Nelson v. State

GREGORY JOSEPH NELSON, Petitioner-Appellant, v. STATE OF IDAHO, Respondent.

Docket No. 43976

2017 Unpublished Opinion No. 537

COURT OF APPEALS OF THE STATE OF IDAHO

August 2, 2017

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Lynn G. Norton, District Judge.

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

Gregory Joseph Nelson, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Mark W. Olson, Deputy Attorney General, Boise, for respondent.

____________________

GUTIERREZ, Judge

Gregory Joseph Nelson appeals from the district court's judgment summarily dismissing his successive petition for post-conviction relief. Nelson specifically argues the district court erred in summarily dismissing his successive petition, denying his discovery requests, denying him leave of court to file a "bifurcated" petition, denying requests for counsel, and not ruling on a separate discovery request and a separate motion for leave to file an amended petition. For the reasons explained below, we affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

In 1995, a jury found Nelson guilty of kidnapping in the first degree and lewd conduct with a minor under the age of sixteen. The district court sentenced Nelson to concurrent fixed terms of life imprisonment. Nelson appealed the judgment and his sentence, and this Court affirmed. State v. Nelson, 131 Idaho 210, 953 P.2d 650 (Ct. App. 1998).

Nelson filed his initial petition for post-conviction relief in 1999. The district court summarily dismissed the petition, and this Court affirmed. Nelson v. State, Docket No. 27266 (Ct. App. Sept. 22, 2003) (unpublished). Nelson filed numerous successive petitions over the years that were summarily dismissed. In Nelson's most recent successive petition at issue on appeal--his seventh petition--he requested STR DNA testing of the victim's rape kit and the release of the victim's DNA to see whether it matches testing results of Nelson's underwear that he alleges he wore at the time of his contact with the victim. Nelson maintained the testing will prove his innocence because, he alleged, the victim's DNA will not be found on Nelson's underwear. Additionally, Nelson alleged the State withheld impeaching evidence pertaining to an FBI analyst.

Nelson also challenges on appeal the denial of several post-petition motions. For instance, he filed a motion to compel compliance with a subpoena duces tecum that he served on the Idaho State Police Forensic Services (ISPFS) demanding the disclosure of the DNA record and profile of the victim. The district court denied the motion to compel compliance and granted the State's motion to quash Nelson's subpoena. The district court reasoned that the discovery of the victim's DNA would not lead to exculpatory evidence.

Nelson filed motions for court-ordered discovery, leave of court to conduct discovery, leave of court to file a "bifurcated" amended petition, and leave of court to file an amended petition. The district court denied Nelson's motion for court-ordered discovery because it found that Nelson did not show a probability that any further testing or discovery would lead to exculpatory evidence. Furthermore, the district court denied Nelson's motion for leave to file a "bifurcated" amended petition, determining that he had not provided a sufficient reason for leave to file an amended petition--it was in essence identical to the original petition he filed. The district court implicitly denied Nelson's motions for leave of court to conduct discovery and yet another leave of court to file an amended petition.

Nelson filed two separate motions for appointment of counsel. The district court denied both motions because it determined Nelson's seventh successive petition was frivolous.

Ultimately, the district court summarily dismissed Nelson's petition following a hearing on the matter, reasoning that he failed to present a prima facie case that additional testing of the victim's rape kit or release of any previous DNA results of the victim would more probably than not prove Nelson's innocence. Additionally, the district court determined Nelson failed todemonstrate why his claim regarding the FBI analyst could not have been raised on direct appeal or in Nelson's previous six petitions. Nelson timely appeals.

II.ANALYSIS

A. Summary Dismissal of DNA Testing Request

Nelson contends the district court erred in summarily dismissing his successive petition for post-conviction relief. A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho Code § 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 Idaho Rule of Civil Procedure 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 post-conviction 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 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, 715P.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, 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).

Pursuant to Idaho Code § 19-4902(b), a petitioner may file a post-conviction petition seeking DNA testing on evidence that was secured in relation to the criminal trial if the evidence was not subjected to the requested DNA testing because the technology was not available at thetime of trial. The petitioner must present a prima facie case that identity was at issue in the trial and that the evidence was subject to a "chain of custody sufficient to establish that such evidence has not been substituted, tampered with, replaced or altered in any material aspect." I.C. § 19-4902(c). The trial court must allow the testing under reasonable conditions if it determines that the result of the testing has the scientific...