1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46032

MIGUEL Z. ZAVALA,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

)

)

)

)

)

)

)

)

)

)

Filed: October 31, 2019

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Owyhee County. Hon. Thomas W. Whitney, District Judge. 

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

Robyn A. Fyffe, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy 

Attorney General, Boise, for respondent. Andrew V. Wake argued.

________________________________________________

LORELLO, Judge 

Miguel Z. Zavala appeals from a judgment of the district court summarily dismissing 

Zavala’s petition for post-conviction relief. For the reasons set forth below, we affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In the underlying criminal case, the State charged Zavala with attempted first degree

murder. The case proceeded to a jury trial. The trial court instructed the jury on the elements of 

attempted first degree murder and, as an included offense, aggravated battery. The jury acquitted 

Zavala of attempted first degree murder, but found him guilty of aggravated battery. Zavala 

appealed, claiming only that his sentence constituted an abuse of discretion. This Court affirmed 

Zavala’s judgment of conviction and sentence in an unpublished opinion. State v. Zavala, 

Docket No. 43906 (Ct. App. Nov. 9, 2016).
2

Subsequently, Zavala filed a pro se petition for post-conviction relief and requested the 

appointment of counsel. The district court appointed counsel and set a deadline for the filing of 

an amended petition. Ultimately, Zavala’s counsel did not file an amended petition. Rather, 

Zavala’s counsel requested that the district court proceed on Zavala’s pro se petition and 

supporting materials. The district court interpreted Zavala’s pro se petition as asserting claims of 

ineffective assistance of counsel,

1 prosecutorial misconduct, and abuse of discretion in certain 

evidentiary rulings by the trial court. To support these claims, Zavala attached to his petition his

affidavit along with police reports, medical records, and invoices for vehicle repairs connected to

an unrelated incident allegedly perpetrated by the victim.

The district court gave notice of its intent to summarily dismiss Zavala’s petition and

provided him twenty days to respond. After reviewing Zavala’s response, the materials 

submitted with the petition and certain materials from the underlying criminal case,

2 the district 

court summarily dismissed Zavala’s petition. Zavala appeals. 

II.

STANDARD OF REVIEW

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 v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). Over 

questions of law, we exercise free review. Rhoades v. State, 148 Idaho 247, 250, 220 P.3d 1066, 

1069 (2009); Downing v. State, 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001). 

 

1 Specifically, Zavala’s petition asserted that his trial counsel was ineffective by failing to 

object to the aggravated battery instruction, present evidence of the victim’s violent disposition, 

and impeach the victim with inconsistent statements.

2 In a separate order issued contemporaneously with the district court’s notice of intent to 

dismiss, the district court took judicial notice of the information, the court minutes from the 

second day of Zavala’s jury trial, the jury instructions, and Zavala’s amended notice of appeal.
3

III.

ANALYSIS

Zavala raises three claims of error on appeal: (1) the trial court lacked subject matter 

jurisdiction over the aggravated battery charge because it is not an included offense of attempted 

first degree murder; (2) the district court erred in summarily dismissing Zavala’s ineffective 

assistance of counsel and prosecutorial misconduct claims; and (3) the district court erred in 

dismissing Zavala’s petition without considering the transcripts from his underlying criminal 

case. The State responds that: (1) I.C. § 19-4901(b) bars Zavala’s subject matter jurisdiction 

claim because he failed to raise it on direct appeal and the claim otherwise fails on the merits; 

(2) the district court properly dismissed Zavala’s petition without an evidentiary hearing because

he failed to provide evidence substantiating his ineffective assistance of counsel claim and failed 

to raise his prosecutorial misconduct claim on direct appeal; and (3) the district court had no 

obligation to sua sponte review the underlying transcripts or compel the State to file the 

transcripts. We hold that Zavala has failed to show the district court erred in summarily 

dismissing his post-conviction petition. 

A. Subject Matter Jurisdiction 

Zavala argues that the trial court in his criminal case lost subject matter jurisdiction once 

the jury acquitted him of attempted first degree murder. According to Zavala, because 

aggravated battery was not properly submitted to the jury as an included offense, there was no 

jurisdiction to convict him of it. This claim was not raised at trial or on direct appeal, nor was it 

alleged as a substantive claim in Zavala’s petition. The only reference to subject matter 

jurisdiction was in Zavala’s supporting affidavit where he wrote:

When a jury is asked without objection to consider an included offense 

and the jury convicts the defendant of that offense does the Idaho Supreme 

Court’s opinion in State v. Flegel, 151 Idaho 525, 261 P.3d 519 (2011) require 

reversal based on lack of subject matter jurisdiction if the appellate court 

determines that the offense of conviction does not qualify as an included offense 

or does the appellate court analyze the issue as instructional error under the 

fundamental error standard of review. 

The State contends that I.C. § 19-4901(b) bars consideration of this argument and the claim 

otherwise fails on the merits. We hold that this claim fails because it is not properly before the 

Court.
4

The district court in this case clearly had subject matter jurisdiction. Zavala does not 

appear to contend otherwise. Rather, Zavala’s argument is based on an alleged lack of 

jurisdiction in his underlying criminal case. The Idaho Supreme Court rejected a similar 

argument in Brown v. State, 159 Idaho 496, 363 P.3d 337 (2015). In Brown, a petitioner seeking 

post-conviction relief appealed the dismissal of his petition, arguing for the first time on appeal

that the trial court in the underlying criminal case exceeded its subject matter jurisdiction. The 

Court held that, because a criminal case is separate from a post-conviction case, the petitioner 

could not challenge the jurisdiction in the criminal case for the first time on appeal in the 

post-conviction case. Id. at 498, 363 P.3d at 339. Because the petitioner did not challenge the 

judgment in the post-conviction case, the Court affirmed the judgment. Id. 

Brown is dispositive of Zavala’s jurisdictional argument. Although Zavala challenges the 

dismissal of his post-conviction petition on other grounds in addition to his subject matter 

jurisdiction claim, his subject matter jurisdiction argument does not present a valid challenge to 

the judgment in this case. Therefore, Zavala’s subject matter jurisdiction claim cannot provide a 

basis to overturn the district court’s judgment dismissing his post-conviction petition.3

B. Summary Dismissal

Claims in a post-conviction petition 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). 

1. Prosecutorial misconduct 

Zavala argues that the district court erred in summarily dismissing his prosecutorial 

misconduct claim based on Zavala’s failure to raise the claim on direct appeal as required by 

 

3 Zavala’s subject matter jurisdiction claim also fails on the merits. Under Idaho law, a 

trial court retains subject matter jurisdiction through the delivery of a jury verdict even if the 

court erroneously instructs the jury on an included offense. See State v. McIntosh, 160 Idaho 1, 

7, 368 P.3d 621, 627 (2016); State v. Herrera, 149 Idaho 216, 221-22, 233 P.3d 147, 152-53 (Ct. 

App. 2009). 
5

I.C. § 19-4901(b). Zavala contends that an unpreserved prosecutorial misconduct claim “that 

does not meet the fundamental error test” cannot be raised on direct appeal. The State contends 

that Zavala’s arguments regarding the dismissal of his prosecutorial misconduct claim should not 

be considered because they are being raised for the first time on appeal. Alternatively, the State 

contends that the district court correctly dismissed this claim because Zavala failed to support it 

with admissible evidence and his argument that unobjected-to prosecutorial misconduct should 

never be barred under I.C. § 19-4901(b) otherwise fails on the merits. We affirm the district 

court’s summary dismissal of Zavala’s prosecutorial misconduct claim on the unchallenged basis 

that Zavala failed to support the claim with admissible evidence.

In his petition, Zavala alleged that the “prosecutor used false testimony that he/she knew 

or had reason to believe was false.” In its notice of intent to dismiss, the district court 

characterized the substance of this claim as alleging “that the prosecutor knew the victim was 

lying, and that the introduction of a knife at trial amounted to false evidence.” The district court 

indicated its intent to dismiss this claim on two grounds. First, the district court stated that the 

claim could have been raised on direct appeal and Zavala failed to present any evidence 

explaining why he failed to do so. Second, the district court stated that Zavala failed to support 

his claim with admissible evidence. In his response to the district court’s notice, Zavala asserted 

that the district court failed to address the allegation in his affidavit that the prosecutor 

committed misconduct by failing to “present testimony from the second, alleged victim” who 

would have provided a “conflicting account” of events. As to the district court’s notice 

regarding raising the claim on direct appeal, Zavala responded that his appellate attorney 

“authored a letter indicating he would not raise any issue on appeal other than the propriety of 

[Zavala’s] sentence.” Zavala indicated he requested a copy of that letter from appellate counsel 

but had not received it. The district court subsequently issued an order dismissing Zavala’s 

prosecutorial misconduct claim. In that order, the district court reiterated dismissal was 

appropriate because the claim could have been raised on direct appeal. The district court also 

noted that Zavala failed to provide any evidence that his “prosecutorial misconduct claim raises a 

substantial doubt about the reliability of the finding of guilt.” 

On appeal, Zavala only challenges whether his prosecutorial misconduct claim should 

have been dismissed pursuant to I.C. § 19-4901(b). However, the district court also notified 
6

Zavala that his prosecutorial misconduct claim was subject to summary dismissal because he

failed to support the claim with admissible evidence. Because Zavala does not challenge this 

basis for dismissal, he has failed to show the district court erred in this regard. See Brown v. 

Greenheart, 157 Idaho 156, 165, 335 P.3d 1, 10 (2014).

2. Ineffective assistance of counsel--aggravated battery instruction

Zavala argues that the district court erred in summarily dismissing his claim that trial 

counsel was ineffective for failing to object to the aggravated battery instruction on the basis that 

it was not an included offense of attempted first degree murder. The State contends that the 

district court correctly dismissed Zavala’s ineffective assistance claim because he failed to 

support it with admissible evidence. We hold that summary dismissal of this claim was 

appropriate because Zavala did not allege a genuine issue of material fact that counsel was 

ineffective for failing to object to the aggravated battery instruction. 

In Schoger v. State, 148 Idaho 622, 624, 226 P.3d 1269, 1271 (2010), the Idaho Supreme 

Court articulated the standard for summary dismissal of an ineffective assistance of counsel 

claim as follows:

For an application for post-conviction relief based on a claim of 

ineffective assistance of counsel to survive summary dismissal, the petitioner 

must establish that: (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 the claimant’s case.

To establish deficiency, the petitioner has the burden of showing that the attorney’s 

representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 

U.S. 668, 687-88 (1984). To establish prejudice, the petitioner must show a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different. Id. at 694. A reasonable probability is one that is sufficient to undermine 

confidence in the outcome. Id.

In his petition, Zavala alleged that trial counsel was ineffective for failing to object to the 

aggravated battery jury instruction because aggravated battery was not a proper included offense 

to attempted first degree murder. The district court notified Zavala of its intent to dismiss this 

claim, stating: (1) the jury was properly instructed because “the criminal information plainly 

alleges facts that meet the elements of aggravated battery” and (2) “a jury determined those facts 
7

had been proven.” The district court therefore concluded there was no basis to find trial 

counsel’s representation was deficient or that Zavala was prejudiced as a result of counsel’s 

failure to object to the aggravated battery instruction. The district court subsequently dismissed 

the claim for the reasons stated in its notice. Although aggravated battery was not an included 

offense of attempted first degree murder as pled in the information, Zavala nevertheless failed to 

allege a genuine issue of material fact that counsel was ineffective for failing to object to the 

aggravated battery instruction. 

There are two ways in which a criminal charge can be deemed an included offense of 

another criminal charge. The first is the statutory theory and the second is the pleading theory. 

Neither party contends that the statutory theory applies. Rather, both parties argue the 

applicability of the pleading theory. The pleading theory provides that an included offense is one 

that is necessarily proven if the facts alleged in the charging document are established. State v. 

McIntosh, 160 Idaho 1, 5, 368 P.3d 621, 625 (2016). The information in Zavala’s criminal case 

alleged, in relevant part, that Zavala “willfully, unlawfully, deliberately, with premeditation, and 

with malice aforethought, attempt[ed] to kill and murder a human being” by “attempting to run 

[the victim] over with an automobile and/or by attempting to stab or slice him with a knife.” The 

pertinent elements for attempted first degree murder required the jury to find that Zavala 

attempted to commit first degree murder by “one or more of the manners alleged in the 

information.” The aggravated battery charge the jury was instructed to consider as an included 

offense read, in part:

If you find that the state has failed to prove beyond a reasonable doubt that 

[Zavala] committed Attempted First Degree Murder, then you shall consider 

whether the state has proved beyond a reasonable doubt the included offence of 

Aggravated battery.

In order for [Zavala] to be convicted of Aggravated Battery the state must 

prove each of the following facts beyond a reasonable doubt:

. . . .

4. [Zavala] committed an act of battery on the victim;

5. As a result of the battery the victim suffered great bodily harm or 

permanent disfigurement or permanent disability. 

For aggravated battery to be an included offense of attempted first degree murder under 

the pleading theory, the information charging Zavala with attempted first degree murder must 

have alleged facts that would have necessarily proven he committed aggravated battery as 
8

defined by the jury instruction. It did not. The information is devoid of any allegation that 

Zavala actually battered the victim or that the victim suffered great bodily harm, permanent 

disfigurement, or permanent disability as a result of any battery. Thus, aggravated battery cannot 

be considered an included offense of attempted first degree murder as pled in the information. 

Thus, it was error to summarily dismiss Zavala’s claim that trial counsel was ineffective for 

failing to object to the instruction on this basis.

Nevertheless, the question remains whether Zavala alleged a genuine issue of material 

fact in support of his claim that counsel was ineffective for failing to object to the aggravated 

battery instruction. Paragraph nine of the post-conviction petition required Zavala to list his 

ineffective assistance of counsel claims. In that list, Zavala alleged: “my trial attorney failed to 

object on the jury instruction. [A]ggravated battery is not a lesser included offense.” However, 

that aggravated battery was not a lesser included offense of attempted first degree murder under 

the pleading theory does not mean that counsel was deficient for not objecting to the instruction. 

For example, counsel may not have objected if the evidence was that Zavala stabbed the victim, 

in which case any variance between the language of the information and the jury instructions 

would not have been prejudicial. See State v. Gas, 161 Idaho 588, 592-93, 388 P.3d 912, 916-17 

(Ct. App. 2016) (rejecting variance claim because the defendant had notice of the factual basis of 

the charge and was not thwarted in his defense). The court minutes considered by the district 

court are consistent with such a view of the evidence. In conjunction with his motion for 

judgment of acquittal, trial counsel asked the court to dismiss the attempted first degree murder

charge and submit the case to the jury only on aggravated battery with a self-defense instruction. 

The record, therefore, indicates that trial counsel concluded there was sufficient evidence to 

submit the charge of aggravated battery to the jury with no indication that Zavala was misled or 

embarrassed in his defense by submission of such a charge. Zavala failed to allege any facts or 

submit any evidence that would overcome the presumption that counsel’s actions in this regard 

were not constitutionally deficient or that Zavala was prejudiced as a result. Zavala concedes as 

much on appeal, but contends the failure of proof could be because the trial transcript was not 

considered by the district court. Setting aside the requirement that it was Zavala’s burden to 

allege facts in support of his claim in the first instance, his assertion, for the first time on appeal, 

that the trial transcript might contain evidence that would establish a prima facie case that 
9

counsel’s performance was deficient is inadequate to show the district court erred in summarily 

dismissing his claim. See Roman v. State, 125 Idaho 644, 647-50, 873 P.2d 898, 901-04 (Ct. 

App. 1994) (affirming summary dismissal where claims were based on conclusory allegations, 

unsupported by any fact). Because Zavala did not allege a genuine issue of material fact in 

relation to his claim that counsel was ineffective for failing to object to the aggravated battery 

instruction, the district court did not err in summarily dismissing this claim. 

C. Additional Records and Transcripts

Zavala argues that the district court erred in summarily dismissing his post-conviction 

petition without first compelling the State to “produce records and transcripts from the 

underlying criminal proceeding that were material to [his] claims or noticing those transcripts of 

its own accord.” Zavala contends that such was required by I.C. § 19-4906. The State responds 

that the district court had no obligation to judicially notice or compel the State to file any records 

from the underlying criminal case absent a motion by Zavala. The State further argues that 

Zavala invited any error on this point by requesting that the district court evaluate his petition 

based only upon the evidence he previously submitted. We decline to consider Zavala’s 

complaints about the State’s failure to file records with its answer and the district court’s failure 

to sua sponte judicially notice additional records because those complaints are being raised for 

the first time on appeal. 

Idaho Code Section 19-4906(a) provides that, if a post-conviction petition is not 

accompanied by the record of the challenged proceedings, the State shall file with its answer the 

record or portions thereof that are material to the questions raised in the petition. Although the 

State filed an answer, it did not file any portions of the record. Zavala did not object to the 

State’s failure to file records nor did he ask the district court to compel the State to file additional 

records. 

Idaho Code Section 19-4906(b) provides that a court may provide notice of its intent to 

dismiss a post-conviction petition if it is satisfied, on the basis of the petition, the answer or 

motion and the record, that the petitioner is not entitled to post-conviction relief and no purpose 

would be served by any further proceedings. Zavala appears to construe this section as requiring 

a court to sua sponte take judicial notice of portions of the record relevant to a petitioner’s claim 

prior to summary dismissal. Although nothing in the plain language of the statute requires a 
10

district court to do so, the district court in this case took judicial notice of several documents 

from Zavala’s underlying criminal case prior to dismissing his petition. Zavala did not object to 

the scope of the district court’s judicial notice nor ask the district court to take judicial notice of 

additional documents. 

Generally, issues not raised below may not be considered for the first time on appeal. 

Sanchez v. Arave, 120 Idaho 321, 322, 815 P.2d 1061, 1062 (1991). Zavala’s complaints about 

the State’s and district court’s inaction are being raised for the first time on appeal. As such, we 

decline to consider them. 

IV.

CONCLUSION

Zavala’s claim that the trial court in the underlying criminal case exceeded its subject 

matter jurisdiction is not properly before the Court. The district court did not err in summarily 

dismissing Zavala’s prosecutorial misconduct claim on the unchallenged basis that he failed to 

support the claim with admissible evidence. Zavala did not allege a genuine issue of material 

fact that counsel was ineffective for failing to object to the aggravated battery instruction. We 

decline to consider Zavala’s complaints about the State’s failure to file records with its answer 

and the district court’s failure to sua sponte judicially notice additional records because those 

complaints are being raised for the first time on appeal. Accordingly, the judgment summarily 

dismissing Zavala’s petition for post-conviction relief is affirmed. 

Chief Judge GRATTON and Judge BRAILSFORD, CONCUR.