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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41992

WYLIE GAIL HUNTER,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2015 Unpublished Opinion No. 527

Filed: June 19, 2015

Stephen W. Kenyon, 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THIS IS AN UNPUBLISHED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, 

Kootenai County. Hon. Carl B. Kerrick, District Judge. 

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

Wylie Gail Hunter, Boise, pro se appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

MELANSON, Chief Judge 

Wylie Gail Hunter appeals from the summary dismissal of his petition for post-conviction 

relief. He contends the district court erred in failing to allow certain discovery and in concluding 

that there was no genuine issue of material fact regarding his claims of ineffective assistance of 

counsel. For the reasons set forth below, we affirm.

I.

FACTS AND PROCEDURE

In the underlying criminal case, Hunter was investigated for drug trafficking. As a result 

of that investigation, officers planned to intercept Hunter as he crossed into Idaho from Canada 

and stopped him after observing several traffic violations. Two officers involved in the traffic 

stop later testified that they could smell fresh marijuana when they approached the vehicle. A 
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drug dog was brought to the scene and alerted on the trunk area of the vehicle. A search of the 

trunk revealed seventy-five pounds of packaged marijuana contained in two large duffle bags.

Hunter was charged with trafficking marijuana in an amount over twenty-five pounds, 

I.C. § 37-2732B(a)(1)(C). He filed a motion to suppress, challenging the reasonable suspicion 

for the stop and the probable cause to perform the warrantless vehicle search. The district court 

denied Hunter’s motion after a hearing, concluding that both the evidence obtained from the 

ongoing investigation and the observed traffic violations provided reasonable suspicion to 

perform the traffic stop.1 The district court also determined that the odor of marijuana and the 

drug dog’s alert provided probable cause to search the vehicle. Hunter then pled guilty.

Hunter later obtained new counsel and filed a motion to withdraw his guilty plea based 

on alleged deficiencies in his prior counsel’s performance regarding the initial motion to 

suppress. The district court granted Hunter’s motion and allowed him to renew his motion to 

suppress. In that renewed motion, Hunter repeated his challenge to the stop and search of his 

vehicle and also challenged a search of his hotel room that occurred prior to the stop. After a 

hearing, the district court denied the motion and maintained its prior ruling. Hunter conditionally 

pled guilty, reserving his right to challenge the denial of his motion to suppress. The district 

court sentenced Hunter to a unified term of fifteen years, with a minimum period of confinement 

of ten years. Hunter appealed, and we affirmed in an unpublished opinion. See State v. Hunter, 

Docket No. 36728 (Ct. App. June 16, 2011).

Hunter subsequently filed a petition for post-conviction relief, alleging ineffective 

assistance of his prior attorneys, especially with regard to his motion to suppress. The alleged

deficiencies included failing to investigate and call certain defense witnesses, failing to 

investigate and impeach the state’s witnesses, and failing to seek discovery of exculpatory 

evidence. Hunter also sought appointment of counsel and specific discovery of allegedly 

exculpatory evidence. The state filed an answer and motion for summary dismissal, arguing that 

Hunter had failed to raise a genuine issue of material fact and that all of his claims were 

conclusory in nature and unsupported by admissible evidence. Hunter objected, contending that 

 

1 The district court granted the motion in part as to statements Hunter made prior to being 

read pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). That ruling was not appealed by the 

state.
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there were genuine issues of material fact and that summary dismissal would be premature prior 

to resolution of his pro se motions to appoint counsel and grant discovery. 

The district court appointed counsel. Thereafter, Hunter sought leave to depose his prior 

attorneys and other individuals involved in his criminal case, which the district court allowed. 

After the depositions were taken, the district court granted the state’s motion for summary 

dismissal, concluding that Hunter had failed to raise a genuine issue of material fact as to any of 

his claims. Despite being represented, Hunter filed pro se a motion to reconsider and a renewed 

motion to allow him to pursue the allegedly exculpatory evidence sought in his initial pro se 

motion for discovery, both of which the district court denied. Hunter appeals.

II.

STANDARD OF REVIEW

A petition for post-conviction relief initiates a proceeding that is civil in nature. 

I.C. § 19-4907; 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 

is based. 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 petition for postconviction relief, either pursuant to a motion by a party or upon the court’s own initiative, if it 

appears from the pleadings, depositions, answers to interrogatories, and admissions and 

agreements of fact, together with any affidavits submitted, that there is no genuine issue of 
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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, 715 

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 inferences 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. Id. 

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); 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, 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 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 dismissed. 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 the 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, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 
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929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free 

review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33 

P.3d 841, 844 (Ct. App. 2001). 

III.

ANALYSIS

Hunter raises two cognizable claims on appeal. First, he contends that the district court 

erred in denying his pro se motion for discovery of allegedly exculpatory evidence. Second, he 

asserts that the district court erred in summarily dismissing his petition for post-conviction relief 

because he raised a genuine issue of material fact as to whether his prior attorneys provided 

ineffective assistance of counsel.

A. Denial of Discovery Request

As a preliminary matter, the state contends that Hunter’s issue regarding the denial of his 

pro se motion for specific discovery was not preserved for appeal because he abandoned that 

motion when the district court granted the discovery motion submitted by Hunter’s courtappointed counsel. We disagree. Hunter preserved the issue for appeal by renewing his original 

discovery request in a motion filed contemporaneously with his motion to reconsider. That 

motion was subject to an adverse ruling in that it was denied by the district court along with 

Hunter’s motion to reconsider. Accordingly, we will address Hunter’s claim on the merits.

Hunter contends that the district court erred by failing to allow him to pursue discovery 

beyond the permitted depositions. Specifically, Hunter argues that the district court abused its 

discretion by not allowing him to engage in discovery of the items outlined in his initial motion 

for discovery, to wit: transcripts of any audio or video from the traffic stop; transcripts of 

dispatcher radio conversations between the two officers involved in the traffic stop; evidence 

retrieved from the prior search of Hunter’s motel room; verified copies of police reports; the 

state certification of the drug dog used in the case; the entire case files held by Hunter’s various 

attorneys pertaining to the underlying criminal case; the criminal record and informant history of 

a witness for the state at the initial suppression hearing; and any records of a GPS unit being 

attached to Hunter’s vehicle.

When a petitioner believes discovery is necessary for acquisition of evidence to support a 

claim for post-conviction relief, the petitioner must obtain authorization from the district court to 
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conduct discovery. I.C.R. 57(b); Raudebaugh v. State, 135 Idaho 602, 605, 21 P.3d 924, 927 

(2001). Whether to authorize discovery is a matter directed to the discretion of the court. 

Raudebaugh, 135 Idaho at 605, 21 P.3d at 927; Fairchild v. State, 128 Idaho 311, 319, 912 P.2d 

679, 687 (Ct. App. 1996). Discovery in a post-conviction action is not required unless necessary 

to protect a petitioner’s substantial rights. Murphy v. State, 143 Idaho 139, 148, 139 P.3d 741, 

750 (Ct. App. 2006); Griffith v. State, 121 Idaho 371, 375, 825 P.2d 94, 98 (Ct. App. 1992). 

Discovery may be denied where the petitioner’s claims are nothing more than speculation, 

unsupported by any evidence. Raudebaugh, 135 Idaho at 605, 21 P.3d at 927. Indeed, discovery 

may not be used to engage in “fishing expeditions,” as post-conviction actions provide a forum 

for known grievances, not an opportunity to search for them. Murphy, 143 Idaho at 148, 139 

P.3d at 750. 

The discovery Hunter requested in his motion was either speculative in nature or 

unnecessary to protect his substantial rights. Specifically, Hunter sought any audio or visual 

recordings of his traffic stop, dispatcher recordings of conversations between the officers that 

stopped him, and transcripts thereof. However, as noted by the district court, Hunter’s counsel

for the renewed suppression motion testified at his deposition (and the record tends to support)

that he had sought such recordings from the state and concluded that none were available. 

Moreover, although Hunter alleged that these recordings would corroborate his version of events 

during the stop and somehow impeach the officers’ credibility, these claims are conclusory and 

wholly unsupported. Thus, the very existence of this specific discovery and its relevance to 

Hunter’s suppression or ineffective assistance of counsel claims was speculative.

Hunter also sought verified copies of police reports for the same reasons as those 

forwarded for the audio or visual recordings and transcripts. However, copies of the police 

reports relating to the incident were included in the record of Hunter’s underlying criminal case. 

Moreover, although Hunter claims that these reports would undermine the officers’ accounts of 

events and support his version of the stop, the reports contradict Hunter’s claims, not support 

them. Thus, their discovery was not necessary to protect Hunter’s substantial rights.

Hunter further requested discovery of a drug ledger obtained from the search of his hotel 

room and information pertaining to the criminal record and alleged informant history of a state’s 

witness. However, as noted by the district court, reasonable suspicion to stop was based on the 
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traffic violations Hunter committed and probable cause to search was based on the two officers’ 

detection of the odor of fresh marijuana and reinforced by a subsequent drug dog alert on the 

trunk area of Hunter’s vehicle. Thus, evidence from Hunter’s hotel room or the alleged

informant history of a state’s witness was speculative and could not have impacted the district 

court’s decision as to Hunter’s motion to suppress. As a result, discovery of this evidence was 

not necessary to protect Hunter’s substantial rights.

Similarly, Hunter’s request for discovery of evidence that police had placed a GPS 

tracking device on Hunter’s rental vehicle is unsupported by the record. Moreover, as noted by 

the district court, each of Hunter’s prior attorneys stated in their depositions either that they were 

unaware of any GPS use or that GPS use was not an issue in this case. Even if there were 

evidence of use of a GPS tracking device in this case, it would not have affected the outcome of 

this case because it was not relied upon as a basis for performing either the stop or search of 

Hunter’s vehicle. Accordingly, the existence of this evidence is speculative and its discovery 

was not necessary to protect Hunter’s substantial rights. 

Hunter also sought discovery of the certification records of the drug dog used in this case. 

However, Hunter failed to provide any evidence showing that the drug dog was not certified or 

that his claims in this regard were anything but speculative. Moreover, even if the drug dog were 

not certified, the district court determined that the two officers’ detection of the odor of fresh 

marijuana coming from the vehicle provided probable cause to search prior to the drug dog’s 

alert. Thus, this discovery was unnecessary to protect Hunter’s substantial rights. 

Finally, Hunter sought the case files pertaining to his underlying criminal case from each 

of his prior attorneys. There is some indication in the record that Hunter requested these case 

files without success, but Hunter has failed to allege how this evidence supported, or even

related, to either his motion to suppress or his claims of ineffective assistance of counsel. As a 

result, absent any showing that the evidence was relevant to any of Hunter’s claims, discovery of 

the case files was not necessary to protect his substantial rights.

In summary, Hunter has failed to show that any of his discovery requests were either not 

speculative or were necessary to protect his substantial rights. On the contrary, even after the 

district court permitted Hunter to take the depositions from his prior attorneys and several other 

individuals, nothing in the record indicates that the remaining requested discovery constituted 
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more than a “fishing expedition.” Accordingly, the district court did not err in denying Hunter’s

pro se motion for discovery.

B. Ineffective Assistance of Counsel

Although Hunter claimed in his petition for post-conviction relief that all of his prior 

attorneys had provided him with ineffective assistance of counsel, Hunter only claims ineffective 

assistance by his counsel that assisted him with the renewed motion to suppress. Thus, we 

address only whether the district court erred in summarily dismissing that claim. 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 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); Hassett v. State, 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, 760 P.2d 1174, 

1176 (1988). 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 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. Howard v. State, 126 Idaho 231, 233, 880 

P.2d 261, 263 (Ct. App. 1994). 

Hunter cites to the deposition of his prior counsel to support his claim that the district 

court erred in summarily dismissing his claim of ineffective assistance of counsel. However, 

Hunter failed to include a transcript of that deposition in the record on appeal. When faced with 

an incomplete record on appeal, the missing items must be presumed to support the action of the 

district court. Hoffman v. State, 125 Idaho 188, 191, 868 P.2d 516, 519 (Ct. App. 1994). 

Accordingly, we presume that the missing deposition transcript supports the district court’s order 

summarily dismissing Hunter’s petition. 
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Even if the deposition transcript had been included, there is no indication that it would 

have helped Hunter to raise a genuine issue of material fact regarding ineffective assistance of

counsel. Hunter’s claims of such can be generally grouped into claims of inadequate 

investigation prior to the motion to suppress and failure to present defense witnesses at the 

suppression hearing. 

As to Hunter’s claim of inadequate investigation, determining whether an attorney’s 

pretrial preparation falls below a level of reasonable performance constitutes a question of law, 

but is essentially premised upon the circumstances surrounding the attorney’s investigation. Gee 

v. State, 117 Idaho 107, 110, 785 P.2d 671, 674 (Ct. App. 1990). Hunter contends that his prior 

counsel failed to pursue certain discovery in this case, some of which he claims was withheld by 

the state, and most of which he requested in his motion for discovery. Thus, the reasons

articulated above regarding Hunter’s request for discovery serve equally well to establish that 

Hunter’s counsel did not provide objectively deficient assistance and, even if he did, Hunter was 

not prejudiced thereby. Indeed, Hunter did not allege that he would not have pled guilty and 

would have instead insisted on proceeding to trial had his attorney obtained the requested 

discovery, all of which he was seemingly aware of when he entered his second guilty plea. Thus, 

Hunter has failed to raise a genuine issue of material fact as to whether his prior counsel 

provided ineffective assistance by not pursuing the evidence identified in Hunter’s discovery 

motion.

Hunter additionally alleged that his prior counsel was ineffective for failing to seek 

discovery of the employment records of the state’s expert that testified regarding the ventilation 

system of the vehicle Hunter was driving at the time of the stop. According to Hunter, the 

expert’s employment records would show that the expert was “misleading and disengenuous 

[sic] as to his expertise and the degree of his proficiency as a mechanic.” This claim is 

conclusory and unsupported by any evidence; thus, summary dismissal of this claim was proper. 

See Wolf, 152 Idaho at 67, 266 P.3d at 1172.

Hunter also claims that his counsel was ineffective because he failed to investigate the 

area where the stop occurred. The duty to investigate requires only that counsel conduct a 

reasonable investigation. Mitchell v. State, 132 Idaho 274, 280, 971 P.2d 727, 733 (1998). In 

assessing the reasonableness of counsel’s investigation, we consider not only the quantum of 
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evidence known to counsel, but also whether the known evidence would lead a reasonable 

attorney to investigate further. Wiggins v. Smith, 539 U.S. 510, 527 (2003); Strickland, 466 U.S. 

at 691; Murphy, 143 Idaho at 146, 139 P.3d at 748. According to the district court, Hunter’s 

counsel testified at his deposition that he was already personally familiar with the area of the 

stop, making further personal investigation of the area or its traffic patterns unnecessary under 

the circumstances. Indeed, there is no indication that Hunter provided his counsel with 

information that should have caused him to investigate beyond his personal experience. As a 

result, Hunter has failed to raise a genuine issue of material fact as to whether his prior counsel’s 

decision not to investigate this issue further constituted deficient performance.

Hunter further contends that his prior counsel failed to interview various witnesses, 

including Hunter’s co-defendant, prior to the renewed motion to suppress hearing. To prevail on 

a claim that counsel’s performance was deficient in failing to interview witnesses, a defendant 

must establish that the inadequacies complained of would have made a difference in the 

outcome. Gee, 117 Idaho at 111, 785 P.2d at 675. It is not sufficient merely to allege that 

counsel may have discovered a weakness in the state’s case. Id. We will not second-guess trial 

counsel in the particularities of trial preparation. Id.

Hunter has failed to show that his prior counsel was ineffective for failing to interview 

his co-defendant at the renewed motion to suppress hearing. According to the district court, 

three of Hunter’s four prior attorneys testified at their depositions that there was no tactical 

purpose to investigating or presenting the co-defendant’s testimony at the suppression hearing

and that doing so would have raised constitutional and ethical issues. Moreover, it is highly 

unlikely that the district court would have found the self-serving testimony of Hunter’s codefendant credible and sufficient to undermine the testimony of the two officers, making any 

interview superfluous. Hunter has failed to counter these tactical justifications for not 

interviewing his co-defendant and has otherwise failed to show that his prior counsel’s decision 

not to do so affected the outcome of the hearing. 

The same is true with regard to the other proposed witnesses, as well. Hunter claims that 

his federal probation officer would have contradicted the testimony of one of the stopping 

officers. He further claims that a private investigator and a rental car manager would have 

offered favorable testimony on his behalf. However, he provides no affidavits to support these 
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conclusory claims, nor does he allege how this testimony would have changed the outcome of his 

suppression hearing. Indeed, by Hunter’s own account, most of the proposed beneficial 

testimony would have been either hearsay or irrelevant to the issues of reasonable suspicion to 

stop and probable cause to search at the suppression hearing. Thus, much of the witnesses’ 

purported testimony would have been inadmissible, so it could not have affected the outcome of 

the suppression hearing. 

Finally, Hunter claims that his prior counsel was ineffective for failing to call some of 

those same witnesses to testify at the suppression hearing. Counsel’s choice of witnesses, 

manner of cross-examination, and lack of objection to testimony fall within the area of tactical, 

or strategic, decisions. Giles v. State, 125 Idaho 921, 924, 877 P.2d 365, 368 (1994); see also

Bagshaw v. State, 142 Idaho 34, 38, 121 P.3d 965, 969 (Ct. App. 2005) (noting that it is 

generally agreed that the decision of what evidence should be introduced at trial is considered 

strategic or tactical). As previously noted, 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. Howard, 126 

Idaho at 233, 880 P.2d at 263; Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct. App. 

1989). The decision of Hunter’s prior counsel not to call these witnesses at the suppression 

hearing was tactical or strategic in nature. Hunter has failed to allege that this decision was the 

product of inadequate preparation, ignorance of the law, or other objective shortcomings. 

Accordingly, we will not second-guess this decision on appeal.

The constitutional requirement for effective assistance of counsel is not the key to the 

prison for a defendant who can dredge up a long series of examples of how the case might have 

been tried better. Ivey v. State, 123 Idaho 77, 80, 844 P.2d 706, 709 (1992). That is all that 

Hunter provided in his petition for post-conviction relief. His claims were either unsupported by 

admissible evidence or otherwise failed to raise a genuine issue of material fact as to whether he 

was provided ineffective assistance of counsel. As a result, the district court did not err in 

summarily dismissing Hunter’s petition for post-conviction relief.
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IV.

CONCLUSION

Hunter has failed to show that the district court abused its discretion by denying his 

motion for discovery or erred in granting the state’s motion for summary dismissal. 

Accordingly, the district court’s order summarily dismissing Hunter’s petition for postconviction relief is affirmed. No costs or attorney fees are awarded on appeal.

Judge GUTIERREZ and Judge GRATTON, CONCUR.