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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 41353

MIGUEL C. JOYNER,

Petitioner-Appellant,

v.

STATE OF IDAHO,

Respondent.

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2014 Unpublished Opinion No. 726

Filed: September 17, 2014

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED 

OPINION AND SHALL NOT 

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 postconviction relief reasserting that claim along with numerous other claims. His petition for postconviction 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 May 13, 2011) (unpublished): 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 
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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. 
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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 postconviction 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 
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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.
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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 postconviction 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 postconviction 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 
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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.