1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 44048

ROBERT A. RICHMOND ,
Petitioner

- Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) 2017 Unpublished Opinion No. 390

Filed: March 6, 2017
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THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY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. Richard D. Greenwood , District Judge.
Judgment summarily dismissing petition for post

- conviction relief, affirmed

. Nevin, Benjamin, McKay & Bartlett, LLP; Dennis A. Benjamin , Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson , Deputy Attorney General, Boise, for respondent.

________________________________________________ GRATTON, Chief Judge Robert A. Richmond appeals from the district court ’ s judgment summarily dismiss ing his petition for post

- conviction relief. Richmond argues the district court erred in finding that trial
counsel ’ s deficient performance at trial was not prejudicial. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND The facts giving rise to the charge against Richmond are set forth in this Court ’ s unpublished opinion on Richmond ’ s appeal from his conviction, State v. Richmond
, Docket
N o. 41093 (Ct. App. Sept. 2, 2014) : Richmond and his then fiancée (the victim) were involved in a physical dispute whil e driving from Garden City to Meridian. Shortly after arriving at a house in Meridian, the victim made her way to a bar where a bartender called the police. Richmond was charged by information with aggravated assault “by punching [the victim] in the head and/or face causing severe swelling and bruising to her eyes and2 face, and bleeding to her nose and/or by grabbing her by the neck and applying pressure.” Richmond was also alleged to be a persistent violator. The case proceeded to trial, and the State f irst presented testimony from an officer who interviewed the victim and photographed the victim’s injuries. This officer also interviewed and photographed Richmond. The State then called the victim who testified that Richmond punched her and then, at one point, used a seat belt to choke her. A paramedic who examined the victim also testified, recalling what injuries the victim had. Another officer testified about Richmond’s injuries, and the State introduced photographs of the inside of the vehicle depi cting blood spatter within the

car. Richmond testified in his defense, claiming that he acted in self

- defense. Although the jury was instructed on self

- defense, they found Richmond guilty of aggravated assault. After the verdict, Richmond acknowledged h e was a persistent violator. Prior to sentencing, Richmond filed a motion and memorandum for judgment of acquittal or, in the alternative, motion for new trial. Relevant to this appeal, Richmond asserted that a new trial should be granted because the cour t misdirected the jury, Idaho Code § 19

- 2406(5), by not providing a unanimity instruction. Following a hearing, the district court issued a memorandum decision and order denying the motion for acquittal and denying motion for new trial. The district court subsequently imposed a unified sentence of nine years, with two y ears determinate

. . . . Richmond app ealed the conviction
, arguing that the jury instruction on self

- defense was erroneous because it required that he prove he was in imminent danger of “ death or great bodily harm, ” the standard in homicide cases, instead of the lesser standard of “ bodily harm ” applicable
in other cases. Richmond ’ s t r ial counsel did not object to th e instruction. The State conceded
and this Court agreed the instruction was erroneous. However, we found that the instructional

error was not fundamental error
, as defined in State v. Perry , 150 Idaho 209, 245 P.3d 961 (2010), reasoning that:
the Due Process Clause of the United States Constitution does not require the State to disprove a defendant ’ s affirmative defense. See Martin [ v. Ohio ], 480 U.S. [228,] 236 [(1987)]. Therefore, contrary to Richmond ’ s assertion, there is no violation of the United States Constitution when the jury is improperly instructed on the affirma tive defense of self

- defense. Because Richmond does not argue that the Idaho Constitution requires, as a guarantee of due process, that the State disprove a defendant ’ s affirmative defense, Richmond has not demonstrated that the erroneous jury instruction violated one of his unwaived constitutional rights.
Richmond
, Docket No. 41093

. Rejecting Richmond ’ s other arguments, th is Court affirmed the
conviction. Id

. Richmond filed this action for post

- conviction relief alleging t hat trial counsel was
ineffecti ve under Strickland v. Washington , 466 U.S. 668 (1984) for failing to object to the
erroneous self

- defense instruction, the same issue presented on appeal. At a hearing on the3 State ’ s motion for summary dismissal, Richmond ’ s counsel agreed that the evidence in the
record was sufficient for the district court to determine the case on its merits. 1 The district court granted the S tate ’ s motion for summary dismissal of Richmond ’ s petition

. Richmond timely appeals.
II.
ANALYSIS Richmond argues that he demonstrated prejudice under Strickland and that the district court erred in summarily dismissing his petition

. 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 Idaho Rule of Civil Procedure 8(a)(1). Rather, a petitio n 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 evide nce 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

1 Ri chmond contends that the State violated Idaho Code § 19

- 4906(a) when it failed to attach “portions of the record material to the ques tions raised in the application. ” This statement was made in passing in the factual and procedural history of the appellant’s brief but not argue d as an issue on appeal. The appellant fleshed out this argument citing relevant case law in his reply brie f. A reviewing court looks to the initial brief on appeal for the issues presented on appeal. Hernandez v. State , 127 Idaho 685, 687, 905 P.2d 86, 88 (1995) ; State v. Raudebaugh
, 124 Idaho 758, 763, 864 P.2d 596, 601 (1993) . Consequently, “this Court will not consider arguments raised for the first time in the appellant’ s r eply brief .” Myers v. Workmen ’ s Auto Ins. Co. , 140 Idaho 495, 508, 95 P.3d 977, 990 (2004)

. However, having reviewed the evidence in the record, we conclude there was sufficient evidence to support the district cour t’s findings. Further, this argument was not presented to the district court. Generally, issues not raised below may not be considered for the first time on appeal. State v. Fodge
, 121 Idaho 192, 195, 824 P.2d 123, 126 ( 1992)

.4 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, answer s 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 d istrict 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 m otion 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 di sproven 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. Sta te , 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 pe titioner 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. Se e 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. C harboneau 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 of5 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 entitl e 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 Id aho 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 A ct. Barcella v. State , 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct. App. 2009) . To prevail o n 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 , 466 U.S. at 687

- 88; Self v. State , 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007) . To estab lish 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. S tate , 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007) . To es tablish 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 Ida ho 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 evaluati on. Gonzales v. State , 151 Idaho 168, 172, 254 P.3d 69, 73 (Ct. App. 2011)

. At trial, the district c ourt instructed the jury: An assault is justified if the defendant was acting in self

- defense. In order to find that the defe ndant acted in self

- defense, all of the following conditions must be found to have been in existence at the time of the assault. 1. The defendant m ust have believed that the defendant was in imminent danger of death or great bodily harm

. 2. In addition to that belief, the defendant must have believed that the action the defendant took was necessary to save the defendant from the danger it presented.6 3. The circumstances must have been such that a reasonable person under similar circumstances would have believed that the defendant w as in imminent danger of death or great bodily injury and believed that the action taken was necessary

. 4. The defendant must have acted only in response to that danger and not for some other motivation. 5. When there is no longer a ny reasonable appeara nce o f danger, the right of self

- defense ends. In deciding upon the reasonableness of the defendant ’ s beliefs, you should determine what an ordinary and reasonable person might have concluded from all the facts and circumstances which the evidence shows existed at that time, and not with the benefit of hindsight. The danger must have been present and imminent, or must have so appeared to a reasonable person under the circumstances. A bare fear of death or great bodily injury is not sufficient to justify an assault. The defendant must have acted under the influence of fears that only a reasonable person would have had in a similar position. The burden is on the prosecution to prove beyond a reasonable doubt that the battery was not justifiable. If there is a reasonable doubt whether the battery was justifiable, you must find the defendant not guilty. In dismissing the petition, the district court found that Richmond met his burden on the first prong of the Strickland t est in that t rial counsel ’ s failure t o object to the erroneous self

defense jury instruction was deficient performance. However, the district court further found that Richmond had not shown that he was prejudice d as a result. The district court reasoned that
Richmond ’ s self

- defense theory would have been unsuccessful even if the jury had been properly
instructed. Richmond argues that he did establish prejudice under Strickland and p oints to his own trial testimony to demonstrate that he was acting in self

- defense. At trial, Richmond testif ied that the victim became irate and began punching him and he responded by punching her back in order to make her stop. He also testified that she pushed herself into him, causing him to lose
control of the vehicle for a time and move into oncoming traff ic. Richmond attested that it was
i n response to this pushing that he used the “ up

- and

- over ” move, which Richmond described as going over her shoulder and under her elbow to grab her sweatshirt at the neck to push her away

. Richmond avers that the jury “ could have concluded that Mr. Richmond feared bodily injury but not imminent danger of death or great bodily injury and still convicted him of aggravated
assault. ” Therefore, Richmond concludes, the error in the jury instruction undermines the reliability of the verdict.7 A review of the record supports the district court ’ s determination that Richmond was not prejudiced by the erroneous jury instruction because Richmond failed to present a valid self

defense cla im at trial. “ A flawed jury instruction req uires reversal of a conviction only if it may
have misled the ju ry or prejudiced the defendant. ” Sheahan
, 146 Idaho at 106, 190 P.3d at 925

. The record supports the district court ’ s finding that Richmond did not act only in response to danger
, but was also motivated by anger. As noted by the district court, Richmond testified that the only time he felt fearful was when the victim grabbed the steering wheel while Richmond was driving . Beyond that, by his own testimony, Richmond ’ s conduct was motivated by anger. Richmond testified that he lost his temper and swung at her with a “ reverse punch ” which “ on two occasions [he] felt that it connected solidly. ” The record further supports the district court ’ s finding that the victim ’ s injuries do not support a finding of self

- defense. The victim ’ s injuries
, as compared to Richmond ’ s injuries,
demonstrate that even if Richmond was exercising self

- defense, he went beyond what a
reasonable person would deem necessary to save himself

. The victim testified that sh e was knocked unconscious and suffered chipped teeth, bruising to multiple parts of her body, and what she thought was a broken nose. She further testified that Richmond had used the seatbelt to strangle her. A paramedic testified that he found swelling around both of the victim ’ s eyes, nose, and lip, and a po ssible fracture around her eye. T he paramedic attested that the number of injuries and their locations indicated that the victim had been struck multiple times

. In contrast,

a n officer who intervie w ed Richmond prior to his arrest testified that Richmond had discoloration to his right eye, swelling to his cheekbone
, and small scratches on his head. As this Court stated in its opinion on direct appeal, Richmond ’ s acts included a

“ continual course of c onduct that was init iated by Richmond and continued until the point that
Richmond choked her with the seat belt. ” Richmond
, Docket N o. 41093. Even if the jury had been properly instructed, there is no reasonable probability that it would have accepted
Ri chmond ’ s self

- defense claim. The record fails to call the verdict into question notwithstanding
the erroneous instruction. Richmond is therefore unable to demonstrate prejudice required under
Strickland

. Accordingly, Richmond failed to set forth a prima facie case of ineffective assistance of counsel. The district court did not err in summarily dismissing Richmond ’ s petition for post

conviction relief.8 III.
CONCL USION The district court did not err in summarily dismissing Richmond ’ s petition for post

conviction relief because Richmond failed to establish a prima facie case of ineffectiv e assistance of counsel. T he judgment of the district court is affirmed. Judge GUTIERREZ and Judge HUSKEY CONCUR.