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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 40162

DAVID WAYNE VOGEL,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2013 Unpublished Opinion No. 685

Filed: October 2, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Cassia

County. Hon. Michael R. Crabtree, District Judge. 

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

Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

MELANSON, Judge

David Wayne Vogel appeals from the district court’s order summarily dismissing his 

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

I.

FACTS AND PROCEDURE

Vogel pled guilty to possession of methamphetamine in 2010 after a glass pipe in his 

possession tested positive for the drug. The glass pipe was analyzed by the Idaho State Police 

forensic laboratory in Pocatello. Vogel was sentenced to a unified term of seven years, with a 

minimum period of confinement of three years. He subsequently learned of misconduct at the

Pocatello laboratory through letters sent by the Idaho State Police to Idaho prosecutors. The 

letters indicated that employees at the Pocatello laboratory--including the employee that had 

conducted the test in Vogel’s case--had clandestinely maintained a box of unaccounted-for 

controlled substances in the laboratory, which they used for training purposes and tour displays.
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After learning of these issues, Vogel filed a petition for post-conviction relief. In his 

petition and supporting affidavit, Vogel alleged ineffective assistance of counsel and his belief 

that the controlled substance testing in his case was flawed as a result of the misconduct at the 

Pocatello laboratory. The district court appointed counsel, who then filed an affidavit with 

attached exhibits of the letter from the Idaho State Police and the original test results showing 

which employee had processed the evidence in Vogel’s case. The state moved to dismiss the 

petition under I.C. § 19-4906(b) and (c), arguing that the claims were bare and conclusory, Vogel 

had failed to present evidence in support of his claims, and he had failed to raise a genuine issue 

of material fact. The district court granted the state’s motion for summary dismissal of Vogel’s 

claim of ineffective assistance of counsel, but allowed Vogel to amend his petition regarding his 

claim of misconduct at the Pocatello laboratory. Vogel filed an amended petition that restated 

both his ineffective assistance of counsel argument and his belief that the controlled substance 

testing was flawed. Vogel also filed a motion for retesting of the evidence in his case at state 

expense. However, he presented no further evidence in support of either the motion or the 

amended petition. As a result, the district court denied the motion and summarily dismissed 

Vogel’s amended petition. Vogel appeals. 

II.

STANDARD OF REVIEW

A petition for post-conviction relief initiates a proceeding that is civil in nature. 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 upon which the request for post-conviction relief is based. I.C. § 19-

4907; 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 that would suffice for a complaint under I.R.C.P. 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 
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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 motion of a party or upon the court’s own initiative, if it 

appears from the pleadings, depositions, answers to interrogatories, and admissions and 

agreements of facts, together with any affidavits submitted, that there is no genuine 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, 715 

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 from 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. at 355, 195 P.3d at 714. 

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 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). 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 construed 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 petition, 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); 

Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of 
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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, 227 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). 

III.

ANALYSIS

Vogel asserts that the district court abused its discretion and denied his substantial rights 

by denying his motion for retesting of the evidence in his case. He contends that he provided 

sufficient evidence that the original controlled substance testing in his case was flawed through 

the letter and original test results attached as exhibits to the affidavit of counsel. When a trial 

court’s discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered 

inquiry to determine: (1) whether the lower court correctly perceived the issue as one of 

discretion; (2) whether the lower court acted within the boundaries of such discretion and 

consistently with any legal standards applicable to the specific choices before it; and (3) whether 

the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 

600, 768 P.2d 1331, 1333 (1989). 

In Vogel’s motion, he requested that the state bear the expense of retesting the evidence 

in his case pursuant to I.C. § 19-4904, which provides that a court may order payment of certain 

costs and expenses for an indigent petitioner in a post-conviction action. This Court has 

previously analogized a request for reexamination of physical evidence under Section 19-4904 to

a request for discovery in a post-conviction action. See Murphy v. State, 143 Idaho 139, 147-48, 

139 P.3d 741, 749-50 (Ct. App. 2006). When a petitioner believes discovery is necessary for 

acquisition of evidence to support a claim for post-conviction relief, the petitioner must obtain 

authorization from the court to conduct discovery. I.C.R. 57(b); Raudebaugh v. State, 135 Idaho 

602, 605, 21 P.3d 924, 927 (2001). Whether to authorize discovery is a matter directed to the 

discretion of the district court. Raudebaugh, 135 Idaho at 605, 21 P.3d at 927; Fairchild v. State, 

128 Idaho 311, 319, 912 P.2d 679, 687 (Ct. App. 1996). Discovery in a post-conviction action is 
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not required unless necessary to protect a petitioner’s substantial rights. Murphy, 143 Idaho at 

148, 139 P.3d at 750; Griffith v. State, 121 Idaho 371, 375, 825 P.2d 94, 98 (Ct. App. 1992). The 

district court may permit reasonable discovery subject to its supervision and firm control. 

Murphy, 143 Idaho at 148, 139 P.3d at 750; Merrifield v. Arave, 128 Idaho 306, 310, 912 P.2d 

674, 678 (Ct. App. 1996). “Fishing expeditions” should not be allowed, as post-conviction 

actions provide a forum for known grievances, not an opportunity to research for grievances. 

Murphy, 143 Idaho at 148, 139 P.3d at 750. Hence, a post-conviction action is not a vehicle for 

unrestrained testing or retesting of physical evidence introduced at the criminal trial. Murphy, 

143 Idaho at 148, 139 P.3d at 750.

The Idaho Supreme Court established a test for determining whether denial of a postconviction discovery request for reexamination or retesting of physical evidence is an abuse of 

discretion in Raudebaugh, 135 Idaho at 604-05, 21 P.3d at 926-27. Raudebaugh sought release 

of the murder weapon and state funding to retain an expert to examine it for fingerprint evidence 

that he asserted could have assisted him at his trial for second degree murder. But, he made no 

showing that the original fingerprint testing was flawed or that there was new technology that 

would make current testing more reliable. The Court held that the district court had not abused 

its discretion in denying Raudebaugh’s request because his allegations were merely speculative 

and unsupported by admissible evidence. Id. at 605, 21 P.3d at 927.

The issue here is similar to the issue in Raudebaugh. Vogel’s motion for retesting was 

made after the district court allowed him to amend his petition so that he could allege admissible 

evidence in support of his claim that the original test results in his case were flawed, tainted, or 

otherwise unreliable as a result of the misconduct at the forensic laboratory in Pocatello. 

However, the district court found that Vogel had not provided any admissible evidence of this in 

his amended petition or in support of his motion. Instead, the district court found that Vogel’s

claim remained bare, conclusory, and unsubstantiated. The letter outlining the misconduct at the 

Pocatello laboratory and the original test results indicating that an employee involved in the 

misconduct performed the original tests in Vogel’s case fail to indicate any flaws in the original 

testing as a result of the misconduct at the Pocatello laboratory. Indeed, the reported misconduct 

did not involve test procedures at the laboratory. Vogel also alleges that the district court failed 

to recognize that it had discretion to grant his motion for retesting, but the record reflects the 

contrary. The record indicates that Vogel sought to retest the glass pipe in hopes of discovering
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evidence that might warrant retesting, as he acknowledged that the test may prove or disprove his 

allegations. Thus, Vogel’s request for retesting was nothing more than a fishing expedition and 

his assertions, like those in Raudebaugh, are merely speculative and unsupported by admissible 

evidence. Accordingly, without evidence of flaws in the original testing, the discovery was not 

necessary to protect Vogel’s substantial rights, and the district court did not err in denying his

motion for retesting. 

IV.

CONCLUSION

The district court did not abuse its discretion in denying Vogel’s motion for retesting 

because he provided no evidence that the original testing in his case was flawed. Thus, Vogel 

has failed to assert facts supported by admissible evidence creating a genuine dispute that would 

entitle him to an evidentiary hearing. Accordingly, we affirm the district court’s order 

summarily dismissing Vogel’s petition for post-conviction relief. No costs or attorney fees are 

awarded on appeal. 

Chief Judge GUTIERREZ and Judge LANSING, CONCUR.