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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43996

MICHAEL ROWE RUSSO,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2016 Unpublished Opinion No. 795

Filed: November 29, 2016

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Third Judicial District, State of Idaho, 

Canyon County. Hon. Christopher S. Nye, District Judge. 

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

Greg S. Silvey, Eagle, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

MELANSON, Chief Judge 

Michael Rowe Russo appeals from the district court’s judgment summarily dismissing 

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

I.

FACTS AND PROCEDURE

Russo was charged with rape, kidnapping, and burglary. At trial, the State introduced a 

video taken from Russo’s cell phone that allegedly depicted Russo in the process of raping a 

woman. The video showed a close-up view of a condom-covered penis penetrating a vagina. An 

officer testified that the police had shown the video to the victim during the course of the 

investigation, and the victim testified that she had identified herself in that video. The State also 

elicited testimony from the victim’s doctor (an OB/GYN) relating to the victim’s anatomy and 

the anatomy of the female depicted in the video found in Russo’s cell phone. Based on 
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identifiable anatomical characteristics, the victim’s doctor concluded beyond a degree of medical 

certainty that the pelvic area in the video belonged to the victim. Russo objected, arguing that 

the victim’s doctor was not qualified to offer such opinion testimony. The trial court overruled 

Russo’s objection. Russo testified that the video on his cell phone was of himself and a different

woman whom he had met that same night. A jury found Russo guilty of rape, I.C. § 18-6101; 

kidnapping, I.C. § 18-4501; and burglary, I.C. § 18-1401. The district court sentenced Russo to 

a determinate life term for rape; a concurrent indeterminate life term, with a minimum period of 

confinement of forty years, for kidnapping; and a concurrent determinate term of ten years for 

burglary. 

On direct appeal, the Idaho Supreme Court affirmed Russo’s judgment of conviction. 

State v. Russo, 157 Idaho 299, 336 P.3d 232 (2014). Russo filed a petition for post-conviction 

relief, alleging multiple claims of ineffective assistance of counsel. Russo alleged that his trial 

counsel was ineffective for failing to file a motion in limine to exclude expert testimony from the 

victim’s doctor as to the identification of the female in the video and a motion to dismiss for lack 

of sufficient evidence to support the State’s allegation that the female in the video was the 

victim. Russo also claimed his appellate counsel was ineffective for failing to challenge the trial 

court’s ruling allowing the doctor’s identification testimony. The State moved for summary 

dismissal of Russo’s petition, which the district court granted. Russo filed a motion for 

reconsideration of the district court’s order summarily dismissing his petition, which the district 

court denied. Russo appeals.

II.

STANDARD OF REVIEW

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 
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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 Section 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, 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 
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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). 

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 

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 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); 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). 
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III.

ANALYSIS

A. Trial Counsel

Russo alleges that the district court erred in summarily dismissing his claim that his trial 

counsel was ineffective for failing to file a motion in limine to exclude expert testimony and 

failing to file a motion to dismiss. In a post-conviction proceeding challenging an attorney’s 

failure to pursue a motion in the underlying criminal action, the district court may consider the 

probability of success of the motion in question in determining whether the attorney’s inactivity 

constituted ineffective assistance. Lint v. State, 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 

2008). Where the alleged deficiency is counsel’s failure to file a motion, a conclusion that the 

motion, if pursued, would not have been granted by the trial court, is generally determinative of 

both prongs of the Strickland test. Lint, 145 Idaho at 477-78, 180 P.3d at 516-17. 

Russo alleges his trial counsel was ineffective for failing to file a motion in limine to 

exclude expert testimony from the victim’s doctor relating to the identity of the female in the 

video found on Russo’s cell phone. Russo argues that the trial court, in a pretrial hearing,

regarded the victim’s doctor as primarily a fact witness for the purposes of trial, and thus Russo’s

trial counsel should have filed a motion in limine to exclude expert testimony from the victim’s 

doctor as to the identification of the female in the video at trial. Russo concludes that, had his 

trial counsel properly excluded such testimony prior to trial, the State would not have been 

allowed to present the doctor’s prejudicial identification testimony and Russo would not have 

been found guilty. Even assuming the accuracy of Russo’s allegation, his claim failed to allege 

on what basis the expert testimony of the victim’s doctor would have been excluded. Russo’s 

claim is impermissibly conclusory. Consequently, Russo has failed to show that the district court 

erred in summarily dismissing his claim that his trial counsel was ineffective for failing to file a 

motion in limine to exclude expert testimony from being offered by the victim’s doctor. 

Russo also alleges that the district court erred in summarily dismissing his claim that his

trial counsel was ineffective for failing to file a motion to dismiss based upon the insufficiency of 

evidence. Specifically, Russo seems to contend that the testimony of the victim’s doctor was 

inconclusive, and the State failed to produce a proper identification to support its allegation that 

the victim was the female depicted in the video found on Russo’s cell phone. Consequently, 
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Russo claims that his trial counsel should have filed a motion to dismiss. Finally, Russo asserts 

that, had trial counsel filed such a motion based on the insufficiency of the evidence and the 

resulting unfair prejudice, Russo’s motion to dismiss likely would have been successful. The 

district court summarily dismissed Russo’s claim, finding that the motion would have been 

unsuccessful because there was sufficient evidence to support the State’s allegation.

The record indicates the video on Russo’s cell phone did not show either person’s face 

but depicted a close-up view of a condom-covered penis penetrating a vagina. Police testimony 

indicated that the video file data stored in the cell phone was consistent with the date and 

approximate time of the rape. The victim testified that her attacker had worn a condom, used a 

cell phone to take pictures during the attack, and had previously identified herself in the video

based on her familiarity with her own pelvic area. The State also elicited testimony from the 

victim’s doctor relating to the victim’s anatomy, pictures of the victim’s anatomy taken the night 

of the attack, and the female’s anatomy depicted in the video found in Russo’s cell phone. The 

victim’s doctor then concluded that the female depicted in the video was the victim based on 

identified characteristics. 

Based on the record in this case, there was sufficient evidence for the jury to find that the 

victim was the female depicted in the video found on Russo’s cell phone. Therefore, the district 

court did not err in finding that a motion to dismiss for insufficiency of this evidence would have 

been unsuccessful. Consequently, Russo has failed to show that the district court erred in 

summarily dismissing his claim that his trial counsel was ineffective by failing to file a motion to 

dismiss. 

B. Appellate Counsel

Russo alleges that the district court erred in dismissing his ineffective assistance of 

appellate counsel claim for failing to bring a meritorious claim on direct appeal. The right to 

effective assistance of counsel extends to the defendant’s first appeal as a matter of right. Evitts 

v. Lucey, 469 U.S. 387, 396 (1985); see also Aragon, 114 Idaho at 765, 760 P.2d at 1181. An 

indigent defendant does not have a constitutional right to compel appointed appellate counsel to 

press all nonfrivolous arguments that the defendant wishes to pursue. Jones v. Barnes, 463 U.S. 

745, 751 (1983); Mintun v. State, 144 Idaho 656, 661, 168 P.3d 40, 45 (Ct. App. 2007). Rather, 

the process of winnowing out weaker arguments on appeal and focusing on those more likely to 
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prevail, far from being the evidence of incompetence, is the hallmark of effective appellate 

advocacy. Smith v. Murray, 477 U.S. 527, 536 (1986); Mintun, 144 Idaho at 661, 168 P.3d at 45. 

Indeed, it is difficult to demonstrate that counsel was incompetent based on failure to raise a 

particular claim on appeal. Smith v. Robbins, 528 U.S. 259, 288 (2000). Only when ignored 

issues are clearly stronger than those presented will the strong presumption of effective 

assistance of counsel be overcome. Id. 

In his petition, Russo alleged his appellate counsel should have appealed the trial court’s 

ruling allowing the victim’s doctor to testify as an expert identifying the victim in the video 

found on Russo’s cell phone over trial counsel’s objection that the doctor was not qualified to 

render such an opinion. The district court summarily dismissed Russo’s claim, finding that 

Russo failed to set forth any cogent reason why this issue was stronger than those appellate 

counsel asserted on direct appeal. On appeal, Russo claims it was improper when the testimony 

of the victim’s doctor shifted from being that of a fact-witness to that of an expert but cites no 

authority to support the contention. Russo also asserts that the issue was meritorious given the 

trial court’s previous rulings regarding the doctor’s testimony as being a fact witness. In support, 

Russo states that, “if this was a meritorious issue then it is necessarily stronger than the ones 

raised which were all rejected by the [Idaho] Supreme Court when it affirmed [Russo’s] 

conviction.” Such an assertion is conclusory and fails to demonstrate why this issue was 

stronger than the issues which were raised on direct appeal. Furthermore, there is no reason to 

assume that, because Russo’s issues raised on appeal were unsuccessful, other issues must have 

been meritorious. Moreover, even presuming the issue was meritorious, Russo has failed to 

show that the doctor’s testimony was legally impermissible requiring the trial court to sustain 

trial counsel’s objection, much less that such an argument would have prevailed on direct appeal 

had appellate counsel raised the issue. Russo’s conclusory allegations are insufficient to 

overcome the strong presumption of effective assistance of appellate counsel. Accordingly, 

Russo has failed to show that the district court erred in summarily dismissing this claim.

IV.

CONCLUSION

Russo has failed to show that his trial counsel was ineffective for failing to file a motion 

in limine to exclude expert testimony and a motion to dismiss. Russo has also failed to show that 
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his appellate counsel was ineffective for failing to challenge the trial court’s ruling allowing the 

victim’s doctor to offer opinion testimony. Accordingly, the district court’s judgment summarily 

dismissing Russo’s petition for post-conviction relief is affirmed. Costs are awarded to 

respondent on appeal.

Judge GUTIERREZ and Judge GRATTON, CONCUR.