1

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 39850

DARYL L. REID, JR.,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

)

)

)

)

)

)

)

)

)

)

2013 Unpublished Opinion No. 639

Filed: August 27, 2013

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

BE CITED AS AUTHORITY

Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear 

Lake County. Hon. Mitchell W. Brown, District Judge. 

Order summarily dismissing petition for post-conviction relief, affirmed; order 

denying request for appointment of post-conviction counsel, affirmed.

Sara B. Thomas, State Appellate Public Defender; Brian R. Dickson, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Daphne J. Huang, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GRATTON, Judge

Daryl L. Reid, Jr. appeals from the district court’s orders summarily dismissing his 

petition for post-conviction relief and denying his request for appointment of post-conviction 

counsel. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Reid was convicted of one count of rape, Idaho Code §§ 18-6101(3), 18-6101(4); one 

count of misdemeanor battery, I.C. § 18-903; twenty-five counts of lewd conduct with a minor 

child under sixteen, I.C. § 18-1508; and twenty-one counts of sexual battery of a minor child 

sixteen or seventeen years of age, I.C. § 18-1508A(1)(a). The district court imposed a unified 

term of life with thirty-three years determinate. Reid appealed and this Court affirmed the 

decision of the district court in State v. Reid, Docket No. 36843 (Ct. App. July 22, 2011) 

(unpublished).
2

Reid filed a petition for post-conviction relief asserting violations of his constitutional 

rights and requested appointed counsel. Subsequently, the district court filed a notice of intent to 

dismiss the petition and denied the request for appointment of counsel. Reid filed a response to 

the district court’s notice of intent to dismiss and thereafter, the district court issued a 

memorandum decision and order denying Reid’s petition for post-conviction relief. Reid timely 

appeals.

II.

ANALYSIS

Reid claims that the district court erred: (1) by summarily dismissing his petition for 

post-conviction relief because his petition raised a genuine issue of material fact entitling him to 

an evidentiary hearing; and (2) by denying his request for appointed counsel. 

A. Summary Dismissal

A petition for post-conviction relief initiates a civil, rather than criminal, proceeding, 

governed by the Idaho Rules of Civil Procedure. I.C. § 19-4907; 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. 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 I.R.C.P. 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 

the pleadings, depositions, answers to interrogatories, and admissions and agreements of facts, 
3

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 

summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004); 
4

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).

In the instant case, Reid argues that his attorney provided ineffective assistance of 

counsel by failing to prevent the prosecution’s witnesses from “synchronizing their stories and 

manufacturing testimony.” 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 v. State, 144 Idaho 433, 442, 163 P.3d 222, 231 (Ct. App. 2007). To establish prejudice, 

the petitioner must show a reasonable probability that, but for the attorney’s deficient 

performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 

P.2d at 1177; Knutsen, 144 Idaho at 442, 163 P.3d at 231. 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).
5

Here, the only admissible evidence offered by Reid is his verified petition for postconviction relief and his affidavit. Reid’s verified petition states, in pertinent part, “the Defense 

Counsel engaged in pre-trial planing (sic) with the Prosecutor to allow the . . . Prosecution[’]s 

witnesses to engage in pre-trial and pre-testimony grooming in order to arrange their story for the 

jury, which bolstered the State[’]s case against the Petitioner which violated the Petitioner’s 

Fundamental right . . . .” Reid’s affidavit states, in pertinent part: 

The Petitioner also swears that by allowing all of the State[’]s witnesses to 

engage in pre-trial, and pre-testimony communications allowed their witnesses to 

groom their story, and further contends that the Public Defender was also a party 

to the state[’]s conviction of the Petitioner through collusion and scheming to 

allow inappropriate testimony in through the ‘unintentional questioning’ of a 

State[’]s witness . . . .

The district court concluded that Reid’s petition “contained only bare and conclusory allegations, 

unsubstantiated by factually based affidavits, records, or other admissible evidence.” 

Accordingly, the district court concluded that no genuine issue of material fact existed and 

summarily dismissed his petition.

On appeal, Reid argues that his verified petition and sworn affidavit constitute evidence 

substantiating his claim for post-conviction relief; therefore, his petition is entitled to an 

evidentiary hearing. We disagree. We note that the district court did not take judicial notice of 

Reid’s underlying criminal case. Additionally, Reid failed to attach to his petition any trial 

transcripts, documents, or exhibits to support his petition beyond his own affidavit. Therefore, 

Reid is unable to point to any facts contained in the trial record to support his allegation that his 

attorney provided ineffective assistance. 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 in 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. 

Neither the petition nor Reid’s affidavit bears out any facts that show deficient 

performance by his attorney beyond his bare and conclusory allegations. Reid’s allegations of 

defense counsel planning, colluding, and scheming are, indeed, simply allegations with 

absolutely no factual or evidentiary support. Bare or conclusory allegations, unsubstantiated by 
6

any fact, are inadequate to entitle a petitioner to an evidentiary hearing. King v. State, 114 Idaho 

442, 446, 757 P.2d 705, 709 (Ct. App. 1988). Reid’s own statements are conclusory and do not 

meet the threshold requirements to support his application.1 Therefore, we conclude the district 

court did not err by summarily dismissing Reid’s petition for post-conviction relief. 

B. Appointment of Counsel

Reid claims that his petition raised the possibility of a valid claim entitling him to 

appointment of post-conviction counsel. If a post-conviction petitioner is unable to pay for the 

expenses of representation, the trial court may appoint counsel to represent the petitioner in 

preparing the petition, in the trial court and on appeal. I.C. § 19-4904. The decision to grant or 

deny a request for court-appointed counsel lies within the discretion of the district court. 

Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004). When a district court is 

presented with a request for appointed counsel, the court must address this request before ruling 

on the substantive issues in the case. Id.; Fox v. State, 129 Idaho 881, 885, 934 P.2d 947, 951 

(Ct. App. 1997). The district court abuses its discretion where it fails to determine whether a 

petitioner for post-conviction relief is entitled to court-appointed counsel before denying the 

petition on the merits. See Charboneau, 140 Idaho at 793, 102 P.3d at 1112. 

In determining whether to appoint counsel pursuant to I.C. § 19-4904, the district court 

should determine if the petitioner is able to afford counsel and whether the situation is one in 

which counsel should be appointed to assist petitioner. Charboneau, 140 Idaho at 793, 102 P.3d 

at 1112. In its analysis, the district court should consider that petitions filed by a pro se 

petitioner may be conclusory and incomplete. See id. at 792-93, 102 P.3d at 1111-12. Facts 

sufficient to state a claim may not be alleged because they do not exist or because the pro se 

petitioner does not know the essential elements of a claim. Id. Some claims are so patently 

frivolous that they could not be developed into viable claims even with the assistance of counsel. 

Newman v. State, 140 Idaho 491, 493, 95 P.3d 642, 644 (Ct. App. 2004). However, if a 

petitioner alleges facts that raise the possibility of a valid claim, the district court should appoint 

 

1 Moreover, the State contends that any asserted material “fact” in the record is not based 

upon personal knowledge. Reid argues that by having his statements notarized, he attested to 

personal knowledge. Not so. Reid’s petition and affidavit are “subscribed and sworn” but make 

no factual assertion or allegation of personal knowledge. 
7

counsel in order to give petitioner an opportunity to work with counsel and properly allege the 

necessary supporting facts. Charboneau, 140 Idaho at 793, 102 P.3d at 1112. 

In the instant case, Reid requested appointment of post-conviction counsel in his petition. 

The district court, in its notice of intent to dismiss, denied Reid’s request for appointment of 

counsel, finding that his “allegations and facts do not justify the appointment of counsel at this 

time.” The district court found that Reid’s petition and evidence were “conclusory allegations, 

unsubstantiated by any factual evidence.” We agree. As discussed above, Reid failed to support 

his claims with factual evidence beyond his own allegations. He failed to present even the 

possibility of a valid claim and did not provide any additional information in response to the 

district court’s notice of intent to dismiss that was substantially different from his petition. As 

Reid failed to present the possibility of a valid claim, the district court was within its discretion 

to deny his request for the appointment of counsel. 

III.

CONCLUSION

Reid has failed to demonstrate reversible error. Accordingly, the district court’s orders

summarily dismissing Reid’s petition for post-conviction relief and denying his request for 

appointment of post-conviction counsel are affirmed.

Judge LANSING and Judge MELANSON CONCUR.