Nuss v. State

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48509
ELIJAH ZACHARIAH NUSS, )
) Filed: September 21, 2022
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) THIS IS AN UNPUBLISHED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, Bonner
County. Hon. Barbara Buchanan, District Judge.
Judgment summarily dismissing petition for post-conviction relief, affirmed.
Elijah Zachariah Nuss, Eloy, Arizona, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.
________________________________________________
BRAILSFORD, Judge
Elijah Zachariah Nuss appeals pro se from the district court’s summary dismissal of his
petition for post-conviction relief. Nuss contends the court erred in dismissing his claims of
prosecutorial misconduct and of ineffective assistance of trial and appellate counsel. We affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, the State charged Nuss under Idaho Code § 18-1508 with one felony count of
committing a lewd act on a fourteen-year-old child. The case proceeded to trial, and the district
court allowed a facility dog and its handler to be present during the victim’s testimony pursuant to
I.C. § 19-3023.1 At the close of the State’s case, Nuss moved for a judgment of acquittal under
1
Idaho Code § 19-3023(1) provides:
1
Idaho Criminal Rule 29, asserting the State failed to present evidence sufficient to sustain a
conviction. The court denied the motion, and the jury subsequently found Nuss guilty. Following
trial, Nuss renewed his motion for acquittal under I.C.R. 29(c)(1). The court held a hearing and
denied the motion.
Thereafter, Nuss directly appealed his conviction. State v. Nuss, 165 Idaho 400, 446 P.3d
458 (Ct. App. 2019). Nuss, who was represented by counsel, challenged the district court’s
decision to allow a facility dog and its handler at the witness stand with the victim, asserting that
their presence was prejudicial and that the court failed to mitigate this prejudice. Id. at 402, 446
P.3d at 460. This Court rejected Nuss’s arguments and affirmed the conviction. Id. at 404, 446
P.3d at 462.
Subsequently, Nuss filed a 165-page pro se petition for post-conviction relief asserting
claims of prosecutorial misconduct and of ineffective assistance of trial and appellate counsel.
Nuss did not submit any affidavits or evidence in support of his petition. The district court
appointed Nuss counsel, who neither amended Nuss’s petition nor submitted any additional filings
in support. The State moved to dismiss Nuss’s petition summarily, arguing that Nuss failed to
meet the standard for establishing ineffective assistance of counsel and that he forfeited his
remaining claims by failing to raise them on direct appeal. Nuss responded, arguing cumulative
errors deprived him of a fair trial.
Following a hearing on the State’s summary disposition motion, the district court entered
a written memorandum decision granting the motion and dismissing Nuss’s petition for post-
conviction relief. The court construed Nuss’s petition to include fifteen claims of ineffective
assistance of trial counsel, two claims of ineffective assistance of appellate counsel, and five claims
When a child is summoned as a witness in any hearing in any criminal
matter . . . parents, a counselor, friend or other person having a supportive
relationship with the child, or a facility dog, shall be allowed to remain in the
courtroom at the witness stand with the child during the child’s testimony unless
in written findings made and entered, the court finds that the defendant’s
constitutional right to a fair trial will be unduly prejudiced.
2
of prosecutorial misconduct.2 The court ruled that Nuss could have raised the prosecutorial
misconduct claims on direct appeal and that by failing to do so he forfeited those claims.
Regarding Nuss’s ineffective assistance of counsel claims, the court ruled that Nuss failed to
present any admissible evidence showing any genuine material factual issues of deficient
performance or of prejudice and that Nuss’s conclusory allegations failed to establish such factual
issues.
Nuss timely appealed the district court’s order dismissing his petition.
II.
STANDARD OF REVIEW
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C. § 19-
4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v. Bearshield, 104
Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921, 828 P.2d 1323,
1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove by a
preponderance of evidence the allegations upon which the request for post-conviction relief is
based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition for
post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State, 141
Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short and plain
statement of the claim that would suffice for a complaint under 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 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
2
The district court listed Nuss’s numerous post-conviction claims in its memorandum
decision. On appeal, Nuss does not dispute this list. Rather, he states the description “states, more
or less, exactly what the claims brought by [him] are.”
3
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
the State does not controvert the petitioner’s evidence. See Roman, 125 Idaho at 647, 873 P.2d at
901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
Goodwin, 138 Idaho at 272, 61 P.3d at 629.
On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925, 929
4
(2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
III.
ANALYSIS
A. Prosecutorial Misconduct Claims
Nuss challenges the district court’s summary dismissal of his prosecutorial misconduct
claims.3 The court concluded these claims could have been raised on direct appeal and dismissed
them as forfeited under I.C. § 19-4901(b). This statute generally prohibits a petitioner from raising
an issue for post-conviction relief if he could have raised that issue on direct appeal unless he can
make a special showing. That showing requires “a substantial factual showing by affidavit,
deposition, or otherwise” that the issue raises “a substantial doubt about the reliability of finding
of guilt” and that the petitioner, in the exercise of due diligence, could not have presented the issue
earlier. Id. This provision applies to prosecutorial misconduct claims, which could have been
asserted on direct appeal, even if trial counsel did not object to the alleged misconduct at trial. As
the Idaho Supreme Court held in State v. Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010),
Idaho appellate courts may reverse a conviction on direct appeal if a defendant demonstrates
unobjected-to prosecutorial misconduct qualifies as fundamental error. See also Grove v. State,
161 Idaho 840, 851-52, 392 P.3d 18, 29-30 (Ct. App. 2017) (ruling I.C. § 19-4901(b) bars post-
conviction claims of prosecutorial misconduct which could have been raised on direct appeal under
fundamental error doctrine).
3
According to the district court, Nuss’s prosecutorial misconduct claims include that the
prosecutor in the underlying case committed misconduct through “a chain of prejudicial events”
after the first preliminary hearing and “up to the prosecutor forum shopping”; by admitting
evidence at trial which was not disclosed under Idaho Rule of Evidence 404(b); by making
prejudicial statements throughout the State’s case; by trying the State’s case during voir dire; and
by failing to disclose information under Idaho Rule of Civil Procedure 26(b)(4). This latter claim,
relying on I.R.C.P. 26(b)(4), fails because that rule governs expert witness disclosures in civil
cases and is not applicable in criminal cases. Similarly, Nuss’s claims for ineffective assistance
of counsel which rely on I.R.C.P. 26(b)(4) also fail for this reason. Even if, however, construed
as alleged under the applicable rule for the disclosure of expert witnesses in criminal cases, Idaho
Criminal Rule 16(b)(7), Nuss’s claims still fail for the reasons discussed herein.
5
Relying on Perry, the district court in this case concluded that Nuss’s “unobjected-to
prosecutorial misconduct [claims] could have been raised [on direct] appeal as fundamental error”
and that Nuss made “no substantial factual showing” under I.C. § 49-4901(b) for bringing the
claims in post-conviction. On appeal, Nuss argues this ruling was clear error. He contends the
court’s conclusion that he could have raised these claims on direct appeal is “contradicted by [the]
holding in Maxfield v. State, [108 Idaho 493, 700 P.2d 115 (Ct. App. 1985)].” As Nuss correctly
notes, Maxfield states that post-conviction relief is available “to cure fundamental errors occurring
at trial which affect either the jurisdiction of the court or the validity of the judgment, even though
these errors could have been raised on appeal.” Id. at 499, 700 P.2d at 121 (quotations omitted).
Maxfield, however, was issued before the 1986 amendment to I.C. § 19-4901(b) to include
language generally prohibiting a petitioner from raising post-conviction claims that could have
been raised on direct appeal absent a special showing. Hedger v. State, 124 Idaho 49, 50-51, 855
P.2d 886, 887-88 (Ct. App. 1993) (noting amendment in 1986). As a result, Maxfield is no longer
applicable authority.4
B. Ineffective Assistance of Trial and Appellate Counsel
Nuss also challenges the district court’s summary dismissal of his claims for ineffective
assistance of trial and appellate counsel.5 A claim of ineffective assistance of counsel may properly
4
Nuss also asserts that his appellate counsel on direct appeal “informed” Nuss that he “could
not raise” his claims for prosecutorial misconduct on direct appeal and “told” him to raise them in
post-conviction. This assertion suggests another claim of ineffective assistance of appellate
counsel. Nuss, however, neither alleged in his petition for post-conviction relief that his appellate
counsel incorrectly advised Nuss regarding his prosecutorial misconduct claims nor did he present
any admissible evidence to establish a material issue of fact regarding such a claim. See Strickland
v. Washington, 466 U.S. 668, 687-88 (1984) (requiring admissible evidence establishing material
factual issues of deficient performance and prejudice to avoid summary dismissal).
5
The district court identified Nuss’s claims for ineffective assistance of trial counsel to
include that counsel failed to object to the prosecutor’s efforts to try the case during voir dire; to
challenge the sufficiency of evidence at the second preliminary hearing; to object to the expert’s
qualifications; to disclose information under I.R.C.P. 26(b)(4); to object to the State giving
“credence” to the expert; to object to the lack of motions or hearings regarding the facility dog; to
ask the court to take judicial notice of the presence of the facility dog’s handler; to object to the
prosecutor asking the victim leading questions; to object to the victim’s testimony because she
spoke to seven different individuals about the case or to file a motion for acquittal on this basis; to
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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 avoid summary dismissal of an ineffective assistance
of counsel claim, the petitioner must establish a genuine issue of material fact that the attorney’s
performance was deficient and that the deficiency prejudiced the petitioner. 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 would have been different. Aragon,
114 Idaho at 761, 760 P.2d at 117; 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). Similarly, this Court will
not second-guess appellate counsel’s tactical or strategic decisions. Heilman v. State, 158 Idaho
139, 145, 344 P.3d 919, 925 (Ct. App. 2015).
1. Deficient performance
In this case, the district court ruled that Nuss failed to establish any genuine material factual
issues that his trial and appellate counsel performed deficiently. The court ruled that “no
admissible evidence has been presented that raises a material issue of fact as to the competency of
trial counsel”; Nuss’s “mere conclusory allegations” of deficient performance “does not make it
so”; and “the same is true for the claimed failures of appellate counsel.” On appeal, Nuss does not
dispute these rulings. Rather, he challenges the applicable standards for summary dismissal.
object to the court’s off-the-record discussions about the jury’s request to hear playback of the
victim’s testimony; to investigate allegations about a probable suspect; to object to proceedings
stopping during cross-examination of a witness for the State; to object to evidence admitted
contrary to I.R.E. 404(b); and to file a motion in limine under the excited utterance rule. The court
identified Nuss’s claims for ineffective assistance of appellate counsel to include that counsel
failed to appeal the prosecutor’s failure to disclose information under I.R.C.P. 26(b)(4) and the
denial of his I.C.R. 29 motion for insufficient evidence.
7
For example, Nuss contends he is not required to present admissible evidence showing a
genuine issue of material fact. See I.C. § 19-4906 (requiring petitioner to establish a genuine issue
of material fact through “pleadings, depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted” to avoid summary dismissal). In
support of this contention, Nuss asserts that, “because his ineffective assistance of counsel claims
address issues containing prosecutorial misconduct and statute/rule violations . . . that are
contained in the criminal record, these issues cannot therefore be supported with evidence outside
the record but by the record itself.”
Further, regarding the rule that a court will not second-guess counsel’s strategic and tactical
decisions as a basis for post-conviction relief, Nuss argues:
[T]his standard is not meant to create a vail [sic] for a court to hide behind an
endlessly convenient assumption in order to ignore and justify dismissing
completely valid claims of trial counsels [sic] failure to provide an effective
representation of their clients [sic] fundamental and constitutional rights to a fair
and just trial.
Nuss, however, offers no support or authority for the proposition that these and other well-
established standards are inapplicable to his post-conviction case. A party waives an issue on
appeal if either authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263, 923 P.2d
966, 970 (1996). Having failed both to provide any supporting authority and to dispute the district
court’s rulings that he failed to establish genuine material factual issues of deficient performance,
each of Nuss’s claims for ineffective assistance of trial and appellate counsel fail.
2. Prejudice
Each of Nuss’s claims of ineffective assistance of trial and appellate counsel also fail
because Nuss did not establish a genuine material factual issue of prejudice. The district court
ruled that, assuming Nuss’s counsel performed deficiently, Nuss failed to establish a material
factual issue that the alleged deficient performance prejudiced him. See Aragon, 114 Idaho at 761,
760 P.2d at 117 (noting establishing prejudice requires petitioner to show reasonable probability
that outcome would have been different but for deficient performance). Nuss concedes on appeal
that he did not attempt to show that, but for his counsels’ alleged deficient performance, the
outcome would have been different. Specifically, he acknowledges he “is not complaining here
that effective representation of trial counsel means any guarantee that if counse [sic] had been
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effective, [Nuss] would have been acquitted.” Instead, Nuss again challenges the standards on
which the court relied to conclude he failed to establish prejudice. Regarding prejudice, the court
ruled:
Nuss has presented no admissible evidence that raises a material issue of fact as to
whether counsel’s conduct “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” In sum, no admissible evidence has been presented that raises a material
issue of fact as to whether the outcome of the trial would have been different but
for counsel’s alleged failures.
(Citation omitted.) Challenging this language, Nuss argues the court’s reference to “the difference
between” concluding a trial “produced a just result” and “the outcome of the trial would have been
different” is “stark.”
Nuss’s argument is without merit. The Idaho Supreme Court has previously used both the
phrases the district court used to describe prejudice when describing a petitioner’s burden of
establishing prejudice:
The second prong [of prejudice] requires a defendant to show that the deficient
conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied upon as having produced a just result. We have recognized
that this is a weighty burden for the defendant to carry. Indeed, a defendant must
show a reasonable probability that the trial’s outcome would have been different
but for counsel’s deficient performance. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
Adams v. State, 158 Idaho 530, 536-37, 348 P.3d 145, 151-52 (2015) (emphasis added; quotations
and citations omitted). Accordingly, we reject Nuss’s argument that “an outcome of a trial can be
the same despite counsel’s failures but not be, at the same time relied upon as having produced a
just result” and his suggestion that he did not have to present admissible evidence of prejudice to
avoid summary dismissal of his claims of ineffective assistance. Nuss’s ineffective assistance of
counsel claims fail because he failed to establish genuine issues of material fact of prejudice.
3. Ineffective assistance of counsel related to I.C.R. 29
The district court’s rulings that Nuss failed to establish any material factual issues
regarding deficient performance or prejudice support the court’s summary dismissal of all of
Nuss’s claims of ineffective assistance of counsel. Nevertheless, the court summarily dismissed
Nuss’s ineffective assistance of counsel claims related to I.C.R. 29 for additional reasons, which
Nuss challenges.
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a. Trial counsel
The district court described Nuss’s claims of ineffective assistance of trial counsel related
to I.C.R. 29 as alleging counsel was ineffective for “not filing a motion of acquittal . . . when the
victim testified that she spoke to at least 7 different individuals about the case prior to trial.” The
court noted that Nuss’s counsel moved for judgment of acquittal under I.R.C. 29 “at the close of
the State’s case during the jury trial, on the grounds of insufficient evidence to sustain a
conviction” and renewed that motion post-trial. As a result, the court concluded Nuss’s claim
“about trial counsel not filing a motion for acquittal is clearly disproven by the record.” 6
On appeal, Nuss does not challenge the district court’s conclusion that the record shows
trial counsel twice moved for a judgment of acquittal for insufficient evidence under I.C.R. 29.
Instead, Nuss contends that the court “misinterpreted and misrepresented” his claim, which he
contends is actually a claim for his counsel’s failure to move for a mistrial based on prosecutorial
misconduct under I.C.R. 29.1--not under I.C.R. 29.7 Nuss acknowledges he did not cite I.C.R. 29.1
in his petition for post-conviction relief, but he identifies numerous allegations in the petition in
which he references a motion for a mistrial. Even assuming Nuss’s allegations state a claim based
on his trial counsel’s purported failure to move for an acquittal under I.C.R. 29.1, that claim fails
because, as the court correctly ruled, Nuss failed to present any admissible evidence establishing
genuine material factual issues of deficient performance and prejudice for any of his claims of
ineffective assistance of counsel.
6
The State argues Nuss failed to present a sufficient appellate record for review of his claims
of ineffective assistance of counsel related to I.C.R. 29 because Nuss did not include the underlying
criminal record in the appellate record. Sometime after Nuss filed his amended notice of appeal,
however, the Idaho Supreme Court took judicial notice of the clerk’s record and transcripts in the
underlying criminal case. After the State asserted in its response brief that this information was
not in the appellate record, Nuss moved to augment the appellate record to include the underlying
record, and this Court granted that motion.
7
Nuss’s argument that his claim arose under I.C.R. 29.1 contradicts his acknowledgement
on appeal that the district court described his post-conviction claims “more or less, exactly what
the claims brought by [him] are.”
10
b. Appellate counsel
The district court described Nuss’s claim of ineffective assistance of appellate counsel
related to I.C.R. 29 as “failing to argue [the] sufficiency of evidence [under] I.C.R. 29” on appeal.
The court noted that Nuss’s amended notice of appeal identified as issues for appeal the denial of
the motion for acquittal, the denial of the renewed motion, and insufficient evidence to support the
conviction. The court found that Nuss had not presented “any admissible evidence showing that
these issues were not raised or argued by appellate counsel.” Nuss challenges this ruling, arguing
that the notice of appeal “is not a guarantee, or proof, of what will be, or is, raised in the actual
direct appeal.”
Although Nuss is correct that appellate counsel is not bound to raise on appeal all the issues
identified in the notice of appeal, that notice demonstrates the issues about which appellate counsel
was aware and considered in preparing Nuss’s appeal--including a possible challenge to the trial
court’s denial of his motion for acquittal under I.C.R. 29 for insufficient evidence. That Nuss’s
counsel was aware of this possible appellate challenge and did not raise it on appeal indicates that
the decision not to raise the issue was a tactical, strategic decision that this Court will not second-
guess on appeal. See Heilman, 158 Idaho at 145, 344 P.3d at 925 (noting appellate court will not
second-guess appellant counsel’s tactical, strategic decisions). An indigent defendant does not
have a constitutional right to compel appointed appellate counsel to press all nonfrivolous
arguments that the defendant wishes to pursue. Mintun v. State, 144 Idaho 656, 661, 168 P.3d 40,
45 (Ct. App. 2007). Rather, the process of winnowing out weaker arguments on appeal and
focusing on those more likely to prevail, far from being the evidence of incompetence, is the
hallmark of effective appellate advocacy. Id. Moreover, Nuss failed to present any admissible
evidence establishing a genuine issue of material fact of deficient performance or prejudice based
on his appellate counsel’s decision not to challenge the sufficiency of evidence on appeal.
C. Claims Previously Addressed on Direct Appeal
Nuss also challenges the district court’s ruling that “the previously adjudicated claims will
not be considered.” In support of this ruling, the court noted that this Court “directly addressed
issues related to the presence of the facility dog and its handlers” on direct appeal. The district
court further noted it was not required to consider issues already raised and decided on direct
appeal. In support of this conclusion, the court relied on Fairchild v. State, 128 Idaho 311, 912
11
P.2d 679 (Ct. App. 1996). Fairchild provides that a petition for post-conviction relief “does not
require the courts to consider again issues which were raised and decided on direct appeal. Id. at
316, 912 P.2d at 684.
Nuss challenges the district court’s reliance on Fairchild. He argues that, although
Fairchild states courts addressing post-conviction cases are not required to reconsider issues
addressed on direct appeal, that does not mean a court “will not” reconsider those issues. Further,
he argues that “using the words ‘does not require’ in place of ‘will not’ carries a different meaning
and raises a question that, ‘if’ the court sees merit in reconsidering again an issue, then that court
would have the authority and ability to reconsider the issue.”
Contrary to Nuss’s argument, the doctrine of res judicata “bars a subsequent action between
the same parties upon the same claim that was already adjudicated in a valid final judgment on the
merits” and “applies to post-conviction proceedings.” Johnson v. State, 158 Idaho 852, 855, 353
P.3d 1086, 1089 (Ct. App. 2015). The doctrine applies when a petitioner attempts to raise the
same claims addressed on direct appeal in a petition for post-conviction relief. Knutsen, 144 Idaho
at 440, 163 P.3d at 229. Accordingly, this doctrine bars the district court’s reconsideration of the
claims this Court has already resolved in Nuss’s direct appeal related to the presence of the facility
dog and its handler during trial, and the district court did not err by declining to reconsider those
claims.
Nuss also argues his claims alleging his trial counsel’s failure to object to the lack of a
motion or hearing regarding the facility dog’s use and to request judicial notice of the dog handler’s
presence at the witness stand “raise independent claims of foundational and fundamental
ineffectiveness of trial counsel.” We agree with Nuss that his ineffective assistance of counsel
claims are distinct from those claims he raised on direct appeal. Regardless, the district court did
not err by summarily dismissing the claims because Nuss failed to present any admissible evidence
creating material factual issues that the alleged conduct constituted deficient performance that
prejudiced him.
D. Cumulative Error
Nuss argues the cumulative effect of the errors in his underlying criminal case deprived
him of a fair trial. Under the cumulative error doctrine, a series of harmless errors when aggregated
may show the absence of a fair trial. Perry, 150 Idaho at 230, 245 P.3d at 982. A necessary
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predicate to the doctrine’s application is a finding of more than one error. Id. Because Nuss failed
to prove that more than one error occurred at trial, the cumulative error doctrine does not apply.
IV.
CONCLUSION
The district court did not err in summarily dismissing Nuss’s petition for post-conviction
relief. Accordingly, we affirm the judgment.
Chief Judge LORELLO and Judge HUSKEY CONCUR.
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