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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45942

DARRYL HENDERSON,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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Filed: April 14, 2020

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

County. Hon. Deborah A. Bail, District Judge. 

Order denying motion to amend petition for post-conviction relief and judgment 

dismissing petition for post-conviction relief, affirmed.

Greg S. Silvey, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kale D. Gans, Deputy Attorney 

General, Boise, for respondent. 

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BRAILSFORD, Judge

Darryl Henderson appeals from the district court’s order denying his motion to amend his

previously amended petition for post-conviction relief and the judgment dismissing his amended 

petition for post-conviction relief. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Henderson’s petition for post-conviction relief relates to three underlying criminal cases. 

In March 2010, the State filed a complaint charging Henderson with three counts of lewd 

conduct with a minor child under sixteen and one count of delivery of a controlled substance. 

I.C. § 18-1508; I.C. § 37-2732(a)(1)(A). Additionally, the State alleged Henderson was a 

persistent violator of the law. I.C. § 19-2514. These charges related to Henderson, who was 

forty-six years old at the time, having sex multiple times with a fourteen-year-old runaway and 
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exchanging methamphetamine for sex. In May 2010, the State filed a second complaint charging 

Henderson with additional counts of possession of methamphetamine and of possession of drug 

paraphernalia. I.C. § 37-2732(a)(1)(A); I.C. § 37-2734A(3). A day later, the State filed a third 

complaint charging Henderson with three counts of possession of a forged check. I.C. § 18-

3605.

The parties entered into a single plea agreement to resolve all three of these criminal 

cases. Under this agreement, Henderson agreed to plead guilty to one count of lewd conduct and 

one count of possession of a forged check. In exchange, the State agreed to drop all other 

remaining counts in all three criminal cases, including the allegation that Henderson was a 

persistent violator. Further, the State agreed to recommend concurrent sentences of twenty-five 

years with five years determinate for lewd conduct and seven years with three years determinate 

for possession of a forged check. At the sentencing hearing, Henderson admitted to having 

sexual relations with the victim, and the district court imposed concurrent sentences of twentyfive years with five years determinate for lewd conduct and ten years with three years 

determinate for possession of a forged check. The district court denied Henderson’s motion 

challenging his sentences under Idaho Criminal Rule 35, and this Court affirmed the district 

court’s judgment of conviction and sentences. State v. Henderson, Docket Nos. 38088/38089 

(Ct. App. May 12, 2011) (unpublished).

In May 2012, Henderson filed a pro se petition for post-conviction relief and his 

supporting affidavit. In this petition, Henderson alleged numerous claims of ineffective 

assistance of counsel. In response, the State filed an answer and also the affidavit of 

Henderson’s trial counsel denying Henderson’s allegations. Thereafter in August, Henderson 

filed an amended pro se petition alleging additional claims that his trial counsel was ineffective, 

including for failing to investigate the authenticity of the victim’s statements regarding 

Henderson’s lewd conduct. In support of this amended petition, Henderson filed the victim’s 

affidavit. In this affidavit, the victim recanted her prior statements that she and Henderson had 

sexual relations, and she attested the police coerced her into accusing Henderson of lewd 

conduct.

The State responded to Henderson’s amended petition requesting that the district court 

“consider the matter of amending petitions closed.” Further, the State notified the court that a 

grand jury had indicted Henderson for suborning perjury by coercing his victim into signing the
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affidavit in support of Henderson’s amended petition. As a result, the court stayed Henderson’s 

post-conviction case until the resolution of the suborning perjury charge. Eventually, Henderson 

pled guilty to amended charges of bribing and intimidating a witness.

Sometime thereafter, in October 2016, the district court issued a notice of intent to 

dismiss Henderson’s amended petition for post-conviction relief. The court excluded the 

victim’s coerced affidavit and concluded Henderson failed to offer any admissible evidence that 

his trial counsel performed deficiently. In response, Henderson retained counsel, who filed a 

document entitled “Objection to Notice of Intent to Dismiss and Motion to Amend.” Despite the 

document’s title, Henderson offered no argument in response to the court’s notice of intent to 

dismiss his pending claims. Instead, Henderson’s filing focused exclusively on his proposed

amended claim, namely that his counsel erroneously advised Henderson regarding a possible 

sentence enhancement if he were convicted as a persistent violator. 

In support of this motion to amend, Henderson filed his affidavit attaching a document he 

claimed his trial counsel gave to Henderson before he entered his guilty pleas in the 2010 

criminal cases. Among other things, this document stated, “Plus you are facing the Habitual 

violator of the law. This is an automatic 5Fixed to Life.” Based on this language, Henderson 

alleged his trial counsel advised Henderson that if he went to trial and was convicted as a 

persistent violator, he would automatically be sentenced to an indeterminate life sentence with a 

five-year fixed term. Henderson alleged this advice was incorrect because, under Idaho law, a 

conviction as a persistent violator does not result in an automatic life sentence. Rather, the term 

of a persistent violator’s sentence “shall be for not less than five (5) years and . . . may extend to 

life.” I.C. § 19-2514 (emphasis added).

In April 2017, the State opposed Henderson’s motion to amend, arguing Henderson’s 

proposed amended claim lacked merit and, in particular, failed to allege any prejudice as a result 

of his trial counsel’s purported erroneous legal advice. Further, the State moved for summary 

judgment on all Henderson’s pending claims because he failed to address the deficiencies

identified in the court’s notice of intent. Henderson never replied to the State’s opposition. 

Nearly a year later, in March 2018, the district court issued an order dismissing Henderson’s 

amended petition and denying his motion to amend. The district court accepted as true 

Henderson’s allegations that his trial counsel provided erroneous advice but ruled Henderson 

failed to show any resulting prejudice. Henderson timely appeals.
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II.

STANDARD OF REVIEW 

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

§ 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. 

Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 

828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove 

by a preponderance of evidence the allegations on 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 than 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 

the facts within the personal knowledge of the petitioner, and affidavits, records, or other 

evidence supporting the 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 party’s motion or on the court’s own initiative, if it appears 

there is no genuine issue of material fact and the moving party is entitled to judgment as a matter 

of law. Further, I.C. § 19-4906 offers guidance for a petition’s amendment. Cole v. State, 135 

Idaho 107, 110, 15 P.3d 820, 823 (2000). The court may make appropriate orders for a petition’s 

amendment and may grant leave to amend a petition following the petitioner’s opportunity to 

respond to a notice of intent to dismiss. I.C. § 19-4906(a), (b).

Generally, when an amendment requires the court’s leave, the court shall liberally grant 

such leave. See I.R.C.P. 15(a)(2) (“The court should freely give leave when justice so 

requires.”); see also Taylor v. McNichols, 149 Idaho 826, 847, 243 P.3d 642, 663 (2010) 

(“[M]otions for leave to amend pleadings are to be liberally granted.”). In determining whether 

to allow an amended claim, the court may consider whether the proposed claim states a valid 

claim. Black Canyon Racquetball Club, Inc. v. Idaho First Nat. Bank, N.A., 119 Idaho 171, 175, 
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804 P.2d 900, 904 (1991). If the proposed amendment does not state a valid claim and would be 

futile, the trial court does not abuse its discretion by denying the amendment. Id.

III.

ANALYSIS

On appeal, Henderson challenges only the district court’s denial of his motion to amend

to allege that his trial counsel was ineffective for erroneously advising Henderson regarding a 

possible sentence enhancement if he were convicted as a persistent violator. To prevail on an 

ineffective assistance of counsel claim, the petitioner must show that the attorney’s performance 

was deficient and that the petitioner was prejudiced by the deficiency. Strickland v. Washington, 

466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 

2007). “To avoid summary dismissal, a post-conviction claim of ineffective assistance of 

counsel must sufficiently allege facts under both prongs of the test.” Roman v. State, 125 Idaho 

644, 649, 873 P.2d 898, 903 (Ct. App. 1994). To establish a deficiency, the petitioner has the 

burden of showing the attorney’s representation fell below an objective standard of 

reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Knutsen v. 

State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). 

If the petitioner pled guilty, the prejudice element requires the petitioner to show a 

reasonable probability the petitioner would not have pled guilty and would have insisted on 

going to trial but for his counsel’s errors. Plant v. State, 143 Idaho 758, 762, 152 P.3d 629, 633 

(Ct. App. 2006). A reasonable probability is a probability sufficient to undermine confidence in 

the case’s outcome and requires a substantial not just a conceivable likelihood of a different 

result. Cullen v. Pinholster, 563 U.S. 170, 189 (2011). To show prejudice, the petitioner should 

draw a causal connection between his attorney’s alleged deficient performance and the 

petitioner’s decision to plead guilty. Ridgley v. State, 148 Idaho 671, 677, 227 P.3d 925, 931 

(2010). To obtain relief, the petitioner must convince the court a decision to reject the plea 

bargain would have been rational under the circumstances. Padilla v. Kentucky, 559 U.S. 356, 

372 (2010). The focus is on the petitioner’s state of mind when choosing to plead guilty and 

how the erroneous advice affected his state of mind. Booth v. State, 151 Idaho 612, 622, 262 

P.3d 255, 265 (2011). 

In support of his motion to amend, Henderson alleged that “[t]he reason I chose to plead 

guilty was to avoid a life sentence” and “[h]ad I known I was not facing a fixed life 
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sentence[1]. . . I would have never [pled] guilty.” The district court rejected Henderson’s

allegations as conclusory. Henderson challenges this ruling on numerous grounds. First, 

Henderson argues that “the district court simply disregarded the direct evidence of prejudice, to 

wit, [Henderson’s] sworn statement that he pled guilty based on the erroneous advice and [that] 

he would not have but for the incorrect advice.” This argument fails for the same reason that 

Henderson’s allegations fail to show prejudice: “Bare or conclusory allegations, unsubstantiated 

by any fact, are inadequate to entitle a petitioner to an evidentiary hearing.” Takhsilov v. State, 

161 Idaho 669, 673, 389 P.3d 955, 959 (2016). Likewise, a conclusory argument about 

conclusory allegations is inadequate.

Second, Henderson contends the district court’s rejection of his sworn statement was 

erroneously based on “the court’s . . . perception of the value of the plea bargain” versus 

Henderson’s perception of that value. Specifically, Henderson challenges the court’s conclusion 

that he received “an enormous benefit from the plea deal.” Henderson disputes this benefit 

arguing that “the benefit of the plea agreement was largely illusory” and that the charges against 

him “were not indefensible.” In support of this latter assertion, Henderson identifies what he 

characterizes as “good facts” for his defense including that (1) there was an absence of “tangible 

proof” he had sexual intercourse with the victim, such as DNA evidence or his own admission of 

sexual relations;

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(2) the victim was reluctant to testify, initially denied having sexual relations 

with Henderson, was “locked up” when she testified before the grand jury, and had mental health 

issues; and (3) the forged checks were written to another individual.

Notably, however, Henderson never alleged his trial counsel’s erroneous legal advice 

prejudiced Henderson because the charges against him were defensible. Nor did Henderson raise 

this argument in reply to the State’s opposition to his amendment, wherein the State directly 

challenged Henderson’s failure to allege prejudice. Having failed to raise the argument before 

the district court, this Court will not consider it on appeal. See State v. Fodge, 121 Idaho 192, 

 

1 This allegation of being subject to a fixed life sentence is inconsistent with Henderson’s 

allegation that his trial counsel advised Henderson the court would sentence him to “an 

automatic life sentence indeterminate.” (Emphasis added.)

2 Henderson’s assertion on appeal that he did not admit to sexual relations with the victim 

is belied by Henderson’s admission during the sentencing hearing that he did.
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195, 824 P.2d 123, 126 (1992) (ruling issues not previously raised may not be considered on 

appeal).

Finally, Henderson challenges the district court’s reliance on Cosio-Nava v. State, 161 

Idaho 44, 383 P.3d 1214 (2016). In that case, Cosio-Nava, a Mexican citizen, pled guilty to 

felony domestic battery with a traumatic injury. Id. at 46, 383 P.3d at 1216. As a result of his 

plea, the federal immigration authorities removed Cosio-Nava from the United States. Id. at 46-

47, 383 P.3d at 1216-17. Cosio-Nava filed a petition for post-conviction relief, alleging his trial 

counsel did not adequately advise Cosio-Nava about the immigration consequences of a guilty 

plea. Id. at 47, 383 P.3d at 1217. The district court dismissed Cosio-Nava’s petition, ruling he 

failed to show deficient performance and any resulting prejudice. Id.

On appeal, the Idaho Supreme Court concluded Cosio-Nava failed to meet his burden of 

showing his trial counsel’s performance was deficient. Id. at 49, 383 P.3d at 1219. Further, the 

Court concluded Cosio-Nava also failed to show he was prejudiced by any alleged deficiency. 

Id. Regarding this latter conclusion, the Court reasoned that Cosio-Nava failed to show an 

alternative plea deal allowing him to avoid removal from the United States was a realistic option. 

Id. Accordingly, the Court concluded Cosio-Nava failed to show that “rejecting the plea bargain 

would have been rational under the circumstances.” Id. (quotations and brackets omitted).

Henderson asserts Cosio-Nava is distinguishable because the district court in that case 

held an evidentiary hearing and, unlike Cosio-Nava, Henderson is alleging he would have gone 

to trial but for his counsel’s purported erroneous advice. These distinctions aside, the district 

court did not err by relying on Cosio-Nava. The district court’s reliance on Cosio-Nava was 

focused on the rule that “‘to obtain relief on this type of claim [involving a guilty plea], a 

petitioner must convince the court that a decision to reject the plea bargain would have been 

rational under the circumstances.’” Id. at 48, 383 P.3d at 1218 (quoting Padilla, 559 U.S. at 

372). 

Based on this rule cited in Cosio-Nava, the district court concluded:

Like Cosio-Nava, Henderson has failed to present evidence that rejecting the plea 

bargain would have been rational under the circumstances he was facing. In this 

case, where the plea deal significantly reduced Henderson’s total exposure, 

dismissed multiple felony charges and ensured the State would cap their 

recommendations, Henderson cannot simply make the conclusory allegation that 

he would not have accepted the plea deal but for the incorrect advice.
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In reaching this conclusion, the district court properly focused on Henderson’s state of mind at 

the time he pled guilty and whether rejecting the plea bargain would have been rational. See 

Booth, 151 Idaho at 622, 262 P.3d at 265 (noting analysis focuses on petitioner’s state of mind 

when pleading guilty); see also Padilla, 559 U.S. at 372 (noting analysis focuses on whether 

rejecting plea bargain would have been rational).

Further, we reject Henderson’s argument that the district court’s ruling was inconsistent 

with Booth, 151 Idaho 612, 262 P.3d 255. In that case, the Idaho Supreme Court stated that “the 

fact that Booth may have benefited by pleading guilty instead of going to trial is not relevant to 

whether he was prejudiced by [his counsel’s] deficient performance.” Id. at 622 n.9, 262 P.3d at 

265 n.9. Henderson contends that, contrary to this statement that a plea bargain’s benefit is not 

relevant to determining prejudice, the district court concluded Henderson was not prejudiced 

because he benefited from the plea agreement. This argument, however, misconstrues the 

district court’s analysis. Although the district court referred to the plea bargain’s benefit to

Henderson, this reference was in the context of analyzing whether his rejection of the plea 

bargain would have been rational. Accordingly, the court’s analysis is not inconsistent with 

Booth.

In summary, we hold that the district court did not abuse its discretion by denying 

Henderson’s motion to amend. Henderson’s proposed claim did not state a valid claim for relief 

but rather was futile because he failed to allege anything other than bare, conclusory allegations 

of prejudice. Further, we agree with the district court that Henderson’s rejection of the plea 

bargain would not have been rational under the circumstances.

IV.

CONCLUSION

Based on the foregoing, we affirm the district court’s denial of Henderson’s motion to 

amend and its final judgment dismissing Henderson’s amended petition for post-conviction 

relief.

Judge GRATTON and Judge LORELLO CONCUR.