Jones v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 50106

TIMOTHY ISAIAH JONES, )
) Filed: July 30, 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) THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
County. Hon. Peter G. Barton, District Judge.

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

Ferguson Durham, PLLC; Craig H. Durham, Boise, for appellant.

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

GRATTON, Chief Judge
Timothy Isaiah Jones appeals from the district court’s order summarily dismissing his
amended petition for post-conviction relief. We affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
Law enforcement stopped Jones after observing a suspected drug deal. Officers pat
searched Jones, and a drug dog alerted on his vehicle. Officers learned Jones was on probation,
and his probation officer ordered a search pursuant to a Fourth Amendment waiver. Officers found
narcotics and paraphernalia in Jones’ vehicle and additional drugs on Jones’ person. Jones was
charged with trafficking in heroin and possession of drug paraphernalia.
Jones filed a motion to suppress, arguing the stop was unconstitutionally extended and
transformed into a de facto arrest. After an evidentiary hearing, the district court denied the motion
to suppress and subsequently a jury found Jones guilty. Jones filed a direct appeal in which he

1
raised two claims related to the admission of evidence and challenged his sentence. The Idaho
Supreme Court found some evidence was improperly admitted. However, the errors were
harmless, and the Court affirmed Jones’ conviction and sentence. State v. Jones, 167 Idaho 353,
470 P.3d 1162 (2020).1
Jones filed a pro se petition for post-conviction relief asserting that appellate counsel
provided ineffective assistance for failing to raise the suppression issue. Subsequently, Jones was
appointed counsel who filed an amended petition again alleging ineffective assistance of appellate
counsel for failing to raise the suppression issue. The State moved to summarily dismiss Jones’
petition, which the district court granted. Jones 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).
III.
ANALYSIS
Jones asserts the district court erred by summarily dismissing his petition for post-
conviction relief. Jones argues his appellate counsel provided ineffective assistance because the
omitted suppression claim was a stronger argument than those actually raised, which prevented his
success on appeal. The State argues Jones failed to preserve the issues and arguments he raises on
appeal. Further, the State argues Jones failed to present a prima facie case of ineffective assistance
of appellate counsel.
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

1
In State v. Jones, 167 Idaho 353, 470 P.3d 1162 (2020), a majority of the Idaho Supreme
Court concurred in the result but noted Jones’ status as a probationer was not relevant for another
non-propensity purpose because it was not probative to the elements of the crimes charged. Jones,
167 Idaho at 366-67, 470 P.3d at 1175-76 (Stegner, J., concurring in the result, joined by Brody,
J., and Moeller, J.).
2
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). A genuine issue of material fact exists
when the appellant has alleged facts in his petition that if true, would entitle him to relief. Stanfield
v. State, 165 Idaho 889, 894, 454 P.3d 531, 536 (2019). Thus, summary dismissal of a claim for
post-conviction relief is appropriate when the court can conclude, as a matter of law, that the
petitioner is not entitled to relief even with all disputed facts construed in the petitioner’s favor.
For this reason, summary dismissal of a post-conviction petition may be appropriate even when
the State does not controvert the applicant’s evidence because the court is not required to accept
either mere conclusory allegations, unsupported by admissible evidence, or conclusions of law.
State v. Yakovac, 145 Idaho 437, 444, 180 P.3d 476, 483 (2008); see also Roman, 125 Idaho at
647, 873 P.2d at 901.
A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Barcella v. State, 148 Idaho 469, 477, 224 P.3d 536, 544 (Ct.
App. 2009). To prevail on an ineffective assistance of counsel claim, the petitioner must show
that the attorney’s performance was deficient, and that the petitioner was prejudiced by the
deficiency. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Self v. State, 145 Idaho 578,

3
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. A reasonable probability of a different outcome is a probability sufficient
to undermine confidence in the outcome. State v. Dunlap, 155 Idaho 345, 383, 313 P.3d 1, 39
(2013). This “requires a substantial, not just conceivable, likelihood of a different result.” Id.
(internal quotations removed).
It is well established that appellate counsel has no constitutional obligation to raise every
non-frivolous issue requested by the defendant. Jones v. Barnes, 463 U.S. 745, 751-53 (1983).
Appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim,
but rather may select from among them in order to maximize the likelihood of success on appeal.
Smith v. Robbins, 528 U.S. 259, 288 (2000). Appellate counsel need only raise those claims that
present the greatest likelihood of success on appeal, and we defer to those tactical or strategic
decisions. Id. Thus, “[t]o demonstrate deficient performance of appellate counsel for failure to
raise a claim on appeal, the defendant must show that counsel made an objectively unreasonable
decision to omit the claim.” Dunlap v. State, 159 Idaho 280, 296, 360 P.3d 289, 305 (2015). In
regard to prejudice, the inquiry is whether there is a reasonable probability that, but for the
omission of the claim, the defendant would have prevailed on appeal. Id. at 297; Robbins, 528
U.S. at 285.
Jones asserts his appellate counsel unreasonably omitted the suppression issue that he
contends was a stronger argument than those raised on appeal. Jones claims the suppression issue
was the only issue that would potentially result in reversal because the State lacked reasonable
suspicion to initiate the stop, or it turned into a de facto arrest. The State argues Jones made no
claim in the district court as to the merits of the motion to suppress and only raised a presumption
of prejudice argument which is an incorrect statement of the law.
The district court held that Jones failed to allege a prima facie case of ineffective assistance
of appellate counsel on appeal. Jones’ amended petition did not incorporate his pro se petition or
his affidavit. The amended petition did not address whether the suppression motion had any merit,

4
instead it merely alleged that appellate counsel’s purported “failure to perfect an appeal ‘essentially
waive[d] [petitioner’s] opportunity to make a case on the merits.’” (quoting Beasley v. Idaho, 126
Idaho 356, 361, 883 P.2d 714, 719 (Ct. App. 1994)). As to prejudice, the amended petition
claimed, “[d]enial of counsel at a critical stage is presumptively prejudicial.” At the summary
dismissal hearing, Jones’ counsel informed the district court that she was relying on the amended
petition as Jones’ opposition to the State’s motion. The district court held Jones’ claim that
appellate counsel did not preserve the claim was not enough to rebut the presumption that counsel
acted competently. Regarding prejudice, the district court noted Jones made no argument as to the
merits of the suppression motion.
In the district court, Jones did not argue the merits of the suppression motion or how the
suppression motion was a stronger issue than those raised by appellate counsel. Now, on appeal,
Jones argues that the suppression motion was meritorious because the officers did not have a
reasonable basis for the stop and, by virtue of the officers’ guns being drawn and Jones being
handcuffed in a police-dominated scene, he was subject to a de facto arrest. Below, Jones argued
that prejudice is presumed. On appeal, he now argues the correct standard, that had counsel raised
the suppression issue on appeal, there is a reasonable probability the appellate court would have
reversed. These new arguments are not preserved as Jones did not present these claims with
argument and authority to the district court. State v. Miramontes, 170 Idaho 920, 924-25, 517 P.3d
849, 853-54 (2022). Moreover, Jones is held to the theory presented in the district court. State v.
Wolfe, 165 Idaho 338, 341-42, 455 P.3d 147, 150-51 (2019). Clearly, prejudice is not presumed.
Robbins, 528 U.S. at 287. The district court correctly concluded that Jones failed to make a prima
facie case of ineffective assistance of appellate counsel.2

2
In his reply brief, Jones notes the trial record, motion to suppress and memoranda,
transcript of the suppression hearing, and “the very same judge’s ‘Ruling Re Motion to Suppress’”
were before the district court and, therefore, the district court disregarded its obligation of liberal
construction in favor of Jones because “it was not a stretch to construe Mr. Jones’ argument as that
his appellate counsel was ineffective” in not appealing the suppression motion on the same grounds
argued by trial counsel, even though this was not expressly argued by Jones. Instead, Jones claims
the district court “threw up its hands” and declared it did not know [by virtue of Jones not making
the argument] the grounds on which Jones was alleging appellate counsel fell short. This argument
not only ignores preservation requirements, it also asks this Court to disregard Jones’ failure to
meet his burden to avoid summary dismissal and impose an obligation on the district court to make
his arguments for him. That is not this Court’s role or the district court’s role.
5
Even addressing Jones’ argument as to the merits of the motion to suppress, he has failed
to demonstrate a prima facie case of ineffective assistance of appellate counsel. As noted, for the
first time, Jones argues the merits of the suppression motion on appeal. First, he claims that the
officers lacked reasonable suspicion for the stop. Once again, Jones did not make that argument
incident to the motion to suppress. Jones argued that the stop was unlawfully extended, not that
there was no basis for the stop. Moreover, on appeal, Jones only contests the stop on the basis of
lack of reasonable suspicion of a drug transaction. However, the district court specifically noted
that the officers stopped Jones for speeding: fifty miles-per-hour in a thirty-five miles-per-hour
zone as well as having reasonable suspicion for a drug transaction. Jones does not challenge the
speeding finding.
Second, Jones argues, as he did in the trial court, that he was de facto arrested. The trial
court found that Jones stopped in the middle of a cul-de-sac at the end of a dead-end street and
police had reason to believe he might run. Officers had observed what appeared to be a drug
transaction at the trailer. Jones immediately opened his door and exited the vehicle backwards,
that is with his back to the officers first and with his hands not visible. Officers approached with
weapons drawn commanding Jones to show his hands. Jones acknowledged that he had a knife,
which officers retrieved from Jones’ front pants pocket. He was then handcuffed and placed in
the patrol car. A drug detection dog alerted to the presence of drugs in the vehicle. In the trial
court, Jones argued that the police dominated the scene and thus turned the stop into a de facto
arrest. “Police domination at the scene of an otherwise routine traffic stop may constitute a de
facto arrest.” State v. Parkinson, 135 Idaho 357, 362, 17 P.3d 301, 306 (Ct. App. 2000). To make
that determination, courts may consider many factors, “including ‘the seriousness of the crime, the
location of the encounter, the length of the detention, the reasonableness of the officer’s display of
force, and the conduct of the suspect as the encounter unfolds.’” State v. Maahs, 171 Idaho 738,
747, 525 P.3d 1131, 1140 (2023) (quoting Reagan v. Idaho Transp. Dep’t, 169 Idaho 689, 697,
502 P.3d 1027, 1035 (2021)).
Jones’ conduct dictated the scene. After Jones backed out of the car, with his hands not
visible, he then backed up and reached into the open window of the rear passenger door, where a
pit bull was standing with its head hanging out the window. On these facts, the officers reasonably
concluded Jones might pose a substantial risk of danger or flight, and the decision to place him in
handcuffs did not convert the detention into a de facto arrest. Maahs, 171 Idaho at 747, 525 P.3d

6
at 1140 (placing a suspect in handcuffs may convert an investigative detention to an arrest where
law enforcement does not have a reason to believe that a suspect poses a substantial risk of danger
or flight). Jones posed a substantial risk of danger or flight.
As noted, the district court determined Jones’ conclusory assertion that appellate counsel
did not raise the suppression claim “is not enough to rebut the presumption that counsel acted
competently” because “defendants are not entitled to have their counsel raise all arguments” on
appeal. Only when ignored issues are clearly stronger than those presented, will the presumption
of effective assistance of counsel be overcome. See Dunlap, 159 Idaho at 297, 360 P.3d at 306.
Jones has not shown that the suppression motion was stronger than the arguments raised on appeal
or that it was the only issue that would have potentially resulted in reversal of his conviction. Jones
was successful on appeal in convincing a majority of the Supreme Court that there were evidentiary
errors at trial. Nevertheless, Jones asserts that the evidentiary issues “ran squarely into the obvious
problem of harmless error.” He argues that there was “overwhelmingly incriminating evidence”
of guilt. Aside from the harmless error standard not being based on an “overwhelming” analysis,
the evidentiary errors placed a burden on the State to demonstrate harmless error on appeal, which
is rarely a forgone conclusion. In the end, Jones failed to raise a genuine issue of material fact that
appellate counsel’s representation fell below an objective standard of reasonable performance on
appeal and that, but for counsel’s errors, there is a reasonable probability of a different result. See
Robbins, 528 U.S. at 285. That is, there must be a “reasonable probability that the defendant would
have prevailed on appeal” had the excluded issue been raised. Dunlap, 159 Idaho at 297, 360 P.3d
at 306. Jones failed to raise and support, in the district court, the merits of the motion on the issues
he now raises on appeal. Moreover, Jones has failed, in any event, to demonstrate a prima facie
case of ineffective assistance of appellate counsel. The district court did not err in summarily
dismissing Jones’ amended petition for post-conviction relief.
IV.
CONCLUSION
The judgment of the district court summarily dismissing Jones’ amended petition for post-
conviction relief is affirmed.
Judge HUSKEY and Judge LORELLO CONCUR.

7