1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 46997

TIMOTHY C. DURETTE,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

)

)

)

)

)

)

)

)

)

)

Filed: October 30, 2020

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

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

Boundary County. Hon. Barbara A. Buchanan, District Judge. 

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

Timothy C. Durette, Orofino, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; Justin R. Porter, Deputy Attorney 

General, Boise, for respondent. 

________________________________________________

HUSKEY, Chief Judge

Timothy C. Durette appeals from the district court’s order dismissing his pro se amended 

petition for post-conviction relief (amended petition). Durette asserts multiple errors by the 

magistrate court, the district court, his trial counsel, and his appellate counsel. Because Durette 

(1) failed to articulate any error with the district court’s denial of his post-conviction claims and 

subsequent dismissal of his amended petition, and (2) failed to support his claims with argument 

and authority, the district court’s order dismissing Durette’s amended petition is affirmed. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

The district court made factual findings, summarized below: After receiving a call from 

Durette’s wife reporting concerns about Durette’s behavior, including his propensity for shooting 

guns on their property, Officer Watts checked with dispatch and confirmed that Durette was a 

convicted felon from California. The next day, Watts traveled to the Durettes’ residence to 
2

investigate. Upon arrival, Durette and another individual approached Watts in the driveway. 

Durette wore a shoulder holster with a weapon on his left side and carried a long rifle. Durette 

placed the rifle against a vehicle and spoke with Watts. When Watts informed Durette that 

Durette was a felon in possession of a firearm, Durette responded that Watts was trespassing and 

needed to leave the property. Watts stated he would not leave the property and Durette needed to

put the weapons on the ground; Durette disregarded the order, grabbed the rifle, and went back 

inside his residence. Durette was arrested later that day at a local restaurant. After Durette’s 

arrest, Watts returned to the Durettes’ residence either accompanied by, or at the request of,

Durette’s wife to look for the guns Durette had been carrying when Watts and Durette had 

spoken. At the Durettes’ residence, Durette’s wife gave Watts access to the house, and 

consented to Watts searching the house and the gun safe, which contained both Durette’s and his 

wife’s firearms and paperwork. Although Durette’s wife did not have a key to the gun safe, she 

was able to find the key in another safe located in the home. Watts found multiple firearms in 

the safe, and the State charged Durette with unlawful possession of a firearm by a convicted 

felon. 

Durette pled guilty to the charge, and the district court sentenced him to a unified term of 

five years, with two years determinate. Durette appealed, arguing the district court abused its 

discretion by imposing an excessive sentence. This Court affirmed the judgment of conviction 

and sentence. State v. Durette, Docket No. 44918 (Ct. App. Sept. 22, 2017) (unpublished). 

Thereafter, Durette filed a petition for post-conviction relief, and the district court granted 

Durette’s accompanying motion for the appointment of post-conviction counsel. Although 

represented by counsel, Durette continued to file pro se motions, including an amended petition 

which asserted claims of manifest injustice, illegal search and seizure, abuse of discretion by the 

magistrate court, abuse of discretion by the district court, ineffective assistance of trial counsel, 

and ineffective assistance of appellate counsel. 

Because of Durette’s pro se filings and other communication issues, Durette’s appointed 

post-conviction counsel moved to withdraw from Durette’s representation. The district court 

granted the motion and declined to appoint new post-conviction counsel to represent Durette. 

The district court accepted Durette’s amended petition and held an evidentiary hearing on the 

amended petition. 
3

After an evidentiary hearing, the district court found Durette forfeited his claims related 

to the illegal search of his property, the magistrate court’s errors, and the district court’s errors by 

not raising the issues on direct appeal from his criminal conviction. Additionally, the district 

court found Durette did not establish ineffective assistance of trial counsel or appellate counsel

by a preponderance of the evidence. Accordingly, the district court dismissed Durette’s 

amended petition. Durette timely appeals. 

II.

STANDARD OF REVIEW

In order to prevail in a post-conviction proceeding, the petitioner must prove the 

allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 

869, 801 P.2d 1216, 1220 (1990); Baxter v. State, 149 Idaho 859, 861, 243 P.3d 675, 677 (Ct. 

App. 2010). When reviewing a decision denying post-conviction relief after an evidentiary 

hearing, an appellate court will not disturb the lower court’s factual findings unless they are 

clearly erroneous. I.R.C.P. 52(a); Dunlap v. State, 141 Idaho 50, 56, 106 P.3d 376, 382 (2004); 

Russell v. State, 118 Idaho 65, 67, 794 P.2d 654, 656 (Ct. App. 1990). The credibility of the 

witnesses, the weight to be given to their testimony, and the inferences to be drawn from the 

evidence are all matters solely within the province of the district court. Dunlap, 141 Idaho at 56, 

106 P.3d at 382; Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). We 

exercise free review of the district court’s application of the relevant law to the facts. Baxter, 

149 Idaho at 862, 243 P.3d at 678.

Pro se litigants are held to the same standards as those litigants represented by counsel. 

Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009). Pro se litigants are not 

excused from abiding by procedural rules simply because they are appearing pro se and may not 

be aware of the applicable rules. Id. 

III.

ANALYSIS

On appeal, Durette asserts: (1) the warrantless search of the gun safe violated his Fourth 

Amendment rights because Watts failed to determine if Durette’s wife had mutual control over 

the safe; (2) the magistrate court violated Durette’s Fourth, Fifth, and Sixth Amendment rights 

by forcing Durette to proceed with ineffective trial counsel, removing Durette from the 

courtroom during the preliminary hearing, and denying Durette his right to cross-examine 
4

witnesses; (3) the district court erred when it failed to inquire into the breakdown of 

communication between Durette and his trial counsel, forced Durette to use ineffective trial 

counsel, and denied Durette a new preliminary hearing; (4) the district court erred in its decision 

finding Watts had the consent of Durette’s wife to open the safe and that an alleged trespass did 

not demonstrate that a motion to suppress, if filed, would have been granted; (5) his trial counsel 

was ineffective for failing to file a motion to suppress evidence obtained by the warrantless 

search; and (6) his appellate counsel was ineffective for “failing to raise all substatial [sic] claims 

in [his] Amended Petition for Post Conviction [sic] Relief.”1

 In response, the State alleges that 

Durette waives his claims on appeal by failing to allege error with the district court’s decision, 

show clear error, and support his claims with argument and authority. 

We note that for most of the issues presented on appeal, Durette does not allege error 

with the district court’s decision. However, even when reviewed on the merits, the district court 

correctly articulated the standard for post-conviction relief, made the appropriate factual 

findings, applied the relevant law to those facts, and correctly denied the claims. 

A. Durette Waived Claims 1, 2, 3, and 4, Which Could Have Been Raised on Direct 

Appeal 

Durette argues that, pursuant to the Fourth Amendment, any evidence gathered by the 

warrantless search of his safe should have been suppressed because Watts did not have a warrant 

and did not clarify with Durette’s wife whether she had actual authority to provide consent for 

Watts to search the safe. Additionally, Durette alleges the magistrate court violated his Fourth, 

Fifth, and Sixth Amendment rights by forcing him to proceed with ineffective trial counsel, 

removing Durette from the courtroom during the preliminary hearing, and denying him the right 

to cross-examine witnesses. Finally, Durette contends the district court erred when it failed to 

properly inquire into the breakdown of communication between Durette and his trial counsel, 

forced Durette to rely on ineffective trial counsel, and denied Durette a new preliminary hearing. 

The scope of post-conviction relief is limited. Knutsen v. State, 144 Idaho 433, 438, 163 

P.3d 222, 227 (Ct. App. 2007). A petition for post-conviction relief is not a substitute for an 

appeal. I.C. § 19-4901(b). A claim or issue that was or could have been raised on appeal may 

not be considered in post-conviction proceedings. Id.; Mendiola v. State, 150 Idaho 345, 348-49, 

247 P.3d 210, 213-14 (Ct. App. 2010). To be granted an exception from this general rule, a 

 1 Durette makes this allegation despite that appellate counsel did not represent him at any 

time during his post-conviction proceedings and that he filed his amended petition pro se.
5

petitioner must show “on the basis of a substantial factual showing by affidavit, deposition or 

otherwise, that the asserted basis for relief raises a substantial doubt about the reliability of the 

finding of guilt and could not, in the exercise of due diligence, have been presented earlier.” I.C. 

§ 19-4901(b); see also Black v. State, 165 Idaho 100, 105, 439 P.3d 1272, 1277 (Ct. App. 2019). 

Here, the district court found Durette could have raised the above claims in Durette’s 

direct appeal, but did not. Additionally, the district court found Durette did not provide any 

evidence that he could not have, in the exercise of due diligence, presented the claims earlier to

qualify as an exception to the general rule that claims that could or should be raised on direct 

appeal are not claims that can be pursued in a post-conviction petition. On appeal, Durette does 

not challenge these findings or point this Court to any contradictory evidence in the record. 

Because appellate courts will not search the appellate record for error, where an appellant fails to 

assert his assignments of error with particularity and to support his position with sufficient 

authority, those assignments of error are too indefinite to be heard by the Court. Bach v. Bagley, 

148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010). “Consequently, to the extent that an 

assignment of error is not argued and supported in compliance with the [Idaho Appellate Rules], 

it is deemed to be waived.” Id. Thus, the issues Durette raises were known to him prior to his 

direct appeal and he does not challenge the district court’s finding that the claims could have 

been raised on direct appeal. Therefore, the district court’s denial of these claims is affirmed. 

B. Durette Waived Claim 5--Ineffective Assistance of Trial Counsel 

Durette alleges his trial counsel provided ineffective assistance by failing to file a motion 

to suppress despite Durette’s multiple requests to do so. 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, 144 Idaho at 442, 163 P.3d at 231. Where, as 

here, the petitioner was convicted upon a guilty plea, to satisfy the prejudice element, the 

petitioner must show that there is a reasonable probability that, but for counsel’s errors, he or she 
6

would not have pled guilty and would have insisted on going to trial. Plant v. State, 143 Idaho 

758, 762, 152 P.3d 629, 633 (Ct. App. 2006). 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). 

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. Id. at 477-78, 180 P.3d at 516-17. A party waives an issue on appeal if either 

argument or authority is lacking. Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. 

App. 1997). 

Durette’s claim fails for three reasons. First, he does not apply the correct standard for 

assessing deficient performance. Second, he does not allege any prejudice from the alleged 

deficient performance. And third, the district court correctly analyzed the claim on the merits 

and Durette does not challenge the district court’s conclusions. 

Durette’s argument on this issue is as follows: 

Petitioner argues that he had requested to his counsel on numerous occasions to 

file a motion to suppress and his counsel failed and “refused” to file the motion. 

This evidence can be “simply proven” by reviewing counsel’s statement to the 

court in counsel[’]s answer to the court as to why she had not filed the motions 

that her client had requested . . . . A counsel[’]s failure to honor her client[’]s 

request to file a motion to suppress the introduction of illegal evidence was 

derelict. 

Although Durette argues that trial counsel’s failure to file a motion requested by a defendant, by 

itself, constitutes deficient performance, as noted above, this is not the standard by which the 

claim is analyzed. 

Further, the district court found the record reflected that Durette’s trial counsel did not 

pursue a motion to suppress because she believed the motion had no legal merit. This finding is 

supported by substantial and competent evidence; transcripts in the record show that Durette’s 
7

trial counsel told the district court that trial cousel did not believe a motion to suppress had legal 

merit and Durette should seek substitute counsel if he desired an attorney who would file the 

motion. Durette does not challenge the district court’s finding that his trial counsel reasonably 

believed the motion to suppress had no merit and, accordingly, Durette has not established 

deficient performance as required for a successful ineffective assistance of counsel claim. 

Alternatively, the district court found that even if Durette’s trial counsel had filed a 

motion to suppress, it was more likely than not that it would have been denied by the trial court. 

In reaching this conclusion, the district court found:

In this case, there was no hearing in the underlying action directed to the 

merits of the suppression issue, but on the limited facts found in these postconviction proceedings, it is clear that [Durette’s wife] consented to the search of 

the residence and gun safe by Deputy Watts. [She] either had actual authority to 

consent because she shared with her then husband, Timothy Durette, common 

authority over, or other sufficient relationship to the premises and the gun safe 

sought to be inspected; or she had apparent authority to consent because Deputy 

Watts reasonably believed, even if erroneously, based on the totality of the 

circumstances known at the time, that she possessed authority to consent. Lastly, 

the issue of whether Deputy Watts trespassed on the property on August 18, 2016, 

when [Durette’s wife] was not present (as Mr. Durette contends), or had probable 

cause to enter after hearing gunshots from the county road (as Deputy Watts 

opined on the stand), is irrelevant because the search of the premises did not occur 

on August 18th, but in the following day or days when [Durette’s wife] was 

present to give her consent. 

Durette alleges this analysis was in error. Specifically, Durette argues the district court 

erred by finding that: (1) Deputy Watts “had the right to open a locked safe without clearing any 

ambiguity over whom had control”; and (2) regardless of the date that Watts “trespass[ed],” the 

evidence seized as a result of the search of the house and gun safe should still be suppressed as 

illegally obtained based on the earlier alleged trespass.

Both of Durette’s allegations are conclusory and are unsupported by any argument or 

authority. Durette does not provide any legal support explaining why the district court’s 

conclusion that Watts’ belief that Durette’s wife had apparent authority to consent to his search 

of the safe was erroneous. Nor does Durette point to any evidence in the record supporting a 

claim that his wife did not have authority to consent to the search, why her lack of authority 

should have been reasonably apparent to Watts, and how this related to his ineffective assistance 

of trial counsel claim. 
8

Similarly, Durette does not provide argument or authority related to his allegation the 

district court erred in finding that any alleged trespass by Watts on August 18, 2016, was 

irrelevant to the determination of whether the trial court would have granted a motion to 

suppress, had Durette’s trial counsel filed one. Instead, Durette appears to argue the evidence 

obtained during the search of the safe should have been suppressed because of Watts’ alleged 

trespass onto his property a day or so earlier. As previously discussed, Durette’s Fourth 

Amendment claims could have been raised on direct appeal, and thus, Durette is precluded from 

raising such claims in a petition for post-conviction relief. Without more than conclusory 

allegations of error, Durette cannot establish either that his trial counsel rendered deficient 

performance or that he was prejudiced because of that alleged deficient performance. 

C. Durette Waived Claim 6--Ineffective Assistance of Appellate Counsel

Additionally, Durette alleges a claim of ineffective assistance of appellate counsel, 

stemming from his representation by the State Appellate Public Defender (SAPD). As to this 

claim, the district court found: 

Mr. Durette did not call the SAPD as a witness at the evidentiary hearing. 

The Court has no affidavit before it from the SAPD. There is nothing in the 

record showing why the SAPD did not raise on direct appeal some or all of the 

issues and claims desired by Mr. Durette. Without any such evidence, this Court 

cannot find that the SAPD rendered deficient performance. 

On appeal, Durette does not challenge the district court’s findings or point this Court to

evidence in the record to support his claim of ineffective assistance of appellate counsel. 

Instead, Durette’s argument substantively consists of the contention that “his state appointed 

appellate public defenders had provided the ineffective assistance of counsel by failing to raise 

all substatial [sic] claims in the petitioner’s Amended Petition for Post Conviction [sic] Relief.” 

Durette fails to articulate how his appointed appellate attorney had any obligation to draft a postconviction petition for Durette when the SAPD did not represent Durette in the post-conviction 

case; what claims his appellate counsel should have, but did not, pursue; how the failure to 

pursue these claims fell below an objective standard of reasonableness; and how he was 

prejudiced by the alleged deficiency. Without such argument and authority, Durette waives 

consideration of the issue on appeal. Bach, 148 Idaho at 790, 229 P.3d at 1152.
9

IV.

CONCLUSION 

Durette largely failed to articulate any error with the district court’s decision, and 

therefore did not establish error by the district court in denying his claims and dismissing his 

amended petition. Durette could have raised his claims regarding the alleged illegal search of his 

property, errors by the magistrate court, and errors by the district court in Durette’s direct appeal 

from the judgment of conviction entered in his criminal case; accordingly, he is precluded from 

pursuing the claims through a petition for post-conviction relief. Additionally, Durette failed to 

support his claims of ineffective assistance of trial and appellate counsel with any argument or 

authority and therefore waived consideration of the issues on appeal. Accordingly, the district 

court’s order dismissing Durette’s amended petition for post-conviction relief is affirmed. 

Judge LORELLO and Judge BRAILSFORD CONCUR.