1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49076

RYAN ANTHONY TATARA ,
Petitioner

- Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) Filed: November 4, 2022
Melanie Gagnepain, 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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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.
Judgm ent summarily dismissing petition for post

- conviction relief, affirmed

. Eric D. Fredericksen, State Appellate Public Defender; Brian R. Dickson , Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen , Deputy Attorney General, Boise, for respondent.

________________________________________________ GRATTON, Judge A jury found Ryan A. Tatara guilty of aggravated assault, Idaho Code §§ 18

- 901(b), 18

- 905(a)(b); and a persistent violator enhancement, I.C. § 19

- 2514. Tatara filed a petition for post

conviction relief which the district court summarily dismissed. Tatara appeals asserting t he district court erred by summarily dismissing his petition without appointing counsel. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND While in a convenience store, Tatara was allegedly threatening and swinging a wine bottle at the clerk. At trial, the clerk testified that Tatara tried to hit him with the wine bottle. After the clerk took the wine bottle, he wrestled Tatara to the groun d. Tatara hit, kicked, and bit the clerk.2

Law enforcement arrested Tatara and charged him with aggravated assault. 1 A jury found Tatara guilty of aggravated assault and being a persistent violator based on two prior convictions. Tatara timely filed a pr o se petition for post

- conviction relief alleging ineffective assistance
of trial counsel. As relevant here, Tatara assert ed that trial counsel was ineffective for failing to respond to the requests Tatara made in various letters and failing to discover and address evidence not previously presented that would require vacation of the conviction or of the sentence. Tatara requested appointment of post

- conviction counsel. The district court issued a notice of intent to summarily dismiss Tatara’s petition fo r post

conviction relief without appointing counsel. Tatara objected to the notice. The district court denied the request for appointment of counsel and summarily dismissed Tatara’s petition. Tatara timely appeals.
II.
STANDARD OF REVIEW If a post

- convi ction 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

- conviction relief
is entitled to court

- appointed counsel before denying the petition on the merits

. Id

. In determining whether to appoint counsel pursuant to I.C. § 19

- 4904, the district court should determine if the petitioner is able to afford counsel and whether the situation is one in which counsel should be appointed to assist the petitioner. G rant , 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 because 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.

1 Tatara was also charged with various misdemeanors which are not at issue in this appeal.3

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 to work with counsel and properly allege the neces sary supporting facts. Grant , 156 Idaho at 603, 329 P.3d at 385.
III.
ANALYSIS
Tatara claims that the district court erred by summarily dismissing his petition for post

conviction relief without appointing him an attorney. Specifically, Tatara asserts th at the allegations in his petition, along with the clarification he offered in his response to the district court’s notice of intent to dismiss his petition, were sufficient to raise the possibility of a valid
claim of ineffective assistance of counsel. T atara argues that counsel should have been appointed
for claims that : (1) the existence of material facts not previously presented demonstrating innocence or substantial doubt or reliability of guilt , requiring vacati on of his conviction ; and (2) the existence of related letters he wrote to counsel, copies of which he ha s been unable to obtain and as to which appointment of counsel was necessary to obtain. The district court found that Tatara was not entitled to the appointment of counsel and summaril y dismissed the petition for post

- conviction relief. We affirm.
A. Evidence of Innocence or Substantial Doubt of Guilt
Tatara asserts that the district court erred in determining that he failed to raise the possibility of a valid claim regarding the exis tence of evidence of innocence or substantial doubt of guilt and ineffective assistance of counsel relative thereto

. A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post

- Conviction Procedure A ct. 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 estab lish a deficiency, the petitioner has the burden of showing that the attorney ’ s representation fell below an objective standard of re asonableness. 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 es tablish 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 at4

442, 163 P.3d at 231 . This Court has long adhered to the proposition that tactical or strategic
decisions of tri al 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)

. The constitutional requirement for effective assistance of counsel is not the key to the prison for a defendant who can dredge up a long series of examples of how the case might have been tried
better. Ivey v. State , 123 Idaho 77, 80, 844 P.2d 706 , 709 (1992); Thomas v. State , 145 Idaho 765, 770, 185 P.3d 921, 926 (Ct. App. 2008). In his petition for post

- conviction relief, Tatara alleged, in the portion of the petition addressing ineffective assistance of counsel, that “there exists evidence of ma terial facts not previously presented and heard that would require the vacation of the conviction or sentence.” Tatara did not identify any such evidence. Instead, in his affidavit he discusse d only a date stamp issue with respect to the officer’s body c amera video and a discussion with counsel regarding the persistent violator charge, neither of which he advances on appeal. The district court, in its notice
of intent to dismiss , found that Tatara failed to include or identify any evidence not previously presented or what evidence he believed counsel should have discovered but did not. In response, again, Tatara did not identify any alleged exculpatory evidence but, instead, argued that the evidence presented a t trial showed only a minor assault because “there is no video of any threats or ‘swinging’ of a wine bottle” and the victim testified that he took the wine bottle from Tatar a before Tatara left the store. The district court determined that Tatara failed to identify any evidence not previously pres ented that would support his claim of innocence or ineffective assistance of counsel and, therefore, failed to show the possibility of a valid claim. We agree with the district court. Tatara’s mere allegation of the existence of unspecified exculpatory ev idence does not raise the possibility of a valid claim of innocence or substantial doubt as to guilt. Nor does such bare allegation raise the possibility of a valid claim of ineffective assistance of counsel in failing to discover and present the alleged uns pecified exculpatory
evidence. Alleging exculpatory evidence exists without evidence of what it is or where it is found does not present the possibility of a valid claim. Tatara does not allege what investigation should
have been done ; what evidence woul d have been discovered through an investigation ; or any new evidence supporting a finding of innocence.5

Aside from the alleged existence of letters to counsel, addressed below, Tatara identified no exculpatory evidence in the district court. On appeal, Tatara attempts to piece together portions of the petition, his response to the district court’s notice of intent to dismiss, and the trial record to recast his claim from an assertion that no video shows him swinging a bottle at the clerk to a claim
that there exist unpresented videos that conclusive ly show he did not swing a bottle at the clerk.
O n appeal, Tatara argues that , taken t ogether, those assertions indicate that he was alleging that
there were surveillance videos showing he did not, in fact, “ swing[] the wine bottle at ” the clerk as the State alleged ; he had no opportunity to do so after he left th e store ; a n d he had instructed
counsel to look into that evidence to show his innocence. Tatara claims that the officer’s body camera video shows the officer reviewing footage of three store video feeds, but the computer display shows two additional feeds

. Tatara’s argument on appeal was not presented to the district court. In addition, the argument is based on speculation and does not raise the possibility of a valid
claim of innocence or ineffective assistance of counsel.
B

. Letters to Counsel
Ta tara alleges ineffective assistance of counsel because counsel did not respond to requests
made in Tatara’s letters. More specifically, on appeal, Tatara alleges that he wrote letters to counsel that may illuminate his claims of ineffective assistance of counsel ; he has been unable t o obtain copies of such letters; and the appointment of post

- conviction counsel is necessary to secure copies of the letters.
Tatara alleged in his petition that counsel did not respond to requests made in his letters based on Tatara’s “research” and that he had conversations with his counsel regarding his criminal
case which shows ineffective assistance of counsel. Tatara relies on Swader v. State , 143 Idaho 651, 152 P.3d 12 (2007) . In Swader , Swader alleged that the jailer disclosed to her that the jailer’s wife had been on Swader’s jury. Id. at 654, 152 P.3d at 15. Swader claimed that her incarceration prevented her from investigating whether the jailer and his wife communicated about Swader or
the case. Id . The Swader Court stated that a trial court should consider circumstances, including that “an indigent defendant who is incarcerated in the penitentiary would almost certainly be unable to conduct an investigation into facts not already contained in t he court record.” Id. (emphasis added)

. Based upon the specific allegation of potential juror misconduct, the Court held that a person in Swader’s position , with reasonable means, would be willing to retain counsel to investigate. Id.6

Swader is distingu ishable. Swader involved a specific claim
, based on specific evidence from the jailer , of potential improper juror communication. That claim supported the appointment of counsel. Tatara made no such specific claim. Tatara claims the existence of letter s he wrote to counsel including requests to which counsel did not respond. Aside from a general allegation that the letters support his claims in his petition, Tatara provided the district court with no specificity
as to how the letter s relate to his claim s. Moreover, Swader is distinguish able because Tatara was privy to the contents of the letters as he allegedly wrote them. Yet, he failed to make any specific
claim as to the contents or what relevant evidence might be obtained. Tatara’s bare allegation that he wrote unspecified letters to counsel to which counsel did not respond is insufficient to show the possibility of a valid claim. Because of the lack of any specificity regarding the content of the letters, t he district court
surmised that the affid avit perhaps raise d an argument that Tatara thought the persistent violator statute did not apply to him, which was inaccurate, but did not assert what else would come from reviewing the letters. The district court concluded “the inability to retrieve tho se letters does not relieve [Tatara’s] burden of raising a claim that is not merely conclusory and that would justify relief,” or allow appointment of appellate counsel to search the le tters for any possible claims.
IV.
CONCLUSION
The district court did not err in denying Tat ara’s motion for appointment of counsel or in summarily dismissing Tatara’s petition for post

- conviction relief. The district court’s judgment summarily dismissing Tatara’s petition for post

- conviction relief and denying appointment of
counsel is affirmed. Judge HUSKEY and Judge BRAILSFORD CONCUR

.