Bell v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50063

KEVIN KEITH BELL, )
) Opinion Filed: April 17, 2024
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
)
STATE OF IDAHO, )
)
Respondent. )
)

Appeal from the District Court of the Fifth Judicial District, State of Idaho, Twin
Falls County. Hon. Rosemary Emory, District Judge.

Judgment dismissing amended petition for post-conviction relief, memorandum
order denying motion to reconsider, affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Andrea W. Reynolds, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Kale D. Gans, Deputy Attorney General,
Boise, for respondent.
________________________________________________

HUSKEY, Judge
Kevin Keith Bell appeals from the district court’s final judgment summarily dismissing his
amended petition for post-conviction relief and the memorandum decision denying his motion to
reconsider that judgment. Bell argues the district court erred by summarily dismissing his petition
and denying his motion to reconsider because he was not provided with adequate notice of the
bases for dismissal on some of his claims. He also argues his petition raised a genuine issue of
material fact as to one claim of ineffective assistance of counsel. The judgment and order
summarily dismissing his amended petition for post-conviction relief and the memorandum order
denying his motion to reconsider are affirmed.

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I.
FACTUAL AND PROCEDURAL BACKGROUND
Bell was charged with rape and three counts of domestic battery; the district court entered
a no-contact order on behalf of the victim. While that case was pending, Bell was charged with
felony influencing a witness involving the victim of the battery and rape case. The district court
joined the witness influencing case with the battery and rape case; Bell was convicted of one count
of domestic battery, rape, and witness influencing. Bell appealed his sentences, which were
affirmed by this Court in an unpublished opinion. State v. Bell, Docket Nos. 46975/47018/47019
(Ct. App. Aug. 31, 2020).
Bell filed a prose petition for post-conviction relief. Therein, Bell raised three claims:
prosecutorial misconduct; insufficient evidence to sustain his conviction; and ineffective
assistance of counsel. His claim of ineffective assistance of counsel cited three bases upon which
he believed counsel performed deficiently: counsel failed to strike purportedly biased jurors from
the final jury panel; counsel did not listen to recordings or evidence available and therefore failed
to provide a defense for Bell; and counsel often nodded off and fell asleep during meetings and
smelled like alcohol. Bell signed and certified the four-page “Petition and Affidavit for Post
Conviction Relief.” Bell attached a two-page “Affidavit of Facts in Support of Post-Conviction
Petition” to his petition. The content of the affidavit, in its entirety reads as follows: “see attached
affidavits herein specified”; “Exhibits A & B--Cindy Bell,” Bell’s wife; and “Exhibits C, D, E &
F--Kevin L. Bell,” Bell’s father. Bell did not sign the form affidavit of facts in support, instead
writing “signatures found on attached affidavit.” Bell certified the affidavit form under penalty of
perjury. Although the attached exhibits were signed by Cindy Bell and Kevin Bell, respectively,
none were verified or certified that they were signed under the penalty of perjury.
Bell also attached a typed narrative to the form affidavit, which explained the various bases
for his claims in the original petition; Bell also did not sign this document. In the narrative, Bell
alleged a claim of prosecutorial misconduct, a claim the evidence was insufficient to sustain his
conviction, and a claim of ineffective assistance of counsel which alleged three separate bases.
The State filed an answer requesting the claims be denied and the petition dismissed. The
State asserted the petition failed to state a ground upon which relief could be granted; the petition
was unsupported by admissible evidence and, thus, failed to raise a genuine issue of material fact;
and any claims that could have been raised on direct appeal were procedurally defaulted.

2
Bell was appointed counsel and counsel filed an amended petition. The amended petition
incorporated by reference the original petition1 and affidavit for post-conviction relief and
indicated the amended petition was supported by a contemporaneously filed affidavit of post-
conviction counsel. Counsel’s affidavit averred that counsel reviewed various trial documents and
transcripts from the underlying criminal case and the exhibits attached to the affidavit were true
and correct copies. There was no citation to facts in the documents or explanation of the relevance
of the documents in the affidavit. The amended petition alleged two new claims of ineffective
assistance of counsel: (1) trial counsel failed to object to the joinder of the battery and rape case
with the witness influencing case, and the lack of objection allowed otherwise inadmissible
testimony to be admitted; and (2) trial counsel failed to file a motion to preclude the State’s expert
from testifying or object to the expert’s testimony at trial, which led to Bell’s conviction. The
amended petition clarified one of the claims of ineffective assistance of counsel raised in the
original petition: trial counsel’s failure to question or strike a potentially biased juror, A.L.,
resulted in a biased juror sitting on the final jury panel. The explanation of the alleged bias was
two-fold: (1) Bell provided information that led to A.L.’s brother being terminated from his
employment; and (2) A.L. was good friends with one of Bell’s prior girlfriends and was partially
responsible for the end of the relationship between Bell and the girlfriend.
The amended petition was not signed or verified by Bell. The State filed an answer to the
amended petition, raising three affirmative defenses: Bell failed to state any grounds upon which
relief could be granted; the amended petition contained bare and conclusory allegations
unsupported by admissible evidence and, thus, failed to allege a genuine issue of material fact; and
any claim that could have been, but was not, raised on direct appeal was procedurally defaulted.
The State then filed an amended answer, which was identical to the previous answer but alleged
an additional affirmative defense: that Bell did not verify the amended petition as required by
Idaho Code §§ 19-4902(a), 19-4903, and, thus, it was subject to dismissal pursuant to I.C. § 19-
4906. The State also filed a motion for the district court to take judicial notice of various
documents from the underlying criminal cases.
The State then filed a motion for summary dismissal. Therein, the State moved for
summary dismissal of the amended petition pursuant to I.C. § 19-4906(c) on the ground that the

1
We strongly discourage this practice as it leads to confusion rather than clarity from an
amended petition.
3
amended petition, generally, and the ineffective assistance of counsel claims, specifically, failed
to allege a genuine issue of material fact. The State filed a brief in support of its motion for
summary dismissal, which was incorporated into the motion.
In the brief in support, the State specifically argued: (1) the original petition was
incomplete and was not supported by any admissible evidence; (2) Bell relied on the incomplete
and unsupported original petition to support the claims in the amended petition; (3) no additional
evidence was included as part of the amended petition; and, thus, (4) Bell failed to support his bare
and conclusory allegations in the amended petition. The State also specifically addressed the
claims of ineffective assistance of counsel raised in the amended petition and, as to each claim,
argued Bell failed to raise a genuine issue of material fact as to either deficient performance or
prejudice as required by the Strickland2 standard. The State ultimately argued, “The Amended
Petition and the attached Petition and supporting Affidavit are so insufficient the petitioner is not
entitled to the relief sought”; Bell failed to support the amended petition with admissible evidence;
Bell failed to raise a genuine issue of material fact; there was nothing to be decided by an
evidentiary hearing; and the amended petition contained nothing more than unsupported,
conclusory allegations.
Bell’s post-conviction counsel filed a second affidavit. Therein, he averred that he sent a
verification form to Bell for the amended petition, but the form was not received until after the
date the amended petition was due. Because post-conviction counsel had no other verification for
the amended petition, he included the language incorporating the original petition into the amended
petition because the original petition was verified.3 Once counsel received Bell’s completed
verification form for the amended petition, counsel filed it as part of the amended petition. Bell
also filed a second affidavit. In that affidavit, he averred that trial counsel never consulted with
him about joinder of the two cases; reiterated the information regarding A.L., the purportedly
biased juror; and indicated trial counsel never discussed the State’s expert’s testimony with him or
discussed the option of excluding or limiting that testimony. Thereafter, Bell filed a response to
the State’s motion for summary dismissal in which he argued that his amended petition was

2
Strickland v. Washington, 466 U.S. 668 (1984).
3
Based on post-conviction counsel’s second affidavit, it appears he was not intending to
incorporate the claims in the original petition into the amended petition, but instead, was
attempting to incorporate the verification from the original petition to the amended petition.
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supported by admissible evidence because it incorporated the original petition and the original
affidavit, which contained his unsigned, typewritten statement. Additionally, Bell argued the
transcripts, combined with his statements, were sufficient evidence that, if true, entitled him to
post-conviction relief. Bell specifically addressed the claims of ineffective assistance of counsel
in the amended petition but did not address the trial claims raised in the original petition. Bell also
challenged the State’s argument that his claims could be dismissed as a matter of law, arguing he
was not required to provide any legal argument supporting the claims, but only needed to assert
facts in support of his claims.
Following a hearing, the district court summarily dismissed the petition. The district court
addressed the three claims of ineffective assistance of counsel listed in the amended petition but
not the allegations set forth in the original petition. The court found that Bell failed to establish
either prong of the Strickland standard on any of the ineffective assistance of counsel claims.
Bell filed an Idaho Rule of Civil Procedure 11.2(b) motion to reconsider but did not include
any additional evidence for the district court to consider in conjunction with his motion. Instead,
he argued the district court improperly summarily dismissed the petition because: (1) the district
court did not give the twenty-day notice of dismissal pursuant to I.C. § 19-4906(b) before
summarily dismissing the amended petition sua sponte; (2) the court could not dismiss the petition
for lack of admissible evidence because that was not a ground argued by the State in its brief in
support of its motion for summary dismissal; (3) the court erroneously concluded Bell was
required, but failed, to provide legal argument, which is not required under the post-conviction
statutes; and (4) the pleadings provided a genuine issue of material fact warranting an evidentiary
hearing. The district court held a hearing on the motion to reconsider, after which it issued a
memorandum decision denying the motion. Bell timely appeals.
II.
STANDARD OF REVIEW
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 v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). 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).

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Idaho Rules of Civil Procedure apply in all actions “of a civil nature.” I.R.C.P. 1(b). Rule
11.2(b) permits a party to move the court to reconsider an interlocutory order. When deciding the
motion for reconsideration, the district court must apply the same standard of review that the court
applied when deciding the original order that is being reconsidered. In other words, if the original
order was a matter within the trial court’s discretion, then so is the decision to grant or deny the
motion for reconsideration. If the original order was governed by a different standard, then that
standard applies to the motion for reconsideration. Likewise, when reviewing a trial court’s
decision to grant or deny a motion for reconsideration, this Court utilizes the same standard of
review used by the lower court in deciding the motion for reconsideration. If the decision was
within the trial court’s discretion, we apply an abuse of discretion standard. Westover v. Idaho
Counties Risk Management Program, 164 Idaho 385, 391, 430 P.3d 1284, 1290 (2018).
III.
ANALYSIS
On appeal, Bell argues the district court erred by: (1) summarily dismissing the amended
petition; and (2) denying his motion to reconsider its order summarily dismissing his amended
petition. More specifically, Bell argues that for those individual claims not explicitly addressed
by the State in its motion for summary dismissal, he should have been, but was not, given notice
by the State or the district court of the bases for dismissal of those claims. Bell also argues he
alleged a genuine issue of material fact as to his claim of ineffective assistance of counsel regarding
A.L., the purportedly biased juror. The State argues Bell has failed to preserve a claim related
either to the sufficiency or lack of notice by either the State or the district court, but even if he had,
the claim fails on the merits because the State’s motion for summary dismissal specifically
referenced both the amended and the original petition and the lack of admissible evidentiary
support for all the claims. Alternatively, the State argues Bell was not entitled to an additional
twenty-day statutory notice because the district court did not sua sponte dismiss any claims. This
is so, argues the State, because the district court’s denial was based upon grounds related to the
grounds set forth in the State’s motion for summary disposition. Finally, the State argues that Bell
has failed to allege a genuine issue of material fact on his ineffective assistance of counsel claim
regarding the allegedly biased juror.
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-
4907; Rhoades, 148 Idaho at 249, 220 P.3d at 1068; State v. Bearshield, 104 Idaho 676, 678, 662

6
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 § 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, 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

7
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.
Because a post-conviction proceeding is governed by the Idaho Rules of Civil Procedure,
a motion for summary dismissal must, pursuant to I.R.C.P. 7(b)(1), state the grounds for dismissal
with particularity. DeRushé, 146 Idaho at 601, 200 P.3d at 1150. “If the ground for summary
disposition is that there is no admissible evidence on an essential element of a claim, reasonable
particularity only requires pointing that out.” Id. For an ineffective assistance of counsel claim,
reasonable particularity only requires pointing out that there is a lack of evidence showing deficient
performance or prejudice pursuant to the Strickland standard. See DeRushé, 146 Idaho at 601-02,
200 P.3d at 1150-51. It does not require explaining what further evidence is necessary to
substantiate a petitioner’s claim. Id. at 602, 200 P.3d at 1151. If a petitioner believes the grounds
for dismissal alleged by the State in its motion for summary dismissal are insufficient, he must
object in the court below. Kelly, 149 Idaho at 522 n.1, 236 P.3d at 1282 n.1. A petitioner cannot
challenge the sufficiency of the State’s grounds for dismissal for the first time on appeal. DeRushé,
146 Idaho at 602, 200 P.3d at 1151.
When considering whether to grant or deny a motion to reconsider, the court should apply
the same standard as it did in considering the original motion. Westby v. Schaefer, 157 Idaho 616,
621, 338 P.3d 1220, 1225 (2014). Because the standard for reviewing the denial of the motion to
reconsider is the same as when reviewing whether the district court erred in summarily dismissing
the petition, if the petition was dismissed for failing to provide adequate factual support and
petitioner does not submit any additional evidence in support of his motion to reconsider, the
district court does not err in denying the motion to reconsider. This is because we review the
denial of the motion to reconsider to assess whether the petitioner’s admissible evidence asserts
facts which, if true, would entitle the petitioner to relief. In this case, the State’s motion for
summary dismissal and the brief in support specifically reference that the original petition and
original affidavit were incomplete and unsupported by any admissible evidence and, thus, did not
provide support for the claims in the original or amended petition. The State also argued the
amended petition similarly failed to provide factual support for any of the claims incorporated by

8
reference from the original petition or that were specifically set forth in the amended petition.
After identifying both the original and amended petition as the documents to which the dismissal
applied, the State listed multiple bases justifying summary dismissal of the amended petition:
(1) the original petition and attachments were so insufficient that Bell was not entitled to relief;
(2) even incorporating the original petition and attachments, Bell failed to support the amended
petition with admissible facts and failed to allege a genuine issue of material fact which, if resolved
in his favor, would entitle him to the requested relief; (3) there was nothing that could be decided
by an evidentiary hearing; (4) the amended petition contained nothing more than conclusory
allegations, unsupported by admissible evidence and, thus, the district court did not have to accept
the allegations as true; and (5) Bell failed to meet either prong of the Strickland standard for his
ineffective assistance of counsel claims. Thus, the State’s response clearly addressed all claims
raised in the amended petition, both those explicitly set forth and those incorporated by reference
from the original petition.
The State is correct that Bell’s original petition and attached documents, including the form
affidavit, do not include any admissible evidence. Bell never signed the form affidavit or the typed
narrative, and the documents signed by Cindy Bell and Kevin Bell were not verified or certified.
As a result, none of the documents attached to the original petition were admissible evidence and
consequently, there was no evidentiary support for any of the claims in the original petition. As
to Bell’s second affidavit, it provided no factual support for any of the trial error claims set forth
in the original petition. The only factual statements in the amended petition that were relevant to
any of Bell’s claims were the statements related to A.L., the purportedly biased juror. To the extent
Bell’s post-conviction counsel argued there was factual support in the transcripts and documents
from Bell’s underlying criminal case, post-conviction counsel failed to identify, with particularity,
which pages or sections of those documents upon which he relied. This Court will not search the
record for support of claims.
Bell claims he was given no notice of the bases for dismissal of the claims in the original
petition because the State addressed the claims in the aggregate instead of individually. Bell argues
on appeal that unless the State is required to address each individual claim,
it would effectively eliminate the need for the State to provide notice as to the
grounds on which it seeks summary dismissal of a petition for post-conviction
relief--the mere recitation of the pleading standard and the standard for summary

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dismissal would be enough to put a petitioner on notice of the deficiencies in all of
his claims. Surely that is not what is intended by the statutory notice requirements.
The Supreme Court made clear in DeRushé that a generalized statement regarding the
deficiency of a claim is sufficient when it held, “If the ground for summary disposition is that there
is no admissible evidence on an essential element of a claim, reasonable particularity only requires
pointing that out.” DeRushé, 146 Idaho at 601, 200 P.3d at 1150. Indeed, the pleading standard
is so general that if the other party cannot assert surprise or prejudice, the requirement is met. Id.
Here, the State’s references to the original petition and the amended petition sufficiently notified
Bell that all his claims--both those incorporated by reference from the original petition and those
set forth in the amended petition--were deficient for the reasons set forth by the State. The State’s
additional explanation regarding the deficiencies of Bell’s ineffective assistance of counsel claims
set forth in the amended petition does not invalidate the general notice that all of Bell’s claims
failed as a matter of law for various reasons.
In essence, Bell is arguing the State’s motion for summary disposition provided insufficient
notice as to any claim not specifically addressed. If Bell thought the notice provided in the State’s
motion for summary disposition was insufficient, he was required to raise that issue in the trial
court to preserve it for appeal. Kelly, 149 Idaho at 522 n.1, 236 P.3d at 1282 n.1; DeRushé, 146
Idaho at 602, 200 P.3d at 1151. Bell had multiple opportunities to address the issue of notice in
the trial court. Kelly is instructive in illustrating Bell’s options. For example,Kelly could have
objected to:
the motion for summary dismissal on the basis that it fails to provide him with
sufficient notice. Likewise, the petitioner could object to the sufficiency of the
notice at the summary dismissal hearing before the district court. Finally, if the
district court grants the State’s motion for summary dismissal, the petitioner may
file an I.R.C.P. 11 motion for reconsideration.
Kelly, 149 Idaho at 522 n.1, 236 P.3d at 1282 n.1.
Bell had precisely the same opportunities as Kelly and, in fact, took advantage of those
opportunities. For example, Bell objected by filing a response to the State’s motion for summary
dismissal, but nowhere in his response did he assert the notice was insufficient as to the
incorporated claims from the original petition. Next, Bell could have raised the claim at the
summary dismissal hearing, but despite making other arguments, he did not assert he had
insufficient notice of the bases for dismissal listed in the State’s motion as to the incorporated
claims from the original petition. Finally, Bell could have raised the issue of insufficient notice

10
regarding the claims in his original petition in his motion for reconsideration or in the hearing on
the motion, but again, he did not. In the motion to reconsider, Bell alleged the amended petition
was improperly dismissed because he was not provided twenty-days’ notice by the court and
because the district court dismissed the amended petition for lack of verification. Thus, although
listing some grounds regarding notice, he did not argue that either the State or the district court
failed to provide any notice regarding the incorporated claims. Bell had multiple opportunities to
raise the issue of insufficient notice regarding the claims in the original petition and did not do so.
This Court will not engage in a sufficiency-of-the-notice analysis under the guise of considering
whether an appellant was provided with any notice at all.
According to DeRushé, the State provided sufficient notice to Bell that all the claims in his
amended petition, both those incorporated by reference and specifically addressed, failed to allege
a genuine issue of material fact. Nothing in DeRushé or Kelly requires the State to address each
claim, as opposed to the petition as a whole, when all claims suffer from various, universal
deficiencies.
Next, Bell argues he was entitled to the twenty-day notice set forth in I.C. § 19-4906(b)
because the district court’s dismissal of his petition amounted to a sua sponte dismissal. Bell
argues the district court did not rely on the same arguments presented by the State in dismissing
Bell’s claims of trial error and ineffective assistance of counsel. The State argues the district court
relied, in part, on grounds asserted by the State in its motion for summary disposition and
memorandum in support and, thus, the dismissal was not sua sponte. Idaho Code § 19-4906(b)
provides in relevant part:
When a court is satisfied, on the basis of the application, the answer or
motion, and the record, that the applicant is not entitled to post-conviction relief
and no purpose would be served by any further proceedings, it may indicate to the
parties its intention to dismiss the application and its reasons for so doing. The
applicant shall be given an opportunity to reply within 20 days to the proposed
dismissal.
A review of I.C. § 19-4906(b) demonstrates that a claim that a district court failed to provide notice
requires the petitioner to show both that the district court did not provide twenty-days’ notice and
that it did not provide its reasons for the dismissal. Establishing only one of the two elements only
establishes that the notice was insufficient, not that notice was lacking.
In Ferrier v. State, 135 Idaho 797, 25 P.3d 110 (2001), Ferrier argued the district court
erred in granting the State’s motion for summary dismissal without providing him twenty-days’

11
notice of the hearing on the State’s motion. Ferrier, 135 Idaho at 799, 25 P.3d at 112. The Idaho
Supreme Court held that Ferrier had not preserved the claim for appeal because Ferrier’s counsel
did not object to the lack of twenty-days’ notice or request a continuance. The Court held: “If
Ferrier believed that he was entitled to twenty days within which to respond to the State’s motion
to dismiss, he was required to raise that issue before the district court. Having failed to do so, he
cannot now raise the issue on appeal.” Id. Thus, according to Ferrier, an argument that the district
court provided its reasons for dismissal but did not give twenty-days’ notice, is a claim of
insufficient notice and must be raised in the district court to be preserved on appeal. By way of
logical analogy, then, a similar claim that the district court provided twenty-days’ notice but not
its reasons for dismissal is also a claim of insufficient notice and must also be raised in the district
court to be preserved. As a petitioner must already address one of these elements to preserve a
claim of insufficient notice, it is not an onerous burden to require a petitioner to address both
elements in the trial court to preserve a claim of no notice.
The Court in DeRushé cited Ferrier’s holding in support that a petitioner in a post-
conviction case cannot challenge the sufficiency of the notice of dismissal for the first time on
appeal. DeRushé, 146 Idaho at 602, 200 P.3d at 1151. A little more than a year later, in Kelly, the
Court addressed whether a claim that the district court did not provide twenty-days’ notice could
be raised for the first time on appeal. Kelly, 149 Idaho at 522, 236 P.3d at 1282. Specifically, the
Court identified the issue as:
Kelly also alleges that several of his claims were dismissed without any notice at
all, and DeRushé does not preclude an appellant from asserting this claim for the
first time on appeal. In Kelly’s petition for post-conviction relief he claims, in
relevant part, ineffective assistance of counsel based on his attorney’s failure to file
a motion to suppress evidence. The district court dismissed this claim without
providing twenty days of notice, and Kelly claims that the State’s MSD and Memo
contained no notice of the grounds on which this claim was dismissed. We
disagree.
Id.
In Kelly, the Court neither explicitly addressed whether DeRushé precludes raising a claim
of no notice for the first time on appeal nor explicitly holds that a claim of no notice is preserved
for appellate review, despite failing to raise the claim in the trial court. One can infer that because
the Supreme Court analyzed Kelly’s claim on the merits, it must have implicitly concluded the
issue was preserved. However, with no analysis explaining why the holdings in Ferrier and

12
DeRushé would not apply to a claim of lack of notice, we cannot reconcile the holding of Kelly
with more recent precedent.
Both the Supreme Court and this Court have repeatedly cited Kelly for the proposition that
a petitioner may assert for the first time on appeal that the post-conviction claims were dismissed
without any notice. However, it appears that none of the subsequent opinions analyze why this
claim, unlike others, need not be raised in the trial court to be preserved for appellate review. In
addition to this lack of explanation, since Kelly was issued, the Supreme Court has repeatedly held
that arguments not raised in the trial court may not be raised for the first time on appeal. State v.
Hoskins, 165 Idaho 217, 221, 443 P.3d 231, 235 (2019). This preservation requirement has also
been consistently and repeatedly applied to other civil cases. See Taylor v. Taylor, 169 Idaho 806,
813, 504 P.3d 342, 349 (2022) (holding Court will not address substantive issues raised for first
time on appeal); Gordon v. Hedrick, 159 Idaho 604, 612, 364 P.3d 951, 959 (2015) (holding Court
will not address constitutional claims raised for first time on appeal); Needs v. Hebener, 118 Idaho
438, 441, 797 P.2d 146, 149 (Ct. App. 1990) (holding Court will not address claims of procedural
error for first time on appeal).
The preservation requirement applies to claims in a direct appeal of a criminal conviction,
Hoskins, 165 Idaho at 226, 443 P.3d at 240; to claims in a capital post-conviction case, Hall v.
State, 172 Idaho 334, 352, 533 P.3d 243, 261 (2023); and to other types of civil cases, some
examples of which are listed above. Given Idaho appellate courts’ almost universal holding that
issues not raised in the trial court are not preserved for purposes of appellate review, we can discern
no principled reason why the same requirement should not apply to claims of lack of notice in a
non-capital post-conviction proceeding, a proceeding to which decidedly fewer constitutional
protections apply.4
It appears this Court first addressed the issue of dismissing a petition on grounds not
asserted by the State in Gibbs v. State, 103 Idaho 758-59, 653 P.2d 813-14 (Ct. App. 1982). The

4
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (holding no Sixth Amendment right to
counsel in collateral attack on conviction); State v. Hall, 163 Idaho 744, 830, 419 P.3d 1042, 1128
(2018) (capital defendant’s constitutional due process rights did not require evidentiary hearing
and no due process rights were violated by summary dismissal of his post-conviction petition);
Aeschliman v. State, 132 Idaho 397, 402, 973 P.2d 749, 754 (Ct. App. 1999) (holding procedural
due process not violated by limitation of discovery in post-conviction proceeding).
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rationale for the rule was reiterated by this Court in Baxter v. State, 149 Idaho 859, 243 P.3d 675
(Ct. App. 2010), where this Court held:
Our Supreme Court has held that a district court cannot “dismiss a claim on
a ground not asserted by the State in its motion unless the court gives the twenty-
day notice required by Section 19-4906(b).” DeRushé, 146 Idaho at 602, 200 P.3d
at 1151. The notice procedure is necessary so that the applicant is afforded an
opportunity to respond and to establish a material issue of fact if one exists. Flores
v. State, 128 Idaho 476, 478, 915 P.2d 38, 40 (Ct. App. 1996). If a district court
dismisses on grounds not contained in the state’s motion, the applicant does not
have the opportunity to respond and attempt to establish a material issue of fact.
Garza v. State, 139 Idaho 533, 537, 82 P.3d 445, 449 (2003) [abrogated on other
grounds by Verska v. Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d
502 (2011)].
Baxter, 149 Idaho at 865, 243 P.3d at 681 (emphasis added). However, the last sentence of the
above quotation is not a correct statement of the law. It is not correct because a petitioner does
have an opportunity to respond to the lack of twenty-days’ notice, and/or a lack of explanation of
the bases of dismissal, and to attempt to establish a material issue of fact both before and after a
final judgment is entered. For example, as noted in Kelly, a petitioner could file an I.R.C.P. 11.2(b)
motion to reconsider the summary dismissal order before the dismissal becomes final. In an
I.R.C.P. 11.2(b) motion, the petitioner could bring to the district court’s attention that the petition
was summarily dismissed without the twenty-days’ notice to respond, seek clarification of the
bases of dismissal, or provide additional factual support and note the dismissal is improper in light
of the additional evidentiary support for the claim(s). In an I.R.C.P. 11.2(b) motion, the Supreme
Court has explained:
[w]hen considering a motion [to reconsider], the trial court should take into account
any new facts presented by the moving party that bear on the correctness of the
interlocutory order.” Johnson v. N. Idaho Coll., 153 Idaho 58, 62, 278 P.3d 928,
932 (2012) (quoting Coeur d'Alene Mining Co. v. First Nat'l Bank of N. Idaho, 118
Idaho 812, 823, 800 P.2d 1026, 1037 (1990)). However, I.R.C.P. 11(a)(2)(B) “does
not expressly contain a new evidence requirement.” Id. This Court has explained
that “[a] motion for reconsideration is a motion which allows the court--when new
law is applied to previously presented facts, when new facts are applied to
previously presented law, or any combination thereof--to reconsider the correctness
of an interlocutory order. Id.
Int'l Real Est. Sols., Inc. v. Arave, 157 Idaho 816, 819, 340 P.3d 465, 468 (2014). Once a final
judgment is entered, an I.R.C.P. 60(b)(1) motion permits a district court to grant relief from a
judgment based on mistake, inadvertence, surprise, or excusable neglect, which provides an
opportunity for a petitioner to claim he was surprised by the district court summarily dismissing a
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petition for post-conviction relief without providing the twenty-days’ notice of dismissal, the
reasons for the dismissal, or both. Thus, there are procedural rules that provide a mechanism for
a petitioner to address in the district court a claim for which he was not given notice of dismissal
and an opportunity to address any deficiencies in his petition for post-conviction relief both before
and after a final judgment is issued.
As discussed above, Bell filed a motion to reconsider but did not include any additional
evidence with the motion.5 In that motion, Bell argued the district court improperly dismissed the
claims in the amended petition but he never argued the district court improperly dismissed the
incorporated claims or that he otherwise had no notice regarding the dismissal of the incorporated
claims. In every filing following the original petition and at every subsequent hearing, post-
conviction counsel never referenced the trial error claims set forth in the original petition. Instead,
he focused exclusively on the claims explicitly set forth in the amended petition. In light of post-
conviction counsel’s failure to address the trial error claims in the original petition and in light of
the line of cases regarding preservation, we can see no reason to excuse a petitioner from raising
a claim in the trial court that he was not provided twenty-days’ notice and the reasons for the
dismissal to preserve a claim of no notice of the dismissal of his petition for appellate review.
Requiring the lack of notice issue be raised in the trial court provides the necessary context
and record for this Court to review a claim on appeal. It further clarifies, for example, whether the
district court dismissed the petition on the grounds set forth by the State in a motion for summary
dismissal, or on grounds that rested, in part, on grounds set forth by the State, or its own grounds
distinct from those grounds set forth by the State’s motion. This process places the burden on the
parties, rather than this Court, to identify and clarify the issues that will properly be before the
appellate court. As discussed in State v. Islas, 165 Idaho 260, 443 P.3d 274 (Ct. App. 2019):
There are a variety of reasons the preservation doctrine exists. “First, preservation
requirements serve the division of labor between trial courts and appellate courts,
whereby trial courts find facts and appellate courts focus on law.” John F. Muller,
The Law of Issues, 49 Wake Forest L. Rev. 1325, 1332 (2014). Second,
“preservation requirements limit the costs of litigation, both for parties and for
courts. Litigation, as the Supreme Court has stated, is a ‘winnowing process,’ and
preservation rules are ‘part of the machinery by which courts narrow what remains

5
Neither Bell’s initial nor amended petition were supported by admissible evidence. Bell
submitted no additional evidence in support of his motion to reconsider. Because no additional
evidence was submitted, Bell failed to create a genuine issue of material fact as to the arguments
in the motion to reconsider, and the district court did not err in dismissing the motion.
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to be decided.’” Id. (citing Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 n.6
(2008) (quoting Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993))).
“Third, preservation requirements help ensure that courts are exposed to the
strongest possible arguments as they craft decisions applicable beyond the parties
to the dispute.” John F. Muller, The Law of Issues, 49 Wake Forest L. Rev. 1325
at 1332-33. Finally, preservation defines the bounds of judicial power; courts may
not speak the law when they have no authority to do so. Id. at 1355-56.
Islas, 165 Idaho at 265-66, 443 P.3d at 279-80.
Thus, we conclude post-conviction claims regarding lack of notice as to either the twenty
days or the substantive reasons that form the bases of the dismissal by the district court must be
raised in the district court in order to be preserved for appellate review. Similarly, post-conviction
claims regarding lack of notice as to the substantive reasons that form the bases of the dismissal
by the State must be raised in the district court in order to be preserved for appellate review. To
the extent prior opinions of this Court hold otherwise, we disavow those opinions on that issue.
Because Bell did not raise the issue of no notice in the district court, it is not preserved for appeal.
However, even if we addressed Bell’s claim, it fails. The Idaho Supreme Court has held
that when a district court summarily dismisses a post-conviction petition relying, in part, on the
same grounds presented by the State in its motion for summary dismissal, the notice requirement
has been met. Kelly, 149 Idaho at 523, 236 P.3d at 1283. Kelly argued the district court erred in
dismissing his petition for post-conviction relief because the State’s motion for summary dismissal
contained no notice of the grounds on which his claims were dismissed, and the district court
dismissed several of his claims on grounds entirely different than the grounds argued by the State.
Id. The State’s motion sought dismissal on all claims on the ground that Kelly had “no evidentiary
basis to support his claims.” Id. at 522, 236 P.3d at 1282. The Supreme Court held that although
the district court considered Kelly’s petition under several grounds not raised by the State, the
district court’s holding that “Kelly’s petition for post-conviction relief fails because his affidavits
do not contain admissible facts to support his allegations of ineffective assistance of counsel” and
its statement that “Kelly failed to submit admissible facts in support of” his claim, were holdings
based, in part, on the grounds argued by the State and, thus, Kelly was not entitled to any additional
notice of dismissal. Id. at 523-24, 236 P.3d at 1283-84.
That is what happened in the case at bar. The State’s motion for summary dismissal and
memorandum in support provided Bell with notice that all the claims in his amended petition,
including those incorporated from the original petition, were unsupported by admissible evidence

16
and failed to raise a genuine issue of material fact; as a result, Bell was not entitled to relief on any
claim as a matter of law. The district court concluded that Bell was not entitled to relief on any of
the three claims of ineffective assistance of counsel asserted in the amended petition because he
failed to allege a genuine issue of material fact as to either deficient performance of trial counsel
or prejudice, as required by Strickland. The district court also found Bell’s claims of ineffective
assistance of counsel to be meritless. Thus, the district court relied on some of the State’s
arguments--that Bell was not entitled to relief as a matter of law and he failed to allege both prongs
of the Strickland standard for his ineffective assistance of counsel claims--as bases for its decision
to summarily dismiss Bell’s petition. Consequently, the district court’s dismissal was not a sua
sponte dismissal for which Bell was entitled to an additional twenty-days’ notice set forth in I.C.
§ 19-4906(b).
Finally, Bell asserts that as to the allegedly biased juror, the district court erroneously
dismissed that claim because he alleged a genuine issue of material fact as to the juror’s alleged
bias. We disagree. Bell asserted that the juror, A.L., was purportedly biased because: (1) Bell
provided information that led to A.L.’s brother being terminated from his employment; and
(2) A.L. was good friends with one of Bell’s prior girlfriends and was partially responsible for the
end of the relationship between Bell and the girlfriend. The district court found this was
insufficient to allege a genuine issue of material fact as to both deficient performance by counsel
and prejudice to Bell, as required by Strickland. The district court reasoned that Bell asserted no
facts that indicated A.L. was aware that her brother had been terminated, that Bell had a role in
that termination, or that she was biased even if she knew that information. The district court
similarly held that Bell failed to provide any evidence that A.L. knew or remembered anything
about Bell’s involvement in the breakup or that it caused her to be biased. Ultimately, the district
court concluded:
In the absence of some showing that [A.L.] was actually biased, it cannot have been
ineffective for counsel to leave her on the jury. Additionally, in the absence of
admissible evidence that she violated her oath to fairly and impartially consider the
evidence, there has been no demonstration of prejudice.
In order to establish a genuine issue of material fact regarding any prejudice from A.L.
sitting as a juror, Bell was required to make, by way of admissible evidence, a prima facie showing
of actual prejudice. He failed to provide any evidence of A.L.’s knowledge connecting Bell to any
of the acts leading to the purported bias. He has similarly failed to produce any evidence that even

17
with that knowledge, A.L. was actually prejudiced. As a result, Bell has failed to meet the pleading
requirements to avoid summary dismissal. Consequently, the district court did not err in
dismissing the petition. Because the district court did not err in summarily dismissing Bell’s
amended petition for post-conviction relief, the court did not err in denying the motion for
reconsideration.
IV.
CONCLUSION
Bell failed to preserve a challenge to either the sufficiency of the State’s notice of the bases
to summarily dismiss Bell’s petition or the district court’s alleged lack of notice prior to dismissing
the petition. Bell was provided sufficient notice in the State’s motion for summary disposition and
its memorandum in support of the bases for summarily dismissing all the claims in Bell’s amended
petition for post-conviction relief, including those claims set forth in the original petition and
incorporated into the amended petition. Because of that notice, the district court was not required
to give Bell an additional twenty-days notice before dismissing the petition. Moreover, because
Bell did not object in the district court to the lack of notice, he has failed to preserve the issue for
appeal. The district court did not dismiss the amended petition on grounds different than those
alleged by the State. Finally, the district court did not err in denying Bell’s motion for
reconsideration. Therefore, we affirm the district court’s judgment and order dismissing Bell’s
amended petition for post-conviction relief and denying his motion to reconsider.
Chief Judge GRATTON and Judge LORELLO, CONCUR.

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