South v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50275

MICHAEL SHAWN SOUTH, )
) Filed: November 27, 2024
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) THIS IS AN UNPUBLISHED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 First Judicial District, State of Idaho,
Kootenai County. Hon. Barbara Duggan, District Judge.

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

Erik R. Lehtinen, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; John C. McKinney, Deputy Attorney
General, Boise, for respondent.
________________________________________________

HUSKEY, Judge
Michael Shawn South appeals from the district court’s judgment and order summarily
dismissing his amended petition for post-conviction relief. South argues the district court erred by
summarily dismissing his petition on grounds for which no notice was given. He also argues his
petition raised a genuine issue of material fact as to his claim of ineffective assistance of counsel
and the district court employed an erroneously high standard in dismissing South’s petition. South
was provided with notice of the grounds upon which the district court dismissed his petition. South
failed to allege a genuine issue of material fact for his claim of ineffective assistance of counsel,
and the district court did not employ an erroneously high standard in dismissing his petition. The
judgment and order summarily dismissing South’s amended petition for post-conviction relief are
affirmed.

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I.
FACTUAL AND PROCEDURAL BACKGROUND
The district court summarized the underlying criminal case as follows:
In March 2019, South was arrested after entering a residence and
threatening the victim. The State eventually charged South with aggravated assault,
battery, and malicious injury to property. South pled not guilty, and the case
proceeded to trial. At trial, the evidence showed the victim and South had been in
a romantic relationship and were living in Montana. The victim decided to leave
South, however, and called a friend, R.O., to pick up the victim in Montana. She
then stayed with R.O. and his wife at their home in rural Kootenai County.
On March 8, the victim and South communicated and arranged for South to
pick her up at the end of the road leading to R.O.’s home. South did not pick her
up as planned, however. Sometime later that night or early the next morning, the
victim and R.O. were sitting at the dining room table talking when South walked
into the room after entering R.O.’s home, without permission, through an unlocked
door. R.O. testified South’s presence “startled” him; similarly, the victim testified
South “surprised” her.
South demanded that the victim leave with him. When the victim refused
to leave, she and South went to her bedroom to talk. According to the victim’s
testimony, she detected the smell of alcohol on South and during the conversation
he became loud and angry. He backhanded the victim in the mouth, splitting her
bottom lip. He also pulled a knife out of a sheath tucked into his waistband; pointed
it at the victim’s neck; and said, “I killed seventeen people. Why the f--- should I
let you live?” The victim testified, “I was afraid he was going to kill me.”
Upon hearing loud voices and after South had re-sheathed his knife, R.O.
entered the victim’s bedroom and told South that he had to leave or R.O. would call
the police. R.O. testified that in response South “told me that he would just slice
and dice me.” Similarly, the victim testified South said to R.O., “I’ll slice and dice
you, old man.” South also pushed the victim backwards and punched holes in both
the bedroom door and the closet door.
When R.O. left the victim’s bedroom to retrieve his phone from his vehicle,
South followed him outside. After retrieving his phone, R.O. returned to the home,
locked South out, and called 911. During this time, the victim told South she would
leave with him and grabbed her coat, but she did not leave. While R.O. was on the
phone with 911, South was locked outside the home banging on the door and
shouting loudly, including shouting “murder” repeatedly.
Eventually, the police arrived and located South hiding in R.O.’s
snowbound vehicle, which was parked near the home. Although the police did not
locate a knife on South that night, several days later R.O. found a knife underneath
the vehicle, and the victim identified the knife as the one South had pointed at her.
At trial, the State presented the testimony of the victim, R.O., the officer
who found South hiding in the vehicle, R.O.’s friend who lives on R.O.’s property
and was with him when he found the knife under the vehicle, and the officer who
retrieved the knife from under the vehicle. Additionally, the State admitted a

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transcript of R.O.’s 911 call and numerous photographs, which included the
victim’s injury, the holes in the doors, and the knife under the vehicle.
A jury found South guilty on all counts. South appealed his conviction, which was affirmed
by this Court in an unpublished opinion. State v. South, Docket No. 47907 (Ct. App. May 20,
2021). Subsequently, South filed a pro se petition for post-conviction relief. South was appointed
counsel, who filed an amended petition for post-conviction relief and an affidavit of South in
support of the amended petition. In the amended petition and affidavit, as relevant to this appeal,
South alleged his trial attorney provided ineffective assistance of counsel by failing to call a
witness, Linda Payne, during trial. South’s affidavit alleged that Payne’s testimony could have
discredited and impeached the victim’s testimony at trial.
The State moved to summarily dismiss the amended petition. First, the State argued that,
generally, South’s claim of ineffective assistance of counsel was without merit because South
failed to present any verifiable information in support of his petition. Put another way, the State
alleged that South had failed to provide any evidence to support any of his claims that counsel
rendered deficient performance or that South was prejudiced. Second, the State argued that, as
relevant to this appeal, the specific allegation that South’s trial counsel rendered ineffective
assistance of counsel by failing to call Payne as a witness was without merit because there was no
evidence that Payne was ready, willing, and able to testify, nor was there any non-hearsay
testimony presented from Payne.
South filed a response and affidavit from Payne. Payne’s affidavit contained statements
regarding South’s case. The State filed a reply in support of motion for summary disposition where
it moved to strike Payne’s affidavit because it was “nothing but conclusory, inadmissible hearsay.”
In a footnote, the State outlined the statements it did not move to strike as hearsay.
In a memorandum decision, the district court denied the State’s motion to strike all the
statements in Payne’s affidavit as hearsay because, as the State acknowledged, some statements
were not hearsay. The district court analyzed the statements in the affidavit and found that some
of the statements were not hearsay, some should be stricken for lack of foundation, and some
should be stricken because they were hearsay. Further, the district court held that South failed to
show the relevance of Payne’s testimony to his case. Regarding South’s ineffective assistance of
counsel claim related to failing to call Payne as a witness, the district court held that South failed
to present admissible evidence in support of his claim. Finally, the district court held that Payne’s

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testimony would not have resulted in a more favorable outcome. The district court denied South’s
claims and summarily dismissed the amended petition. South timely appealed.
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. 1008). 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
On appeal, South argues the district court erred by summarily dismissing his amended
petition without providing notice of the bases for summarily dismissing the claim alleging
ineffective assistance of counsel for failing to call Payne as a witness. South further argues the
grounds on which the district court dismissed the claim were erroneous. Finally, South argues the
district court erred in summarily dismissing his claim of ineffective assistance for not calling Payne
as a witness because he raised a genuine issue of material fact in his petition, and the district court
employed an erroneously high standard in finding South did not allege a genuine issue of material
fact regarding prejudice. The State argues the district court did not err in summarily dismissing
South’s amended petition because South was not entitled to additional notice of the deficiencies
of his petition following the State’s motion for summary disposition. The State also argues South’s
claims fail because he failed to present a prima facie case of ineffective assistance of counsel and
the district court did not employ an erroneously high standard in dismissing the petition.
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
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).

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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, 715 P.2d 369, 372
(Ct. App. 1986). Moreover, the district court, as the trier of fact, is not constrained to draw
inferences in favor of the party opposing the motion for summary disposition; rather, the district
court is free to arrive at the most probable inferences to be drawn from uncontroverted evidence.
Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not
be disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id.
Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven by
the record of the criminal proceedings, if the petitioner has not presented evidence making a prima
facie case as to each essential element of the claims, or if the petitioner’s allegations do not justify
relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281 (2010); DeRushé
v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary dismissal of a claim
for post-conviction relief is appropriate when the court can conclude, as a matter of law, that the
petitioner is not entitled to relief even with all disputed facts construed in the petitioner’s favor.
For this reason, summary dismissal of a post-conviction petition may be appropriate even when

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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, 146 Idaho at 104, 190 P.3d at 923. 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.
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. Under Strickland v. Washington,
466 U.S. 668 (1984), an applicant for post-conviction relief must demonstrate: (1) counsel’s
performance fell below an objective standard of reasonableness; and (2) there is a reasonable
probability that, but for counsel’s errors, the outcome would have been different. Strickland, 466
U.S. at 669. These prongs are known more precisely as (1) deficient performance and (2) resulting
prejudice. Id. at 687; Self v. State, 145 Idaho 578, 580, 181 P.3d 504, 506 (Ct. App. 2007).
Reasonable particularity only requires pointing out that there is a lack of evidence showing
deficient performance or prejudice. 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 or she 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.
South argues the district court dismissed his petition on grounds not asserted by the State.
South argues that the State only provided notice that South’s claim was unsupported by non-
hearsay, admissible evidence. He further argues the district court erred in dismissing the petition
based on South’s failure to explain the relevance of Payne’s testimony and that Payne’s testimony
was unlikely to withstand a foundation objection. 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.

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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. See Kelly, 149 Idaho at 523, 236 P.3d
at 1283. In Kelly, the petitioner 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. 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
had 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.
In this case, the district court did not dismiss South’s petition on different grounds than
those asserted by the State and, thus, it was not a sua sponte dismissal that would trigger the twenty-
day notice requirement of I.C. § 19-4906(b). The State generally alleged the petition was subject
to dismissal because “[t]here is no evidence before the Court to support any claim by [South] that
his trial counsel’s performance fell below an objective standard of reasonableness or that [South]
was prejudiced.” Specifically, the State addressed the lack of affidavits or other admissible
evidence in support of South’s petition. After South filed Payne’s affidavit in response to the
State’s motion for summary dismissal, the State filed a reply, arguing that Payne’s affidavit was
insufficient to provide the necessary factual foundation for South’s claims because much of the
affidavit was hearsay and not admissible evidence.
The district court dismissed South’s ineffective assistance of counsel claim because South
failed to offer admissible evidence in support of his claim for ineffective assistance of counsel.
The district court held that South failed to explain the relevance of the statements in Payne’s
affidavit, some of the statements contained hearsay, and other statements lacked foundation.
Because of these deficiencies, the district court concluded that South had not shown that any of
Payne’s statements would have been admissible. Therefore, the district court’s ultimate holding--

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that South failed to provide admissible evidence in support of his claim--is not different than the
State’s argument that South failed to present evidence in support of his claim of ineffective
assistance of counsel. Consequently, the district court’s dismissal was not a sua sponte dismissal
for which South was entitled to an additional twenty-days notice.
Next, South argues the district court erred because he sufficiently raised a genuine issue of
material fact under Strickland regarding the relevance of Payne’s statements. Regarding deficient
performance, South argues it was objectively unreasonable not to present Payne’s testimony at
trial because the critical question was whether the jury would believe South’s version of events as
opposed to the victim’s and R.O.’s version of events. The State responds that South failed to
sufficiently raise a genuine issue of material fact because the three statements from Payne’s
affidavit identified by South do not show that Payne’s testimony would have impeached the
victim’s testimony in any material way.
According to South, the victim testified that “in [the] months leading up to the alleged
incident, [the victim] was mostly living with Mr. South at Ms. Payne’s house.” South asserts
Payne’s affidavit would refute that testimony. However, at trial, the victim did not testify that she
lived at Payne’s house in the months leading up to the incident. Rather, the victim testified that
she lived at a few different locations leading up to the incident in the underlying criminal case. In
fact, the victim testified as follows on this point:
Q. All right. So you were staying sometimes at Linda’s, and then you would go to
the Olivers’ house some nights?
A: Um-hum, yes.
The victim also testified that during January to March, she stayed some of the time in Montana,
some of the time at Payne’s, and some of the time at the Olivers’ house. The victim never testified
that “in the months leading up the alleged incident,” she “was mostly living” with Payne. Thus,
the Payne affidavit does not refute or undermine the victim’s testimony.
The second statement South claims Payne could have testified about was that “[the victim]
was not, in fact, welcome at [Ms. Payne’s] house because of a prior incident when [the victim] had
stolen some of her property.” South argues this testimony could have impeached the victim’s
testimony that she stayed at Payne’s residence. South’s argument misconstrues the trial testimony
and affidavit of Payne. In the affidavit, Payne states:
When [South] took [the victim] to another friend’s house to stay, she came
back into my house and stole some sentimental hand-made items. When I learned
this, I told [South] [the victim] was not welcome at my house ever, and if she came
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back I would file burglary and theft charges against her. To my knowledge, [South]
never brought her back to my house, though he did recover the most important of
the stolen items from [the victim] and returned it to me.
Nothing in Payne’s affidavit provides any timeframe for the alleged theft or when Payne told the
victim she was no longer welcome at Payne’s house. Thus, Payne’s statement does not contradict
or impeach the victim’s testimony that she stayed at Payne’s house at some unspecified time before
the incident that led to the criminal case against South.
The third statement South claims Payne could have testified about is Payne’s statement in
her affidavit that she “did not agree to pick up [the victim] or drive [the victim] anywhere.” South
claims this testimony could have undermined the victim’s credibility because: “[The victim] also
testified that Ms. Payne was supposed to come pick her up to meet Mr. South on the evening of
the alleged incident.” South again misconstrues the trial testimony. The victim’s testimony was
as follows:
Q: So when you ended your conversation with Michael [South], was this
communication just with Michael that day?
A: Yes.
Q: Okay. And when you ended your conversation with him, did you--had you
made any arrangements for him to come there to the house?
A: Yes.
Q: What were those arrangements?
A: Well, because [the Olivers] didn’t want Michael up there, he said that Linda
[Payne] could come pick me up and take me over to her house so that him and
I could visit.
(Emphasis added.)
Thus, at trial, the victim’s testimony revealed that South informed the victim that Payne
would give the victim a ride, but Payne’s affidavit does not address South’s representations to the
victim. As a result, this assertion from the affidavit would not affect the victim’s credibility
because it did not contradict anything the victim said. Because none of the alleged statements
undermine the victim’s credibility, it was not deficient performance to fail to call Payne for that
purpose.
Regarding prejudice, South argues Payne’s statements could have exposed falsehoods in
the victim’s testimony and, as a result, the jury would have had a more concrete basis to find the
victim’s testimony incredible. According to South, if the jury found the victim lacked credibility,
there is a reasonable probability the jury would not have convicted South. The State responds that
South fails to demonstrate prejudice because South does not explain how Payne’s potential

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testimony could impeach the victim, affect her credibility, or undermine the other evidence in the
case. Alternatively, the State argues that even if the three averments in Payne’s affidavit
contradicted or impeached the victim’s testimony, they do not have any meaningful connection
with South’s crimes.
In order to establish a genuine issue of material fact regarding any prejudice from South’s
trial counsel’s failure to call Payne as a witness, South was required to make, by way of admissible
evidence, a prima facie showing of actual prejudice. Here, as explained above, Payne’s potential
testimony did not contradict or impeach the victim. As such, South has failed to establish any
reasonable probability the outcome would have been different with Payne’s testimony. Moreover,
the statements in Payne’s affidavit did not provide information regarding the night of the assault
other than that South said Payne said she would not give the victim a ride. In light of the other
evidence presented, even with the three statements from Payne, there is not a reasonable
probability the outcome of the trial would have been different. As a result, South fails to present
a genuine issue of material fact regarding prejudice.
Finally, South argues the district court employed an erroneously high standard in its
analysis of his claims when it stated that Payne’s testimony “would have resulted in an outcome
more favorable to [South].” The State responds that although the district court omitted the
“reasonable probability” preface to the prejudice standard at the end of its discussion of the claim,
the court referenced that standard at the beginning of its discussion and, thus, did not use an
incorrect standard to summarily dismiss the claims.
Here, South omits the relevant section of the district court’s decision that cited the correct
standard for establishing prejudice. In its decision, the district court, citing Fortin v. State, 160
Idaho 437, 446, 374 P.3d 600, 609 (Ct. App. 2016), stated, “[t]o establish Strickland prejudice
from ineffective assistance of counsel in plea negotiations, ‘the petitioner must show a reasonable
probability that, but for the attorney’s deficient performance, the outcome of the plea process
would have been different with competent advice,’” and “[South] has not shown that his counsel’s
performance was deficient or that he was prejudiced thereby.” The district court then cited South’s
petition, which included South’s claim that his trial counsel was ineffective for failing to present
Payne as a witness. The district court addressed and rejected each claim. In its rejection of South’s
claim that his trial counsel was ineffective for failing to present Payne’s testimony, the district
court held that “[South] has not shown that any of Payne’s testimony would have resulted in an

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outcome more favorable to [South].” Thus, when considered as a whole, the district court
articulated and applied the correct standard during its analysis and simply used a shortened
reference thereafter. As a result, the district court did not apply an erroneously high standard in
dismissing his petition.
IV.
CONCLUSION
The district court did not dismiss South’s amended petition for post-conviction relief on
unnoticed grounds or on grounds different than those alleged by the State. The district court did
not err in concluding South failed to allege a genuine issue of material fact. The district court did
not employ an erroneously high standard in dismissing South’s petition. Therefore, we affirm the
district court’s judgment and order dismissing South’s amended petition for post-conviction relief.
Judge LORELLO and Judge TRIBE CONCUR.

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