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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39301

DANIEL L. EBY,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2013 Unpublished Opinion No. 418

Filed: March 28, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

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

Kootenai County. Hon. John P. Luster, District Judge. 

Order dismissing petition for post-conviction relief, affirmed.

Daniel L. Eby, Boise, pro se appellant. 

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

General, Boise, for respondent. 

________________________________________________

GRATTON, Judge

Daniel L. Eby appeals from the district court’s order denying his petition for postconviction relief after an evidentiary hearing.

I.

FACTUAL AND PROCEDURAL BACKGROUND

This Court described the underlying facts of the criminal case in State v. Eby, 136 Idaho

534, 37 P.3d 625 (Ct. App. 2001):

According to the State’s evidence, the victim, Mel Evenson, was murdered 

late in the night of March 25 or early the next morning. On that night, Daniel 

Eby, Jeremy Schmitz, Cliff Hicks and Evenson were working on cars in a garage 

belonging to Gerald Smith. Inside the adjacent residence were Smith and several 

other individuals. While in the garage, Evenson was repeatedly struck in the head 

with a baseball bat and with a large wrench. His clothing was removed and was 

then burned in a wood stove in the garage. Evenson’s body was wrapped in a tarp 

and placed in the bed of his own truck. The body was then covered with flattened 

cardboard boxes, and the truck was abandoned in the countryside.
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Approximately one month later, law enforcement officers found 

Evenson’s body. An autopsy revealed that he had died of multiple cranial 

cerebral injuries due to blunt force impacts to his head. Further investigation led 

law enforcement officers to the garage where they discovered blood on the wood 

stove and on a motorcycle. Persons who had been present at Gerald Smith’s 

residence on the night of Evenson’s death were questioned by police. Ultimately, 

Eby was charged with first degree murder, conspiracy to commit robbery and 

attempted robbery. It was the prosecution’s theory that, on the evening in 

question, Eby, Schmitz and Hicks believed that Evenson was carrying a 

substantial amount of narcotics and cash because he had just returned from an 

out-of-town drug transaction, and the three decided to kill Evenson in order to 

steal his money and drugs. A jury found Eby guilty of all of the charges. The 

district court imposed a unified life sentence with a twenty-five-year minimum 

term of imprisonment for first degree murder, and determinate fifteen-year 

sentences for attempted robbery and conspiracy to commit robbery, with the 

sentences to be served concurrently.

Eby, 136 Idaho at 536, 37 P.3d at 627. This Court affirmed Eby’s convictions for first degree

murder and conspiracy to commit robbery, but reversed Eby’s conviction for attempted robbery 

because that offense merged with the conviction for first degree murder under the felony murder 

theory. Id. at 540-41, 37 P.3d at 631-32.

Eby timely filed a pro se petition for post-conviction relief with the district court. The 

district court appointed post-conviction counsel. Over the next several years, Eby’s various 

appointed attorneys failed to amend his petition or otherwise advance his claims. The district 

court dismissed the petition for inactivity. The district court later denied Eby’s Idaho Rule of 

Civil Procedure 60(b) motion for relief from the dismissal order, concluding that I.R.C.P. 60(b) 

does not apply to I.R.C.P. 40(c) dismissals for inactivity. 

Eby appealed, and the Idaho Supreme Court reversed, holding that I.R.C.P. 60(b) does 

apply, in rare instances, to I.R.C.P. 40(c) dismissals. Eby v. State, 148 Idaho 731, 732, 228 P.3d 

998, 999 (2010). The Court remanded the case for consideration of whether the facts presented 

by Eby constituted grounds for relief in this case. Id. at 734-38, 228 P.3d at 1001-05. On 

remand, the district court withdrew its previously entered dismissal of Eby’s post-conviction 

petition.

Through new appointed counsel, Eby filed a post-conviction petition, with a supporting 

affidavit, raising three claims: (1) he was denied his constitutional right to counsel, free from 

any conflict; (2) there were material facts not previously presented and heard in violation of 

Idaho Code § 19-4901(a)(4); and (3) his trial counsel was ineffective for failing to adequately 
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communicate with him, failing to advise him of his rights, failing to adequately prepare for trial, 

and for preventing Eby from testifying on his own behalf. The district court took judicial notice 

of the underlying criminal case file, ordered an evidentiary hearing, and received briefing from 

both parties. The district court denied Eby’s petition for post-conviction relief. Eby timely 

appealed.

II.

ANALYSIS

In order to prevail in a post-conviction proceeding, the applicant must prove the 

allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 

801 P.2d 1216 (1990). When reviewing a decision denying post-conviction relief after an 

evidentiary hearing, an appellate court will not disturb the lower court’s factual findings unless 

they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 

(Ct. App. 1990). The credibility of the witnesses, the weight to be given to their testimony, and 

the inferences to be drawn from the evidence are all matters solely within the province of the 

district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We 

exercise free review of the district court’s application of the relevant law to the facts. Nellsch v. 

State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992).

A. Conflict of Interest

The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal 

prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his 

defence.”1 U.S. CONST. amend. VI. The amendment has been interpreted to include the right to 

be represented by conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 271 (1981). In order to 

ensure that a defendant receives conflict-free counsel, a trial court has an affirmative duty to 

inquire into a potential conflict whenever it knows or “reasonably should know that a particular 

conflict may exist.” State v. Lovelace, 140 Idaho 53, 60, 90 P.3d 278, 285 (2003); see also

Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). A trial court’s failure to conduct an inquiry, under 

 

1 The Amendment has been incorporated through the Due Process Clause of the Fourteenth 

Amendment to apply to the states. See Powell v. Alabama, 287 U.S. 45, 73 (1932). Idaho law 

also guarantees a criminal defendant’s right to counsel. See IDAHO CONST. art. I, § 13; I.C. § 19-

852.
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certain circumstances, will serve as a basis for reversing a defendant’s conviction. See Cuyler, 

446 U.S. at 346-47; Holloway v. Arkansas, 435 U.S. 475, 488 (1978).

The district court’s inquiry into the potential conflict of interest stemming from the

Kootenai County Public Defender’s Office representing both Eby and his co-defendant satisfied 

its constitutional obligation. The district court held a hearing on the record in the criminal case 

and gave both sides the opportunity to address the potential conflict. Because the district court 

conducted an adequate inquiry into the conflict, Eby is not entitled to automatic reversal of his 

conviction. The issue remains, however, as to whether the district court correctly determined 

that an actual conflict did not exist and Eby was not prejudiced.

To determine whether an actual conflict of interest exists, Idaho courts look to the 

standards set forth in the Idaho Rules of Professional Conduct. See, e.g., State v. Wood, 132 

Idaho 88, 98, 967 P.2d 702, 712 (1998). Idaho Rule of Professional Conduct 1.7 addresses 

conflicts of interest and, in 1999, provided that “A lawyer shall not represent a client if the 

representation of that client will be directly adverse to another client.” I.R.P.C. 1.7(a). Rule 1.7 

goes on to further provide that: “A lawyer shall not represent a client if the representation of that 

client may be materially limited by the lawyer’s responsibilities to another client or to a third 

person, or by the lawyer’s own interests.” I.R.P.C. 1.7(b). Representation may continue despite 

a concurrent conflict of interest when, among other things, a client waives the conflict through 

informed consent. I.R.P.C. 1.7(a)(2), (b)(2). 

Under I.R.P.C. 1.10, a lawyer’s conflict of interest is imputed to his or her entire firm. 

The rule, as it existed in 1999, provided: “While lawyers are associated in a firm, none of them 

shall knowingly represent a client when any one of them practicing alone would be prohibited 

from doing so by Rule 1.7, 1.8(c), 1.9 or 2.2.” The rules define the term “firm” as “lawyers in a 

private firm, and lawyers in the legal department of a corporation or other organization.” 

I.R.P.C. 1.10 cmt. (effective through June 30, 2004) (Definition of “Firm”). The comments to 

the rule further stated: 

[Q]uestions can also arise with respect to lawyers in legal aid. Lawyers employed 

in the same unit of a legal service organization constitute a firm, but not 

necessarily those employed in separate units. As in the case of independent 

practitioners, whether the lawyers should be treated as associated with each other 

can depend on the particular rule that is involved, and on the specific facts of the 

situation.

Id. 
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This Court addressed a similar argument regarding a public defender’s office in State v. 

Cook, 144 Idaho 784, 171 P.3d 1282 (Ct. App. 2007). In Cook, this Court drew a distinction 

between private law firms and public defenders’ offices and declined to impute one public 

defender’s conflict to the entire office. Id. at 794, 171 P.3d at 1292. In its decision, the Court 

refused to adopt a per se rule regarding the treatment of public defenders’ offices under the 

rules.2 Id. Instead, it decided that it was preferable to analyze whether one public defender’s 

conflict should be imputed to the entire office on a case-by-case basis. Id. Under this approach, 

the relevant inquiry is “whether ‘the circumstances demonstrate a potential conflict of interest 

and a significant likelihood of prejudice.’” Id. at 793, 171 P.3d at 1291 (quoting State v. Bell, 

447 A.2d 525, 529 (1982) (emphasis in original)). If so, there is a presumption that “‘both an 

actual conflict of interest and actual prejudice will arise.’” Id. In reaching its decision, the court 

reasoned that:

[A]utomatically disqualifying a public defender where another attorney in the 

office has a conflict of interest would significantly hamper the ability to provide 

legal representation of indigent clients. This, together with the fact that such 

concurrent representation by public defenders generally will create no incentive 

(economic or otherwise) for diminished advocacy in such cases, convinces us that 

a per se rule imputing conflicts of interest to affiliated public defenders is 

inappropriate where there is no indication the conflict would hamper an attorney’s 

ability to effectively represent a client.

Id. at 794, 171 P.3d at 1292.

Cook is in accord with the Idaho Supreme Court’s recognition that per se rules requiring 

automatic disqualification are “unnecessary and patently unworkable.” City of Coeur d’Alene v. 

Simpson, 142 Idaho 839, 844, 136 P.3d 310, 315 (2006). Analyzing conflicts within a public 

defender’s office on a case-by-case basis permits flexibility and ensures that indigent defendants 

receive adequate representation. At the same time, it protects defendants who would otherwise 

be prejudiced by a public defender’s conflict of interest. The Cook framework also took into 

 

2 Unlike the version of the Idaho Rule of Professional Conduct used in Cook and Severson, 

the prior version, applicable here, is more ambiguous as to whether a public defender’s office 

would qualify as a firm. The question under the Idaho Rules of Professional Conduct, as enacted 

in 1999, might be whether the attorneys were employed in “separate units.” If the public 

defenders, assigned to Eby and his co-defendant, were employed in separate units, then there 

may not have been a conflict of interest. However, because no prejudice stemmed from the 

potential conflict of interest, this Court will rule on that dispositive matter, rather than 

interpreting a rule of professional conduct that has since been amended.
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account the unique nature of public defenders’ offices: (1) unlike other government attorneys, 

public defenders represent individual clients rather than the government itself; and (2) unlike 

lawyers in a firm, public defenders do not have a financial incentive to represent clients with 

conflicts of interest because they do not share legal fees. State v. Severson, 147 Idaho 694, 706-

07, 215 P.3d 414, 426-27 (2009).

Here, the district court found the following pertinent facts regarding the potential for a 

conflict of interest within the Kootenai County Public Defender’s Office:

1. In the underlying criminal case, CR-1997-3342, the Petitioner was 

represented by Chief Deputy Lynn Nelson and Deputy Brad Chapman of the 

Kootenai County Public Defender’s Office. The Petitioner’s co-defendant Mr. 

Schmitz was represented by John Adams of the Kootenai County Public 

Defender’s Office. The Petitioner’s other co-defendant Mr. Hicks was 

represented by private attorney Jonathan Hull, a contracted conflict attorney for 

the Kootenai County Public Defender’s Office.

2. Mr. Adams assigned Mr. Nelson and Mr. Chapman to represent 

Petitioner, and then contracted with Mr. Hull to represent Mr. Hicks. Mr. Nelson 

and Mr. Chapman, in accordance with the policy of the Kootenai County Public 

Defender’s Office at the time, thereafter imposed a “Chinese wall.”

3. The transcript of the trial in this matter reveals that the court was 

informed of the possible conflict of interest and the Chinese wall was discussed:

This wall within our office is tight, it’s one where we don’t 

have access to their evidence, we don’t have access to their 

investigation, we don’t have access to anything they have. What 

we are trying to do is save the taxpayers some money when we 

agreed to do this and erect a wall. Funding for this case comes 

directly from the commissioners. Mr. Adams has nothing to do 

with it. We have a wall here. 

4. Mr. Nelson and Mr. Chapman testified under oath at the 

evidentiary hearing in this case that there was nothing in the concurrent 

representation of Petitioner and Mr. Schmitz by the Kootenai County Public 

Defender’s Office that affected any of the decisions they made representing 

Petitioner. Mr. Chapman, however, testified that he expressed a concern to Mr. 

Adams regarding the “appearance of impropriety,” but did not discuss this 

concern with the Petitioner. 

5. Mr. Nelson and Mr. Chapman do not recall obtaining a conflict 

waiver from Petitioner, and do not recall discussing the concurrent representation 

with Petitioner. However, during the evidentiary hearing, post-conviction counsel 

for Petitioner presented Mr. Nelson with a document that Mr. Nelson described as 

a conflict waiver signed by the Petitioner in regards to a witness named Crystal 

Walktel. Petitioner’s post-conviction counsel did not move to admit the 

document into evidence. 

. . . .
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7. Mr. Nelson and Mr. Chapman called co-defendant Mr. Schmitz to 

the stand to testify at Petitioner’s trial. Mr. Schmitz declined to testify. Mr. 

Nelson and Mr. Chapman did not discuss Mr. Schmitz’s potential testimony or 

reasons for calling Mr. Schmitz with Mr. Adams.

. . . .

10. Mr. Durant works for the Kootenai County Public Defender’s 

Office as an investigator and his wife Ms. Fisher also worked for the same 

employer. Mr. Durant was assigned to investigate the Petitioner’s case and Ms. 

Fisher was assigned to investigate Mr. Schmitz’s case. Mr. Nelson and Mr. 

Chapman had no reason to believe that the investigator’s relationship impacted 

the representation of the Petitioner. Mr. Durant testified that he never discussed 

his investigation with his wife Ms. Fisher.

There is no evidence in the record that would support the conclusion that the conflict, if 

one existed, within the Kootenai County Public Defender’s Office was likely to result in 

prejudice. Nor is there any indication in the record that any of the public defenders were acting 

in a manner adverse to Eby’s interests. In fact, the office took steps to ensure that Eby received 

diligent representation. See Cook, 144 Idaho at 794 n.8, 171 P.3d at 1292 n.8 (noting that the 

likelihood of prejudice is influenced by “whether an office has set up effective measures to 

prevent communication of confidential client information between lawyers employed on behalf 

of individual defendants”). Mr. Nelson and Mr. Chapman’s representation of Eby did not 

present a significant likelihood of prejudice. Accordingly, the court was not required to obtain 

Eby’s consent for the representation to continue and Eby was not deprived of his right to be 

represented by conflict-free counsel.

B. Material Evidence

Eby next claims material evidence was not presented in violation of I.C. § 19-4901(a)(4). 

Eby specifically argues:

At the hearing on the petition, Mr. Eby testified regarding the different 

weapons that were allegedly used in the incident. He further [testified] that the 

weapon he allegedly used could not have caused the injuries that he was 

convicted of causing. This information was not presented to the jury and in the 

interests of justice this requires Mr. Eby’s petition to be granted.

At the evidentiary hearing, Eby was asked “was there ever a time that you thought there was a 

question that your attorney should ask that they didn’t ask? To which Eby responded:

[M]y cousin alleged I had a splitting maul, sledge hammer or a pipe wrench and 

that I hit Mr. Evenson with it. And then at the garage, the crime scene, they 

found--I believe it was a pipe wrench. And they sent it to the lab to get tested, 
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and then it never made it into evidence, and they never asked—he was never 

asked what happened to that.

A post-conviction petitioner may be entitled to relief if he demonstrates the existence of 

“evidence of material facts, not previously presented and heard, that requires vacation of the 

conviction or sentence in the interest of justice.” I.C. § 19-4901(a)(4). The four-part test a 

defendant must satisfy in order to be entitled to relief based upon a claim of newly discovered 

evidence is that: (1) the alleged evidence is newly discovered and was unknown to the defendant 

at the time of trial; (2) the alleged evidence is material, not merely cumulative or impeaching; (3) 

it will probably produce an acquittal; and (4) failure to learn of the evidence was not due to lack 

of diligence on the part of the defendant. Whiteley v. State, 131 Idaho 323, 326, 955 P.2d 1102, 

1105 (1998); State v. Drapeau, 97 Idaho 685, 691, 551 P.2d 972, 978 (1976). 

In rejecting Eby’s I.C. § 19-4901(a)(4) assertion, the district court stated: 

This Court is not persuaded by the Petitioner’s testimony that the weapon 

he was alleged to have used could not have caused the injuries, because Dr. 

Bernard, the State’s expert at trial, testified that the injuries were all caused by 

similar weapons. The Petitioner’s testimony then, while not previously heard, is 

not evidence that the jury did not consider at trial. 

Even assuming the evidence was newly discovered, Eby cannot show it is material and 

not merely cumulative or impeaching. Nor can Eby show that the evidence would probably 

produce an acquittal. This evidence, at most, could have impeached the testimony of Eby’s 

cousin. However, Eby was convicted on felony murder charges, thus his possession of the 

murder weapon was not a material issue. Further, the district court correctly noted the jury 

considered the murder weapon at trial. Therefore, the district court did not err in dismissing this 

claim. 

C. Ineffective Assistance of Counsel

Eby next claims he received ineffective assistance of counsel. A claim of ineffective 

assistance of counsel may properly be brought under the Uniform Post-Conviction Procedure 

Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009). 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 establish a deficiency, the petitioner has the burden of showing that the attorney’s 
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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). To establish prejudice, the petitioner must show a reasonable probability that, 

but for the attorney’s deficient performance, the outcome of the trial would have been different. 

Aragon, 114 Idaho at 761, 760 P.2d at 1177; Knutsen, 144 Idaho at 442, 163 P.3d at 231. This 

Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will 

not be second-guessed on appeal unless those decisions are based on inadequate preparation, 

ignorance of relevant law, or other shortcomings capable of objective evaluation. Gonzales v. 

State, 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011). 

In Eby’s petition for post-conviction relief, he raised an ineffective assistance of counsel 

claim. Within that claim, Eby claimed his trial counsel was ineffective for: (1) failing to 

adequately communicate with Eby; (2) failing to advise Eby of his rights; (3) failing to 

adequately prepare for trial; (4) preventing Eby from testifying on his own behalf. After 

receiving testimony from Eby and his trial counsel, the district court found the testimony from 

the trial counsel “to be more substantive and credible than the Petitioner’s testimony that he 

could not remember the proceedings, but he could remember that his attorneys failed to consult 

with him regarding his rights, the legal procedures, and the strategy at trial and sentencing.” The 

district court also found that Eby failed to show that he was prejudiced by any alleged 

deficiency.

On appeal, Eby only asserts specific facts with regard to his conflict of interest and the 

material evidence claims. Eby does not specify which conduct of his trial counsel was deficient, 

nor does he argue that he was prejudiced by the deficient performance. Moreover, Eby does not 

contend that the trial court’s findings of fact were clearly erroneous. In his reply brief, Eby 

claims he has asserted an ineffective assistance of counsel claim and should not be penalized for 

not having all of the necessary case law at his disposal.

Eby has failed to properly assert his ineffective assistance of counsel claims on appeal. 

The fact that Eby is pro se does not relieve him of his duty of demonstrating he received 

deficient performance and that deficient performance prejudiced him. Merely claiming the 

district court erred by denying his ineffective assistance of counsel claim and arguing his counsel 

should have asked a question about the murder weapon, without discussing how the action 

constituted deficient performance or prejudice, does not afford Eby any relief on this claim. A 
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party waives an issue on appeal if either authority or argument is lacking. State v. Zichko, 129 

Idaho 259, 263, 923 P.2d 966, 970 (1996). See also Zivkovic v. State, 150 Idaho 783, 786, 251 

P.3d 611, 614 (Ct. App. 2011) (Bare or conclusory allegations, unsubstantiated by any fact, are 

inadequate and do not even entitle a petitioner to an evidentiary hearing.). 

III.

CONCLUSION

Eby has failed to demonstrate the district court erred in denying his petition for postconviction relief. Therefore the district court’s order dismissing Eby’s post-conviction petition, 

after an evidentiary hearing, is affirmed

Chief Judge GUTIERREZ and Judge LANSING CONCUR.