Hughes v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50820

OTIS JAMES HUGHES, )
) Filed: February 13, 2025
Petitioner-Appellant, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
STATE OF IDAHO, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Respondent. )
)

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Steven Hippler, District Judge.

Amended judgment dismissing petition for post-conviction relief, affirmed.

Otis James Hughes, Eloy, Arizona, pro se appellant.

Hon. Raúl R. Labrador, Attorney General; Kenneth K. Jorgensen, Deputy Attorney
General, Boise, for respondent.
________________________________________________
TRIBE, Judge
Otis James Hughes appeals from the district court’s amended judgment dismissing his
petition for post-conviction relief. Specifically, Hughes argues the district court erred when it
summarily dismissed his ineffective assistance of counsel claims. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Police received information that Hughes was selling heroin out of a hotel. An undercover
officer made several purchases of heroin from B.J. in the parking lot of the hotel. During the
transactions, B.J. took the officer’s money, went to Hughes’ hotel room to collect the heroin, and
returned to the undercover officer. After arresting B.J., a search warrant was executed on the hotel
room. The officers found heroin, methamphetamine, marijuana, drug paraphernalia, and
packaging materials in the hotel room. A jury found Hughes guilty of one count of conspiracy to
traffic heroin, three counts of trafficking in heroin, one count of possession of a controlled

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substance with the intent to deliver, one count of possession of a controlled substance, and one
count of possession of drug paraphernalia.
Hughes appealed, arguing the district court erred in denying his trial counsel’s pre-trial
motion to withdraw. This Court affirmed the district court’s order. See State v. Hughes, Docket
No. 45972 (Ct. App. Dec. 5, 2019). Following the issuance of the remittitur, Hughes filed a
petition and affidavit for post-conviction relief alleging various ineffective assistance of counsel
claims against both his trial counsel and his appellate counsel. The district court summarily
dismissed the petition.1 Hughes appeals arguing that the district court erred in summarily
dismissing his petition for post-conviction relief as the petition established genuine issues of
material fact upon which relief may be granted.
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).
III.
ANALYSIS
Hughes argues that the district court erred in summarily dismissing his claim for ineffective
assistance of counsel because he presented genuine issues of material fact upon which relief may
be granted. A claim of ineffective assistance of counsel may properly be brought under the

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In its order of summary dismissal, the district court noted that it found summary dismissal
of the claims warranted but allowed Hughes twenty days to respond to any grounds for dismissal
discussed by the court (that were not specifically identified by the State) out of an “abundance of
caution.” Hughes submitted an affidavit and several documents from the underlying criminal case,
which the district court found did not present a new question of fact precluding summary dismissal.
However, due to a clerical error in the prison mailing system, the district court received Hughes’
answer several days after entry of its order of summary dismissal. The district court entered an
I.R.C.P. 60(a) order of correction to reflect the information that Hughes had included in his answer.

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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).
A. Co-Defendant
1. Failure to object
Hughes argues that his trial counsel failed to object to the denial of Hughes’ right to
confront witnesses against him and the denial of the opportunity to cross-examine his co-
defendant, B.J. First, this Court declines to review this argument as Hughes has failed to present
this argument in the district court and therefore it is not preserved for appeal. 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). Pro se litigants are held to the same standards as those litigants
represented by counsel. Michalk v. Michalk, 148 Idaho 224, 229, 220 P.3d 580, 585 (2009). Pro
se litigants are not excused from abiding by procedural rules simply because they are appearing
pro se and may not be aware of the applicable rules. Id.
Even if we did review the argument on the merits, Hughes would not prevail. Hughes
states his trial counsel’s failure to object is deficient performance and that it could not have been
a tactical decision because Hughes’ “right to confront witnesses against him was violated as
counsel failed to investigate the issues involved, and, as such was ignorant of the relevant facts
upon which such a decision not to object would have been based upon.” Hughes also argues that

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there were recorded statements that were introduced at trial that proved essential elements of the
crime. As to both the deficient performance and prejudice prong, however, Hughes fails to cite to
the record or identify which of these recorded statements he was denied the opportunity to cross-
examine. We will not comb the record on appeal for error.2 Dawson v. Cheyovich Fam. Tr., 149
Idaho 375, 383, 234 P.3d 699, 707 (2010). Further, Hughes fails to provide cogent argument to
support his claim that the failure to object was deficient performance and that he suffered prejudice
as a result. When issues on appeal are not supported by propositions of law, authority, or argument,
they will not be considered. Idaho Appellate Rule 35; State v. Zichko, 129 Idaho 259, 263, 923
P.2d 966, 970 (1996). Therefore, Hughes has failed to show that trial counsel engaged in deficient
performance or that he was prejudiced as a result.
2. Statements by B.J.
Hughes next argues that his trial counsel engaged in deficient performance by “failing to
make any attempt to interview” B.J. “who provided statements exculpating [Hughes] after his
arrest and made while he was in the Ada County Jail.” Hughes argues that the district court initially
stated, “if counsel had known [about the statements] this would have been a colorable claim” but
then changed its position and found “that counsel, in fact, ‘was aware of . . . those recordings.’”3
We read this argument as consisting of two separate issues: (1) failing to present the
recordings of B.J. and (2) failing to call B.J. as a witness. Regarding the issue of the recordings,
Hughes provides a citation to the district court’s order of correction where he asserts the district
court stated that trial counsel was aware of the recordings of B.J. However, this statement by
Hughes is misleading. Rather, the district court stated that it originally “found there was no
evidence that [Hughes’] trial counsel was aware of these discussions and could have taken action
in response.” The district court noted that, in Hughes’ answer to the intent to dismiss, he pointed

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Hughes cites to pages 22, 27, 35, and 40 of the supplemental clerk’s record to support his
argument. However, these citations lead this Court to an opening brief by Hughes rather than any
statements made by B.J.
3
Hughes cites to pages 163 and 164 in the record, which contain an affidavit of B.J. This
citation fails to provide this Court with the “recordings” mentioned by Hughes, nor does the
affidavit mention a recording. Therefore, this affidavit does not directly or indirectly lead this
Court to potential recorded statements made by B.J. prior to trial.

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out that there was a discussion (on the morning) of trial where his trial counsel stated that trial
counsel was “not only aware of those telephone calls” but that trial counsel had recordings from
Hughes’ girlfriend who provided them to trial counsel before trial counsel received the recordings
from the State. Trial counsel also stated that he did not have an opinion regarding the admissibility.
The district court noted that neither party moved to admit the recordings at trial and that
Hughes did not present the recordings to the district court with his petition. Further, the district
court noted that Hughes failed to state why the evidence was not included. Because Hughes failed
to present admissible evidence or provide an excuse as to why he could not provide the evidence,
the district court found that dismissal was proper. To avoid summary dismissal, a post-conviction
claim of ineffective assistance of counsel must sufficiently allege facts under both prongs of the
Strickland test. Roman v. State, 125 Idaho 644, 649, 873 P.2d 898, 903 (Ct. App. 1994). Facts
must be in the form of competent, admissible evidence; bare assertions and speculation,
unsupported by the facts, are insufficient. Id. It is the responsibility of the appellant to provide a
sufficient record to substantiate his or her claims on appeal. State v. Murinko, 108 Idaho 872, 873,
702 P.2d 910, 911 (Ct. App. 1985). In the absence of an adequate record on appeal to support the
appellant’s claims, we will not presume error. State v. Beason, 119 Idaho 103, 105, 803 P.2d 1009,
1011 (Ct. App. 1991). Further, any missing portions of the record are presumed to support the
trial court's ruling. State v. Wharton, 162 Idaho 666, 671, 402 P.3d 1119, 1124 (Ct. App. 2017).
Hughes has not presented these recordings or other relevant evidence to this Court. Therefore, we
will not presume error and the absence of the documents are presumed to support the district court.
As to the issue of trial counsel failing to call B.J. as a witness at trial, Hughes argues that
there are “out-of-court statements made by co-defendant [B.J.] and used at trial by the prosecution
to establish essential elements of the crimes” and Hughes was not “given an opportunity to directly
confront” B.J. Hughes alleges that there were “out-of-court statements” made by B.J. that were
“recorded by law enforcement and then used at trial.” The affidavit (without notarization or other
authentication) from B.J. stated, in relevant part, that he never identified Hughes as the source of
contraband; he never stated Hughes’ name; and “[t]he image that was searched from the Ada
County Jail inmate list was in fact NOT [Hughes].” However, Hughes fails to identify which
citation to the record or which out-of-court statements made by B.J. that Hughes believes could be

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disproved by B.J. testifying. Hughes similarly fails to provide cogent argument explaining how
confronting B.J. as a witness would lead to a different outcome.
Hughes again makes the conclusory statement that this “cannot be considered tactical or
strategic” thereby meeting the first prong of the Strickland test. The Idaho Supreme Court has
held that “strategic and tactical decisions will not be second guessed or serve as a basis for post-
conviction relief under a claim of ineffective assistance of counsel unless the decision is shown to
have resulted from inadequate preparation, ignorance of the relevant law or other shortcomings
capable of objective review.” Pratt v. State, 134 Idaho 581, 584, 6 P.3d 831, 834 (2000). Without
any argument from Hughes, we cannot assume trial counsel did not have a legitimate tactical
reason for not seeking admission of any recordings. There are many legitimate reasons why trial
counsel could have opted not to call B.J. to testify or admit recordings of B.J. However, because
Hughes has neither presented the recording nor cited which out-of-court statements used at trial
he believes could be overcome by calling B.J. as a witness, we are unable to further analyze trial
counsel’s reasoning. Hughes has also failed to establish either that trial counsel engaged in
deficient performance by “failing to make any attempt to interview” B.J. or by failing to present a
recording of B.J. or that he was prejudiced as a result of any alleged deficient performance.
B. Severance
Hughes argues that trial counsel was ineffective in failing to file a motion of severance.4
The State argues that the issue is not properly before this Court because it was not alleged in the
petition to the district court. The district court held that the issue of severance was identified in
the amended response to the State’s motion for summary dismissal rather than in the petition and
therefore, it declined to consider it. Hughes argues on appeal that the issue was raised in the brief

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Hughes also argues that his trial counsel provided ineffective assistance by “failing to
preserve this issue for appeal.” This issue is not preserved because Hughes himself, not counsel,
failed to present argument or authority about severance in the petition or the brief in support of the
petition. Hughes is the author of the petition and the brief. Hughes cannot claim ineffective
assistance of counsel for failing to preserve an issue when the failure occurred from Hughes’ own
product. To the extent Hughes is claiming that his post-conviction counsel was ineffective (before
Hughes substituted in as his own counsel in this matter) the claim is not actionable. See Murphy
v. State, 156 Idaho 389, 395, 327 P.3d 365, 371 (2014) (holding that because post-conviction
counsel is not a statutory or constitutional right there can be no deprivation of effective assistance
of counsel).

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in support of the petition and provides several citations to the supplemental record including pages
9 and 40. The pages Hughes cites make no reference to such a claim.
On page 8 of the supplemental record, Hughes alleges a “Failure of Severance of
Defendan[t]s” in the brief he filed with his petition for post-conviction relief. Idaho Code section
19-4903 mandates that the petition for post-conviction relief “specifically set forth the grounds
upon which the application is based, and clearly state the relief desired.” “All grounds for relief . . .
must be raised in [the] original, supplemental or amended application.” I.C. § 19-4908. The
“application 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)[2].” Goodwin v. State, 138 Idaho 269, 271, 61 P.3d
626, 628 (Ct. App. 2002); see I.R.C.P. 8(a)(2). A “petitioner cannot amend his petition once a
responsive pleading has been filed without permission of the court or written permission of the
State.” Schultz v. State, 151 Idaho 383, 387, 256 P.3d 791, 795 (Ct. App. 2011); see I.R.C.P. 15(a).
After a respondent files a responsive pleading, the petitioner must request leave to file an amended
petition. Rodriquez v. State, 171 Idaho 634, 642, 524 P.3d 913, 921 (2023); see Cole v. State, 135
Idaho 107, 111, 15 P.3d 820, 824 (2000).
Because the brief supporting the original petition only included a passing reference
regarding severance, without more, the issue was not properly raised in the petition. This reference
to severance is also not a claim of ineffective assistance of counsel. Therefore, any new claims,
asserted after the original petition, were not properly before the district court and have not been
preserved for appeal. We decline to review the severance issue.
C. Genuine Issue of Material Fact
Hughes presents a fourth argument that states, “that all other[] issues raised in his petition
and brief in support of petition . . . establish genuine issue of material fact upon which relief may
be granted and that the court erred in its ruling on these issues.” However, this is a conclusory
statement not accompanied by argument or authority. When issues on appeal are not supported by
propositions of law, authority, or argument they will not be considered. I.A.R. 35; Zichko, 129
Idaho at 263, 923 P.2d at 970. Therefore, to the extent that Hughes meant to present this as a
wholly separate issue on appeal, we decline to review.

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IV.
CONCLUSION
Hughes has failed to show that his trial counsel rendered ineffective assistance of counsel.
Finally, we decline to review Hughes’ assertion that he has established genuine issues of material
fact. Thus, the district court’s amended judgment dismissing Hughes’ petition for post-conviction
relief is affirmed.
Chief Judge GRATTON and Judge HUSKEY, CONCUR.

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