1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 38455

DONALD SHANE BRINK , Petitioner-Appellant ,

v.

STATE OF IDAHO , Respondent

. ) ) ) ) ) ) ) ) ) ) 2012 Unpublished Opinion No. 739

Filed: November 27, 2012
Stephen W. Kenyon, Clerk

THIS I S AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fi fth Judicial District, State of Idaho, Twin Falls County. Hon. Randy J. Stoker , District Judge.
Judgment summarily dismissing petition for post

- conviction relief, affirmed

. Donald Shane Brink, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Jason M. Gray, Deputy Attorney General, Boise, for respondent.

________________________________________________ MELANSON, Judge
Dona ld Shane Brink appeals from the district court’s judgment summarily dismissing his petition for post

- conviction relief. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE A jury found Brink guilty of first degree murder with an enhancement for using a deadly weapon, I.C. §§ 18

- 4001 to

- 03 and 19

- 2520, and being a persistent violator, I.C. § 19

- 2514. The district court sentenced Brink to a unified term of life imprisonment plus thirty years, with a minimum period of confinement of thirty years. In an unpublished opinion, this Court affirmed Brink’s judgment of conviction. State v. Brink , Docket No. 3 4391 (Ct. App. Nov. 7, 2008).
Brink filed a petition for post

- conviction relief and was appointed counsel. The state filed a
motion for sum mary dismissal alleging that Brink’s p etition was untimely. The district court
issued a notice of intent to dismis s. Brink filed documentation showing that his petition had been timely filed . T he district court withdrew its notice and denied the state’s motion. The state2 filed a second motion for summary dismissal. The district court granted Brink’s motion request ing leave to proceed pro se. Bri nk filed an amended petition for post

- conviction relief.
The state filed a thi rd motion for summary dismi ssal. After hearing oral argument on the state’s motion, the district court entered a judgment summarily dismissing Brink’s petition . Brink appeals.
II. STANDARD OF REVIEW A petition for post

- conviction relief initiates a proceeding that is civil in nature. 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 i s based. I.C. § 19

- 4907; 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 I.R.C.P. 8(a)(1). Rather, a petition 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 evidence 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 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 petitio n 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. 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. Roman v. State , 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994); Baruth v. Gardner , 110 Idaho 156, 159, 7153 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 motion for summary disposition; rather, the district court is free to arrive at the most probable in ferences 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. Hayes , 146 Idaho at 3 55, 195 P.3d at 714. The scope of post

- conviction relief is limited. Rodgers v. State , 129 Idaho 720, 725, 932 P.2d 348, 353 (1997). A petition for post

- conviction relief is not a substitute for an appeal. I.C. § 19

- 4901(b). A claim or issue which wa s or could have been raised on appeal may not be considered in post

- conviction proceedings. Id.; Whitehawk v. State , 116 Idaho 831, 832

- 33, 780 P.2d 153, 154

- 55 (Ct. App. 1989). Also, c laims 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. Ke lly v. State , 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, t hat 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
evi dence. See 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 di smissed. Charboneau 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 of material fact is presented, an evidentiary hearing must be conducted to resolve t he 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, w ould entitle 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 free4 review. Rhoades , 148 Idaho at 250, 220 P.3d at 1069; Downing v. St ate , 136 Idaho 367, 370, 33 P.3d 841, 844 (Ct. App. 2001).
III. ANALYSIS Brink argues that the district court erred by summarily dismissing his petition for post

conviction relief. In his petition , Brink alleged five main claims. We will consider each in turn.
A

. Ability to Present Affirmative Defenses and Jury Instruction
Brink alleged that he was d enied the ability to present the affirmative defenses of justifiable homicide or self

- defense at trial. We first note that this claim could have been raised on appeal and, therefore, may not be considered i n post

- conviction proceedings. Further , this allegation is clearly disproven by the record of the criminal proceedings. Specifically, throughout his c riminal case, Brink asserted that he shot the victim either because he was justified in doing so or in self

- defense . Brink presented these affirmative defenses through a
number of witnesses at trial and also testified as to these defenses. Indeed, this C ourt noted in

our opinion affirming Brink’s judgment of conviction that Brink relied on justifiable homicide
and self

- defense as the foundation of his defense at trial. See Brink , Docket No. 34391

. Brink also alleged that the jury was improperly instruc ted. This claim could have been raised on appeal and, therefore, may not be considered in post

- conviction proceedings

. Brink set forth several other subclaims under the rubric of jury instructions and his alleged inability to present affirmative defenses . We need not consider Brink’s subclaims because they also could have been raised on appeal. However, Brink asserted that his trial counsel and appellate counsel

were ineffective for failing “ to object to the jury introduction and jury instructions as pr esented to the jury.” A claim of ineffective assistance of counsel may properly be brought under the post

- conviction procedure act. Murray , 121 Idaho at 924

- 25, 828 P.2d at 1329

- 30 . To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney’s performance was deficient and that the defendant was prejudiced by the deficiency. Strickland v. Washington , 466 U.S. 668, 687

- 88 (1984); Hassett v. S tate , 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct. App. 1995). 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, 7 60 P.2d 1174, 1176 (1988). To establish prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient performance, the outcome of5 the proceedings would have been different. Id. at 761, 760 P.2d at 1177

. Here, even i f Brink’s trial or appellate counsel were deficient for failing “ to object to the jury introduction and jury instructions as presented to the jury , ” Brink did not allege facts to establish a reasonable probability that , had counsel done so, the outcome of the proceedings would have been different. Thus, Brink did not present evidence making a prima facie case as to each essential element of
these claims and , therefore, such claims were properly dismissed

. B

. Prosecutorial Misconduct
Brink alleged that the prosecutor engaged in several instances of pros ecutorial
mi sconduct at trial. We note that this Court considered some of Brink’s claims of prosecutorial misconduct in our opinion affirming Brink’s judgment of conviction. See Brink , Docket
No. 3 4391

. Thus, such claims may not be considered in post

- conviction proceedings. To the
extent that Brink alleged additional claims of prosecutorial misconduct in his petition , such
claims could have been raised on appeal and, therefore, may not be consider ed in post

- conviction proceedings. Brink also asserted that his trial counsel was ineffective for failing to object to the alleged instances of prosecutorial misconduct at trial and that his appellate cou nsel was ineffective for failing to raise these iss u e s on appeal. However, even if Brink’s trial counsel was
deficient for failing to object to the alleged instances of prosecutorial misconduct at trial, Brink did not allege facts to establish a reasonable probability that , had trial counsel done so, the outcome of the proceedings would have been different. Similarly , even if Brink’s appellate counsel was deficient for failing to raise all of Brink’s allegations of prosecutorial misconduct on appeal, Brink did not allege facts to establish a reasonable pr obability that , had appellate counsel done so, the outcome of the proceedings would have been different. Thus, Brink did not present evidence making a prima facie case as to each essential element of these claims and , therefore,
the claims were properly dismissed

. C. Lesser Included Offenses
Brink raised a constitutional challenge to the way Idaho presents its jury instruction for
consideration of lesser included offenses. Specifically, Brink asserted that instructing the jury
that it must first decide that he was not guilty of first degree murder before it could consider any
of the lesser included offenses violated due process and denied him a fair trial. We first note tha t this claim could have been raised on appeal and, therefore, may not be considered i n post

conviction proceedings. Idaho Code Section 19

- 2132(c) provides that “ the court shall instruct6 the jury that it may not consider the lesser included offense unless it has first considered each of the greater offenses within which it is included, and has concluded in its deliberations that the defendant is not guilty of each of such greater offenses. ” T he party challenging the constitutionality of a statute must over come a strong presumption of validity. State v. Hart , 135 Idaho 827, 829, 25 P.3d 850, 852 (2001) . Brink provided no authority in support of his conclusory allegation that I.C. § 19

- 2132(c) violates either the federal constitution or the Idaho
constituti on. Therefore, Brink’s claim w as properly dismissed.
D. Expert Witness Testimony
Br ink alleged that he was denied expert witnesses at trial due to errors of the district

court . T hese claim s could have been raised on appeal and, therefore, may not be considered in post

- conviction proceedings. Br ink set forth several other subclaims under th e rubric of expert witness testimony. However, we need not consider Brink’s subclaims because they als o could have been raised on appeal. Brink also alleged that he was denied a fair trial because there was

no defense expert witness testimony presented regarding forensic evidence, ballistics, or blood
evid ence due to ineffective assistance of counsel. In order to succeed on an ineffective assistance of counsel claim based on counsel’s failure to procure an expert witness, the accused must assert facts that would have been discovered by additional investigation and should offer expert testimony that would have been produced if the expert had been hired

. Aeschliman v.
State , 132 Idaho 397, 405, 973 P.2d 749, 757 (Ct. App. 1999). Here, Brink speculate d that, had he been able to present a forensic expert at trial , he could have proven the distance between
Br ink and the vic tim at the time of the shooting. Brink failed to establish the benefit that such expert testimony would have provided and made no proffer as to what an expert would have
testified to. Accordingly, even if Brink’s counsel was deficient for failing to present expert witness testimony regarding forensic evidence, ballistics or blood evidence , Brink did not alleged facts to establish a reasonable probability that, had counsel done so, the outcome of the proceedings would have been different. Thus, Brink did not present evidence making a prima
facie case as to each essential element of this claim and, therefore, such claim was properly
dismissed.
E. Ineffective Assistance of Counsel Brink alleged thirty instances of ineffective assistance of trial and appellate counsel. A ll
of these a llegations were conclusory and uns upported by admissible evidence. T h e district court7 was not requir ed to accept such allegations. Additionally, with respect to all of the allegations,
Brink failed to alleg e facts to establish prejudice and, therefore, did not present evidence making a prima facie case as to each essential element of these claim s

. Thus, the claims were properly
dismissed.
IV. CONCLUSION Brink’s claims for post

- conviction relief were prope rly dismissed as either procedurally barred because they were or could have been raised on appeal or because Brink failed to present evidence making a prima facie case as to each essential element of his claims. Therefore, the district court’s judgment summarily dismissing Brink’s petition for post

- conviction relief is
affirmed. No costs or attorney fees are awarded on appeal. Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.