               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41353

MIGUEL C. JOYNER,                               )     2014 Unpublished Opinion No. 726
                                                )
       Petitioner-Appellant,                    )     Filed: September 17, 2014
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
STATE OF IDAHO,                                 )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Respondent.                              )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Richard D. Greenwood, District Judge.

       Judgment of the district court summarily dismissing petition for post-conviction
       relief, affirmed.

       Miguel C. Joyner, Boise, pro se appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
LANSING, Judge
       Miguel C. Joyner was convicted of domestic violence and attempted strangulation. He
appealed that ruling arguing, inter alia, that his motion for mistrial was improperly denied; but
this Court affirmed the judgment of conviction. Joyner thereafter filed a petition for post-
conviction relief reasserting that claim along with numerous other claims. His petition for post-
conviction relief was summarily dismissed. Joyner appeals that dismissal.
                                               I.
                                       BACKGROUND
       We set forth the procedural history of the underlying criminal case in State v. Joyner,
Docket Nos. 36215/36766 (Ct. App. May 13, 2011) (unpublished):
       [T]he state filed a complaint against Joyner and ultimately charged him by
       information with the felony crimes of attempted strangulation, domestic violence,
       and violation of a no-contact order, and the misdemeanor crimes of intentional



                                               1
       destruction of a telecommunication instrument and providing false information to
       a law enforcement officer. The state also alleged Joyner to be a persistent violator.
               ....
               [The district court dismissed these charges on grounds related to Joyner’s
       right to a speedy trial, but permitted the State to refile them.]
               On January 27, 2009, the state re-filed the felony charges of attempted
       strangulation, domestic violence, and violation of a no-contact order, and added a
       second felony charge of domestic violence by amended complaint. Upon the case
       being bound over to the district court, the state re-filed the persistent violator
       allegation and a jury trial was set for June 1, 2009.
               . . . The case proceeded to jury trial where Joyner sought a motion for
       mistrial after two potential jurors allegedly contaminated the jury panel during
       voir dire. The district court denied Joyner’s motion for mistrial and the jury found
       Joyner guilty of felony attempted strangulation and one count of felony domestic
       violence, but not the second charge of felony domestic violence. The jury also
       found Joyner to be a persistent violator.

       On appeal, we concluded that “the district court did not err in denying Joyner’s motion to
dismiss [the refiled charges] on speedy trial grounds” and that the denial of the motion for a
mistrial was harmless.
       In this case, Joyner filed a petition for post-conviction relief, in which he raised ten
claims for relief: (1) the State failed to inform the court that Joyner refused to waive his speedy
trial rights; (2) his attorney failed to inform the jury that a previous jury had acquitted him of
domestic battery in a prior case; (3) his attorney failed to object when Officer Evans acted as a
medical expert; (4) his attorney did not allow him to testify on his own behalf; (5) his attorney
failed to adduce evidence that the alleged victim had committed perjury in a prior proceeding;
(6) his attorney failed to object to or otherwise challenge evidence regarding the alleged victim
being on her toes at some point during the altercation; 1 (7) his attorney failed to object to a
juror’s statement that she knew Joyner from her prior experience as a law enforcement officer;
(8) he was entitled to a mistrial due to statements made by a prospective juror during voir dire
expressing the opinions about men who engage in domestic violence and about the credibility of
officers and civilians; (9) his attorney should have requested a mistrial in response to statements
by a prospective juror indicating that he favored the State; and (10) his attorney failed to either
seek the removal of a juror for cause or use a preemptory challenge to dismiss her after she

1
       Because our record of the original trial proceeding is sparing, we cannot determine the
exact nature of this claim.


                                                2
admitted that she did not understand reasonable doubt or understand how to weigh the facts
presented in the case.
       In response, the State filed an answer and a motion for summary disposition. The case
proceeded to a hearing on the motion for summary disposition. At that hearing, Joyner’s counsel
was alerted to the fact that the record of the underlying criminal case had not been made part of
the record in the post-conviction case. Counsel was also informed that the post-conviction court
could not consider references to facts outside of the post-conviction record. In response, counsel
sought the admission of only two small portions of the trial transcript. At the close of the
hearing, the court granted the motion for summary dismissal, dismissing all of Joyner’s claims.
Joyner appealed.
                                                  II.
                                            ANALYSIS
       Idaho Code Section 19-4906 authorizes summary dismissal of a petition for post-
conviction relief 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.”
I.C. § 19-4906(c).       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. State v. Payne, 146 Idaho 548, 561, 199 P.3d 123, 136 (2008); Roman v.
State, 125 Idaho 644, 647, 873 P.2d 898, 901 (Ct. App. 1994). Moreover, because the district
court rather than a jury will be the trier of fact in the event of an evidentiary hearing, the district
court is not constrained to draw inferences in the petitioner’s favor, but is free to arrive at the
most probable inferences to be drawn from the evidence. State v. Yakovac, 145 Idaho 437, 444,
180 P.3d 476, 483 (2008); Wolf v. State, 152 Idaho 64, 67, 266 P.3d 1169, 1172 (Ct. App. 2011);
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. Chavez v.
Barrus, 146 Idaho 212, 218, 192 P.3d 1036, 1042 (2008); Hayes, 146 Idaho at 355, 195 P.2d at
714; Farnsworth v. Dairymen’s Creamery Ass’n, 125 Idaho 866, 868, 876 P.2d 148, 150 (Ct.
App. 1994).




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       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); McKay v. State, 148 Idaho 567, 570, 225 P.3d 700, 703 (2010); DeRushé v. State, 146
Idaho 599, 603, 200 P.3d 1148, 1152 (2009); Charboneau v. State, 144 Idaho 900, 903, 174 P.3d
870, 873 (2007); Berg v. State, 131 Idaho 517, 518, 960 P.2d 738, 739 (1998); Murphy v. State,
143 Idaho 139, 145, 139 P.3d 741, 747 (Ct. App. 2006); Cootz v. State, 129 Idaho 360, 368, 924
P.2d 622, 630 (Ct. App. 1996). 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 Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125
Idaho at 647, 873 P.2d at 901.
       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); Berg, 131 Idaho at 519, 960 P.2d at 740; Sheahan v. State, 146 Idaho 101, 104, 190
P.3d 920, 923 (Ct. App. 2008); Roman, 125 Idaho at 647, 873 P.2d at 901. 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); Martinez v.
State, 130 Idaho 530, 532, 944 P.2d 127, 129 (Ct. App. 1997).
        A claim of ineffective assistance of counsel may properly be brought under the Uniform
Post-Conviction Procedure Act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-
30 (Ct. App. 1992). 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); Hassett v. State, 127 Idaho
313, 316, 900 P.2d 221, 224 (Ct. App. 1995). 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). To establish
prejudice, the petitioner must show a reasonable probability that, but for the attorney’s deficient


                                                4
performance, the outcome of the trial would have been different. Id. at 761, 760 P.2d at 1177.
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. Howard v.
State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct. App. 1994).
       In his appellant’s brief, Joyner asserts seven claims of ineffective assistance of his
defense attorney. He argues that his attorney was deficient for: (1) failing to obtain adequate
relief when the district court referenced “count 4” and then instructed the jury to disregard that
reference; (2) failing to object to the State’s leading questions; (3) failing to ask questions about
the movement of certain personal property at the crime scene; (4) failing to impeach a witness
using the witness’s statements in the preliminary hearing; (5) failing to object to prosecutorial
misconduct for suborning perjury or willfully overlooking obviously perjured statements;
(6) asking questions that helped the State’s case and caused the jury to sympathize with the
alleged victim; (7) his attorney, in some unspecified way, frustrating his ability to testify on his
own behalf and offer an alibi defense. He also argues he was entitled to a mistrial because a
juror expressed the opinions that most men who engage in domestic violence become more
violent over time and that police officers are more credible than civilians, and he argues that the
denial of his motion was the result of court malice.
A.     Most of the Issues Joyner Raises Are Not Properly Before This Court
       After reviewing the claims Joyner raised in his petition for post-conviction relief, we
conclude that only two of his claims on appeal were raised below. In both his petition and in his
appellate brief, Joyner claimed that he was entitled to a mistrial when a juror expressed his
opinion regarding men who engaged in domestic violence and that his attorney provided
ineffective assistance by frustrating his right to testify on his own behalf. Each of the other
claims has been raised for the first time on appeal.        Issues not raised below may not be
considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126
(1992); State v. McGiboney, 152 Idaho 769, 772, 274 P.3d 1284, 1287 (Ct. App. 2012). More
particularly, claims not set forth in a petition for post-conviction relief or an amended petition
may not be considered on appeal. Small v. State, 132 Idaho 327, 331, 971 P.2d 1151, 1155 (Ct.
App. 1998). Accordingly, our review is limited to those two claims that were raised below.




                                                 5
B.     Joyner’s Claim That He Was Entitled to a Mistrial Is Barred by Res Judicata
       We first address the claim that Joyner’s attorney was ineffective for failing to obtain a
mistrial after a juror discussed his opinions regarding domestic violence.           This issue was
addressed in the previous direct appeal. Below, post-conviction counsel conceded that this Court
had already reviewed the substance of this claim in Joyner, Docket Nos. 36215/36766. In that
appeal, Joyner complained that a “prospective juror revealed that he had prior experience in law
enforcement, had been involved in domestic violence situations, and could not be a fair juror
because he believed that there had been ‘priors’ and that he would believe police officers over
other witnesses.” Id. During voir dire, Joyner’s counsel objected and requested a mistrial. The
district court denied Joyner’s motion for mistrial, but excused the juror. Id. On appeal, we
concluded that any error was harmless. Id. As part of our harmless error analysis, we noted that
trial counsel did not canvass the jury or otherwise discover whether other jurors had adopted the
challenged juror’s point of view.
       Although Joyner’s post-conviction counsel recognized that the merits of the motion for
mistrial had been addressed, counsel argued that the claim raised in the direct appeal and the
claim raised in the post-conviction action are sufficiently different that principles of res judicata
did not apply. Counsel argued that the post-conviction claim alleged ineffective assistance of
counsel for the failure to canvass the jury. We disagree; in both the petition for post-conviction
relief and in this appeal, Joyner complains about court error. In his petition, he stated that the
comments “should have [resulted in] a mistrial . . . the Court overruled [the motion seeking] a
mistrial. How could it not be.” 2 On appeal, Joyner describes this claim as “Court Malice.”
Accordingly, we conclude that the claim on appeal in this case is identical to the claim raised on
direct appeal. In that case, this Court decided that Joyner was not entitled to any relief relating to
the trial court’s denial of the motion for mistrial. The principles of res judicata apply when a
petitioner attempts to raise the same issues previously ruled upon on direct appeal in a
subsequent petition for post-conviction relief. Knutsen v. State, 144 Idaho 433, 439, 163 P.3d
222, 228 (Ct. App. 2007). Therefore, summary dismissal of this claim was proper. 3


2
       As stated above, Joyner raised other claims regarding voir dire in his petition for post-
conviction relief, but those are not raised on appeal.
3
       We need not also address the impropriety of raising this issue through post-conviction
proceedings.

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C.      Joyner Failed to Demonstrate That He Was Prejudiced by Counsel’s Frustrating
        His Right to Testify
        The second claim that is properly before this Court is the claim that counsel was
ineffective when she frustrated Joyner’s right to testify. As to this claim, the inadequacy of our
record is critical. The portion of the criminal trial record that was submitted to the post-
conviction court is limited. It shows that after the State rested its case, the trial court asked if
Joyner’s counsel needed time to discuss with Joyner whether he would testify. Joyner and
counsel spoke off of the record and, after the discussion, counsel indicated that Joyner would not
testify. In its oral ruling granting the motion for summary dismissal, the post-conviction court
held:
        [I]f I accept as true for the purposes of summary dismissal, which is appropriate,
        that his attorney told him he couldn’t testify and he knew no different, taking that
        as true, he still has not demonstrated a grounds for post-conviction relief because
        he has not given any hint of his testimony, how it could have possibly changed the
        outcome in this case, how truthful testimony on his part would have made the
        case come out differently, not to mention all the tactical issues and questions that
        go into not testifying, including in his case the problem that he was a convicted
        felon and the possibility that could be used for impeachment.
                 I don’t know that it would have been. I’m just saying that there were all
        kinds of reasons. But even assuming his lawyer wrongfully told him he did not
        have the right to decide for himself, that she made the decision for him, he has not
        met his burden on post-conviction relief of showing a likelihood that the outcome
        of the trial would have been different but for the deficient performance of counsel.

        Below, Joyner gave only a fleeting description of his potential testimony. He contends
that he would have testified that he was “never in the house with [the alleged victim] never.”
Our standard of review demands that we treat this factual contention as true. For the purpose of
this appeal, we will presume that counsel was ineffective when she frustrated Joyner’s right to
give this testimony. However, we are not required to presume the truthfulness of Joyner’s
conclusions. See Payne, 146 Idaho at 561, 199 P.3d at 136; Roman, 125 Idaho at 647, 873 P.2d
at 901. Most notably, we are not required to accept Joyner’s conclusory assertion that “the
outcome would’ve been different if [Joyner] would have been able to take the stand [and was
able to tell the jury] what really took place and . . . raise[] reasonable doubt.”
        Where the right to testify is at issue on a claim of ineffective assistance, a petitioner must
show a reasonable probability that, but for the attorney’s deficient performance, the outcome of
the trial would have been different. See Aragon, 114 Idaho at 761, 760 P.2d 1177 (detailing the


                                                   7
generally applicable standard); see also Kuehl v. State, 145 Idaho 607, 611, 181 P.3d 533, 537
(Ct. App. 2008) (holding that a petitioner had failed to show how the evidence would have
impacted the trial and why the jury would have believed his testimony); Cootz, 129 Idaho at 369-
70, 924 P.2d at 631-32 (applying the applicable prejudice standard and holding that a petitioner
failed to show how the testimony would have impacted the case). In this case, Joyner did not
provide an adequate record to the district court demonstrating whether he was prejudiced by the
absence of his testimony at trial. That is, he did not present to the district court a full transcript
of the criminal trial. In the absence of a transcript, we and the district court cannot determine the
strength of the State’s evidence or whether there was evidence that would have compellingly
refuted Joyner’s potential, self-serving testimony that he was not at the victim’s home.
Moreover, Joyner’s post-conviction counsel was informed that the record was deficient and
made no effort to remedy that deficiency. Accordingly, we, like the district court, conclude that
Joyner has not met his burden of showing a reasonable likelihood that the outcome of the trial
would have been different but for the alleged deficient performance of counsel.
                                                 III.
                                          CONCLUSION
       The majority of Joyner’s claims on appeal are not properly before this Court because they
were not raised below. Of the remaining claims, the mistrial claim is barred by res judicata, and
Joyner failed to show he was prejudiced by his attorney’s alleged ineffective assistance in
frustrating his right to testify. Therefore, the judgment of the district court summarily dismissing
Joyner’s petition for post-conviction relief is affirmed.
       Judge GRATTON and Judge MELANSON CONCUR.




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