ZOLOFT Withdrawal: Murder: Idaho

Paragraph one reads: “On May 28, 2002, Briggs pleaded guilty to one count
of murder in the first degree, Idaho Code § 18-4003(a), and two counts of
aggravated battery, I.C. §§ 18-903, 18-907(b). After being sentenced to a
unified term of life imprisonment with twenty-five years determinate for the
murder conviction and several lesser concurrent sentences for the battery
convictions, he appealed the sentences as excessive. On May 15, 2003, this
Court affirmed the sentences in an unpublished opinion. State v. Briggs,
Docket No. 28867 (Ct. App. May 15, 2003). A remittitur issued on June 6,
2003.”

Paragraph three reads: “Briggs appealed the summary dismissal of his
petition in regard to two grounds­that counsel was ineffective for failing
to investigate and subpoena seven possible witnesses for the sentencing
hearing and that counsel was ineffective for failing to investigate and
present evidence on the effects of Briggs’s alleged withdrawal from Zoloft (a
prescription medication) at the time of the underlying crime. In an
unpublished opinion, this Court affirmed the district court’s summary dismissal,
Briggs v. State, Docket No. 32502 (Ct. App. Feb. 28, 2007), holding that Briggs
had failed to present evidence of what the testimony of the seven
individuals would have been or how that testimony would have mitigated his
sentence, and failed to present evidence of what facts would have been uncovered as
a result of further investigation into Briggs’s withdrawal from Zoloft or
how those facts would affect a sentencing hearing. A remittitur issued on
March 22, 2007.”

http://www.leagle.com/unsecure/page.htm?shortname=inidco20100414262

BRIGGS v. STATE

TODD ROBERT BRIGGS, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

Docket No. 35530.

Court of Appeals of Idaho.

Filed April 14, 2010.

Todd R. Briggs, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
GUTIERREZ, Judge.

Todd Robert Briggs appeals from the district court’s summary dismissal of
his successive petition for post-conviction relief. We affirm.

I.

FACTS AND PROCEDURE
On May 28, 2002, Briggs pleaded guilty to one count of murder in the first
degree, Idaho Code § 18-4003(a), and two counts of aggravated battery,
I.C. §§ 18-903, 18-907(b). After being sentenced to a unified term of life
imprisonment with twenty-five years determinate for the murder conviction and
several lesser concurrent sentences for the battery convictions, he appealed
the sentences as excessive. On May 15, 2003, this Court affirmed the
sentences in an unpublished opinion. State v. Briggs, Docket No. 28867 (Ct. App.
May 15, 2003). A remittitur issued on June 6, 2003.

Briggs filed a pro se petition for post-conviction relief on April 30,
2004, asserting several constitutional violations as well as multiple claims
of ineffective assistance of counsel. The sole evidence submitted in support
was an affidavit executed by Briggs on April 13, 2004. Counsel was
subsequently appointed and on August 16, 2005, Briggs­through
counsel­filed an amended petition for post-conviction relief asserting six instances of
ineffective assistance of trial counsel. Again, the only evidence filed in
support of the petition was an affidavit executed by Briggs on August 16,
2005. The state filed a motion for summary dismissal and after the parties
agreed to forego argument on the motion, the district court issued a
memorandum decision and order granting the motion on October 25, 2005, finding
that Briggs had failed to state specifically how his counsel’s performance
was deficient or how the alleged deficient performance was prejudicial to him.

Briggs appealed the summary dismissal of his petition in regard to two
grounds­that counsel was ineffective for failing to investigate and
subpoena seven possible witnesses for the sentencing hearing and that counsel was
ineffective for failing to investigate and present evidence on the effects
of Briggs’s alleged withdrawal from Zoloft (a prescription medication) at
the time of the underlying crime. In an unpublished opinion, this Court
affirmed the district court’s summary dismissal, Briggs v. State, Docket No.
32502 (Ct. App. Feb. 28, 2007), holding that Briggs had failed to present
evidence of what the testimony of the seven individuals would have been or how
that testimony would have mitigated his sentence, and failed to present
evidence of what facts would have been uncovered as a result of further
investigation into Briggs’s withdrawal from Zoloft or how those facts would
affect a sentencing hearing. A remittitur issued on March 22, 2007.

Briggs filed a second pro se petition for post-conviction relief on
December 10, 2007, asserting that his post-conviction counsel was ineffective for
failing to prove that his trial counsel’s ineffective assistance had
prejudiced him, for failing to assert certain due process violations, for
failing to assert that he had been denied his right to confront witnesses, and
for failing to present oral argument on the state’s motion for summary
dismissal. In support, he filed an affidavit executed by him. The state filed a
motion for summary dismissal, contending, among other things, that such a su
ccessive petition is not allowed and that Briggs failed to provide any
evidentiary basis to support his claims. After a hearing, the district court
granted the motion. Briggs now appeals.

II.

ANALYSIS
Briggs contends that the district court erred in summarily dismissing his
successive petition for post-conviction relief. All grounds for relief
available to an applicant under the Uniform Post-Conviction Procedure Act must
be raised in an applicant’s original, supplemental, or amended application.
I.C. § 19-4908. The language of Section 19-4908 prohibits successive
applications in those cases where the applicant “knowingly, voluntarily and
intelligently” waived the grounds for relief sought in the successive
application or offers no “sufficient reason” for omitting those grounds in the
original application. Baker v. State, 142 Idaho 411, 420, 128 P.3d 948, 957 (Ct.
App. 2005) (citing Palmer v. Dermitt, 102 Idaho 591, 593, 635 P.2d 955,
957 (1981)). However, Section 19-4908 allows an applicant to raise a ground
for relief, which was addressed in a former application, if he or she can
demonstrate sufficient reason why that ground was inadequately raised or
presented in the initial post-conviction action. Baker, 142 Idaho at 420, 128
P.3d at 957; Hernandez v. State, 133 Idaho 794, 798, 992 P.2d 789, 793 (Ct.
App. 1999). A showing that a claim was not adequately presented in the
first post-conviction action due to the ineffective assistance of prior
post-conviction counsel provides sufficient reason for permitting issues that were
inadequately presented to be presented in a subsequent application for
post-conviction relief. Id. A petitioner has the burden of providing the
district court with factual reasons upon which the court could conclude there
was a “sufficient reason” why the grounds for relief asserted in his second
petition were “not asserted or were inadequately raised in the original,
supplemental or amended application.” Hooper v. State, 127 Idaho 945, 948, 908
P.2d 1252, 1255 (Ct. App. 1995) (citing I.C. § 19-4908).

On appeal, Briggs contends that post-conviction counsel inadequately
presented his contentions of ineffective assistance of his trial counsel in his
first post-conviction petition. Specifically, he contends that his
post-conviction counsel failed to comply with the second Strickland prong[ 1 ] to
show prejudice stemming from trial counsel’s alleged ineffectiveness where
trial counsel was operating under an alleged conflict of interest and was
not death-penalty certified, where trial counsel did not utilize
court-allocated funds to investigate possible defenses including the possibility that
Briggs’s withdrawal from Zoloft may have been the source of his violent
behavior, and where trial counsel did not “confront” several sentencing hearing
witnesses.

In Wolfe v. State, 113 Idaho 337, 743 P.2d 990 (Ct. App. 1987), this Court
noted that in examining a successive petition, while I.C. § 19-4908
permits an inquiry into why the applicant’s attorney on the first application did
not fully present his client’s grounds for relief, the ultimate focus of
the proceeding would remain on whether the second application has raised not
merely a question of counsel’s performance but substantive grounds for
relief from the conviction and sentence. Id. at 339, 743 P.2d at 992 (emphasis
added). Thus, adopting the approach followed in Wolfe, we examine the
claims raised by Briggs to determine whether he has set forth any “ground for
relief . . . which for sufficient reason was not asserted or was
inadequately raised in the original . . . application.” I.C. § 19-4908. See also
Nguyen v. State, 126 Idaho 494, 887 P.2d 39 (Ct. App. 1994).

An application for post-conviction relief initiates a proceeding that is
civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550
(1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v.
State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a
plaintiff in a civil action, the applicant must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is
based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654,
656 (Ct. App. 1990). An application for post-conviction relief differs from
a complaint in an ordinary civil action. An 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)(1). Rather, an application for
post-conviction relief must be verified with respect to facts within the personal
knowledge of the applicant, and affidavits, records or other evidence supporting
its allegations must be attached, or the application must state why such
supporting evidence is not included with the application. I.C. § 19-4903. In
other words, the application must present or be accompanied by admissible
evidence supporting its allegations, or the application will be subject to
dismissal.

Idaho Code Section 19-4906 authorizes summary disposition of an
application for post-conviction relief, either pursuant to motion of a party or upon
the court’s own initiative. Summary dismissal of an application pursuant to
I.C. § 19-4906 is the procedural equivalent of summary judgment under
I.R.C.P. 56. Summary dismissal is permissible only when the applicant’s
evidence has raised no genuine issue of material fact which, if resolved in the
applicant’s favor, would entitle the applicant to the requested relief. If
such a factual issue is presented, an evidentiary hearing must be conducted.
Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct. App. 1991);
Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct. App. 1988);
Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct. App. 1987).
Summary dismissal of an application for post-conviction relief may be
appropriate, however, even where the state does not controvert the applicant’s
evidence because the court is not required to accept either the applicant’s mere
conclusory allegations, unsupported by admissible evidence, or the
applicant’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).

On review of a dismissal of a post-conviction relief application without
an evidentiary hearing, we determine whether a genuine issue of fact exists
based on the pleadings, depositions, and admissions together with any
affidavits on file. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.
App. 1993). In post-conviction actions, 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).
It is also the rule that a conclusory allegation, unsubstantiated by any
fact, is insufficient to entitle a petitioner to an evidentiary hearing. Smith
v. State, 94 Idaho 469, 473, 491 P.2d 733, 737 (1971) (overruled on other
grounds); Nguyen, 126 Idaho at 497, 887 P.2d at 42; King v. State, 114
Idaho 442, 446, 757 P.2d 705, 709 (Ct. App. 1988); Drapeau v. State, 103 Idaho
612, 615, 651 P.2d 546, 549 (Ct. App. 1982). Idaho Code § 19-4903 states
that “[a]ffidavits, records, or other evidence supporting its allegations sha
ll be attached to the application or the application shall recite why they
are not attached.”

Here, a review of Briggs’s successive petition reveals that he did not
present sufficient evidence of any facts beyond what was asserted by his
initial post-conviction counsel in regard to his allegations of ineffective
assistance of trial counsel. His successive petition and affidavit in support
merely state (in various ways) his contention that post-conviction counsel
failed to show prejudice in regard to his ineffective assistance of trial
counsel claims. He failed to cite to authority for his proposition that he
should be allowed to file a successive petition due to his post-conviction
counsel’s inadequacy. In his response to the state’s motion for summary
dimissal,[ 2 ] Briggs attached several pages of the “Petitioner’s Response and
Opposition to Motion for Summary Dismissal” filed by his initial
post-conviction counsel in response to the state’s motion for summary dismissal of his
initial post-conviction petition. Presumably as his argument to avoid
summary dismissal of his successive petition, Briggs made handwritten notations
on the excerpted pages, emphasizing and attempting to elucidate some
points. Finally, in his response he stated:
For the foregoing reasons [presumably in reference to the excerpted
response], and for the potential, in all likelihood, for discovering more
evidence in his favor by way of testimony from expert witnesses regarding the
effects of the Zoloft withdrawal, more witnesses regarding Mr. Briggs’ bizarre
behavior the week of 10/21-10/28 2001 [sic] (including Dori Lott, TSI
employees, Camilla Vanderlinden, Bowlero employees, Garcias [sic] personnel,
Jackson’s employees and video, Deralee Beck, Jared, Mays, Ameritel Inn clerk,
Texas Rhodehouse [sic] bartender, the dentist, and others), the list of
evidence found in petitioner’s car, new evidence showing a history of
depression dating back to at least 1999 with accompanying medical records, hearsay
of Deana Higgins/B. Park, new PSI evidence re: Toni Castaneda, and overall
what the investigation would have revealed in mitigating evidence to impact
the sentencing, if not to have made a trial initially possible­that
this matter proceed to evidentiary hearing [sic].

Assessing the entirety of Briggs’s successive application and supporting
affidavit, and taking into account his response to the state’s motion to
dismiss, he has failed to allege facts, which, if true would entitle him to
relief.[ 3 ] Initially, we note that his successive petition and accompanying
affidavit merely included statements of the issues without including any
facts allowing the district court to conclude (1) that there was sufficient
reason why his claims had been inadequately pursued initially, and (2) that
there was a basis for post-conviction relief. And, as we noted above, bare
or conclusory allegations, unsubstantiated by any fact, are inadequate to
entitle an applicant to an evidentiary hearing. Nguyen, 126 Idaho at 497,
887 P.2d at 42; King, 114 Idaho 442, 757 P.2d 705. See also I.C. § 19-4903
(noting that an application for post-conviction relief must be verified with
respect to facts within the personal knowledge of the applicant, and
affidavits, records or other evidence supporting its allegations must be
attached, or the application must state why such supporting evidence is not
included with the application).

In addition, Briggs’s response to the state’s summary dismissal motion
failed to assert the necessary bases for the district court to find in
Briggs’s favor on the two issues above. In fact, reasserting what was advanced by
his initial post-conviction counsel belies his claim that there was
sufficient reason­namely his post-conviction counsel’s inadequate
performance­that he did not raise the claims he now asserts in a successive
petition. In addition, simply asserting the possibility of mitigating evidence
being discovered, and listing potential witnesses, is not sufficient to
entitle him to an evidentiary hearing­such assertions are bare and conclusory
and included no affidavits or other evidence showing the actual existence
of mitigating evidence that could have been discovered and presented by
Briggs’s defense counsel. In short, Briggs has presented nothing but
speculation. See Drapeau, 103 Idaho at 617, 651 P.2d at 551 (noting that allegations
asserted in a petition for post-conviction relief, without supporting
affidavits based upon otherwise verifiable information, cannot be a basis for
post-conviction relief). See also Hooper, 127 Idaho 945, 908 P.2d 1252
(holding that in his successive post-conviction petition, petitioner failed to
assert any basis on which the district court could conclude that there was
sufficient reason why the grounds for relief asserted in his second petition
had not been raised­ or were inadequately raised­in his initial
petition); Nguyen, 126 Idaho at 497, 887 P.2d at 42 (affirming summary
dismissal of a successive application where it contained only allegations,
without supporting affidavits based on otherwise verifiable information, and thus
contained no evidence regarding the merits of his underlying claims or
that his counsel was ineffective for failing to raise the issues in the first
post-conviction proceeding); King, 114 Idaho 442, 757 P.2d 705 (affirming
summary dismissal of successive petition where there were no affidavits,
records or other evidence offered in support of the petition other than an
affidavit by King outlining the factual circumstances of the underlying crime
and his dissatisfaction because of the lesser penalties meted out to
co-defendants on the charge, as well as because of King’s failure to provide a
sufficient reason why the grounds alleged in the successive application were
not raised in the first application). Compare Stuart v. State, 127 Idaho
806, 907 P.2d 783 (1995) (holding that successive petition set forth facts,
with accompanying affidavits, alleging newly discovered information not known
to the applicant at the time of the filing of his first petition).[ 4 ]

In sum, because Briggs did not present evidence of facts showing that
there was sufficient reason his claims were inadequately presented in his first
post-conviction petition or that there were substantive grounds for relief
in regard to his claims of ineffective assistance of trial counsel, we
affirm the district court’s summary dismissal of Briggs’s successive petition
for post-conviction relief.

Chief Judge LANSING and Judge MELANSON CONCUR.
1. To prevail on an ineffective assistance of counsel claim, the defendant
must show that the attorney’s performance was deficient and that the
defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S.
668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224
(Ct. App. 1995). Where, as here, the defendant was convicted upon a guilty
plea, to satisfy the prejudice element, the claimant must show that there is
a reasonable probability that, but for counsel’s errors, he or she would
not have pled guilty and would have insisted on going to trial. Plant v.
State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006).
2. This response was filed pro se, because, Briggs claims in the document,
he presumed that he was without counsel due to a potential conflict of
interest resulting in the “voluntary dismissal” of both attorneys appointed to
represent Briggs in regard to his successive petition. Subsequent to the
filing of this response, Briggs apparently moved to dismiss his
court-appointed counsel, a motion the district court denied. While counsel then
proceeded to represent Briggs at the summary dismissal hearing on his successive
petition, there is nothing in the record indicating that counsel filed any
substantive documents on Briggs’s behalf in regard to his successive
petition.
3. In his brief to this Court, Briggs alleges additional facts and
possible prejudice that he contends stemmed from his trial counsel’s ineffective
assistance of counsel. However, on appeal we review whether the successive
petition, as filed with the district court, was sufficient to survive summary
dismissal. Thus, contentions contained only in Briggs’s appellate brief
are irrelevant to our inquiry.
4. We also note, as the district court in this case pointed out, the mere
fact that the district court which adjudicated Briggs’s first petition
found there was no prejudice shown does not conclusively establish that
counsel’s performance was defective such that Briggs should have the opportunity
to file a successive petition. Just as likely, as the first district court
concluded, is that Briggs had not established prejudice not because
post-conviction counsel was ineffective, but because there were, in fact, no facts
establishing prejudice stemming from trial counsel’s alleged defective
representation.

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Ann Blake-Tracy

Ann Blake Tracy, Executive Director,
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(DrugAwareness.Org & SSRIstories.Net)
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