1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43976

GREGORY JOSEPH NELSON , Petitioner

- Appellant ,

v.
STATE OF IDAHO , Respondent
. ) ) ) ) ) ) ) ) ) ) 2017 Unpublished Opinion No. 537

Filed: August 2, 2017

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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Lynn G. Norton , District Judge. Judgment summarily dismissing petition for post

- conviction relief, affirmed

. Gregory Joseph Nelson, Boise, pro se appellant. Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson , Deputy Attorney General, Boise, for respondent.

________________________________________________ GUTIERREZ, Judge Gregory Joseph Nelson appeals from the district court’s judgment summarily dismissing his successive petition for post

- conviction relief. Nelson specifically argues the district court erred in summarily dismissing his successive petition, denying his discovery requests, denying him leave of court to file a “bifurcated” petition , denying requests for counsel , and not ruling on a separate discovery request and a separate motion for leave to file an amended petition

. For the reasons explained below, we affirm

. I. FACTUAL AND PROCEDURAL BACKGROUND In 1995, a jury found Nelson guilty of kidnapping in the first degree and lewd conduct with a minor unde r the age of sixteen. The district court sentenced N elson to concurrent fixed terms of life imprisonment. Nelson appealed the judgment and his sentence, and this Court affirmed. State v. Nelson , 131 Idaho 210, 953 P.2d 650 (Ct. App. 1998)

.2 Nelson filed his initial petition for post

- conviction relief in 1999. The district court summarily dismissed the petition , and this Court affirmed. Nelson v. State , Docket No. 27266 (Ct. App. Sept. 22, 2003) (unpublished)

. Nelson filed numerous successive petitions over the years that were summarily dismissed. In Nelson’s most recent successive petition at issue on appeal

-- his seventh petition

-- he request ed STR DNA testing of the victim’s rape kit and the release of the victim’s DNA to see whether it matches testin g results of Nelson’s underwear that he alleges he wore at the time of his contact with the victim

. Nelson maintained the testing will prove his innocence because, he alleged, the victim’s DNA will not be found on Nelson’s underwear. Additionally, Nelson alleged the State withheld impeaching evidence pertaining to

an FBI analyst

. Nelson also challenges on appeal the denial of several post

- petition motions. For instance, he filed a motion to compel compliance with a subpoena duces tecum that he served on the Idaho State Police Forensic Services (ISPFS) demanding the disclosure of the DNA record and profile of the victim

. The district court denied the motion to compel compliance and granted
t he State ’s motion to quash Nelson’s subpoena. The district co urt reasoned that the discovery of the victim’s DNA would not lead to exculpatory evidence. Nelson filed motions for court

- ordered discovery, leave of court to conduct discovery, leave of court to file a “ bifurcated ” amended petition, and leave of court t o file an amended petition. T he district court d enied Nelson’s motion for court

- ordered discovery because it found that Nelson did not show a probability that any further testing or discovery would lead to exculpatory evidence. Furthermore, t he district court denied Nelson’s motion for leave to file a

“ bifurcated ” amended petition, determining that he had not provide d a sufficient reason for leave to file an amended petition

- - it was in essence identical to the original petition he filed

. The district cou rt implicitly denied Nelson’s motions for leave of court to conduct discovery and yet another leave of court to file an amended petition. Nelson filed two separate motion s for appointment of counsel. The district court denied both motion s because it dete rmined Nelson’s seventh successive petition was frivolous. Ultimately, the district court summarily dismissed Nelson’s petition following a hearing on the matter , reasoning that he failed to present a prima facie case that additional testing of the victim’s rape kit or release of any previous DNA results of the victim would more probably than
not prove Nelson’s innocence. Additionally, the district court determined Nelson failed to3 demonstrate why his claim regarding the FBI analyst could not have b een raised on direct appeal or in Nelson’s previous six petitions. Nelson timely appeals. II. ANALYSIS A. Summary Dismissal of DNA Testing Request Nelson contends the district court erred in summarily dismissing his successive petition for post

- conviction relief. A petition for post

- conviction relief initiates a proceeding that is civil in nature. I daho C ode § 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); Murr ay 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. Stat e , 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 sh ort 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 a dmissible 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 post

conviction r elief, 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 gen uine 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, 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, 7154 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 f rom 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 just ify 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 const rued 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 petiti on, 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); S heahan 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, 22 7 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). Pursuant to Idaho Code § 19

- 4902(b), a petitioner may file a post

- conviction petition seeking DNA testing on evidence that was secured in relation to the criminal trial if the evidence was not subjected to the requested DNA testing because the technology w as not available at the5 time of trial. The petitioner must present a prima facie case that identity was at issue in the trial and that the evidence was subject to a “chain of custody sufficient to establish that such evidence has not been substituted, tam pered with, replaced or altered in any material aspect.” I.C. § 19

- 4902(c)

. The trial court must allow the testing under reasonable conditions if it determines that the result of the testing has the scientific potential to produce new, noncumulative evid ence that would show that it is more probable than not that the petitioner is innocent and that the testing method requested would likely produce admissible results. I.C. § 19

- 4902(e). The more probable than not standard is essentially a 51 percent stand ard. Bourgeois v. Murphy , 119 Idaho 611, 622, 809 P.2d 472, 483 (1991). Thus, before allowing post

- conviction DNA testing, the trial court must make a determination that the testing results, whatever they may be, have the scientific potential to demonstr ate that it is more than 50 percent likely the petitioner is innocent. In the event testing is conducted, the court shall “order the appropriate relief” if the results demonstrate, in light of all admissible evidence, that the petitioner is not the person who committed the offense. I.C. § 19

- 4902(f). The petitioner has the burden of establishing that claim by a preponderance of the evidence. Fields v. State , 151 Idaho 18, 24, 253 P.3d 692, 698 (2011); McCoy v. S tate , 129 Idaho 70, 72

- 73, 921 P.2d 1194, 1196

- 97 (1996). Here, Nelson requested testing of the victim’s rape kit or the release of the victim’s DNA results in order to compare it to the DNA testing done on Nelson’s underwear that he was wearing at the time of his contact with the victim. Nelson allege d the victim’s DNA will not be found on his underwear, and therefore he is innocent. T he district court concluded Nelson failed to present a prima facie case that additional testing of the victim’s rape kit or release of any previous DNA results of the victim had the scientific potential to produce new, noncumulative evidence that would show it is more probable than not that Nelson was innocent. We agree. Nelson testified at the criminal trial that he never had p enile contact with the victim. In h is own affidavit attached to his seventh petition, Nelson state d he never had penile contact with the victim. Thus, the absence of the victim’s DNA on Nelson’s underwear does not show it is more probable than not that Nelson is innocent. Accordingly, the district court properly summar ily dismiss ed this claim. B. Discovery Requests Nelson maintains the district court erred in denying two of his discovery requests and in not ruling on a third discovery request. When a petitioner believes discovery is n ecessary for6 acquisition of evidence to support a claim for post

- conviction relief, the petitioner must obtain authorization from the district court to conduct discovery. Idaho C riminal Rule 57(b); Raudebaugh v. State , 135 Idaho 602, 605, 21 P.3d 924, 927 (2001). Discovery in a post

- conviction action is not required unless necessary to protect a petitioner ’ s substantial rights. Murphy v. State , 143 Idaho 139, 148, 139 P.3d 741, 750 (Ct. App. 2006) ; Griffith v. State , 121 Idaho 371, 375, 825 P.2d 94, 98 ( Ct. App. 1992). Discovery may be denied where the petitioner ’ s claims are nothing more than speculation, unsupported by any evidence. Raudebaugh , 135 Idaho at 605, 21 P.3d at 927. Indeed, discovery may not be used to engage in fishing expeditions, as po st

- conviction actions provide a forum for known grievances, not an opportunity to search for them. Murphy , 143 Idaho at 148, 139 P.3d at 750. Whether to authorize discovery is a matter directed to the discretion of the court. Raudebaugh , 135 Idaho at 6 05, 21 P.3d at 927. When a trial court ’ s discretionary decision is reviewed on appeal, the appellate court conducts a multi

- tiered inquiry to determine whether the lower court correctly perceived the issue as one of discretion; acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and reached its decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho Power Co. , 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991)

. 1. Subpoena duces t ecum and motion to compel compliance with the subpoena Nelson contends the district court erred in granting the State’s motion to quash Nelson’s subpoena duces tecum and denying his motion to compel compliance with the subpoena. Nelson served a subpoena duces tecum on the ISPFS seeking the DNA record and profile of the victim. The district court recognized its discretionary authority in addressing the discovery request and determined the discovery of the victim’s DNA would not le ad to exculpatory evidence

. While Nelson argues the State’s motion to quash the subpoena was not timely filed , it is of no consequence because the district court’s ruling on Nelson’s motion to compel is dispositive

. We turn to the merits of Nelson’s motio n to compel compliance . Nelson argues the ISPFS’s compliance wi th the subpoena would have provided an exculpat ory nexus between the victim’s DNA profile and th e unknown minor DNA profile found on Nelso n’s underwear , warranting a new trial. First, Nelson does not argue that such discovery is necessary to protect his substantial rights. Second, as previously stated, Nelson did not demonstrate the release of the victim’s DNA record and profile has the scientific potential to produce new, noncumulative7 evide nce that would show it is more probable than not that Nelson is innocent

. The district court therefore did not err in granting the State’s motion to quash the subpoena and in denying Nelson’s motion to compel compliance with the subpoena. 2. Denial of mot ion for court

- ordered d iscovery Next, Nelson argues the district court erred in denying his motion for court

- ordered discovery. Nelson filed the motion in order to compel the production of information pertaining to the State’s expert witness

-- a lab analyst

. Nelson’s motion was filed in response to the State’s notice to the district court that it intended to call the lab analyst at future hearings on the State’s pending motions in the case , including the State’s motion for summary dismissal, in order to support the State’s motions

. In denying Nelson’s motion, the district court determined Nelson failed to show a probability that the production of documents related to the expert’s testimony would lead to exculpatory evidence or was otherwise necessary to protect Nelson’s substantial rights

. We agree with the district court. A review of the motion indicates Nelson failed to argue the discovery was necessary to pr otect his substantial rights. He also failed to explain how the discovery would lead to e xculpatory evidence. Moreover, even if the district court did err, the error is harmless because the State never called the witness to testify at subsequent hearings. Therefore, the district court appropriate ly denied this motion for court

- ordered discov ery. 3. Failure to r ule on m otion for leave of court to conduct d iscovery Nelson further maintains the district court erred in not ruling on his motion for leave of court to conduct discovery. Nelson specifically sought the identification and testing of a n item referenced in a law enforcement property invoice that was booked into the state lab. He filed his motion on December 9, 2015, and on January 20, 2016 , the district court summarily dismissed Nelson’s petition. The district court’s summary dismissal constitutes an implicit denial of Nelson’s motion for leave of court to conduct discovery. This is because “where a district court fails to rule on a motion, we presume the district court denied the motion.” State v. Wolfe , 158 Idaho 55, 61, 343 P.3d 49 7, 503 (2015). In fact, the district court specifically reference d the motion for leave of court to conduct discovery in its order summarily dismissing Nelson’s petition. Nelson, however, fails to provide argument and authority as to why the district cou rt erred in denying his motion for leave of court to conduct discovery. A 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). This issue is therefore waived on appeal

.8 C. Leave to File Amended Post

- Conviction Petitions Nelson contends the district court erred in denying his July motion for leave to file a

“ bifurcated petition ” and in not ruling on his December motion for leave to file an amended petition

. During a hearing, the district court denied Nelson’s motion for “leave of court to file bifurcated amended petition for STR DNA testing, and successive petition for post

- conviction relief.” The district court determined there was no sufficient reason at that point in time to grant leave to amend the petition because the proposed petition was identical to the original petition. Pursuant to I.R.C.P. 15(a), once a res ponsive pleading has been filed a party may amend a pleading only by leave of court or by w ritten consent of the adverse party. Whether to grant leave to amend a pleading is a matter that is within the discretion of the trial court and is subject to reversal on appeal only for an abuse of discretion. Black Canyon Racquetball Club, Inc. v. Idah o Nat’l Bank, N.A. , 119 Idaho 171, 175, 804 P.2d 900, 904 (1991). Reasons for which leave to amend may be denied include undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment previously all owed , undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment. McCann v. McCann , 138 Idaho 228, 237, 61 P.3d 585, 594 (2002); Smith v. Great Basin Grain Co. , 98 Idaho 266, 272, 561 P.2d 1299, 1305 (1977). T he district court properly denied Nelson leave to file a “ bifurcated ” amended petition where the proposed “bifurcated” petition was identical to the original. Nelson also contends the district court erred in declining to rule on his subsequent “Motion for Leave of Court to File Amended Petition for STR DNA Testing and Successive Petition for Post

- Conviction Relief.” T he district court referenced the motion in its order granting summary dismissal: “On December 9, 2015, the Petitioner then filed a Motion f or Leave of Court to File Amended Petition for [ S T R ] DNA Testing and Successive Petition for Post

- Conviction Relief.” We adhere to the proposition that the district court’s order summarily dismissing Nelson’s petition constitutes an implicit denial of Nel son’s motion for leave to file an amended petition. On appeal, Nelson fails to present argument or authority as to how the district court erred in denying his motion for leave to file an amended petition. Ac cordingly, this issue is waived

.9 D. Summary Dismissal of FBI A nalyst Claim Nelson further alleged the State withheld impeaching evidence pertaining to the FBI analyst. Nelson pointed to a report from the United S tates Office of Inspector General ( OIG) regarding allegations the FBI analyst m ade against FBI lab practices. The OIG concluded that while the FBI analyst justifiably raised concerns in some respects, some of his allegations were unsupported by facts and he utilized bad judgment in the manner in which he raised some of his allegatio ns. The State obtained a portion of the report, which included some of the OIG’s conclusions regarding the FBI analyst. The State then e

- mailed th at portion of the report to Nelson’s trial attorney. The district court summarily dismissed this claim afte r determining Nelson failed to show why it could not have been raised on direct appeal or in any of his previous six petitions. The scope of post

- conviction relief is limited. Knutsen v. State , 144 Idaho 433, 438, 163 P.3d 222, 227 (Ct. App. 2007). A petition for post

- conviction relief is not a substitute for an appeal. I.C. § 19

- 4901(b). A claim or issue that was or could have been raised on appeal may not be considered in post

- conviction proceedings. Id. ; Mendiola v. State , 150 Idaho 345, 348

- 49 , 247 P.3d 210, 213

- 14 (Ct. App. 2010). Moreover, i f an initial post

- con viction action was timely filed , an inmate may file a subsequent petition outside of the one

- year limitation period if the court finds a ground for relief asserted which for sufficien t reason was not asserted or was inadequately raised in the original, supplemental, or amended petition . I.C. § 19

- 4908 ; Charboneau v. State , 144 Idaho 900, 904, 174 P.3d 870, 874 (2007). Analysis of sufficient reason permitting the filing of a success ive petition includes an analysis of whether the claims being made were asserted within a reasonable period of time. Charboneau , 144 Idaho at 905, 174 P.3d at 875. D etermining what is a reasonable time for filing a successive petition requires a case

- by

- case analysis

. Id. Therefore, the question here is whether the petitioner filed the successive petition wit hin a reasonable period of time. Nelson has not shown why this claim pertaining to the FBI analyst could not have been raised on direct a ppeal. Furthermore, Nelson failed to allege sufficient reason as to why this claim could not have been raised in his initial petition or in any of his successive petitions before his most recent petition. T he record reveals the State e

- mailed Nelson’s tr ial attorney a copy of a portion of the OIG report in 1997. Nelson filed his first petition in 1999. Nelson did not allege10 any reason as to why he waited nearly two decades to include this claim in a petition. The district court did not err in summar ily dismissing this claim

. E
. Motions for Appointment of Counsel Nelson maintains the district court erred in denying his motions for appointment of counsel. Nelson filed his first motion for appointment of counsel in April 2015. The district court found Ne lson indigent, but denied the motion after it determined Nelson did not allege facts that raise the possibility of a valid claim and the successive petition was frivolous. Nelso n filed a second motion for appointment of counsel in December 2015. In its o rder granting summary dismissal, the district court addressed the second motion for counsel . Again, the district court found that Nelson did no t allege facts that raise the possibility of a valid claim . The district court determined the successive petiti on was frivolous and denied Nelson’s second motion for appointment of counsel. If a post

- conviction petitioner is unable to pay for the expenses of representation, the trial court may appoint counsel to represent the petitioner in preparing the petition in the trial court and on appeal. I.C. § 19

- 4904. The decision to grant or deny a request for court

- appointed counsel lies within the discretion of the district court. Grant v. State , 156 Idaho 598, 603, 329 P.3d 380, 385 (Ct. App. 2014). When a district court is presented with a request for appointed counsel, the court must address this request before ruling on the substantive issues in the case. Id . The district court abuses its discretion where it fails to determine whether a petitioner for post

- conv iction relief is entitled to court

- appointed counsel before denying the petition on the merits. Grant , 156 Idaho at 603, 329 P.3d at 385. In determining whether to appoint counsel pursuant to I.C. § 19

- 4904, the district court should determine if the pe titioner is able to afford counsel and whether the situation is one in which counsel should be appointed to assist the petitioner. Grant , 156 Idaho at 603, 329 P.3d at 385. In its analysis, the district court should consider that petitions filed by a pro se petitioner may be conclusory and incomplete. I d . Facts sufficient to state a claim may not be alleged because they do not exist or b ecause the pro se petitioner does not know the essential elements of a claim. Id. Some claims are so patently frivolous that they could not be developed into viable claims even with the assistance of counsel. Newman v. State , 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint counsel in order to give the petitioner an opportunity to11 work with counsel and properly allege the necessary supporting facts. Grant , 156 Idaho at 603, 329 P.3d at 385. A review of the record indicates Nelson failed to allege facts that raise the possibility of a valid claim. As discussed above, Nelson failed to present a prima facie case that additional
test ing of the victim’s rape kit or release of any previous DNA results of the victim would prove it was more probable than not that Nelson was innocent. Also, Nel son has not shown why the claim pertaining to the FBI analyst could not have been raised on dire ct appeal or in any of Nelson’s previous successive petitions . For these reasons, we agree with the district court’s determination that Nelson’s seventh successive petition is frivolous. Accordingly, the district court’s den ial of Nelson’s motions for ap pointment of counsel was proper. III. CONCLUSION The district court did not err in summarily dismissing Nelson’s seventh successive petition because Nelson did not present evidence making a prima facie case as to each essential element of the claims regar ding DNA testing. Moreover, Nelson has not shown why the claims pertaining to the FBI analyst could not have been raised on direct appeal or in Nelson’s previous successive petitions. The district court correctly denied Nelson’s discovery requests becaus e Nelson did not demonstrate the release of the victim’s DNA record and profile is necessary to protect Nelson’s substantial rights , and Ne lson failed to argue that court

- ordered discovery was necessary to protect his substantial rights. Nelson’s motion f or leave to conduct discovery and Nelson’s motion for leave to file an amended petition were implicitly denied with the issuance of the order summarily dismissing Nelson’s successive petition

. Nelson waived the merits of these issue s on appeal by not prov iding argument or authority . The district court properly denied Nelson leave to file an amended “bifurcated” petition where the proposed petition was identical to the original petition. Lastly, the district court properly exercised its discretion in denying Nelson’s motions for appointment of counsel because Nelson’s seventh successive petition was frivolous. We therefore affirm the judgment of the district court summarily dismissing Nelson’s successive petition for post

- conviction relief. Chief Judge GRATTON and Judge Pro Tem WALTERS CONCUR

.