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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43508

EVIN DEVAN,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2017 Opinion No. 29

Filed: June 9, 2017

Stephen W. Kenyon, Clerk

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

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

Order denying motion for relief from post-conviction judgment, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Reed P. Anderson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Ted S. Tollefson, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

GRATTON, Chief Judge

Evin Devan appeals from the district court’s order denying his motion for relief from 

post-conviction judgment pursuant to Idaho Rule of Civil Procedure 60(b). We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

A judgment of conviction was entered against Devan after a jury found him guilty of 

conspiracy to commit burglary, Idaho Code §18-1701; burglary, I.C. § 18-1401; and 

misdemeanor trespassing, I.C. § 18-7011. Devan appealed and in an unpublished decision this 

Court affirmed the conviction. State v. Devan, Docket No. 39853 (Ct. App. Nov. 7, 2013). 

Devan filed a petition for post-conviction relief alleging that counsel in the underlying case was 

ineffective for failing to secure witnesses, failing to object, and failing to investigate a defense. 
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Devan also asserted there was new evidence in the case. The State filed a motion for summary 

dismissal, which the district court subsequently granted. Devan filed a notice of appeal.1

Devan filed a pro se motion and memorandum for relief from judgment or order under 

I.R.C.P. 60(b)(6). In his motion, Devan claimed that he was entitled to relief from the order 

dismissing his petition for post-conviction relief as there had been an absence of meaningful 

representation by his appointed counsel, and Devan had a meritorious claim. Devan argued that 

his post-conviction counsel failed to submit evidence that would have withstood summary 

dismissal; specifically, an affidavit by Mr. Jones which Devan believed established an alibi for 

his underlying convictions. Further, Devan asserted that his appointed counsel failed to file an 

amended petition or a response to the State’s motion for summary dismissal, and that counsel did 

not inform Devan that the State had filed a motion for summary dismissal. Counsel was 

appointed to replace the post-conviction counsel against whom Devan directed the allegations. 

After a hearing, the district court denied Devan’s motion for relief. Devan timely appeals.

II.

ANALYSIS

Devan argues that the district court erred in denying his Rule 60(b)(6) motion. Devan

asserts the district court abused its discretion in finding that there was not a complete absence of 

meaningful representation by his post-conviction counsel. Further, Devan asserts the district 

court impermissibly addressed the credibility of the proffered evidence in determining that it did 

not constitute a meritorious claim.

Idaho Rule of Civil Procedure 60(b) gives the district court authority to grant relief from 

a judgment in limited circumstances. The Rule states, in relevant part: “On motion and just

terms, the court may relieve a party or its legal representative from a final judgment, order, or 

proceeding for the following reasons . . . (6) any other reason that justifies relief.” 

A trial court enjoys broad discretion when deciding whether to grant relief pursuant to 

I.R.C.P. 60(b).

A trial court’s decision whether to grant relief pursuant to I.R.C.P. 60(b) is 

reviewed for abuse of discretion. The decision will be upheld if it appears that the 

trial court (1) correctly perceived the issue as discretionary, (2) acted within the 

 1 The Idaho Supreme Court suspended Devan’s appeal of the district court’s summary 

dismissal of his petition for post-conviction relief pending the ruling on his motion for relief 

from post-conviction judgment.
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boundaries of its discretion and consistent with the applicable legal standards, and 

(3) reached its determination through an exercise of reason. A determination 

under Rule 60(b) turns largely on questions of fact to be determined by the trial 

court. Those factual findings will be upheld unless they are clearly erroneous. If 

the trial court applies the facts in a logical manner to the criteria set forth in 

Rule 60(b), while keeping in mind the policy favoring relief in doubtful cases, the 

court will be deemed to have acted within its discretion.

Eby v. State, 148 Idaho 731, 734, 228 P.3d 998, 1001 (2010) (quoting Waller v. State, Dep’t of 

Health & Welfare, 146 Idaho 234, 237-38, 192 P.3d 1058, 1061-62 (2008)).

On appeal, Devan argues that the district court abused its discretion in denying his 

motion for relief under I.R.C.P. 60(b)(6) because he was prejudiced by an absence of meaningful 

representation by his appointed counsel and demonstrated a potentially meritorious defense. 

Devan argues that his case rises to the level of “unique and compelling circumstances” found in 

Eby. In Eby, the petitioner’s case received “shocking and disgraceful neglect” by a series of 

attorneys appointed to represent him. Eby, 148 Idaho at 732, 228 P.3d at 999. The petitioner’s 

third appointed attorney filed a motion pursuant to I.R.C.P. 60(b) to set aside a previous 

dismissal for inactivity pursuant to I.R.C.P. 41(e).

2 On appeal, the Idaho Supreme Court noted 

that a petitioner could not claim ineffective assistance of counsel in a post-conviction 

proceeding, as there is no constitutional right to counsel in such proceedings. Eby, 148 Idaho at 

737, 228 P.3d at 1004. However, the Court recognized that the Uniform Post-Conviction 

Procedure Act is the exclusive means for challenging the validity of a conviction or sentence 

other than by direct appeal. Id. As a result, the Court concluded that given the unique status of a 

post-conviction proceeding and the complete absence of meaningful representation, the case 

possibly presented the “unique and compelling circumstances” in which Rule 60(b)(6) relief was 

potentially warranted. Eby, 148 Idaho at 737, 228 P.3d at 1004. The Court then vacated and 

remanded the case to the trial court to use its discretion to determine if Eby should be granted 

relief under Rule 60(b)(6). Eby, 148 Idaho at 737, 228 P.3d at 1004.

Devan’s reliance on Eby is misplaced. In denying Devan’s motion, the district court 

distinguished Eby because Devan acknowledged “multiple contacts between [Devan] and his 

counsel’s office reflecting ongoing communications” and also “a meeting between [Devan] and 

counsel wherein the affidavit of Mr. Jones . . . was discussed.” Further, the district court noted at 

the hearing on the motion for summary dismissal, Devan’s post-conviction counsel indicated that 

 2 Idaho Rule of Civil Procedure 41(e) was adopted and renumbered in 2016.
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he had met with Devan but “was unable to find any meritorious claims.” Thus, the district court 

found that “there was communication between counsel and [Devan], specifically there was 

communication regarding the potential alibi, and that counsel considered this information and 

determined that there was no meritorious claim.” The district court concluded that “there was 

sufficient communication between the parties and consideration of the issue by counsel that there 

was not a complete lack of meaningful representation.” We agree.

The circumstances of Devan’s case do not rise to the level of unique and compelling 

circumstances found in Eby. This is true even if we consider that Devan’s post-conviction 

counsel failed to file a response to the State’s motion to dismiss or to present evidence at the 

hearing on the State’s motion to dismiss. Devan’s motion does not allege a complete absence of 

post-conviction representation, nor does the record support such a finding. Devan’s postconviction counsel met with Devan, reviewed the case to determine whether to file an amended 

petition with knowledge of the Jones affidavit, and appeared at the summary dismissal hearing 

on Devan’s behalf. 

A post-conviction petitioner is not entitled to the effective assistance of post-conviction 

counsel, and thus, “petitioner cannot claim constitutionally ineffective assistance of counsel in 

such proceedings.” Murphy v. State, 156 Idaho 389, 394, 327 P.3d 365, 370 (2014) (quoting 

Coleman v. Thompson, 501 U.S. 722, 752 (1991)). We do not read Eby to open the door to 

challenge the effectiveness of post-conviction counsel by virtue of a Rule 60(b) motion. In Eby, 

the case was dismissed for inactivity, pursuant to I.R.C.P. 41(e), after over four years and several 

attorneys who did nothing but attempt to forestall such dismissal. Eby, 148 Idaho at 733, 228 

P.3d at 1000. Only after the petition was dismissed did yet another lawyer make any attempt to 

advance a claim. Id. at 733-34, 228 P.3d at 1000-01. Our Supreme Court’s reference to “the 

complete absence of meaningful representation” reflected these “unique and compelling 

circumstances.” Id. at 737, 228 P.3d at 1004.3

 Unlike the petitioner in Eby, Devan did not experience a “complete absence of 

meaningful representation.” Eby, 148 Idaho at 737, 228 P.3d at 1004. Devan’s dissatisfaction 

with his post-conviction counsel’s performance does not constitute the unique and compelling 

 3 We hasten to add, however, that even though a post-conviction petitioner is not entitled to 

the effective assistance of post-conviction counsel, such does not relieve post-conviction counsel 

of his or her obligations in representing his or her client. 
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circumstances required before a court may grant relief under I.R.C.P. 60(b).

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 The district court 

did not err in denying Devan’s Rule 60(b) motion.

III.

CONCLUSION

Devan failed to demonstrate that the district court abused its discretion in denying his

Rule 60(b) motion. The district court’s denial of the motion for relief from post-conviction 

judgment is affirmed.

Judge GUTIERREZ and Judge MELANSON CONCUR. 

 4 Devan further cites to Martinez v. Ryan, 566 U.S. 1 (2012); see also Trevino v. Thaler,

___ U.S. ____, 133 S. Ct. 1911 (2013) as cases which “emphasize the importance of a 

defendant’s rights to a full and fair opportunity to bring ineffective assistance of trial counsel 

claims on post-conviction.” However, Martinez and Trevino create narrow exceptions for 

overcoming procedural bars in a federal habeas corpus proceeding and simply do not apply to a 

state post-conviction case.