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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39391

PETER J. BRENNAN,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2012 Unpublished Opinion No. 767

Filed: December 21, 2012

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THIS IS AN UNPUBLISHED 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. Timothy Hansen, District Judge. 

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

Peter J. Brennan, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GRATTON, Chief Judge

Peter J. Brennan appeals from the district court’s summary dismissal of his petition for 

post-conviction relief. 

I. 

FACTUAL AND PROCEDURAL BACKGROUND

Brennan pled guilty to one count of lewd conduct with a minor under sixteen. Idaho 

Code § 18-1508. An amended judgment of conviction was entered on June 30, 2009, to correct a 

clerical mistake in the original judgment. Brennan subsequently filed a Rule 35 motion for a 

reduction of sentence, which the district court denied. Brennan did not appeal his original 

sentence or the denial of his Rule 35 motion. On September 15, 2011, Brennan filed a petition 

for post-conviction relief, which was filed within one year of the denial of his Rule 35 motion,

but more than two years after the entry of the amended judgment of conviction. Brennan’s postconviction petition contained ineffective assistance of counsel claims related to failure to file a 
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suppression motion based upon asserted Miranda1 violations and use of a psychosexual 

evaluation at sentencing. The district court entered a notice of intent to dismiss the petition, on 

the ground that the petition was untimely and lacking any basis for equitable tolling of the oneyear period for filing the petition under I.C. § 19-4902. Brennan responded to the court’s notice 

of intent to dismiss, stating there was no time limit on a successive petition for post-conviction 

relief. While Brennan labeled his petition for post-conviction relief “successive,” it was the first 

and only post-conviction petition he had filed. The district court summarily dismissed Brennan’s 

petition for post-conviction relief, again stating the petition was untimely and that no ground for

equitable tolling had been asserted. Brennan appeals.

II.

ANALYSIS 

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 I.R.C.P. 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 See Miranda v. Arizona, 384 U.S. 436 (1966). 
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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; Farnsworth v. Dairymen’s Creamery 

Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct. App. 1994).

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); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146 

Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d 

870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State, 

143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924 

P.2d 622, 630 (Ct. App. 1996). 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 Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 

Idaho at 647, 873 P.2d at 901.
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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); 

Berg, 131 Idaho at 519, 960 P.2d at 740; Stuart v. State, 118 Idaho 932, 934, 801 P.2d 1283, 

1285 (1990); Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008); Roman, 

125 Idaho at 647, 873 P.2d at 901. If a genuine issue of material fact is presented, an evidentiary 

hearing must be conducted to resolve the factual issues. 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); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan, 146 Idaho at 104, 190 P.3d at 

923; Roman, 125 Idaho at 647, 873 P.2d at 901. 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); Martinez v. State, 130 Idaho 530, 532, 944 P.2d 

127, 129 (Ct. App. 1997).

The district court correctly dismissed Brennan’s petition for post-conviction relief as

untimely and not subject to equitable tolling. Under I.C. § 19-4902(a), a post-conviction 

proceeding must be filed “within one (1) year from the expiration of the time for appeal or from 

the determination of an appeal or from the determination of a proceeding following an appeal, 

whichever is later.” The failure to file a timely petition is a basis for dismissal unless the 

petitioner can show that the statute of limitations should be tolled. Evensiosky v. State, 136 

Idaho 189, 191, 30 P.3d 967, 969 (2001). Equitable tolling of the statute of limitations for filing 

a post-conviction relief petition has been recognized in Idaho: (1) where the petitioner was 

incarcerated in an out-of-state facility on an in-state conviction without legal representation or 

access to Idaho legal materials; (2) where mental disease and/or psychotropic medication renders 

a petitioner incompetent and prevents petitioner from earlier pursuing challenges to his 

conviction, Sayas v. State, 139 Idaho 957, 960, 88 P.3d 776, 779 (Ct. App. 2003); and (3) where 

there are claims which simply were not known to the petitioner within the time limit, yet raise 

important due process issues, Rhoades, 148 Idaho at 250, 210 P.3d at 1090. 
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First, Brennan’s petition is not a successive petition and, therefore, any rules regarding 

the timeliness of successive petitions are irrelevant. Second, Brennan’s petition is untimely 

because it was filed more than two years after the filing of the judgment of conviction, and the 

filing and denial of Brennan’s Rule 35 motion did not extend the time which Brennan had to file 

his petition for post-conviction relief. See Gonzalez v. State, 139 Idaho 384, 386, 79 P.3d 743, 

745 (Ct. App. 2003). In Gonzalez, the Court held “that where there has been a post-judgment

motion or proceeding in a criminal action, the order entered on the post-judgment matter 

ordinarily does not extend the statute of limitation for a post-conviction action pertaining to the 

judgment of conviction or the original sentence.” Id. (footnote omitted). Third, as noted by the 

district court, Brennan raised no claims and presented no facts which would support application 

of the equitable tolling doctrine. 

III.

CONCLUSION

Brennan’s petition was not timely filed. Therefore, the district court’s order summarily 

dismissing Brennan’s petition is affirmed. 

Judge LANSING and Judge GUTIERREZ CONCUR.