1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41676

MARKCUS RAYMOND MAY,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

)

)

)

)

)

)

)

)

)

)

2015 Unpublished Opinion No. 456

Filed: April 7, 2015

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THIS IS AN UNPUBLISHED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, Twin 

Falls County. Hon. Randy J. Stoker, District Judge. 

Judgment denying petition for post-conviction relief, affirmed. 

Markcus Raymond May, Boise, pro se appellant. 

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

Attorney General, Boise, for respondent. 

________________________________________________

MELANSON, Chief Judge 

Markcus Raymond May appeals from the district court’s judgment denying his petition 

for post-conviction relief following an evidentiary hearing. For the reasons set forth below, we 

affirm.

I.

FACTS AND PROCEDURE

The facts of May’s underlying criminal charge were outlined in our opinion from May’s 

direct appeal:

May was charged with aggravated battery, Idaho Code §§ 18-903, 18-

907(1)(b); aggravated assault, I.C. § 18-901; burglary, I.C. § 18-1401; and 

eluding a peace officer, I.C. § 49-1404(2); and the State sought sentence 

enhancements for the use of a firearm during the commission of a felony, I.C. 

§ 19-2520. After two previous plea offers, the State and May reached a plea 

agreement under which he would plead guilty to aggravated battery with a deadly 
2

weapon enhancement and misdemeanor eluding a peace officer, in exchange for 

which the State would dismiss the remaining counts. The State agreed to 

recommend a thirty-year unified sentence consisting of ten years determinate 

followed by twenty years indeterminate to be served for aggravated battery, and a 

concurrent six months in county jail for misdemeanor eluding a peace officer. 

On January 27, 2011, pursuant to the plea agreement, May pleaded guilty 

to aggravated battery with a deadly weapon enhancement and misdemeanor 

eluding a peace officer. Approximately six weeks after pleading guilty, May 

received conflict counsel. On April 22, 2011, conflict counsel filed a motion to 

withdraw May’s guilty pleas. Thereafter, a hearing was held on May’s motion, at 

which May and his previous defense counsel testified. 

During the evidentiary hearing, May testified that he pleaded guilty only 

because of threats and pressure from his attorney. He also testified that he had not 

understood that the plea agreement involved a potential thirty-year prison 

sentence for the aggravated battery charge, instead believing that a unified 

sentence of thirty years with ten years determinate meant that twenty years of the 

sentence would be “erased,” leaving a ten-year sentence. May argued that he 

should have been allowed to withdraw his guilty pleas for two reasons: 

(1) because he was pressured into pleading guilty; and (2) that he did not 

understand legal terms in the plea agreement describing the sentence.

The district court found that May did not establish a “just reason” to 

withdraw his guilty pleas and denied his motion to withdraw. May was sentenced 

to a unified term of thirty years with ten years determinate for aggravated battery 

with a weapon enhancement, and six months in jail for eluding.

On appeal, May contends that the district court abused its discretion when 

it denied his motion to withdraw his guilty pleas because he was pressured, he did 

not understand the terms of the plea agreement, and the district court’s 

consideration of certain factors prescribed by a federal circuit court was 

erroneous.

State v. May, Docket No. 38835 (Ct. App. July 31, 2012) (unpublished). We affirmed May’s 

judgment of conviction, concluding that the district court had not abused its discretion in denying 

May’s motion to withdraw his guilty plea, as the record reflected “that May was not pressured, 

that he understood the sentencing terms, and that his acceptance of the plea agreement was made 

voluntarily and knowingly.” 

May filed a pro se petition for post-conviction relief. In it, he alleged various claims of

ineffective assistance of counsel, his actual innocence, and that the district court erred by 

denying his motion to withdraw his guilty plea because it was not knowing, intelligent, and 
3

voluntary.1

 Counsel was appointed to represent May. Following an evidentiary hearing, the 

district court denied May’s post-conviction petition, finding that all of May’s claims were 

previously adjudicated in his motion to withdraw his guilty plea except his claim of actual 

innocence and the appeal that affirmed his conviction.2

 The district court noted that all of the 

facts comprising May’s claim of actual innocence were known before the change of plea hearing 

and could have been raised in his motion to withdraw his guilty plea or on direct appeal, but 

were not. Thus, the district court concluded that all of May’s claims were barred by I.C. § 19-

4901(b).3 The district court also concluded that May’s claims of ineffective assistance of 

counsel and actual innocence were clearly disproven by the record. May appeals.

 

1 May asserts ineffective assistance of counsel claims against the attorney who assisted 

May prior to his motion to withdraw his guilty plea and the attorney who assisted May with that 

motion and at sentencing. The claims against initial counsel include: a personal conflict of 

interest with counsel that was not addressed; counsel’s failure to investigate and use important 

evidence in pursuing defenses or object to improper evidence or testimony; counsel’s failure to 

properly advise May regarding the consequences of his plea; and counsel’s failure to request a 

competency hearing or challenge the weapon enhancement. The claims against subsequent 

counsel include: counsel’s failure to submit mitigating letters from friends and family at 

sentencing; counsel’s failure to properly prepare May for the hearing on his motion to withdraw 

his guilty plea; counsel’s failure to communicate with May; counsel’s failure to raise certain 

issues during the hearing on the motion to withdraw his guilty plea; and counsel’s failure to 

object to admission of a recorded phone call between May and his mother or to call May’s 

mother as a witness. At the evidentiary hearing, May limited his issues with subsequent counsel 

to his failure to submit mitigating letters and his failure to properly prepare May for the hearing.

2 May claims that the district court erred in failing to hold an evidentiary hearing. The 

record clearly disproves this claim and shows that an evidentiary hearing was held. Seemingly 

realizing this, May also claims that he was prevented from introducing the evidence necessary to 

support his claim. However, he fails to identify what evidence he was prevented from

introducing or how this evidence would have supported his claims. Moreover, the record belies 

May’s contentions and shows that he was afforded a full and fair opportunity to present all 

relevant evidence at the evidentiary hearing.

3 Idaho Code Section 19-4901(b) provides, in pertinent part:

This remedy is not a substitute for nor does it affect any remedy incident 

to the proceedings in the trial court, or of an appeal from the sentence or 

conviction. Any issue which could have been raised on direct appeal, but was 

not, is forfeited and may not be considered in post-conviction proceedings, unless 

it appears to the court, on the basis of a substantial factual showing by affidavit, 
4

II.

STANDARD OF REVIEW

In order to prevail in a post-conviction proceeding, the petitioner must prove the 

allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 

869, 801 P.2d 1216, 1220 (1990). When reviewing a decision denying post-conviction relief 

after an evidentiary hearing, an appellate court will not disturb the lower court’s factual findings 

unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 67, 794 P.2d 

654, 656 (Ct. App. 1990). The credibility of the witnesses, the weight to be given to their 

testimony, and the inferences to be drawn from the evidence are all matters solely within the 

province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 

1988). We exercise free review of the district court’s application of the relevant law to the facts. 

Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct. App. 1992). 

III.

ANALYSIS

May reasserts on appeal many of the arguments raised in his petition for post-conviction 

relief, including some of his claims of ineffective assistance of both the counsel who assisted him 

before the motion to withdraw his guilty plea and the counsel who assisted him thereafter.

4

 

However, May adds the claim that the district court erred in denying his motion to withdraw his 

guilty plea and contends that his counsel’s ineffective assistance made his guilty plea not 

 

deposition or otherwise, that the asserted basis for relief raises a substantial doubt 

about the reliability of the finding of guilt and could not, in the exercise of due 

diligence, have been presented earlier.

4 May also asserts claims of ineffective assistance of appellate counsel. However, these 

claims were not raised in his petition for post-conviction relief. Generally, issues not raised 

below may not be considered for the first time on appeal. Sanchez v. Arave, 120 Idaho 321, 322, 

815 P.2d 1061, 1062 (1991); Joyner v. State, 156 Idaho 223, 230, 322 P.3d 305, 312 (Ct. App. 

2014). As a result, we will not consider these claims on appeal.
5

knowing, intelligent, or voluntary.5

 The state contends that May’s claims regarding the 

performance of his initial counsel and the denial of his motion to withdraw his guilty are barred 

by the doctrine of res judicata.

A. Res Judicata

The scope of post-conviction relief is limited. Rodgers v. State, 129 Idaho 720, 725, 932 

P.2d 348, 353 (1997). A petition for post-conviction relief is not a substitute for an appeal. 

I.C. § 19-4901(b). A claim or issue which was or could have been raised on appeal may not be 

considered in post-conviction proceedings. Id.; Whitehawk v. State, 116 Idaho 831, 832-33, 780 

P.2d 153, 154-55 (Ct. App. 1989). Moreover, the doctrine of res judicata applies when a 

petitioner attempts to raise the same issues previously ruled upon on direct appeal in a 

subsequent petition for post-conviction relief. Knutsen v. State, 144 Idaho 433, 439, 163 P.3d 

222, 228 (Ct. App. 2007). Indeed, when legal issues are decided in a criminal action on direct 

appeal, the petitioner is barred by the doctrine of res judicata from raising them again in a postconviction relief proceeding. State v. Beam, 115 Idaho 208, 210, 766 P.2d 678, 680 (1988); 

State v. Fetterly, 115 Idaho 231, 233, 766 P.2d 701, 703 (1988).

The issues May raised in his post-conviction petition and reasserted at the evidentiary 

hearing are identical to the issues he raised at the hearing on his motion to withdraw his guilty 

plea. At the post-conviction evidentiary hearing, May acknowledged during direct examination 

that his testimony there “essentially parrots” his testimony at the hearing on his motion to 

withdraw his guilty plea. May did not raise any new issues regarding his initial counsel that had 

not previously been addressed at the hearing on the motion to withdraw his guilty plea and 

affirmed on appeal. Moreover, May had a full and fair opportunity to address the issues he 

raised regarding his initial counsel’s representation and his desire to withdraw his guilty plea at 

the hearing on that motion. Indeed, May conceded during closing argument at the evidentiary 

hearing that most of the issues he was asserting were previously raised and fully addressed in the 

hearing on the motion to withdraw his guilty plea. Following that hearing, the district court 

denied May’s motion, and we affirmed that decision on appeal. Because all of May’s claims 

 

5 May also adds the claim that he was not given access to the record to prepare for this 

appeal. However, May provides no evidence to support this conclusory allegation. Accordingly, 

we will not address it further.
6

regarding the denial of his motion to withdraw his guilty plea, including the issues encompassing 

his claims of ineffective assistance of his initial counsel, were raised and resolved at the hearing 

on May’s motion to withdraw his guilty plea and the appeal therefrom, those issues are barred 

from relitigation by the doctrine of res judicata. Moreover, May has provided no argument 

establishing why any issues that were not raised could not have been; thus, any such issues were 

waived under I.C. § 19-4901(b). Accordingly, we will not address these issues further. 

B. Ineffective Assistance of Counsel

May’s claims regarding ineffective assistance of his subsequent counsel, who assisted 

with his motion to withdraw his guilty plea and sentencing, and his claim of actual innocence are 

addressed for the first time in his post-conviction petition. Accordingly, we review the district 

court’s resolution of those claims.

A claim of ineffective assistance of counsel may properly be brought under the postconviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct. 

App. 1992). To prevail on an ineffective assistance of counsel claim, the defendant must show 

that the attorney’s performance was deficient and that the defendant was prejudiced by the 

deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hassett v. State, 127 Idaho 

313, 316, 900 P.2d 221, 224 (Ct. App. 1995). To establish a deficiency, the petitioner has the 

burden of showing that the attorney’s representation fell below an objective standard of 

reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988). 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. Id. at 761, 760 P.2d at 1177. 

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. Howard v. 

State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).

Here, May alleged various ways that his subsequent counsel’s representation was 

ineffective during the hearing on the motion to withdraw his guilty plea and sentencing. Both 

May and his subsequent attorney testified at the evidentiary hearing. However, the district court 

found May’s testimony incredible and unsupported by the record and found his subsequent 
7

attorney’s testimony credible and consistent with the factual record. As stated by the district 

court:

May’s claims against [his subsequent counsel] are likewise meritless. He 

says that [his counsel] did not properly “prep” him for the hearing where he 

testified in support of his motion to withdraw plea. The Court finds that this 

claim is frivolous and unsupported by the record. [His counsel] testified that he 

spent considerable time with May preparing for the hearing. It is not an 

attorney’s job to tell a client what to say in court, and indeed [his counsel] did not. 

He explained the law to May and gave him every opportunity to state his reasons 

for withdrawing his plea. May clearly responded to questions asked by [his 

counsel] and was given the opportunity to expand on other factors constituting 

“just cause” for withdrawal of his plea. . . .

May claims that [his subsequent counsel] did not present character 

evidence at sentencing but does not provide in this record what that evidence 

would have shown or how that could have affected the sentence. [His counsel] 

clearly testified that he would have presented any character evidence that in his 

opinion was meritorious if that evidence was made available to him. The decision 

to present evidence at sentencing is a strategic decision. May has not carried his 

burden of proving either ineffective assistance of counsel or prejudice on this 

issue.

We agree with the district court’s conclusions. May’s assertions of objectively deficient 

performance and prejudice are unsupported by the record; indeed, in many respects, his claims 

are disproven by the record, as the district court noted. As a result, May has failed to establish 

ineffective assistance of his subsequent counsel.

C. Actual Innocence

May also alleges that he is actually innocent of the crimes to which he pled guilty and 

that the district court erred by not applying an actual innocence standard at the evidentiary 

hearing. He asserts that he has valid claims to self-defense, mental incapacity, lack of intent, and 

accident.6

 These claims are based upon his revised recollection of how the incident took place, 

 

6 On appeal, May appears to have abandoned his insanity and diminished capacity claims, 

as applied to his guilt or innocence, asserting that he was not hallucinating or otherwise laboring 

under a mental defect when he committed the offense. He made this assertion, despite claiming 

in his petition for post-conviction relief that he had been awake for twelve days prior to the 

incident and admitting that he was “highly intoxicated under alcohol and other drugs” at the time 

of the incident. Instead, he contends that his intoxication and mental instability were relevant to 

sentencing. However, May does not argue the issue of sentencing on appeal, so we need not 

address it.
8

which drastically differs from that reported by every other witness to the incident, including most 

of May’s several prior accounts of what took place, as testified to by his prior counsel. May 

contends that he was driving down the road when the victim and his two friends blocked the road 

and prevented him from driving through. These “highwaymen,” as May calls them, had intent to 

do him harm and threatened him. Because he allegedly feared for his safety, May retrieved a 

handgun from his vehicle and fired several shots at the empty vehicle these “highwaymen” were 

standing near to warn them off. According to May--but unsupported by any evidence--the victim 

was struck in the leg by a ricocheting bullet, not a direct shot. Thus, in May’s mind, he was the 

true victim and was entitled to defend himself by brandishing a weapon and firing “warning”

shots in their general direction. 

We are not persuaded. Setting aside, for a moment, May’s knowing, voluntary, and 

intelligent admissions of guilt at the change of plea hearing and his failure to raise this issue on 

direct appeal, his account of events is entirely unsupported and controverted by the record. 

Indeed, May has provided no evidence to corroborate his account, nor has he identified any such 

evidence. On the contrary, May’s testimony at the evidentiary hearing and at the hearing on the 

motion to withdraw his guilty plea, in which he admitted that he voluntarily stopped his vehicle 

to confront the victim, largely belies this newfound account of events. Thus, even if the district 

court failed to apply an actual innocence standard--whatever that might be--May failed to 

establish even a prima facie showing, much less by a preponderance of the evidence, that he was 

actually innocent of the crimes charged.

IV.

CONCLUSION

May failed to establish that his prior counsel provided him with ineffective assistance. 

He further failed to establish that he was actually innocent of the crimes to which he pled guilty. 

Accordingly, the district court’s judgment denying May’s petition for post-conviction relief is 

affirmed. No costs or attorney fees are awarded on appeal.

Judge LANSING and Judge GUTIERREZ, CONCUR.