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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44817

STEVEN EUGENE ROBERTS, III,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2018 Opinion No. 15

Filed: March 23, 2018

Karel A. Lehrman, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Steven Hippler, District Judge. 

Order summarily dismissing petition for post-conviction relief, affirmed.

Greg S. Silvey, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney 

General, Boise, for respondent. 

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GUTIERREZ, Judge

Steven Eugene Roberts, III, appeals from the district court’s order summarily dismissing 

his petition for post-conviction relief. Roberts argues that the district court erred because it 

created a class of claims that is unreviewable. For the following reasons, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

After a bench trial, the district court found Roberts guilty of burglary and arson in the 

first degree. Roberts then admitted to being a persistent violator. The district court imposed a 

unified thirty-year sentence, with a minimum period of confinement of ten years, for arson in the 

first degree and a concurrent unified ten-year sentence, with a minimum period of confinement 

of five years, for burglary. Roberts timely appealed. This Court affirmed Roberts’ conviction. 

State v. Roberts, Docket No. 42534 (Ct. App. Sept. 17, 2015) (unpublished).
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Roberts then filed a petition for post-conviction relief setting forth numerous claims. The 

State moved for summary dismissal, which was granted. Specific to Roberts’ claim that his 

appellate counsel rendered ineffective assistance by not pursuing issues on appeal as 

fundamental error, the district court dismissed pursuant to Mintun v. State, 144 Idaho 656, 662, 

168 P.3d 40, 46 (Ct. App. 2007). Other claims were dismissed pursuant to Bias v. State, 159 

Idaho 696, 702, 365 P.3d 1050, 1056 (Ct. App. 2015), on the basis that they were “barred as 

forfeited because [they] could have been raised on direct appeal.” Roberts timely appealed.

II.

STANDARD OF REVIEW

A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho 

Code § 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 Idaho Rule of Civil 

Procedure 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 postconviction 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, 
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unsupported by admissible evidence, or the petitioner’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). Moreover, the district court, as the trier of fact, is not constrained 

to draw inferences in favor of the party opposing the motion for summary disposition; rather, the 

district court is free to arrive at the most probable inferences to be drawn from uncontroverted 

evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such 

inferences will not be disturbed on appeal if the uncontroverted evidence is sufficient to justify 

them. Id. 

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). 
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III.

ANALYSIS

Pursuant to Idaho Appellate Rule 35(a)(4), the brief of the appellant must contain, under 

the appropriate heading, a list of the issues presented on appeal. The failure of an appellant to 

include an issue in the statement of issues required by I.A.R. 35(a)(4) will eliminate 

consideration of the issue from appeal. State v. Crowe, 131 Idaho 109, 111, 952 P.2d 1245, 1247 

(1998). This rule may be relaxed, however, where the issue is argued in the briefing and citation 

to authority is provided. Id. 

Roberts’ brief fails to comply with I.A.R. 35(a)(4) as it does not include a statement of 

issues. Roberts does state the issue under the “Nature of the Case” subsection and in the heading 

of the “Argument” section of his brief, but that is not what I.A.R. 35(a)(4) mandates. 

Additionally, Roberts has not assigned specific error to the district court’s actions. This Court 

will not review the actions of a district court which have not been specifically assigned as error. 

State v. Hoisington, 104 Idaho 153, 159, 657 P.2d 17, 23 (1983). Roberts needed to explain how 

the district court erred in applying I.C. § 19-4901(b), Mintun, and Bias to the facts of this case, 

because even if application of I.C. § 19-4901(b), Mintun, and Bias “whipsaws the petitioner,” 

that does not mean the district court erred.

Moreover, Roberts does not provide any authority supporting his argument that the 

district court erred by making a class of claims effectively unreviewable. See State v. Zichko, 

129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (“A party waives an issue cited on appeal if either 

authority or argument is lacking, not just if both are lacking.”). Roberts’ argument section is 

divided into four subsections. The first three subsections include citations to Mintun, Bias, and

cases dealing with the applicable standards of review. The final subsection is where Roberts lays 

out his argument for why the district court’s order creating a class of unreviewable claims is 

erroneous. In this subsection, Roberts presents this Court with no authority supporting his 

assertion that the district court’s application of Mintun and Bias was erroneous. In fact, in a 

footnote, Roberts asserts “it seems doubtful that these claims could have been brought on the 

direct appeal record.” Roberts provides no explanation about why the claims could not be raised 

on direct appeal so that the application of Mintun would be erroneous. Moreover, Roberts does 

not explain how the court created a class of claims that is unreviewable, as opposed to applying 

the law to individual claims. The State, in its response brief, even noted that Roberts provided 
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no authority to support his argument, but Roberts failed to file a reply brief citing to some 

authority for his argument. One reason why this lack of authority is problematic in this case is 

that we are left to guess whether Roberts is challenging the district court’s application of law to 

his claims or the legitimacy of the case law applied. Providing an issue statement and authority 

could have clarified the specific basis for Roberts’ argument, rather than leaving this Court to 

speculate about the specific error complained of and the legal basis for Roberts’ reasoning. 

IV.

CONCLUSION

Procedural bars prevent this Court from considering the issue on the merits. Though 

failure to strictly adhere to I.A.R. 35(a)(4) is not always fatal, Roberts also failed to assign 

specific error to the district court or cite to any authority supporting his argument. Accordingly, 

the district court’s order summarily dismissing Roberts’ petition for post-conviction relief is 

affirmed. 

Judge HUSKEY and Judge LORELLO CONCUR.