incident to arrest. Holman's application for post-conviction relief states that his conviction was obtained by evidence from an unlawful arrest and his counsel failed to file a motion to suppress. Holman's affidavit in support of the post-conviction application provides no evidence of the circumstances of the search. The district court took judicial notice of Officer Loosli's affidavit in support of the complaint. Officer Loosli stated:
The district court held:
Holman argues that a motion to suppress should have been pursued on the grounds advanced in Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1714 (2009) (holding that New York v. Belton, 453 U.S. 454 (1981), does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle).
The argument raised by Holman is identical to the argument rejected by this Court in Hoskins v. State, ___ Idaho ___, ___ P.3d ___ (Ct. App. 2010); on the same basis we reject Holman's claim. Holman's appeal was final prior to the issuance of Gant, and any motion to suppress would have been unsuccessful.
Holman did not present sufficient evidence that his consent to the search of his room was coerced to withstand the motion for summary dismissal. He also failed to show that a motion on Gant grounds would have been successful. The district court's summary dismissal of Holman's application for post-conviction relief is affirmed.
Chief Judge LANSING and Judge GUTIERREZ,
