               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45044

PRESTON ADAM JOY,                               )
                                                )    Filed: October 5, 2018
       Petitioner-Appellant,                    )
                                                )    Karel A. Lehrman, Clerk
v.                                              )
                                                )    THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                 )    OPINION AND SHALL NOT
                                                )    BE CITED AS AUTHORITY
       Respondent.                              )
                                                )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Kootenai County. Hon. John T. Mitchell, District Judge.

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

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

       Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GUTIERREZ, Judge
       Preston Adam Joy appeals the district court’s judgment summarily dismissing his
amended petition for post-conviction relief. Joy argues the district court erred in dismissing his
ineffective assistance of counsel claims and his claim of judicial bias. For the reasons provided
below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Joy and his wife were involved in a domestic dispute. The incident led the State to
charge Joy with second degree kidnapping, domestic battery, and penetration by a foreign object.
After a jury trial, in which two attorneys represented Joy, the jury was hung on the second degree
kidnapping charge but found Joy guilty of felony domestic battery and not guilty of penetration
by a foreign object.    Thereafter, Joy entered a conditional guilty plea to second degree

                                                1
kidnapping, reserving the right to appeal the court’s pretrial, trial, and post-trial rulings. The
State stipulated to and the judge imposed concurrent sentences for kidnapping and domestic
battery, with ten years determinate and a total of no more than fifteen years. State v. Joy, 155
Idaho 1, 6, 304 P.3d 276, 281 (2013). On appeal, the Idaho Supreme Court held the district court
erred in admitting certain evidence, vacated Joy’s judgment of conviction, and remanded the
case for a new trial on the charges of domestic battery and kidnapping. Id. at 17, 304 P.3d at
292. Prior to the second trial, the State amended the information by removing the penetration by
a foreign object charge. The amended information was otherwise identical to the information in
the first trial.
         Nearly a year after the judgment of conviction was vacated on appeal, Joy filed a
“Request for Self-Recusal or in the Alternative Motion to Recuse for Cause.” The district court
denied the request as untimely, and the case proceeded to trial. After the second trial, the jury
found Joy guilty of felony domestic battery and not guilty of second degree kidnapping. Joy was
sentenced to a unified term of ten years, with nine years determinate. Joy timely appealed. On
appeal, the Court of Appeals affirmed the judgment of conviction for domestic battery. State v.
Joy, Docket No. 42166 (Ct. App. Nov. 13, 2015) (unpublished).
         Six months later, Joy filed a post-conviction petition claiming he received ineffective
assistance of counsel at his first trial, his second trial, and his second appeal and that he had been
deprived of a fair and impartial judge. After being appointed counsel, Joy filed an amended
petition containing eight claims for relief. As related to the first trial, Joy claimed ineffective
assistance of counsel for (1) waiving Joy’s right to a speedy trial against his express instructions
(“Claim I”); (2) failing to challenge the sufficiency of the State’s information (“Claim II”);
(3) not subpoenaing witnesses and not being prepared for trial (“Claim III”); and (4) not
disclosing co-counsel’s relationship or their marriage, which affected their duties of loyalty to
Joy (“Claim IV”). As related to his second trial, Joy claimed ineffective assistance of counsel 1
for (1) failing to assert Joy’s right to a speedy trial and instead waiving that right (“Claim V”);
and (2) failing to file a motion to disqualify the presiding judge immediately after the Idaho
Supreme Court issued the remittitur vacating the judgment (“Claim VI”). As related to his
second appeal, Joy claimed ineffective assistance of appellate counsel for conceding issues
regarding a defective information (“Claim VII”). Last, Joy claimed he was deprived of a fair and

1
         New counsel represented Joy at his second trial.
                                                  2
impartial judge because the judge exhibited bias against Joy throughout the trial proceedings
(“Claim VIII”). Joy also filed a motion to disqualify the district judge from the post-conviction
proceedings, which was denied after argument. The State filed a motion to dismiss, arguing
Claims I-IV were moot as Joy received a new trial. The State also argued Claims V-VIII failed
to present any genuine issue of material fact and failed to show prejudice. The State filed a
supplemental brief in support of its motion to dismiss, arguing Claims I-IV were untimely. After
hearing argument, the district court summarily dismissed the petition. The district court ruled
Claims I-IV, regarding Joy’s counsel in the first trial, were untimely.         The district court
dismissed Claim V as moot and joined Claims VI and VIII, ruling that they were barred by
res judicata and that there was no factual or legal basis for either claim. Last, the district court
dismissed Claim VII as having no factual or legal basis. Joy timely appeals.
                                                II.
                                           ANALYSIS
       On appeal, Joy only challenges the dismissal of Claims I, II, III, IV, VI, and the denial of
his motion to disqualify based on judicial bias.       Joy does not challenge the dismissal of
Claims V, VII, and VIII. A party waives an issue on appeal if either argument or authority is
lacking.   Powell v. Sellers, 130 Idaho 122, 128, 937 P.2d 434, 440 (Ct. App. 1997).
Accordingly, the dismissal of Claims V, VII, and VIII is affirmed.
A.     Summary Dismissal
       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,
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. This Court has long adhered to the proposition that tactical or strategic

                                                 3
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).
       A petition for post-conviction relief initiates a proceeding that is civil in nature. Idaho
Code § 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
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

                                                 4
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 (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).
       1.      Claims I-IV
       On appeal, the State concedes that Claims I-IV relating to the first trial were timely;
however, the State argues that the claims are moot because Joy received a new trial following his
first appeal. Joy responds that the remedy for Claims I and IV would be dismissal, not a new
trial, and therefore Claim I and Claim IV are not moot.
       Though the district court did not rule that Claims I-IV were moot, the State argued such
in its motion to dismiss. A case becomes moot when the issues presented are no longer live or

                                                  5
the defendant lacks a legally cognizable interest in the outcome. Murphy v. Hunt, 455 U.S. 478,
481 (1982); Bradshaw v. State, 120 Idaho 429, 432, 816 P.2d 986, 989 (1991). Even where a
question is moot, there are three exceptions to the mootness doctrine: (1) when there is the
possibility of collateral legal consequences imposed on the person raising the issue; (2) when the
challenged conduct is likely to evade judicial review and thus is capable of repetition; and
(3) when an otherwise moot issue raises concerns of substantial public interest. State v. Barclay,
149 Idaho 6, 8, 232 P.3d 327, 329 (2010).
       In Claim I, Joy asserts that his counsel was ineffective for failing to assert and instead
waiving his speedy trial right. Joy contends that if his speedy trial right had not been waived by
counsel, a successful assertion of the right would result in dismissal. Joy provides no authority
or argument to support this assertion. A party waives an issue on appeal if either authority or
argument is lacking. Powell, 130 Idaho at 128, 937 P.2d at 440. Accordingly, the district court’s
dismissal of Claim I is affirmed.
       Regarding Claims II (failure to challenge the sufficiency of the information) and III
(failure to subpoena witnesses and inadequate trial preparation), the only relief Joy would have
been entitled to would be a new trial, which Joy received after his first appeal. Therefore, any
judicial relief from this Court would have no effect on either party regarding Claims II and III.
See Barclay, 149 Idaho at 8, 232 P.3d at 329. An appellate court may affirm a lower court’s
decision on a legal theory different from the one applied by that court. In re Estate of Bagley,
117 Idaho 1091, 1093, 793 P.2d 1263, 1265 (Ct. App. 1990). Accordingly, the dismissal of
Claims II and III is affirmed.
       As to Claim IV, Joy alleged he received ineffective assistance of counsel at the first trial
because co-counsel’s relationship or marriage was not disclosed, which created a conflict of
interest and affected both counsel’s duties of loyalty to Joy. In his reply brief, Joy argues that
had he been successful on this claim, the correct remedy is dismissal. Joy has provided no
authority to support his assertion that the correct remedy for the alleged conflicted counsel is
dismissal. A party waives an issue on appeal if either argument or authority is lacking. Powell,
130 Idaho at 128, 937 P.2d at 440. Even assuming Joy could demonstrate his attorneys during
his first trial had a conflict due to their personal relationship, the appropriate remedy is a new
trial with substitute counsel. Wood v. Georgia, 450 U.S. 261, 273-74 (1981) (case remanded
with instructions that if an actual conflict was found, a new hearing be conducted with counsel

                                                6
untainted by conflicted interests). Because Joy received a new trial with new counsel, Claim IV
is moot. Therefore, Claim IV was properly dismissed albeit under an erroneous theory. An
appellate court may affirm a lower court’s decision on a legal theory different from the one
applied by that court. Bagley, 117 Idaho at 1093, 793 P.2d at 1265. Accordingly, the dismissal
of Claim IV is affirmed.
       2.      Claim VI
       In Claim VI, Joy argues his counsel was ineffective for failing to file a motion to
disqualify the judge following remand from the Idaho Supreme Court prior to his second trial.
Claim IV is predicated on Idaho Criminal Rule 25(a)(5), which grants one disqualification of a
judge for every defendant in a criminal prosecution, provided the defendant files a timely
motion. In a post-conviction proceeding challenging an attorney’s failure to pursue a motion in
the underlying criminal action, the district court may consider the probability of success of the
motion in question in determining whether the attorney’s inactivity constituted ineffective
assistance. Lint v. State, 145 Idaho 472, 477, 180 P.3d 511, 516 (Ct. App. 2008). Where the
alleged deficiency is counsel’s failure to file a motion, a conclusion that the motion, if pursued,
would not have been granted by the trial court is generally determinative of both prongs of the
Strickland test. Lint, 145 Idaho at 477-78, 180 P.3d at 516-17.
       The State agrees that had Joy’s counsel timely filed a motion to disqualify without cause,
“success [would have been] assured,” and thus counsel’s failure to file the motion is sufficient to
make a prima facie case of deficient performance. The State, however, argues that Joy failed to
demonstrate that the outcome of the trial would have been different had counsel filed a timely
motion to disqualify the district judge. In response, Joy argues he was not required to show
prejudice because “if counsel had filed a timely motion and if [the district judge] had denied the
motion, the Idaho Supreme Court would have reversed on direct appeal regardless whether [] Joy
could show prejudice.” Therefore, Joy contends, the right to disqualify should be deemed
structural in nature, and structural error “is not readily susceptible to a prejudice analysis.” In
support thereof, Joy argues his case is analogous to three cases which, even if binding on this
Court, dealt with deprivation of a constitutional right through waivers caused by counsel’s
deficiencies rather than a right conferred by rule. Hill v. Lockhart, 474 U.S. 52, 58-60 (1985)
(right to trial); State v. Keller, 760 N.W. 2d 451, 453 (Iowa 2009) (trial by jury); Commonwealth
v. Mallory, 941 A.2d 686, 700-01 (Pa. 2008) (trial by jury). Notably, the right to disqualify a

                                                7
judge without cause is conferred by court rule; it is not a constitutional right. Therefore, contrary
to Joy’s argument, in order to prove prejudice under Strickland, Joy was required to show more
than mere success of the motion. He was required to demonstrate that, but for his counsel’s
failure to file the motion to disqualify the judge, the outcome of the trial would have been
different.
          Further, Joy argues that if the court requires a showing of prejudice, it is essentially
proven because the outcome would obviously be different in that he would have had a different
judge. Joy contends that the prejudice required under Strickland applies to the stage at which the
deficient performance occurred. Therefore, Joy argues, since the stage at which the deficiency
occurred was at the stage of judge selection or exclusion, prejudice is shown because had the
motion been granted, a new judge would have been appointed. Thus, the “outcome” of that stage
would not be the same. This argument is unpersuasive. As stated earlier, 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. Joy has made no attempt at showing
that there was a reasonable probability that if his counsel had filed a motion to disqualify the
judge, it would have resulted in a different outcome at trial.
          Finally, Joy argues that we should “focus on the reliability of the proceeding and not on
the likelihood of an acquittal” when evaluating the prejudice prong. Joy relies on a Florida case,
Thompson v. State, 990 So. 2d 482 (Fla. 2008), to support the proposition that this Court “should
have enough of a concern” based on the reasons provided “that it should not have confidence in
the fairness and reliability of the second trial and sentencing” and that “at the very least, it is
reasonably probable that a different judge would not have sentenced Joy to the maximum
sentence of 10 years for this charge, with parole eligibility only one year before completion.”
We decline to adopt the holding from Florida. The requirement to meet the second prong of the
Strickland test is clear in Idaho: 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.
          Joy was found guilty at his second trial by a jury, and that conviction was upheld on
appeal. Joy has not provided any showing that, had his counsel filed a timely motion to

                                                  8
disqualify, the outcome of the trial would have been different. Therefore, Joy has failed to show
prejudice as to Claim VI.
B.     Judicial Bias
       Joy argues the district judge erred in not disqualifying himself from the post-conviction
proceedings because he exhibited a pattern and record of one-sided rulings and errors in the first
trial. The alleged one-sided rulings and errors included those noted by the Idaho Supreme Court
in Joy’s first appeal as well as imposition of the maximum sentence, comments on the record
expressing incredulity when the sentence was challenged, a chastising reversal on direct appeal,
comments urging the filing of an Information Part II after the State withdrew it, a failure to
observe Joy’s desire to retain his speedy trial rights, and denial of a previous motion seeking
disqualification for bias. The State argues that the district judge properly denied Joy’s motion
for disqualification under the doctrine of res judicata. Joy does not challenge this basis for
dismissal. The State also argues the district judge did not abuse his discretion in determining
that he was capable of performing the legal analysis required. 2
       Pursuant to Idaho Rule of Civil Procedure 40(b), a motion to disqualify a judge may be
made on the ground that “the judge is biased or prejudiced for or against any party or the subject
matter of the action.” A judge’s determination that disqualification is not necessary will be
disturbed on appeal only if it constitutes an abuse of discretion. Martinez v. State, 126 Idaho
813, 815, 892 P.2d 488, 490 (Ct. App. 1995). When a trial court’s discretionary decision is
reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the
lower court correctly perceived the issue as one of discretion; acted within the boundaries of
such discretion and consistently with any legal standards applicable to the specific choices before
it; and reached its decision by an exercise of reason. Sun Valley Shopping Ctr., Inc. v. Idaho
Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
       A party may move to disqualify a judge from presiding on the grounds of bias.
I.R.C.P. 40(b)(1)(D). An affidavit stating distinctly the grounds upon which disqualification is
based and the facts relied upon in support of the motion must accompany the motion.
I.R.C.P. 40(b)(2). Whatever the source of the bias or prejudice, it must be so extreme as to

2
        The State also argues that the motion to disqualify was deficient because it lacked an
affidavit. This deficiency was not a ground for denial relied on by the district court. Because we
conclude the district court did not abuse its discretion in denying Joy’s motion to disqualify, we
need not address this argument further.
                                                 9
display clear inability to render fair judgment. Bach v. Bagley, 148 Idaho 784, 791-92, 229 P.3d
1146, 1153-54 (2010). Unless there is a demonstration of pervasive bias derived from either an
extrajudicial source or facts and events occurring at trial, there is no basis for judicial recusal. Id.
at 792, 229 P.3d at 1154. The standard for recusal of a judge, based simply on information that
the judge has learned in the course of judicial proceedings, is extremely high. Id. When a trial
judge presides over both the criminal trial and subsequent post-conviction proceedings, the judge
“is not required to erase from his mind all that has gone before.” State v. Beam, 115 Idaho 208,
215, 766 P.2d 678, 685 (1988). Rather, the trial judge need only conclude that he can properly
perform the legal analysis which the law requires of him, recognizing that he has already pre-
judged the case and has formed strong and lasting opinions regarding the worth of the defendant
and the sentence that ought to be imposed to punish the defendant and protect society. Id.
        After hearing argument and considering the documents submitted in support of the
motion to disqualify, the district judge ruled there was no factual support and that the number of
objections granted versus the number of objections sustained was irrelevant to whether a judge is
biased. In so ruling, the district court correctly perceived the issue of disqualification to be one
of discretion.    The court correctly identified and applied the applicable legal standards,
determining that it could properly perform the legal analysis that was required in Joy’s post-
conviction proceedings. Finally, the court reached its decision by an exercise of reason.
        Joy has not pointed to any evidence of pervasive bias. Rather, the record shows that the
trial judge made several erroneous rulings in the first trial, which resulted in a reversal on appeal;
made various rulings in the second trial, which were upheld in the second appeal; and considered
the relevant factors in imposing a sentence that was within the sentencing guidelines. Any
specific statements Joy pinpoints did not demonstrate the judge was biased or prejudiced against
Joy in a way that demonstrated the judge was incapable of performing the legal analysis which
the law required. Moreover, erroneous rulings that are overturned on appeal do not alone
demonstrate pervasive bias.      The record reflects that the judge considered the information
presented in support of and against the motion to disqualify, evaluated it, and determined that he
was capable of performing the legal task before him. Therefore, the district court did not abuse
its discretion in denying Joy’s motion to disqualify. Because we conclude the district court did
not abuse its discretion in denying the motion to disqualify, we need not address the issue of res
judicata.

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                                                 III.
                                          CONCLUSION
       The district court erred in ruling Claims I-IV were untimely; however, as to Claim I, Joy
did not provide argument or authority in support of his assertion that the correct remedy
regarding the unauthorized waiver of his speedy trial rights in his first trial is dismissal.
Therefore,   Claim    I   for   ineffective   assistance    of   counsel   is   waived    on   appeal.
Claims II, III, and IV for ineffective assistance of counsel in the first trial are moot because Joy
received a new trial. Therefore, the district court did not err in summarily dismissing Claims II,
III, and IV. Joy has failed to demonstrate prejudice resulting from counsel’s failure in his second
trial to file a motion to disqualify the judge. Therefore, the district court did not err in dismissing
Claim VI. The district court did not abuse its discretion in determining that it was capable of
performing the requisite legal analysis required by law in presiding over the post-conviction case
after presiding over the two previous trials.           Accordingly, the district court’s judgment
summarily dismissing Joy’s post-conviction petition is affirmed.
       Chief Judge GRATTON and Judge LORELLO CONCUR.




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