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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 37706

PAUL JAMES CAVANAUGH,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2013 Unpublished Opinion No. 443

Filed: April 11, 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THIS IS AN UNPUBLISHED 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, 

Bonner County. Hon. Steven C. Verby, District Judge. 

Judgment summarily dismissing petition for post-conviction relief in 

part, affirmed.

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

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Chief Judge

Paul James Cavanaugh appeals from the district court’s judgment summarily dismissing

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

I.

FACTS AND PROCEDURE

On March 10, 2005, a pedestrian was struck by a pickup truck at approximately 6:30 in 

the evening while she was walking along a dirt road. The pedestrian later died from her injuries. 

Cavanaugh, who was the registered owner of the truck, emerged several minutes later from the 

dark wooded area the truck had swerved into after striking the victim. He was charged with 

vehicular manslaughter, Idaho Code § 18-4006, and leaving the scene of an accident, I.C. 

§ 18-8007. A jury found Cavanaugh guilty as charged. 

Cavanaugh did not directly appeal his conviction, but filed a motion for a new trial,

which the district court denied. This Court affirmed. State v. Cavanaugh, Docket No. 33657 
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(Ct. App. Feb. 10, 2009) (unpublished). Thereafter, Cavanaugh filed a pro se petition for 

post-conviction relief, asserting a variety of ineffective assistance of counsel claims, including 

that his trial counsel was ineffective for failing to use a peremptory challenge to exclude an 

allegedly biased juror during voir dire and for failing to file a direct appeal. After a hearing on 

the latter issue, the district court granted relief, entering an order allowing Cavanaugh a renewed 

period of time to file a direct appeal.1

 The district court summarily dismissed the remaining 

claims. Cavanaugh now appeals the summary dismissal of his claim that counsel was ineffective 

at voir dire. 

II.

ANALYSIS

Cavanaugh asserts the district court erred in concluding there was no genuine issue of 

material fact with respect to his allegation that he received ineffective assistance of counsel at 

voir dire. A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, 

governed by the Idaho Rules of Civil Procedure. State v. Yakovac, 145 Idaho 437, 443, 180 P.3d 

476, 482 (2008). See also Pizzuto v. State, 146 Idaho 720, 724, 202 P.3d 642, 646 (2008). Like 

plaintiffs in other civil actions, 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; Stuart v. 

State, 118 Idaho 865, 869, 801 P.2d 1216, 1220 (1990); 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, however, in that it must contain more than “a short and plain 

statement of the claim” that would suffice for a complaint under Idaho Rule of Civil 

Procedure 8(a)(1). State v. Payne, 146 Idaho 548, 560, 199 P.3d 123, 135 (2008); Goodwin, 138 

Idaho at 271, 61 P.3d at 628. The petition 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. I.C. § 19-4903. In other words, the petition must present or be accompanied by 

admissible evidence supporting its allegations or it will be subject to dismissal. Wolf v. State, 

152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011); Roman v. State, 125 Idaho 644, 647, 873 

P.2d 898, 901 (Ct. App. 1994).

 

1 Cavanaugh filed a direct appeal and this Court affirmed his judgment of conviction. 

State v. Cavanaugh, Docket No. 37705 (Ct. App. Oct. 26, 2011) (unpublished).
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Idaho Code § 19-4906 authorizes summary dismissal of a petition for post-conviction 

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.” I.C. § 19-4906(c). 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. Payne, 146 Idaho at 

561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d at 901. Moreover, because the district 

court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district 

court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the 

most probable inferences to be drawn from the evidence. Yakovac, 145 Idaho at 444, 180 P.3d at 

483; Wolf, 152 Idaho at 67, 266 P.3d at 1172; 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. Chavez v. Barrus, 146 Idaho 212, 218, 192 P.3d 1036, 

1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d 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 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); Murphy v. State, 143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006). Thus, 

summary dismissal of a claim for post-conviction relief is appropriate when the court can 

conclude, as a matter of law, 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 Payne, 146 Idaho at 561, 199 P.3d at 136; 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. 
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Kelly, 149 Idaho at 521, 236 P.3d at 1281; Payne, 146 Idaho at 561, 199 P.3d at 136; 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 v. State, 148 Idaho 247, 250, 220 P.3d 1066, 1069 (2009); Downing v. State, 

136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).

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 

the attorney’s performance was deficient and 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 the attorney’s 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). 

Cavanaugh’s claim pertains to his trial counsel’s failure to use a peremptory challenge to 

exclude a potential juror, R.H. During voir dire, shortly before R.H. was called to join the first 

group of jurors, the district court asked the first group whether anyone had “any bias or prejudice 

either for or against Mr. Cavanaugh at this time.” The district court also asked whether they 

would be willing to follow the court’s instructions on the law even if they believed the law 

should be different. Just before R.H. was selected to join the first group, the district court asked 

the group: “Are there any of you if selected as a juror in this case who is unwilling or unable to 

render a fair and impartial verdict based upon the evidence presented in this courtroom and the 
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law as instructed to you by the court?” Once R.H. joined the first group, he was asked whether 

he would have answered “yes” to any of the previously asked questions, to which he answered in 

the affirmative. The following colloquy ensued:

[The Court]: And do you know something about this case or have you read 

something about this case? 

[R.H.]: I did. Where I work is just a short distance on this particular road 

from the event. Yes. My daughter worked with [the victim]. I 

know one of the individuals they intend on calling as a witness. 

Do I think that I could judge fairly? Yes. But I don’t know. . . . 

[W]hat I’ve heard here by the prosecuting attorney and the defense 

attorney already today has changed my vision of what I believed 

happened so . . . 

[The Court]: Knowing--or having heard about this case, do you feel that you 

could set aside what you’ve heard about this case and decide the 

case based solely upon the evidence that’s presented during the 

course of this trial?

[R.H.]: I believe that I could.

[The Court]: And with regard to the individuals that you know of who may be a 

witness in this case or witnesses, do you feel that you would give 

that person or persons greater weight than you would someone 

else? Or lesser weight? Either one.

[R.H.]: I--it would--I would say greater weight. Yes. Probably.

[The Court]: Would this knowledge prevent you from acting with impartiality in 

this case?

[R.H.]: I don’t believe so. Like I said . . . the knowledge that I had until 

today has already been changed by what I have seen here.

[The Court]: Any other questions that you would have responded yes to?

[R.H.]: No. 

. . . .

[R.H.]: Well, only that one question that I do . . . know personally one of 

the individuals that you intend on calling and my daughter worked 

with [the victim] . . . . I did not know [the victim]. I work with 

people who did know her. All right. And this happened close to 

where I work.

In its order summarily dismissing all but one of Cavanaugh’s post-conviction claims, including 

the claim at issue in this appeal, the district court addressed them generally:

To survive the State’s motion, Mr. Cavanaugh must establish that there are 

material issues of fact which preclude the granting of the motion for summary 

dismissal. There has been no showing that his lawyers’ actions fell below an 

objective standard of reasonableness. There has been an inadequate showing that 

the conduct of his lawyers so undermined the proper functioning of the 

adversarial process that the trial cannot be relied upon as having produced a just 

result. The petition and other documents submitted by Mr. Cavanaugh, together 
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with his argument at the hearing, failed to show that his trial counsel were 

ineffective before trial, during trial, and/or at sentencing, and that there is a 

reasonable probability that but for the conduct of his counsel, the outcome of the 

trial would have been different. 

On appeal, Cavanaugh contends that, by presenting “unrebutted evidence that his 

attorney failed to strike a juror who admitted that he would be biased in favor of one of the 

witnesses” and this juror served on the jury that convicted Cavanaugh, he presented a prima facie 

case that his counsel was ineffective. Thus, he argues, he was entitled to an evidentiary hearing 

and summary dismissal of this issue was erroneous. We need not reach the question of whether 

Cavanaugh established a genuine issue of material fact as to whether counsel’s failure to utilize a 

peremptory strike to exclude R.H. was deficient performance because we conclude that, even 

assuming deficient performance, Cavanaugh has not succeeded in presenting an issue of material 

fact as to the second Strickland prong--prejudice. As previously stated, a petitioner claiming that 

his counsel’s deficient performance was prejudicial 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; Curless v. State, 146 Idaho 95, 100, 190 P.3d 914, 

919 (Ct. App. 2008). A reasonable probability is a probability sufficient to undermine 

confidence in the outcome. Strickland, 466 U.S. at 694; Curless, 146 Idaho at 100, 190 P.3d at 

919. A court determining whether the petitioner has met his burden must consider the totality of 

the evidence presented at trial. Strickland, 466 U.S. at 694-95; Curless, 146 Idaho at 100, 190 

P.3d at 919. A verdict or conclusion only weakly supported by the record is more likely to have 

been affected by errors than one with overwhelming record support. Strickland, 466 U.S. at 696; 

Curless, 146 Idaho at 100, 190 P.3d at 919. Circumstantial evidence and direct evidence 

inherently possess the same probative value. State v. Glass, 146 Idaho 77, 85 190 P.3d 896, 904 

(Ct. App. 2008). Here we conclude that, given the overwhelming evidence at trial of 

Cavanaugh’s guilt, there is no reasonable probability the outcome would have been different 

even had R.H. been excluded from the jury. 

Cavanaugh’s defense at trial was that he was merely a passenger in his truck that struck 

the victim. Although there was no testimony that anyone had actually seen him driving at the 

time, the State presented extensive circumstantial evidence that Cavanaugh, the registered owner 

of the vehicle, was culpable. As we stated above, such evidence carries the same weight as 

direct evidence. Id. The victim’s boyfriend, who witnessed the incident, identified Cavanaugh 
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as the only person he saw emerging from the truck after it struck the victim and swerved off the 

road. The witness also observed that when Cavanaugh approached the scene, Cavanaugh was 

acting intoxicated and smelled of alcohol. In addition, the witness testified that when he told 

Cavanaugh that Cavanaugh had killed his girlfriend, Cavanaugh responded: “I know. I will die 

with her.” The witness’s foster mother, who came upon the scene shortly after the incident, also 

identified Cavanaugh as having been on the scene and saying, “I’m sorry” and “I didn’t mean 

to.” She testified Cavanaugh smelled heavily of alcohol and was acting intoxicated. Two other 

witnesses who arrived on the scene shortly after the incident also identified Cavanaugh as having 

been there, smelling of alcohol, and acting intoxicated. Additionally, an officer testified that 

when questioned by a police officer several hours after the incident, Cavanaugh told the officer

“he may have hit somebody” and no one else had been in the vehicle with him at the time. The 

officer observed that Cavanaugh appeared to be intoxicated. In a call to dispatch on the night of 

the incident, the tape of which was played for the jury, Cavanaugh stated he thought he may have 

hit someone.2

Cavanaugh’s evidence to rebut the State’s case included his testimony that, although he 

remembered very little from the time before and after the incident due to his consumption of a 

large amount of alcohol earlier in the day, he had a vivid memory of being in the passenger seat 

of the truck at some point. It is questionable whether Cavanaugh’s testimony would have very 

much persuasive value, if any, given his claim that he could remember very little about the hours 

surrounding the incident, that he could not identify who would have been driving his vehicle at 

the time, and his testimony that he had been at the scene and he had been drinking heavily that 

day. He also argued that his assertion that he was not driving was supported by evidence that 

only the passenger side door of the truck was open when it was approached by officers after the 

incident, he only had wounds on the right side of his head, and the only blood inside the truck 

cabin was on the passenger side. The State rebutted this evidence, arguing it did not explain how 

the alleged other driver exited and that Cavanaugh just as easily could have exited from the 

passenger side given that he was likely thrown in that direction when the truck violently veered 

to the left after hitting the victim.

 

2 The recording of the dispatch call, although referred to in the trial transcript, is not

contained in the record on appeal. 
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In sum, it was Cavanaugh’s truck that struck the victim and a witness watched as 

Cavanaugh was the only person to exit the truck immediately afterwards. Cavanaugh essentially 

admitted to having struck the victim to several people at the scene, never mentioning that 

someone else was driving, and went so far as to state he “may” have been the driver to both 

dispatch and an officer several hours later. He also told the officer unequivocally that he had 

been the only one in the vehicle at the time. He presented no plausible evidence at trial as to 

who could have been driving his truck, if not him, but merely asserted he had an isolated 

memory of being in the passenger seat. In the face of this evidence, including that of several 

witnesses who substantiated each other’s testimony, there is no reasonable probability that a 

juror who may have been more likely to credit one certain witness’s testimony3would have 

changed the outcome. In addition, R.H. specifically stated when questioned that he would be 

able to assess the case impartially. Given these factors, we conclude, even assuming counsel 

performed deficiently by failing to strike R.H. from the jury pool,

4 Cavanaugh has not shown 

there is a reasonable probability that, but for the deficient performance, the outcome of the trial 

would have been different. See Curless, 146 Idaho at 101, 190 P.3d at 920 (affirming dismissal

of Curless’s post-conviction claim of ineffective assistance of counsel for failure to obtain 

admission of certain evidence because, among other reasons, Curless had not shown prejudice as 

a result of the alleged deficient performance where there was significant evidence of his guilt 

presented at trial and there was no reasonable probability that the excluded evidence would not 

have changed the outcome). Accordingly, we conclude no material issues of fact existed that

 

3 The record on appeal does not identify the witness to which R.H. was referring; therefore,

we do not know whether the witness actually testified.

4 We note that whether counsel actually performed deficiently would be difficult for 

Cavanaugh to establish. It is well-settled that a challenge for cause of a prospective juror falls 

within the wide range of trial strategy, and therefore, such decisions will not be second-guessed 

on appeal unless based on inadequate preparation, ignorance of relevant law, or other 

shortcomings capable of objective evaluation. Medrano v. State, 127 Idaho 639, 647, 903 P.2d 

1336, 1344 (Ct. App. 1995). As we recognized in State v. Adams, 147 Idaho 857, 861, 216 P.3d 

146, 150 (Ct. App. 2009), in assessing whether to challenge a particular juror, attorneys must not 

only weigh the perceived negative features against the favorable features of that particular juror, 

they must also consider whether eliminating the juror could result in an even less acceptable 

individual moving into that position on the jury panel. Here, where R.H. offered assurances he 

could act impartially, it would be a tall order for Cavanaugh to demonstrate actual deficient 

performance. 
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would warrant an evidentiary hearing. See Kuehl v. State, 145 Idaho 607, 611, 181 P.3d 533, 

537 (Ct. App. 2008). The district court’s judgment summarily dismissing Cavanaugh’s 

post-conviction petition in part is affirmed. 

Judge LANSING and Judge GRATTON CONCUR.