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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39751

DUAINE FREDRICK EARL,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2013 Unpublished Opinion No. 703

Filed: October 9, 2013

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THIS IS AN UNPUBLISHED 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, 

Minidoka County. Hon. Jonathan P. Brody, District Judge. 

Judgment dismissing petition for post-conviction relief, affirmed.

Duaine Fredrick Earl, Rupert, pro se appellant. 

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

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Chief Judge

Duaine Fredrick Earl appeals from the judgment dismissing his petition for postconviction relief. Specifically, Earl asserts the district court erred by granting the State’s motion 

for summary dismissal. For the reasons set forth below, we affirm. 

I.

FACTS AND PROCEDURE

The district court set forth the following facts and procedure in its memorandum decision 

granting the State’s motion for summary dismissal of Earl’s petition for post-conviction relief:

Duaine Fredrick Earl was sentenced on March 6, 2000 after pleading 

guilty to violating I.C. 18-6101(1), rape. The court sentenced Mr. Earl to a 

unified sentence of ten (10) years with (1) year determinate, but retained 

jurisdiction. Mr. Earl was granted supervised probation upon returning from his 

rider but later violated that probation.

A report of the probation violation was filed on or about May 7, 2002 and 

Mr. Earl later failed to appear to his evidentiary hearing regarding that violation. 

Mr. Earl was later apprehended and admitted to violating his probation. Mr. Earl 

then had his original sentence imposed on November 25, 2002 and he was granted 
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credit for time served. The amount of time credited was left out of the original 

Order on Motion to Revoke Probation dated December 2, 2002, but based upon a 

stipulation by the parties in this action the time credited is 232 days.

Mr. Earl has filed an application for post-conviction relief and the State 

has moved for Summary Dismissal of the matter. Mr. Earl is asserting that he 

should be granted credit for time served on probation, and as such he should be 

released immediately as his full term release date under that calculation would 

have been February 24, 2010. 

Following a hearing on the State’s motion for summary dismissal, the district court granted the 

State’s motion, addressing each of the four grounds and finding Earl alleged no genuine issue of 

material fact. The district court entered a judgment dismissing Earl’s petition, and Earl timely 

appealed. 

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 Idaho Rule of Civil 

Procedure 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).

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 
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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.” 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.

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 
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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 arguments asserted by Earl in his post-conviction petition centered on his contention 

that his time spent on probation should be considered in calculating credit for time served. In 

addressing the State’s motion for summary dismissal of the claim, the district court identified 

and addressed four grounds for relief asserted by Earl. On appeal, Earl reasserts three of these 

original arguments.

1 He also asserts numerous claims for the first time on appeal, including that 

he received ineffective assistance of counsel; he did not receive the benefit of “full faith and 

credit to judicial proceedings;” his Ninth and Tenth Amendment rights were violated; the district 

court judge was biased and should have been recused from the post-conviction proceeding; and

he was denied “access to the courts” because he was not informed of the judge’s prior 

employment as a prosecutor. It is well settled that generally this Court will not address issues 

not raised before the district court. Small v. State, 132 Idaho 327, 331, 971 P.2d 1151, 1155 (Ct. 

App. 1998). Further, several of these issues were asserted for the first time in Earl’s reply brief 

on appeal. Issues raised for the first time in a reply brief will not be addressed on appeal. 

Henman v. State, 132 Idaho 49, 51, 966 P.2d 49, 51 (Ct. App. 1998). Thus, we address only the 

issues raised before the district court and now on appeal.

 

1 Earl does not raise on appeal one of the issues addressed by the district court--that the 

sentencing court violated the Sentencing Reform Act of 1984. Thus, we do not address it. 
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Earl contended below that the failure to include his time on probation in calculating the 

credit for time served violated Idaho Code §§ 19-2603 and 20-209A, as he was not voluntarily 

absent from the control of the Board of Correction while on probation. As the district court 

pointed out, however, such an assertion is in contravention of the plain language of the statutes 

and case law interpreting the statutes. In Taylor v. State, 145 Idaho 866, 869-70, 187 P.3d 1241, 

1244-45 (Ct. App. 2008), the petitioner made the same argument. We rejected the argument, 

specifically noting that both section 19-2603 and section 20-209A, make clear that credit for 

time served is not based on any factor other than actual incarceration, ignoring whether a 

defendant remained in the Board of Correction’s “custody.” Taylor, 145 Idaho at 869-70, 187 

P.3d at 1244-45. Thus, the district court did not err in summarily dismissing Earl’s claim in this 

regard.

Earl also asserted below that the failure to include his time on probation as part of his 

credit for time served would, in effect, extend the length of his maximum sentence and amount to 

a new punishment for the same crime in violation of his Fifth Amendment right against double 

jeopardy. As the district court found, there is no legal support for this assertion; the revocation 

of Earl’s probation merely resulted in the imposition of the original sentence that he had been 

given the opportunity to avoid, but had squandered by violating the conditions of his release. See 

I.C. § 20-222. The district court did not err in summarily dismissing this claim. 

Earl also asserted the failure to credit his time on probation as time served was a violation 

of his Fourteenth Amendment rights. The district court summarily dismissed the claim, noting:

After review of this matter, this Court has found no violation of Mr. Earl’s 

14th Amendment Rights. Mr. Earl was afforded due process in every action 

against him and the court acted lawfully throughout the course of this matter. Mr. 

Earl has offered no legal support for this claim . . . .

Although Earl lists this as an issue on appeal, he provides no argument or authority that the 

district court erred in making this determination. Thus, we affirm the summary dismissal of this 

issue. See Smith v. State, 129 Idaho 162, 167, 922 P.2d 1088, 1093 (Ct. App. 1996) (“[W]hen an 

assertion of error is not supported by argument or authority, it will not be considered by the 

appellate court.”).
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III.

CONCLUSION

Because none of the statutory or constitutional grounds Earl properly asserts on appeal 

support his contention that his time on probation should have been credited as time served, Earl 

has not shown that the district court erred by granting the State’s motion for summary dismissal. 

Accordingly, the judgment summarily dismissing Earl’s petition for post-conviction relief is 

affirmed. 

Judge LANSING and Judge GRATTON CONCUR.