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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 33773

GREGORY LOUIS KELLY,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2009 Opinion No. 28

Filed: April 13, 2009

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Seventh Judicial District, State of Idaho, 

Bonneville County. Hon. Richard T. St. Clair, District Judge. 

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

part, reversed in part, and remanded. 

Dennis A. Benjamin of Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for 

appellant. 

Hon. Lawrence G. Wasden, Attorney General; Rebekah A. Cudé, Deputy 

Attorney General, Boise, for respondent. Rebekah A. Cudé argued.

______________________________________________

PERRY, Judge

Gregory Louis Kelly appeals from the district court‟s order summarily dismissing his 

application for post-conviction relief. For the reasons set forth below, we affirm in part, reverse 

in part, and remand the case for further proceedings.

I.

FACTS AND PROCEDURE

Kelly was charged with four counts of conspiracy to traffic in methamphetamine, one 

count of trafficking in methamphetamine, one count of possession of methamphetamine with 

intent to deliver when children are present, and one count of conspiracy to traffic in marijuana. 

Pursuant to a plea agreement, Kelly pled guilty in 2003 to two counts of conspiracy to traffic in 

methamphetamine. I.C. §§ 37-2732B(a)(4)(A), 37-2732B(b). The district court sentenced Kelly 

to concurrent unified terms of twenty years, with minimum periods of confinement of eight 

years. Kelly then filed an I.C.R. 35 motion for reduction of his sentences. The district denied 
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Kelly‟s Rule 35 motion, and he appealed. In an unpublished opinion, this Court affirmed the 

district court‟s denial of Kelly‟s Rule 35 motion. See State v. Kelly, Docket No. 30586 (Ct. App. 

Jan. 5, 2005).

On January 9, 2006, Kelly filed an application for post-conviction relief. The state filed 

an answer in February, and Kelly filed several replies to the state‟s answer. On August 15, the 

state filed a motion for summary dismissal and accompanying memorandum. The state‟s cryptic 

motion generally requests dismissal of Kelly‟s application stating that there is “no evidentiary 

basis to support his claims.” However, the state‟s accompanying memorandum specifically sets

forth the grounds the state relied on as a basis for the dismissal of each claim mentioned therein. 

The district court held a hearing on the state‟s motion for summary dismissal. At that time, 

Kelly had not requested counsel, requested to be transferred for the hearing, or requested to 

appear telephonically. At the hearing, no arguments were made and the district court took the 

state‟s motion under advisement. On October 19, the district court summarily dismissed all of 

Kelly‟s post-conviction claims. Kelly appeals.

II.

STANDARD OF REVIEW

An application for post-conviction relief initiates a proceeding that is civil in nature. 

State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Clark v. State, 92 Idaho 827, 

830, 452 P.2d 54, 57 (1969); 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; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). An application for 

post-conviction relief differs from a complaint in an ordinary civil action. 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.
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Idaho Code Section 19-4906 authorizes summary dismissal of an application for postconviction 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. Summary dismissal is permissible only 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. Gonzales v. State, 120 Idaho 759, 763, 819 

P.2d 1159, 1163 (Ct. App. 1991); Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct. 

App. 1988); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct. App. 1987). 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; moreover, the court liberally construes the 

facts and reasonable inferences in favor of the nonmoving party. Ricca v. State, 124 Idaho 894, 

896, 865 P.2d 985, 987 (Ct. App. 1993).

III.

ANALYSIS

A. Kelly’s Absence at the Summary Dismissal Hearing

Kelly argues that the district court denied him due process and access to the courts by 

conducting a hearing on the state‟s motion for summary dismissal in Kelly‟s absence. The state 

counters that Kelly has failed to establish how his due process rights were violated when the 

district court did not sua sponte decide to have him transported for the hearing and when nothing 

was argued or was decided at the hearing. 

On September 27, 2006, the district court held a hearing on the state‟s motion for 

summary dismissal. The district court began by noting that Kelly had not requested the 

appointment of counsel, a transfer to appear in person, or to appear telephonically. The state‟s 

attorney explained that he was requesting summary dismissal and then concluded that “at this 
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time I‟ll simply submit my arguments on the brief.” There was no argument made and the 

district court conveyed that it would issue a written decision. On September 29, two days after 

the hearing, Kelly‟s motion for transport was filed with the district court.

The district court did not violate Kelly‟s due process rights in this case. The district court 

did not deny Kelly the opportunity to attend the hearing. Furthermore, it could not be a denial of 

due process for Kelly to be absent from a hearing where no evidence is presented, no argument 

entertained, and no decision is reached by the court. Kelly‟s claim is without merit.

B. Summary Dismissal Notice 

Kelly asserts that several of his claims were improperly summarily dismissed because 

neither the state‟s motion for summary dismissal nor the accompanying memorandum provided, 

with adequate particularity, the grounds on which the state sought dismissal. Kelly also argues 

he did not receive any notice regarding some of his claims because the claims were not addressed 

in the state‟s memorandum and the district court dismissed those claims without thereafter 

issuing a twenty-day notice. Finally, Kelly contends that he did not receive proper notice 

because the district court dismissed several of his claims on grounds other than those which were

relied on in the state‟s memorandum. Idaho Code Section 19-4906 provides, in pertinent part:

(b) When a court is satisfied, on the basis of the application, the 

answer or motion, and the record, that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings, it 

may indicate to the parties its intention to dismiss the application and its reasons 

for so doing. The applicant shall be given an opportunity to reply within 20 days 

to the proposed dismissal. . . .

(c) The court may grant a motion by either party for summary 

disposition of the application when 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. 

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), 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
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“motion itself serves as notice that summary dismissal is being sought.” Saykhamchone v. State, 

127 Idaho 319, 322, 900 P.2d 795, 798 (1995). Idaho Rule of Civil Procedure 7(b)(1) requires 

that the grounds of a motion be stated with “particularity.” If the state‟s motion fails to give such 

notice of the grounds for dismissal, the court may grant summary dismissal only if the court first 

gives the applicant the requisite twenty-day notice of intent to dismiss and the grounds therefore 

pursuant to I.C. § 19-4906(b). Flores v. State, 128 Idaho 476, 478, 915 P.2d 38, 40 (Ct. App. 

1996). 

Similarly, 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 the twenty days notice.” Saykhamchone, 127 

Idaho at 322, 900 P.2d at 798. The notice procedure contained in I.C. § 19-4906 is necessary so 

that the applicant is afforded an opportunity to respond and to establish a material issue of fact if 

one exists. Flores, 128 Idaho at 478, 915 P.2d at 40. 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.

The Idaho Supreme Court recently addressed the notice required by I.C. § 19-4906(c) in 

DeRushé v. State, 146 Idaho 599, 200 P.3d 1148 (2009). The Court there noted that the notice 

requirement is met if “the notice is sufficient that the other party cannot assert surprise or 

prejudice” and the Idaho Rules of Civil Procedure require only “reasonable particularity.” Id. at 

601, 200 P.3d at 1150. The Court went on to conclude that reasonable particularity “does not 

require explaining what further evidence is necessary” to substantiate an applicant‟s claim. Id. at 

602, 200 P.3d at 1151. The ultimate holding of the Court was that an applicant for postconviction relief cannot challenge on appeal the sufficiency of the grounds contained in the 

state‟s motion for summary disposition unless the applicant first challenged the sufficiency of the 

notice in the trial court. Id. The DeRushé Court, however, reiterated that, “if the State moves to 

dismiss a petition under Idaho Code § 19-4906(c), the court cannot dismiss a claim on a ground 

not asserted by the State in its motion unless the court gives the twenty-day notice required by 

Section 19-4906(b).” Id. 

In this case, the state asserts that, pursuant to DeRushé, Kelly cannot challenge the notice 

for the first time on appeal. However, we do not read DeRushé to completely eliminate the longstanding notice requirement for summarily dismissing a post-conviction application. Rather, 
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DeRushé held only that, upon receiving notice from the state or the court, an applicant cannot 

challenge the sufficiency of the notice for the first time on appeal. DeRushé does not preclude an 

applicant from asserting for the first time on appeal that the district court improperly summarily 

dismissed a claim without providing any notice either through the state‟s motion or the court‟s 

own notice. In addition, DeRushé does not hold that, if the state files a motion for summary 

dismissal but the district court dismisses a claim on a ground not contained in the state‟s motion 

without providing additional notice, an applicant is precluded from challenging that dismissal for 

the first time on appeal. Therefore, we reject the state‟s broad-brush interpretation of DeRushé

and conclude that challenges to a complete lack of notice remain available to the applicant for 

the first time on appeal.

In this case, Kelly did not argue before the district court that the state‟s motion for 

summary dismissal and accompanying memorandum provided inadequate notice on some 

claims, i.e., did not state the grounds with sufficient particularity. Therefore, given the Supreme 

Court‟s holding in DeRushé, we decline to review any of Kelly‟s claims based on an allegation 

that the state‟s motion and memorandum provided insufficient notice. However, given our more 

narrow interpretation of DeRushé, we will address Kelly‟s arguments concerning claims that 

were dismissed without any notice and claims that were dimissed by the district court on a 

ground other than those relied on in the state‟s memorandum.

C. Claim Dismissed Without Any Notice

Kelly‟s application contains a claim of ineffective assistance of counsel based on his 

attorney‟s failure to file a motion to suppress evidence. The state‟s motion for summary 

dismissal and memorandum do not address this claim; however, the district court‟s order 

summarily dismissing Kelly‟s application does address it. The district court dismissed Kelly‟s 

claim of ineffective assistance for failure to file a motion to suppress at least in part because 

Kelly had not proven he requested that his counsel file such a motion. 

At oral argument before this Court, the state asserted that Kelly‟s claim of ineffective 

assistance for failure to file a motion to suppress was addressed in the section of the state‟s 

memorandum containing “failure to investigate” in the heading. We disagree. That section of 

the state‟s memorandum does not mention the absence of a suppression motion and it does not 

constitute notice to Kelly concerning this claim. Therefore, the district court erred in summarily 

dismissing Kelly‟s claim of ineffective assistance of counsel based on his attorney‟s failure to 
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file a motion to suppress without providing the requisite twenty-day notice. For guidance on 

remand, we note that whether a defendant requested the filing of a suppression motion is not part 

of the analysis in determining whether an attorney‟s conduct fell below an objective standard of 

reasonableness in failing to file such a motion. 

D. Claims Dismissed on Grounds Other than those Contained in State’s Memorandum

Kelly argues that the district court summarily dismissed several of his claims on grounds 

other than those listed in the state‟s memorandum. The state concedes that the district court 

analyzed Kelly‟s application under several additional theories, but it argues that the district court 

also relied on the grounds raised by the state for dismissal and, therefore, Kelly was given 

sufficient notice.

When a district court summarily dismisses a post-conviction application relying in part 

on the same arguments presented by the state in its motion for summary dismissal, the notice 

requirement has been met. See Workman v. State, 144 Idaho 518, 525, 164 P.3d 798, 805 

(2007). In that case, the Idaho Supreme Court determined that, although the district court noted 

grounds for dismissal in addition to those advanced by the state, the “district court‟s reasoning 

for dismissal of Workman‟s petition is not so different in kind as to transform its decision into a 

sua sponte dismissal.” Id. at 524, 164 P.3d at 804. Therefore, a district court may summarily 

dismiss a post-conviction claim for reasons in addition to those advanced by the state‟s motion 

and still be in compliance with the notice requirement as long as the court also relies on the 

state‟s reason for dismissal. However, if the district court summarily dismisses a claim without 

reliance on any argument contained in the state‟s motion, the dismissal will be treated as a sua 

sponte dismissal and require a twenty-day notice. See DeRushé, 146 Idaho at 602, 200 P.3d at 

1151. 

Kelly‟s application contains several allegations of ineffective assistance of counsel. First, 

Kelly asserted a claim of ineffective assistance for his attorney‟s failure to impeach witnesses at 

the preliminary hearing. The state‟s memorandum argued that Kelly‟s claim should be 

summarily dismissed because “whatever happened at the preliminary hearing has been 

superseded by petitioner‟s guilty plea” and “the manner of proceeding in the preliminary hearing 

by defense counsel is considered „trial tactics‟ or „strategic choices‟ and therefore not subject to 
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attack on post conviction proceedings.”1 However, the district court dismissed this claim 

because Kelly had provided no evidence showing that witnesses at the preliminary hearing 

testified untruthfully. Because the district court did not rely, at least in part, on the argument 

contained in the state‟s memorandum, this claim was improperly summarily dismissed without 

the requisite notice.

Second, Kelly‟s application contains claims of ineffective assistance of counsel for his 

attorney‟s failure to secure an independent drug expert, failure to retain a fingerprint expert, 

failure to investigate an alibi defense, failure to pursue a defense of mistaken identity, and failure 

to investigate whether it was Kelly‟s voice on a recording. In its memorandum, the state argued 

that these claims should be summarily dismissed because Kelly did not provide admissible 

evidence concerning what the experts or the investigation would have revealed, Kelly could not 

establish prejudice because he admitted facts to support his guilty plea, and the decisions not to 

obtain experts or investigate were considered trial tactics. Although the state‟s memorandum

may have asserted viable grounds for dismissal, the district court‟s order stated that Kelly 

voluntarily pled guilty and therefore his defense attorney “was foreclosed from presenting a 

defense of mistaken identity or presenting an alibi.”2 Because the district court did not rely, at 

least in part, on the arguments contained in the state‟s memorandum, these claims were 

improperly summarily dismissed without the requisite notice.

Third, Kelly‟s application contains an ineffective assistance of counsel claim asserting 

that his attorney failed to ensure Kelly‟s Miranda3rights were read prior to the presentence 

investigation. The state‟s memorandum said that this claim should be summarily dismissed 

 

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In addition to the lack of notice, Kelly also argues that this is an incorrect statement of the 

law. However, because this claim is being remanded for lack of proper notice, we decline to rule 

on Kelly‟s additional argument that the law provided by the state was incorrect.

2 Kelly also argues that this is an incorrect statement of the law by the district court. We 

agree. See Hayes v. State, 143 Idaho 88, 92, 136 P.3d 475, 479 (Ct. App. 2006) (noting that the 

voluntariness of a guilty plea depends on whether counsel‟s advice was within the range of 

competence demanded of attorneys in criminal cases). Therefore, a guilty plea may not 

automatically remedy all failures to investigate and prepare a defense if the failure to do so leads 

to inadequate or inaccurate advice from the attorney concerning pleading guilty. 

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See Miranda v. Arizona, 384 U.S. 436 (1966). 
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because, at the time Kelly pled guilty, he was aware that he was waiving his Fifth Amendment 

privilege. However, the district court dismissed this claim because Kelly did not provide 

evidence showing that he attempted to invoke his Fifth Amendment privilege to remain silent

during the presentence investigation. Therefore, because the district court did not rely, at least in 

part, on the argument contained in the state‟s memorandum, this claim was improperly 

summarily dismissed without the requisite notice.4

Fourth, Kelly argues that his claims of prosecutorial misconduct were improperly 

summarily dismissed because the state‟s memorandum accompanying its motion for summary 

dismissal did not address those claims. Kelly‟s post-conviction application asserts a claim of 

prosecutorial misconduct and elaborates on his belief that state witnesses were offered plea 

bargains to testify falsely against Kelly at the preliminary hearing. On the same date Kelly filed 

his post-conviction application, he filed a brief and affidavit in support thereof. That brief and 

affidavit are included in the record on appeal as exhibits. Kelly‟s brief provides that “there was 

evidence the state possessed that was not awarded to the defense,” including audio tapes and

photographs. Although the district court‟s order summarily dismissing Kelly‟s application 

addressed these two issues of prosecutorial misconduct raised by Kelly--that witnesses received 

plea bargains for false testimony at the preliminary hearing and that the state withheld 

exculpatory information--these issues are not addressed anywhere in the state‟s memorandum. 

The state‟s memorandum in support of its motion for summary dismissal categorized 

Kelly‟s claims. At oral argument before this Court, the state asserted that Kelly‟s claims of 

prosecutorial misconduct were addressed in the section of the state‟s memorandum containing

“witness tampering” in the heading of that section. The only possible reference to Kelly‟s claims

 

4 Kelly also argues the district court‟s reliance on whether Kelly invoked his Fifth 

Amendment privilege is not the proper inquiry and is an incorrect statement of the law by the 

district court. The Fifth Amendment privilege against self-incrimination applies at sentencing, 

but generally a defendant must invoke it. See State v. Person, 145 Idaho 293, 297, 178 P.3d 658, 

662 (Ct. App. 2007). However, the order dismissing this claim is reversed because the district 

court dismissed it on a ground other than what was contained in the state‟s memorandum. 

Therefore, we need not determine whether Kelly may present a valid claim of ineffective 

assistance based on his attorney‟s alleged failure to ensure Kelly‟s Miranda rights were read 

before the presentence investigation. Nevertheless, we pause to note that it may be deficient 

performance for counsel to fail to advise the defendant of this privilege. See Estrada v. State, 

143 Idaho 558, 564, 149 P.3d 833, 839 (2006).
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of prosecutorial misconduct is this portion of the heading as that section does not further address 

Kelly‟s claims. 

As we stated earlier, to meet the reasonable particularity requirment, a motion by the state 

for summary dismissal need not explain to a post-conviction applicant what evidence he or she is 

missing. DeRushé, 146 Idaho at 602, 200 P.3d at 1151. However, we do not read DeRushé as 

eliminating the requirement that the state‟s motion identify the deficiency with each postconviction claim. See, e.g., Garza v. State, 139 Idaho 533, 537-38, 82 P.3d 445, 449-50 (2003) 

(enumerating several of Garza‟s claims and noting that, because the “district court did not give 

the rationale for dismissing the claims,” the notice of intent to dismiss was insufficient); FranckTeel v. State, 143 Idaho 664, 669, 152 P.3d 25, 30 (Ct. App. 2006) (holding that “the broad and 

generic contentions in the state‟s motion do not refer to Franck-Teel‟s specific allegations and, 

thus, cannot be construed as addressing the perceived flaws in any particular item of evidence or 

legal analysis, which Franck-Teel needed to adddress in order to avoid summary dismissal”); 

Flores, 128 Idaho at 478, 915 P.2d at 40 (holding that, “written in such general terms, the state‟s 

motion did not address the insufficiency of Flores‟s particular claims and failed to give Flores 

notice of any issues or arguments to which he needed to respond”); Martinez, 126 Idaho at 818, 

892 P.2d at 493 (holding that the state‟s motion “identified no particular basis for dismissal of 

Martinez‟s various claims, and was therefore ineffective to give him notice of any deficiencies in 

his evidence or any legal analysis he needed to address in order to avoid summary dismissal of 

his action”). 

As the Supreme Court elaborated, a “notice of intent to dismiss must state the reasons for 

dismissal in order to provide an applicant with meaningful opportunity to provide further legal 

authority or evidence that may demonstrate the existence of a genuine factual issue.” Garza, 139 

Idaho at 537, 82 P.3d at 449. Providing an individualized response to a post-conviction 

applicant‟s allegations is necessary to ensure that an applicant can respond with additional 

authority or evidence if it exists and so that the applicant “cannot assert surprise or prejudice” 

regarding the basis of dismissal. DeRushé, 146 Idaho at 601, 200 P.3d at 1150.

Therefore, without deciding whether “witness tampering” in a heading constitutes notice, 

we conclude that the claim was dismissed by the district court on grounds different than those 

contained within the witness tampering section. Specifically, the state‟s memorandum argued 

that Kelly‟s “witness tampering” claim should be dismissed because “whatever happened at the 
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preliminary hearing has been superseded by [Kelly‟s] guilty plea” and that “the manner of 

proceeding in a preliminary hearing by defense counsel is considered „trial tactics.‟” The district 

court dismissed these claims on the grounds that Kelly had not provided admissible evidence and 

had not demonstrated how any omissions by the state prejudiced his plea bargaining process.

Therefore, the district court‟s order is treated as a sua sponte dismissal of these claims, and the 

twenty-day notice requirement must be complied with. Accordingly, the district court erred by 

dismissing Kelly‟s claims of prosecutorial misconduct without complying with the notice 

requirement. 

Finally, Kelly‟s application asserts that he was denied effective assistance of counsel 

because his attorney failed to file a notice of appeal. The state‟s memorandum asserts that 

Kelly‟s claim is belied by the record because a notice of appeal was filed. However, the district 

court dismissed Kelly‟s claim because Kelly had not provided evidence showing he requested 

that his attorney file a notice of appeal and because tactical decisions by an attorney will not be 

second-guessed absent a showing of inadequate preparation or ignorance of the law. Our judicial 

records demonstrate that Kelly indeed filed a direct appeal with this Court and this Court 

affirmed the district court in an unpublished opinion. See State v. Kelly, Docket No. 30586 (Ct. 

App. Jan. 5, 2005). Therefore, although it was improper for the district court to dismiss Kelly‟s 

claim on a ground not contained in the state‟s memorandum without the twenty-day notice, in the 

interest of judicial economy we conclude that, because a notice of appeal was filed and an 

appellate decision rendered thereon, remand of this claim is unnecessary.

IV.

CONCLUSION

The district court did not violate Kelly‟s due process rights by failing to sua sponte order 

that he be transported for the hearing on the state‟s motion for summary dismissal. Kelly cannot 

argue for the first time on appeal that the state‟s motion and accompanying memorandum

provided insufficient notice of the grounds for dismissal of some claims and, therefore, the 

district court‟s order summarily dismissing those claims is affirmed. The district court erred in 

summarily dismissing Kelly‟s claim of ineffective assistance of counsel based on his attorney‟s 

failure to file a motion to suppress because this claim was not addressed in the state‟s motion or 

memorandum and Kelly did not receive the requisite notice. The district court also erred in 

summarily dismissing Kelly‟s claims of prosecutorial misconduct and ineffective assistance of 
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counsel based on his attorney‟s alleged failure to impeach witnesses at the preliminary hearing, 

acquire experts, present an alibi or mistaken identity defense, or ensure Kelly‟s Miranda rights 

were read prior to the presentence investigation, because these claims were not dismissed on the 

grounds relied on in the state‟s memorandum. Therefore, for the reasons stated above, the order 

summarily dismissing these matters is reversed and the case is remanded to the district court. 

Although we express no opinion about the ultimate outcome of Kelly‟s claims, he must be 

provided with the requisite twenty-day notice before summary dismissal. However, in the 

interest of judicial economy, we affirm the dismissal of Kelly‟s claim of ineffective assistance 

based on his attorney‟s failure to file a notice of appeal. Accordingly, the order summarily 

dismissing Kelly‟s application for post-conviction relief is affirmed in part, reversed in part, and 

remanded for further proceedings. Costs, but not attorney fees, are awarded to Kelly on appeal. 

Chief Judge LANSING, SPECIALLY CONCURRING

I fully concur in the foregoing opinion. I write separately to make some suggestions to 

the trial court and to Kelly‟s counsel that could avoid the need for similar appeals in the future.

To the district court‟s credit in the present case, the court issued an opinion that set forth 

the basis for dismissal of each of Kelly‟s claims in detail, with citations to applicable authority 

and references to the evidence, or to omissions in the evidence. Most of the present appellate 

challenge to the summary dismissal order could have been prevented if the district court had 

presented this detailed opinion as a notice of intent to dismiss and allowed Kelly twenty days to 

respond before the court entered its dismissal order. It would have entailed no significant 

additional effort for the court and could have insulated the court‟s order from attack on appeal on 

the basis of inadequate notice. Therefore, I suggest that our district judges consider employing 

such a procedure.

I would also point out to Kelly‟s counsel--and to all attorneys who represent postconviction petitioners--that when a post-conviction action has been dismissed without adequate 

notice, rather than taking an immediate appeal it would ordinarily be much more expedient for 

the petitioner to file a motion in the district court for relief from the judgment under Idaho Rule 

of Civil Procedure 59(e). Bringing the error to the district court‟s attention in this manner would 

give the court an opportunity to take prompt corrective action and could eliminate the need for, 

and the delay attending, an appeal. In this case, for example, Kelly could have filed a Rule 59(e) 

motion pointing out that he had not received prior notice of some of the grounds relied upon by 
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the district court in its dismissal order, and could have presented any additional evidence and 

legal argument that he might deem appropriate to contest the grounds relied upon by the district 

court. If Kelly had done this, and if the district court had denied the motion, Kelly could have 

then appealed. If that had occurred, on appeal this Court would have been able to address the 

merits of his claims rather than simply remanding the case back to the district court, which will 

likely begin the summary dismissal proceedings anew by giving an appropriate notice of intent to 

dismiss, with the possibility of yet another appeal before this post-conviction action is finally 

concluded.

Judge GRATTON, CONCURRING IN PART AND DISSENTING IN PART.

I concur in Section A of the majority opinion.

As to Section B of the majority opinion, I agree with the conclusion that DeRushé v. 

State, 146 Idaho 599, 200 P.3d 1148 (2009) did not eliminate all notice requirements for 

summary dismissal of post-conviction applications. I agree with the majority‟s view that 

DeRushé does not preclude an applicant from challenging, for the first time on appeal, summary 

dismissal when no notice at all was given of the ground for dismissal. I agree that if a court 

determines to dismiss a claim on a ground for which no notice was given, the court must first 

give the applicant a twenty-day notice of its intent to dismiss on that ground. I further agree that 

DeRushé precludes an applicant from raising a claim of inadequate notice, i.e., failure to state the 

grounds for dismissal with sufficient particularity, for the first time on appeal. Unless an 

applicant challenges the sufficiency of the State‟s motion before the district court, it cannot be 

considered on appeal. I respectfully disagree with the majority‟s “narrow interpretation” of 

DeRushé. As discussed more fully below, the majority continues to require a level of 

particularization which I believe is disavowed by DeRushé.

I dissent in its entirety to Section C of the majority opinion. Under the guise of an 

analysis of whether no notice was given, the majority engages in a sufficiency of notice analysis. 

The claim reviewed by the majority is a claim of ineffective assistance of counsel based on the 

failure of Kelly‟s attorney to file a motion to suppress. In the list of allegations of conduct 

constituting ineffective assistance of counsel, the application states: “Counsel failed to file 

pretrial motions to suppress.” The attachment to Kelly‟s affidavit, regarding issues presented, 
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states: “Counsel failed to surpress (sic) testimonies and evidence.”1 In this case, the State‟s 

motion alleges that, “petitioner has no evidentiary basis to support his claims. Small v. State, 132 

Idaho 327, 331, 971 P.2d 1151, 1155 (Ct. App. 1999).” The State‟s motion seeks summary 

dismissal of all claims, which would include each of the individual allegations of conduct 

allegedly constituting ineffective assistance of counsel. An application for post-conviction relief, 

based on a claim of ineffective assistance of counsel, will survive a motion for summary 

dismissal only if the applicant establishes: (1) a material issue of fact exists as to whether 

counsel‟s performance was deficient; and (2) a material issue of fact exists as to whether the 

deficiency prejudiced applicant‟s case. Saykhamchone, 127 Idaho 319, 323, 900 P.2d 795, 799 

(citing Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992)). 

The State‟s memorandum in support of the motion clearly addresses the claim of 

ineffective assistance of counsel. The memorandum points out the two-prong test set forth in 

Strickland v. Washington, 466 U.S. 668 (1984), and quotes extensively from Jones v. State, 125 

Idaho 294, 297, 870 P.2d 1, 4 (Ct. App. 1994), regarding ineffective assistance of counsel 

claims. The memorandum further states that, “the petitioner has the burden of identifying the 

acts or omissions of counsel that were not the result of reasonable professional judgment,” citing 

State v. Chapman, 120 Idaho 466, 816 P.2d 1023 (Ct. App. 1991). Kelly was, in my view, 

provided notice that his ineffective assistance of counsel claims, and each of the individual 

allegations, were placed at issue by the motion and memorandum on the ground of lack of 

evidentiary support. Irrespective of the sufficiency of the notice, it is notice. 

The majority requires more. The majority, under the analysis of whether no notice was 

given, requires that the motion specifically reference and address each of the individual 

allegations of conduct allegedly constituting ineffective assistance of counsel. In other words, in 

this instance, by not specifically referring to the allegation that “counsel failed to file pretrial 

motions to suppress,” no notice relative to that specific allegation was given to Kelly. First, I 

believe that once it is established that the state raises the issue of the insufficiency of the

evidence as to the ineffective assistance of counsel claims, whether, and to what extent, the 

 

1

These claims do not, in my view, meet the standard, as articulated by the majority, that 

“the application must present or be accompanied by admissible evidence supporting its 

allegations, or the application will be subject to dismissal.” However, this seems to be of no 

consequence in regard to the question of notice of summary dismissal. 
15

motion and memorandum identifies and addresses each and every allegation of conduct 

constituting ineffective assistance of counsel is a matter of sufficiency of notice. Second, as will 

be addressed more fully below, I do not believe, as the majority does, that “an individualized 

response to a post-conviction applicant‟s allegations,” i.e., specifically referencing each 

allegation of conduct allegedly constituting ineffective assistance of counsel and matching it to a 

particularized basis for dismissal, is required. 

Third, I believe that the memorandum here does specifically refer to the issue raised and 

the grounds for dismissal, even though it does not use the apparently talismanic phrase “motion 

to suppress.” The majority points to the section of the State‟s memorandum containing “failure 

to investigate” in the heading and concludes that, since “the absence of a suppression motion” is 

not mentioned, it provides no notice. Of course, the failure to mention “the absence of a 

suppression motion,” is the negatively stated majority view that the state must individually 

reference the allegation of failure to file a suppression motion in as many words. However, in 

my view, the issue is raised, although, again, the words “motion to suppress” are not stated. The 

memorandum states that, “defense counsel‟s choice of witnesses, manner of cross examination, 

and lack of objection to allegedly damaging evidence falls within the purview of „trial tactics‟ or

„strategy choices‟ that are in the exclusive domain of trial counsel.” (Emphasis added.) The 

failure to file a motion to suppress is, in fact, a pre-trial “lack of objection to allegedly damaging 

evidence.” The majority refuses to acknowledge the above-quoted argument in the 

memorandum, ostensibly because it is set out under the standard of review section rather than the 

argument section. Although these arguments in the State‟s memorandum are not specifically 

matched or referenced to each of the individualized allegations of conduct allegedly constituting 

ineffective assistance of counsel, including failure to file a suppression motion, the asserted 

grounds that Kelly‟s ineffective assistance of counsel claims lack supporting evidence and are 

barred as trial tactics or strategy choices of trial counsel are, indeed, stated.2 

 

2

I hasten to add that the State‟s memorandum is not a model of clarity. The better practice 

for a prosecutor or the court in providing notice, from a practical point of view, as opposed to a 

legal standpoint, would be to attempt to singularly address each separately itemized claim or 

assertion in the application and its supporting documentation. Far too many post-conviction 

relief appeals center on the lack of notice, the lack of sufficient notice, and/or the district court‟s 

decision being based upon grounds not set forth in the notice, rather than the merits of the 

application. An appellate victory by a post-conviction relief applicant on the basis of inadequate 
16

I dissent in its entirety to Section D of the majority opinion.3 The majority undertakes to 

determine whether the district court dismissed on the same, or partially same, ground as stated in 

the State‟s motion and memorandum. The initial claims addressed by the majority relate to 

particular allegations of conduct constituting ineffective assistance of counsel. The majority 

looks for individualized argument in the State‟s memorandum to match with the basis for the 

court‟s determination. I believe the court focuses too narrowly. The district court generally 

characterized the State‟s asserted basis for dismissal of all of the allegations of conduct

constituting ineffective assistance of counsel as follows:

The State argues that summary dismissal is appropriate under I.C. § 19-

4906(c) because the affidavits and other documents filed by Kelly do not contain 

any admissible facts to establish his claims including his claim of ineffective 

assistance of defense counsel. The State further argues that his counsel, Marv 

Stucki (“Stucki”), made several strategic decisions with consent of Kelly during 

the preliminary hearing which cannot be second guessed in a post conviction 

relief proceeding.

It appears that the district court viewed the State‟s motion and memorandum as a whole and 

concluded, as I have, that the State‟s asserted grounds for dismissal, as to all of the individual 

allegations of conduct constituting ineffective assistance of counsel, include lack of supporting 

evidence and trial tactics or strategy choices of trial counsel. Although the district court also 

separately addressed each of the individual allegations of conduct, the district court began its 

ruling with: “In the present case, and according to the above standard, Kelly fails to meet his 

burden on ineffective assistance of counsel.” The district court concluded its analysis of the 

ineffective assistance of counsel claims holding: “Kelly‟s petition for post conviction relief fails 

because his affidavits do not contain admissible facts to support his allegations of ineffective 

assistance of counsel.” (Emphasis added.) In short, the State raised the issue of lack of 

admissible evidence to support any and all of the individual allegations of conduct constituting 

 

notice is no victory at all, only delay. Reasonable notice is essential and deserving of particular 

attention in the context of summary dismissal. However, the process should not derail timely 

analysis of the merits of the application. 

3

I agree, however, with the result as to the claim of ineffective assistance of counsel for 

failure to file a notice of appeal.
17

ineffective assistance of counsel, and the court agreed. The fact that the district court went on to 

comment separately on each individual allegation of conduct constituting ineffective assistance 

of counsel does not change the overall basis for the court‟s dismissal. 

The primary thrust of the State‟s motion is a lack of admissible evidence to establish any 

and all of the claims raised by Kelly. This is not a situation where the state raised lack of 

sufficient evidence and the court dismissed on the ground that the application was untimely, or 

that the issues could or should have been raised on direct appeal or that the petition amounted to 

an improper successive petition or some other ground not remotely related to the adequacy of 

Kelly‟s evidence to support his claims. Again, the motion itself states as its basis that: 

“petitioner has no evidentiary basis to support his claims.” The district court, as to each of the 

individual allegations of conduct constituting ineffective assistance of counsel, found the 

evidence lacking and insufficient. The majority confines itself too narrowly in analyzing only 

the district court‟s separate comments regarding each of the individual ineffective assistance of 

counsel allegations. 

Kelly raised claims of prosecutorial misconduct on the separate grounds that witnesses 

received plea bargains for false testimony at the preliminary hearing and that the state withheld 

exculpatory information. First, as to the claim of withholding of exculpatory evidence, the 

majority points to a document in the exhibits which is entitled “Brief and Affidavit in Support of 

Petition for Post Conviction Relief,” and notes certain statements which it interprets as raising a 

claim of prosecutorial misconduct for withholding exculpatory evidence. However, while the 

title to this document contains the word “affidavit,” it is not an affidavit and should not be 

considered sufficient to raise the claim or as evidence in support of the claim. The document is 

in the form of a brief. The statements noted by the majority are under the heading “argumentanalysis.” The document is not signed or notarized.4

 The State should not be required to provide 

notice of grounds for dismissal of a claim that was asserted in an unsigned, unverified brief. 

Second, as to the claim of receipt of plea bargains for false testimony at the preliminary 

hearing, the majority concludes that the basis for the court‟s decision was not included in the 

motion and memorandum filed by the State. The majority states: “The only possible reference 

to Kelly‟s claims of prosecutorial misconduct is in this portion of the heading [„witness 

 

4 Although, conversely, the petition and affidavit for post-conviction relief and the 

affidavit in response to the motion are signed and notarized.
18

tampering‟] as that section does not further address Kelly‟s claim.” The majority, thereafter, 

holds that “without deciding whether „witness tampering‟ in a heading constitutes notice” the 

district court decided the issue on grounds other than advanced in the motion and memorandum. 

A review of the application yields no other allegations which may fall under the rubric of witness 

tampering. The claim under review is, therefore, the only claim of action which could constitute 

witness tampering. The language could refer to nothing else. In addition, the majority 

recognizes that this allegation involves matters occurring at the preliminary hearing. The

“heading” in the State‟s memorandum, to which the majority refers, also includes “issues dealing 

with testimony at the preliminary hearing.” The issue was, indeed, raised.

The district court dismissed this claim on the ground that Kelly had failed to submit 

admissible facts to support the claim. As the majority notes, the argument set forth in the section 

of the State‟s memorandum which raises this issue of prosecutorial misconduct does not 

expressly reference insufficiency of the evidence as a basis for dismissal.5 But, as demonstrated 

above, the State‟s motion generally asserts that, “petitioner has no evidentiary basis to support 

his claims.” In addition, the State‟s memorandum argues that “an applicant for post-conviction 

relief is subject to summary dismissal under I.C. § 19-4906(c) where the application fails to 

present or be accompanied by admissible evidence supporting its allegations.” The State‟s 

motion seeks summary dismissal of all claims, which should be understood to include the 

prosecutorial misconduct claims. So, this issue of prosecutorial misconduct is identified in the 

State‟s memorandum and the State asserts, generally, that all of Kelly‟s claims lack sufficient 

evidence. The question presented, then, is whether this is enough to put Kelly on notice that, as 

to all of his claims, he is required to submit sufficient evidence to create a genuine issue of fact. 

The majority thinks not. The majority requires that the state provide “an individualized 

response” to each of the applicant‟s claims and arguments. However, since under DeRushé, 146

Idaho at 601-02, 200 P.3d at 1150-51, in order to adequately state that a claim lacks sufficient 

evidence “reasonable particularity only requires pointing that out,” and “it does not require 

 

5

This presents the not infrequently encountered situation where the motion states a ground 

for dismissal, e.g., insufficiency of evidence as to all claims, and then proceeds to provide 

argument on particular aspects of the asserted insufficiency. While, I understand that the 

applicant may conclude that the argument narrows the scope of the more broadly asserted ground 

for dismissal, nonetheless, the applicant should be held to be on notice that the insufficiency of 

the evidence is at issue and the court should be free to dismiss on that ground.
19

explaining what further evidence is necessary, particularly since it may not exist,” there was 

nothing more for the State to provide by way of explanation as to how or why the evidence was 

insufficient. Identifying the claim as being part of the motion and stating that all claims lack 

sufficient evidence should satisfy the DeRushé standard, since there is nothing more to add. 

In addition, Kelly understood that the issue raised by the State related to the sufficiency 

of the evidence. In his reply to the State‟s motion for summary dismissal, Kelly responded to 

each of paragraphs (1) through (5) of the motion. As to paragraph (1) Kelly responded:

Witness tampering, see affadavit (sic) John Pirce, also private investigator 

working on affidavits for Lacy Scouted (sic), Jeremy Plank, Heather 

Cunningham, Mike Kent, Brad Kelly, Ron Kelly, Eric Hinkley, Tangee Kelly, 

also see defendant affidavit.

The affidavit states that Heather Cunningham was told to point the finger at Kelly and “they 

would get no time if they said they got their drugs from me.” According to the affidavit, Hinkley 

and Plank told Kelly that a detective told them if they would just say that they got all their drugs 

and money from Kelly they would get all their charges dropped. In addition, the affidavit states 

that Lacy Scouten was told to say that she got all of her drugs from Kelly. Kelly was aware of 

what the State meant by “witness tampering” and that the adequacy of his evidence was at issue.6 

Finally, as referenced above, I disagree with the specific allegation-to-argument matching 

required by the majority. The majority cites to Garza v. State, 139 Idaho 533, 537-38, 82 P.3d 

445, 449-50 (2003), Franck-Teel v. State, 143 Idaho 664, 669, 152 P.3d 25, 30 (Ct. App. 2006), 

Flores v. State, 128 Idaho 476, 478, 915 P.2d 38, 40 (Ct. App. 1996), and Martinez v. State, 126 

Idaho 813, 818, 892 P.2d 488, 493 (Ct. App. 1995), for the proposition that the State must, in its 

motion and memorandum, provide “an individualized response to a post-conviction applicant‟s 

allegations.” While the majority attempts to stop short of requiring that the motion utilize 

specific phrases, such as “motion to suppress” or “prosecutorial misconduct,” the majority does, 

in fact, require such specificity and more. I will use Franck-Teel as an example. In Franck-Teel

this Court rejected the following grounds for dismissal set forth in the State‟s motion:

1. That Petitioner alleges conclusory allegations and does not raise a 

genuine issue of material fact or timely filed. 

 

6

Since Kelly‟s response demonstrates that he understood the basis for dismissal, any 

inadequacy of the notice is harmless error. Baker v. State, 142 Idaho 411, 421-22, 128 P.3d 948, 

958-59 (Ct. App. 2005). 
20

2. Petitioner fails to present facts adequate to indicate that [her] counsel‟s 

conduct so undermined the proper functioning of the adversarial process so as to 

produce an unjust result. 

3. Petitioner fails to present facts adequate to indicate that [her] counsel‟s 

conduct was deficient because it fell outside the wide range of professional 

norms. 

4. That the Petitioner fails to present facts adequate to indicate prejudice 

as a result of deficient conduct of [her] counsel. 

5. That the Petitioner fails to assert facts adequate to overcome the 

presumption that [her] counsel‟s performance constituted adequate assistance and 

was made with all significant decisions in the exercise of reasonable professional 

judgment. 

6. Petitioner failed to allege facts adequate to overcome the indication that 

strategic and tactical decisions were objectively appropriate.

Franck-Teel, 143 Idaho at 669, 152 P.3d at 30. This Court held that the above arguments failed 

to provide sufficient notice. This Court also rejected the above “broad and generic” arguments 

because they “do not refer to Franck-Teel‟s specific allegations and, thus, cannot be construed as 

addressing the perceived flaws in any particular item of evidence or legal analysis, which 

Franck-Teel needed in order to avoid summary dismissal.” Id. 

It is my belief, first, that the Franck-Teel motion does, indeed, provide sufficient notice 

under DeRushé. Regarding sufficiency of notice by reasonable particularity, DeRushé states the 

following:

The applicant for post-conviction relief is required to make a prima facie 

case by presenting admissible evidence on each essential element of his or her 

claims. Berg v. State, 131 Idaho 517, 518-19, 960 P.2d 738, 739-40 (1998); I.C. § 

19-4903. If the ground for summary disposition is that assertions by the applicant 

are not admissible evidence, stating the ground with reasonable particularity 

requires no more than the level of particularity required to object to the 

admissibility of that evidence, such as that it is conclusory, hearsay, or lacking 

foundation. It is rarely necessary to further explain those objections. If the 

ground for summary disposition is that there is no admissible evidence on an 

essential element of a claim, reasonable particularity only requires pointing that 

out. For example, claims of ineffective assistance of defense counsel or of 

prosecutorial misconduct in withholding evidence favorable to the accused both 

require prejudice to the defendant. State v. Yakovac, 145 Idaho 437, 444, 180 

P.3d 476, 483 (2008) (a claim for ineffective assistance of counsel requires a 

showing “there is a reasonable probability that, but for counsel‟s errors, the result 

would have been different”); Dunlap v. State, 141 Idaho 50, 64, 106 P.3d 376, 

390 (2004) (an essential element of a Brady violation is that “prejudice must have 

ensued”). Reasonable particularity only requires pointing out that there is a lack 
21

of evidence showing prejudice. It does not require explaining what further 

evidence is necessary, particularly since it may not exist.

DeRushé, 146 Idaho at 601-02, 200 P.3d at 1150-51. For instance, paragraph 4 of the FranckTeel motion which states: “That the Petitioner fails to present facts adequate to indicate 

prejudice as a result of deficient conduct of [her] counsel,” is precisely what the court in 

DeRushé deemed sufficient when it stated: “Reasonable particularity only requires pointing out 

that there is a lack of evidence showing prejudice.” So, clearly, this Court‟s decision in FranckTeel, as to the substantive content of the motion necessary to provide sufficient notice, is too 

exacting in light of DeRushé. 

As to the majority‟s requirement that the State‟s motion and memorandum specifically 

refer to each and all of the allegations perceivably raised by the application, I again think the 

majority is too exacting. The Court rejected the categorical reference to the applicant‟s 

allegations in the Franck-Teel motion and the majority here similarly rejects the State‟s 

memorandum which “categorized Kelly‟s claims.” Instead, the majority of this Court requires 

that the motion and memorandum set out each and all of the applicant‟s allegations, on an

“individualized” basis, and then separately state all grounds for dismissal with particularity as to 

each. As a practical matter, this requires the State to set out each of the applicant‟s allegations as 

plead, since the motion cannot refer to the claims by category, e.g., “ineffective assistance of 

counsel,” and paraphrasing the applicant‟s allegation would only introduce potential confusion. 

Specific argument as to the grounds for dismissal must, then, immediately follow the recitation 

to the allegation(s), as the court refuses to apply a generally stated basis for dismissal to any 

individual claim.7 Yet, since DeRushé does not require adding any specificity to an argument 

that there is a lack of evidence supporting a claim, I fail to see why that ground for dismissal 

cannot be generally stated applicable to all claims rather than in an “individualized response” to 

each and every claim. Once again, in this case, the motion states that, “petitioner has no 

 

7 As an example, in this case, the application sets forth thirteen individual allegations of 

conduct constituting ineffective assistance of counsel. The list of issues attached to the affidavit 

adds five more, and the twenty-nine page brief reveals at least one more such allegation. 

According to the majority, the motion must provide an “individualized response” to each and all 

of these nineteen allegations of conduct constituting ineffective assistance of counsel. The 

majority is unwilling to accept a motion which refers to the applicant‟s “ineffective assistance of 

counsel claims” categorically.
22

evidentiary basis to support his claims.” DeRushé does not require that the State point out what 

evidence is lacking. The State‟s motion seeks dismissal of all claims. Under the circumstances, 

the applicant should be held to be on notice that each of his individual claims is asserted by the 

State to lack evidentiary support.8 

 

8

I agree with the practical suggestions set forth in the special concurrence.