MELANSON, Chief Judge.
Troy Dwayne Payne appeals from the district court's judgment summarily dismissing his petition for post-conviction relief. Specifically, Payne argues he raised a genuine issue of material fact regarding ineffective assistance of his trial counsel for failing to request jury instructions on two defenses—innocent or temporary possession and misfortune or accident. For the reasons set forth below, the district court's order summarily dismissing Payne's petition for post-conviction relief is affirmed in part, vacated in part, and remanded.
Without any prior notice, Payne went to the home of a law enforcement officer and handed the officer a small container filled with methamphetamine. Payne was charged with possession of a controlled substance, I.C. § 37-2732(c)(1), for possessing the methamphetamine that he gave to the officer. At trial, Payne testified that an acquaintance tossed the container into Payne's car and, in an effort to "do the right thing," he took it to the police as soon as he realized that it contained drugs. Payne appealed his judgment of conviction and this Court affirmed in
A claim of ineffective assistance of counsel may properly be brought under the 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 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, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995). 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). 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. Id. at 761, 760 P.2d at 1177. 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).
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-4907; 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. 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 a motion by a party or upon the court's own initiative, if it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, 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
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).
In its order summarily dismissing Payne's petition for post-conviction relief, the district court held:
The principles of res judicata apply when a petitioner attempts to raise the same issues previously ruled upon on direct appeal in a subsequent petition for post-conviction relief. Knutsen v. State, 144 Idaho 433, 439, 163 P.3d 222, 228 (Ct.App.2007). On direct appeal, the sole issue was whether the district court erred by denying Payne the opportunity to testify regarding his lack of intent to possess methamphetamine, thereby preventing Payne from presenting his defense to the charge. This Court's ruling was narrow. We held that the district court did not preclude Payne's testimony regarding his intent to possess methamphetamine. This Court further held that, even if the district court had ruled that Payne could not present his defense, the error would have been harmless because Payne testified, nonetheless, that he did not intend to possess methamphetamine.
Payne alleges that he raised a genuine issue of material fact that his trial counsel was ineffective for failing to request a jury instruction on the defense of innocent or temporary possession. Payne acknowledges that Idaho courts have not addressed the question of whether Idaho recognizes a defense of innocent or temporary possession, although he cites to cases from several jurisdictions that have adopted the defense. While the failure to advance an established legal theory may result in ineffective assistance of counsel under Strickland, the failure to advance a novel theory will not. Piro v. State, 146 Idaho 86, 91, 190 P.3d 905, 910 (Ct.App.2008). The defense theory of innocent or temporary possession is not established under Idaho law and, therefore, Payne's trial counsel was not objectively deficient for failing to request a jury instruction on that defense.
Payne also alleged that his trial counsel was ineffective for failing to provide a jury instruction consistent with I.C. § 18-201(3), which provides:
The questions here are whether Payne's trial counsel's failure to request a jury instruction consistent with I.C. § 18-201(3) constitutes deficient performance and whether Payne was prejudiced by trial counsel's deficiency.
In our opinion on direct appeal, this Court explained:
In addition, this Court explained:
This Court's holding on direct appeal, reiterated by Payne in his petition for post-conviction relief, is sufficient to meet Payne's prima facie burden under Strickland of providing evidence that his trial counsel's performance was deficient.
In order to prove prejudice, Payne provided an affidavit from one of the jurors at Payne's trial. In her affidavit, the juror explained that, based on the jury instructions given by the district court, the juror felt constrained to find Payne guilty under the law provided. The juror also explained that, after rendering the verdict, the juror was so distressed that she wrote a letter to district court explaining the juror's concerns with the law. Most importantly, the juror explained that had the jury "been instructed that it could have found Mr. Payne not guilty if he only possessed the methamphetamine long enough to turn it over to law enforcement, [I] would have voted to acquit Mr. Payne."
The state argues that I.R.E. 606(b) precluded the district court from considering statements the juror made in her affidavit. Rule 606(b) provides:
The Idaho appellate courts have held that neither juror testimony nor juror affidavits are admissible to prove prejudice in a post-conviction case. See Roberts v. State, 132 Idaho 494, 496, 975 P.2d 782, 784 (1999); Reynolds v. State, 126 Idaho 24, 27, 878 P.2d 198, 201 (Ct.App.1994). Accordingly, the juror's affidavit was inadmissible under Rule 606(b).
Because the juror's affidavit was not admissible, our next inquiry is whether Payne provided other evidence that he was prejudiced by his trial counsel's deficient performance. Payne provided some evidence that his direct appeal was prejudiced by his trial counsel's failure to request a jury instruction on the defense of misfortune or accident under I.C. § 18-201(3). As noted above, this Court declined to address one of Payne's issues on appeal because it was not preserved. In addition, at trial, Payne testified that he obtained the methamphetamine when it was thrown to him without his request, knowledge, or consent and that he took it directly to an officer. The state offered no evidence to rebut Payne's testimony regarding how he came into possession of the methamphetamine.
If the jury believed Payne's testimony, it would have been required to acquit Payne under I.C. § 18-201(3) because Payne would not have been capable of committing the crime of possession of a controlled substance under those circumstances. However, because the jury was not provided an instruction consistent with I.C. § 18-201(3), the jury was bound to find Payne guilty of possession of a controlled substance, even if it believed Payne's story regarding how he came into
The district court erred in dismissing Payne's petition for post-conviction relief on the basis of res judicata because the issues raised to this Court on direct appeal were distinct from the issues raised in his petition for post-conviction relief before the district court. Payne did not establish a genuine issue of material fact regarding his trial counsel's deficient performance for failing to request a jury instruction on the defense of innocent or temporary possession. However, Payne did establish a genuine issue of material fact regarding his trial counsel's deficient performance for failing to request a jury instruction consistent with I.C. § 18-201(3). Therefore, we affirm summary dismissal of the claim regarding innocent or temporary possession and vacate and remand as to the claim relating to I.C. § 18-201(3). Costs, but not attorney fees, are awarded to Payne on appeal.
Judge GRATTON and Judge HUSKEY concur.
