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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43856

MICHAEL KOCH,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2016 Unpublished Opinion No. 785

Filed: November 22, 2016

Stephen W. Kenyon, 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THIS IS AN UNPUBLISHED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. Cheri C. Copsey, District Judge. 

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

Silvey Law Office, Ltd.; Greg S. Silvey, Star, for appellant. 

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

General, Boise, for respondent. 

________________________________________________

GRATTON, Judge

Michael Koch appeals from the district court’s judgment summarily dismissing his 

petition for post-conviction relief. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A jury found Koch guilty on four counts of lewd conduct with a minor. He appealed, and 

our Supreme Court affirmed his conviction. State v. Koch, 157 Idaho 89, 334 P.3d 280 (2014).

Koch filed a pro se petition for post-conviction relief and affidavit in support, asserting 

several claims and electing to proceed without counsel. One of the claims in Koch’s petition and 

affidavit asserted his trial counsel was ineffective for failing to challenge the validity of the 

search warrant in the underlying case. Koch did not say why his trial counsel should have 

challenged the validity of the search warrant. 
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On September 28, 2015, the State moved for summary dismissal of the petition, asserting 

the claims in the petition were conclusory, unsupported by admissible evidence, and failed to 

show prejudice. The district court noticed its intent to dismiss the petition on October 27, 2015,

because it had “considered other grounds as well as those posited by the State.”

The district court held a hearing on the motion for summary dismissal on November 16, 

2015. At the hearing, Koch alleged the search of his home in the underlying case occurred ten 

days before the magistrate issued the warrant for the search, and his trial counsel was ineffective 

for failing to challenge the search. Subsequent to the hearing, Koch did not submit into evidence

the warrant or a sworn affidavit regarding the warrant.

The district court summarily dismissed the petition on November 20, 2015, primarily 

holding the claims in the petition were conclusory, unsupported by admissible evidence, and 

failed to show prejudice. Koch timely appeals.

II.

ANALYSIS

Koch asserts the district court did not give him twenty days to respond to the notice of 

intent to dismiss as required by Idaho Code § 19-4906(b). Koch also argues he raised a genuine 

issue of material fact regarding his trial counsel’s failure to challenge the search of his home in 

the underlying case.

A. Notice

Koch asserts the district court did not give him twenty days to respond to the notice of 

intent to dismiss. When the State files a motion for summary dismissal but the district court 

dismisses the petition on grounds different from those asserted in the State’s motion, it does so 

on its own initiative and the court must provide the petitioner with twenty days to respond. 

Saykhamchone v. State, 127 Idaho 319, 322, 900 P.2d 795, 798 (1995). However, when the

district court summarily dismisses a post-conviction petition relying in part on the same grounds 

presented by the State in its motion for summary dismissal, the notice requirement has been met. 

Kelly v. State, 149 Idaho 517, 523, 236 P.3d 1277, 1283 (2010). 

Although the court noticed its intent to dismiss Koch’s petition, the court summarily 

dismissed the petition relying, in part, on the same grounds set forth by the State in its motion for 

summary dismissal. The State’s motion for summary dismissal asserted that Koch’s 

post-conviction claims were conclusory, unsupported by admissible evidence, and failed to show 
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prejudice. Likewise, the district court dismissed Koch’s claims primarily because they were 

conclusory, unsupported by admissible evidence, and failed to show prejudice. The only ground 

for dismissal utilized by the court and not by the State was that Koch waived any issue he could 

have raised on direct appeal but did not. However, that ground was nonspecific and each issue 

was specifically dismissed by the district court on the basis set forth in the State’s motion for 

summary dismissal. Accordingly, and because the State filed its motion for summary dismissal 

fifty-three days before the court dismissed Koch’s petition, the notice requirements of 

I.C. § 19-4906 were met and the court did not prematurely dismiss Koch’s petition.

B. Summary Dismissal

Koch also argues he raised a genuine issue of material fact regarding his trial counsel’s 

failure to challenge the search of his home in the underlying case. 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 upon 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 

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 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 § 19-4906 authorizes summary dismissal of a petition for post-conviction 

relief, 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 genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law. When considering summary dismissal, 
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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. 

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 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 

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). 
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Although Koch admits his petition did not raise a genuine issue of material fact regarding 

his trial counsel’s failure to challenge the search of his home in the underlying case, he asserts 

his argument at the hearing on the motion for summary dismissal did. We disagree. Koch’s 

unsworn statements at the hearing on the motion for summary dismissal were not admissible 

evidence.1 Moreover, subsequent to the hearing, Koch did not submit into evidence the warrant 

or a sworn affidavit regarding the warrant. Thus, Koch’s claim regarding his trial counsel’s 

failure to challenge the search of his home in the underlying case relied solely on the conclusory 

statements in his petition and affidavit in support. Such statements are not sufficient to raise a 

genuine issue of material fact and survive summary dismissal. Accordingly, the district court 

properly held Koch did not raise a genuine issue of material fact regarding his trial counsel’s 

failure to challenge the search of his home in the underlying case.

III.

CONCLUSION

The notice requirements of I.C. § 19-4906 were met and Koch did not raise a genuine 

issue of material fact regarding his trial counsel’s failure to challenge the search of his home in 

the underlying case. The district court’s judgment summarily dismissing Koch’s petition for 

post-conviction relief is affirmed. Costs are awarded to respondent.

Chief Judge MELANSON and Judge HUSKEY CONCUR. 

 

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See I.C. §§ 9-1406, 19-4906(c), 19-4907(a); Idaho Rule of Civil Procedure 56(c).