State v. Conner ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 46924
ANTHONY WAYNE CONNER, )
) Filed: May 8, 2020
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) THIS IS AN UNPUBLISHED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 Fourth Judicial District, State of Idaho, Ada
County. Hon. Patrick Miller, District Judge.
Judgment summarily dismissing petition for post-conviction relief, affirmed.
Silvey Law Office, Ltd; Greg S. Silvey, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Jeff D. Nye, Deputy Attorney
General, Boise, for respondent.
________________________________________________
GRATTON, Judge
Anthony Wayne Conner appeals from the district court’s judgment summarily dismissing
his petition for post-conviction relief. Conner argues the district court erred when it found he
failed to sufficiently allege prejudice for purposes of demonstrating ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668 (1984). For the reasons set forth below,
we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Conner was charged with first degree murder, grand theft, forgery, and destruction,
alteration, or concealment of evidence after he reported finding his eighty-seven-year-old father
(Father) dead in the garage of the home they shared. Conner indicated to the police that when he
arrived home he found his Father had fallen from a ten-foot ladder while apparently trying to
retrieve items from an attic storage area and hit his head on the concrete floor. After an initial
investigation, including discussions with other family members who expressed concern that the
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death may not have been caused by a fall, the police obtained and executed a search warrant for
Conner’s residence.
Detectives found blood stains on numerous items throughout the home, including the
claw of a hammer. Forensic investigators also performed tests which indicated the presence of
drag marks throughout the home. Based on these findings, the State theorized that Conner hit
Father on the head with a hammer in the living room, dragged his body to the garage, and staged
an accident using the ladder. Based on discussions with family members and financial records
obtained in the course of the investigation, the State posited that Conner’s motive was financial
gain.
The State enlisted three experts to support its theory: Tom Bevel, a forensic scientist
specializing in bloodstain pattern analysis; Dr. Groben, a forensic pathologist for the Ada County
Coroner’s office; and Dr. Smock, a medical doctor. Bevel testified he believed the evidence
showed Father had not died as the result of an accident, but that he had been killed by several
blows to the head. Dr. Groben testified that he believed Father died as the result of a homicide.
Dr. Smock testified that he believed Father’s injuries were consistent with homicide and
inconsistent with falling from a ladder. Dr. Smock testified after Dr. Groben. Dr. Smock’s
testimony would be challenged at trial and is the subject of Conner’s post-conviction claim of
ineffective assistance of counsel. First, in addressing the amount of force it would take to cause
the injuries found on Father’s body, Dr. Smock referenced Dr. Groben’s testimony regarding
blood in the left ear being an indication of a skull fracture at the bottom of the skull. Second, Dr.
Smock testified that Father had a “superficial abraded area” in addition to the three obvious
lacerations on his head. Third, he testified that the perpendicular nature of two of the lacerations
on Father’s head was inconsistent with falling from a ladder. Fourth, Dr. Smock stated that
Father had a laceration on his left hand consistent with a defensive wound. Fifth, that the
amount of blood found in the home was inconsistent with Conner’s story that Father had
previously tried to clean up his own blood. Sixth, Dr. Smock discussed the evidence showing
Father’s body had been moved, indicating a staged scene. On cross-examination, Dr. Smock
said that he learned about Dr. Groben’s testimony from the prosecutor. Dr. Smock finished
testifying on a Friday.
The following Monday, Conner filed a motion to strike the entirety of Dr. Smock’s
testimony. Conner argued the State violated the district court’s order prohibiting witnesses from
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discussing or sharing their testimony when the prosecutor told Dr. Smock about Dr. Groben’s
testimony regarding the basilar skull fracture. Further, Conner argued that Dr. Smock had, in his
other testimony, offered opinions that went beyond the scope of his report, violating expert
disclosure requirements. The district court denied Conner’s motion as untimely because the
motion should have been made at the time of the testimony. The district court also noted that it
was not convinced Dr. Smock’s testimony was influenced by anything other than his own
opinion, which he stated on the record.
The jury found Conner guilty of second degree murder and destruction, alteration, or
concealment of evidence, but was unable to reach a verdict on the other charges. At sentencing,
the district court, upon motion by the State, dismissed the grand theft and forgery charges. The
district court entered judgment against Conner and sentenced him to a unified term of thirty
years with eighteen years determinate on the second degree murder conviction, and imposed a
concurrent sentence of five years determinate on the destruction, alteration, or concealment of
evidence conviction. Conner timely appealed from the judgment and this Court affirmed. State
v. Conner, 161 Idaho 502, 387 P.3d 170 ( Ct. App. 2016).
Conner timely filed a petition for post-conviction relief, which he subsequently amended.
Conner alleged, among other things, that his trial counsel was ineffective for delaying objections
related to Dr. Smock’s testimony. Conner alleged that had counsel raised these objections at the
time the testimony was given Dr. Smock’s testimony would have been struck in its entirety, and
without Dr. Smock’s testimony, the jury would have acquitted Conner. The State argued Conner
failed to sufficiently allege either deficient performance or prejudice under Strickland and moved
the district court to summarily dismiss Conner’s petition. The district court granted the State’s
motion. The district court found that had Conner’s counsel timely objected at trial to Dr.
Smock’s testimony, the objection would have been sustained in part. The court held that it
would have striken the testimony related to the basilar skull fracture because it violated the order
prohibiting witnesses from sharing testimony. The district court also found it would have
stricken Dr. Smock’s testimony related to the superficial abraded area and the defensive wounds
because this testimony exceeded the scope of Dr. Smock’s report. However, the district court
found it would have allowed the remainder of Dr. Smock’s testimony. Further, the court would
not have struck the entirety of Dr. Smock’s testimony, but only those three subjects found to be
improper. Based on these findings, the district court agreed Conner had failed to sufficiently
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allege Strickland prejudice because the result of the trial would have been the same absent the
excludable testimony. Accordingly, it summarily dismissed Conner’s petition. Conner timely
appeals.
II.
STANDARD OF REVIEW
A petition for post-conviction relief initiates a proceeding that is civil in nature. I.C.
§ 19-4907; Rhoades v. State, 148 Idaho 247, 249, 220 P.3d 1066, 1068 (2009); State v.
Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550 (1983); Murray v. State, 121 Idaho 918, 921,
828 P.2d 1323, 1326 (Ct. App. 1992). Like a plaintiff in a civil action, the petitioner must prove
by a preponderance of evidence the allegations upon which the request for post-conviction relief
is based. Goodwin v. State, 138 Idaho 269, 271, 61 P.3d 626, 628 (Ct. App. 2002). A petition
for post-conviction relief differs from a complaint in an ordinary civil action. Dunlap v. State,
141 Idaho 50, 56, 106 P.3d 376, 382 (2004). A petition must contain much more than a short
and plain statement of the claim that would suffice for a complaint under Idaho Rule of Civil
Procedure 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 § 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
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to arrive at the most probable inferences to be drawn from uncontroverted evidence. Hayes v.
State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008). Such inferences will not be
disturbed on appeal if the uncontroverted evidence is sufficient to justify them. Id.Claims may be summarily dismissed if the petitioner’s allegations are clearly disproven
by the record of the criminal proceedings, if the petitioner has not presented evidence making a
prima facie case as to each essential element of the claims, or if the petitioner’s allegations do
not justify relief as a matter of law. Kelly v. State, 149 Idaho 517, 521, 236 P.3d 1277, 1281
(2010); DeRushé v. State, 146 Idaho 599, 603, 200 P.3d 1148, 1152 (2009). Thus, summary
dismissal of a claim for post-conviction relief is appropriate when the court can conclude, as a
matter of law, that the petitioner is not entitled to relief even with all disputed facts construed in
the petitioner’s favor. For this reason, summary dismissal of a post-conviction petition may be
appropriate even when the state does not controvert the petitioner’s evidence. See Roman, 125
Idaho at 647, 873 P.2d at 901.
Conversely, if the petition, affidavits, and other evidence supporting the petition allege
facts that, if true, would entitle the petitioner to relief, the post-conviction claim may not be
summarily dismissed. Charboneau v. State, 140 Idaho 789, 792, 102 P.3d 1108, 1111 (2004);
Sheahan v. State, 146 Idaho 101, 104, 190 P.3d 920, 923 (Ct. App. 2008). If a genuine issue of
material fact is presented, an evidentiary hearing must be conducted to resolve the factual issues.
Goodwin, 138 Idaho at 272, 61 P.3d at 629.
On appeal from an order of summary dismissal, we apply the same standards utilized by
the trial courts and examine whether the petitioner’s admissible evidence asserts facts which, if
true, would entitle the petitioner to relief. Ridgley v. State, 148 Idaho 671, 675, 227 P.3d 925,
929 (2010); Sheahan, 146 Idaho at 104, 190 P.3d at 923. Over questions of law, we exercise free
review. Rhoades, 148 Idaho at 250, 220 P.3d at 1069; Downing v. State, 136 Idaho 367, 370, 33
P.3d 841, 844 (Ct. App. 2001).
III.
ANALYSIS
Conner argues the district court erred in summarily dismissing his petition for post-
conviction relief. That State counters the petition was properly dismissed because Conner’s
allegations did not justify relief under Strickland. A claim of ineffective assistance of counsel
may properly be brought under the Uniform Post-Conviction Procedure Act. Barcella v. State,
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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, 466 U.S. at 687-88; 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 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). In order to survive a motion for summary dismissal, post-conviction relief claims
based upon ineffective assistance of counsel must establish the existence of material issues of
fact as to both Strickland prongs. State v. Dunlap, 155 Idaho 345, 383, 313 P.3d 1, 39 (2013).
As noted, the district court determined that the State violated the district court’s
exclusion order 1 by advising Dr. Smock of Dr. Groben’s testimony regarding the basilar skull
fracture:
By informing Dr. Smock of the testimony of Dr. Groben, the State
violated the Court’s exclusion order. The language of the order is plain and
explicit. Contrary to the State’s arguments, there is no blanket exception for
expert witnesses under Rule 615. The State did not ask for an exception for its
expert witness either at the pre-trial hearing, on the order itself, or during trial.
The State suggests that the need to be certain the expert witnesses are basing their
testimony on the most accurate information trumps a court’s exclusion order.
This argument is without merit. The State should have either refrained from
discussion of trial evidence with Dr. Smock or sought a modification of the
exclusion order. Alternatively, the State should have supplemented its expert
disclosure under Rule 16(j).
1
The order provided that:
Witnesses will be excluded from the court room during the trial of this
matter except during the witnesses’ own testimony. Witnesses are prohibited
from discussing their testimony or anticipated testimony with any other witness or
prospective witness during the entire course of the trial.
6
....
Had the motion been timely made, that bit of testimony would have been
excluded, but not Dr. Smock’s entire testimony.
(Emphasis added.) As to the objection to Dr. Smock’s testimony regarding the superficial
abraded area exceeding the scope of his report, the district court held:
Dr. Smock explained in his written report that he would be discussing three
specific head wounds. The “superficial abraded area” was not one of those. This
observation should have been included in Dr. Smock’s report. Had the motion
been timely made, the Court would have excluded it.
With respect to the defensive wounds on Father’s finger, the district court held:
Not only was the photo of the hand not contained in Dr. Smock’s report, but there
was no discussion or opinion about the victim’s hand in the report. It may be that
this is part of the forensic evidence to which Dr. Smock references in his report,
but the testimony regarding the significance of the wound and the opinion that
they reflect defensive wounds was not. In his disclosure, Dr. Smock discussed
only the head wounds; he makes no reference to the finger wound. This
testimony was beyond the scope of the disclosure. Had the motion been timely
made at trial, the evidence would have been excluded.
The district court held that it would not have stricken all of Dr. Smock’s testimony, but only
those areas discussed above. 2 Further, the district court found that Conner had failed to
sufficiently demonstrate prejudice from the excludable testimony:
Even with the absence of the testimony that should have been excluded, the Court
is convinced the outcome of the trial would have been the same. A defendant is
entitled to a fair trial, not a perfect trial. Conner has not shown there is a
reasonable probability that “but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Matthews v. State, 130 Idaho 39, 43,
936 P.2d 682, 685 (Ct. App. 1997).
On appeal, Conner argues that the district court erred when it summarily dismissed his
petition after finding that he could not sufficiently demonstrate prejudice under Strickland.
Conner does not challenge the district court’s holding that, other than the three instances
discussed above, there was no other excludable testimony from Dr. Smock. Conner does not
contend that the district court applied an incorrect standard in summarily dismissing the petition.
2
The State argues that the district court erroneously determined Conner’s allegations were
sufficient to sustain a prima facie claim that counsel did not make a tactical decision.
Specifically, to engage in cross-examination and thereby attack the credibility of the prosecutor
and later move to strike all of the testimony was tactical on the part of trial counsel. We need not
address whether the district court erred by failing to find that Conner did not exclude a tactical or
strategic choice by trial counsel to delay the objection as we agree that prejudice is lacking.
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Conner argues, and we will discuss below, prejudice from the excludable testimony, prejudice
from cumulative error and prejudice from the context of Dr. Smock’s entire testimony in relation
to the trial evidence. The district court considered and rejected Conner’s arguments and we
agree.
A. The ExcludableTestimony
On appeal, Conner does not seriously contend that the individual bits of testimony that
the district court held would have been excluded, in themselves, are sufficient to show prejudice.
Nor could he. In regard to Dr. Smock’s testimony on the basilar skull fracture, the district court
determined that the testimony could not have affected the outcome of the trial because it was
relatively insignificant and duplicative of other testimony. We agree. Dr. Smock’s testimony
regarding the basilar skull fracture was nearly identical to the testimony of Dr. Groben, who
testified about the nature of the fracture and that he believed it was caused by blunt force trauma.
Erroneously admitted evidence is harmless when largely duplicative of admissible and admitted
evidence. State v. Sandoval-Tena, 138 Idaho 908, 912, 71 P.3d 1055, 1059 (2003). Moreover,
Dr. Smock explicitly stated that his testimony regarding the fracture was a product of Dr.
Groben’s testimony. As the State points out, this testimony could not have affected the verdict
because its credibility was completely dependent upon whether the jury believed the testimony
of another expert whose testimony is not at issue. The apparent purpose of Dr. Smock’s
testimony was to support the State’s theory that Father had not died from a fall but had been
killed by blunt force trauma to the head, namely by being struck repeatedly with a hammer.
Accordingly, Dr. Smock’s discussion centered around the four lacerations on Father’s head being
consistent with an attack. The basilar skull fracture was much less indicative of mode of attack
as it was force. Because Dr. Smock’s testimony on the basilar skull fracture was largely
duplicative and relatively insignificant in the context of his entire testimony, we cannot say it
was prejudicial.
In regard to Dr. Smock’s testimony on the defensive wound found on Father’s hand, the
district court determined that Conner failed to sufficiently allege prejudice. As the State points
out, the testimony could not have affected the verdict for three reasons: first, similar testimony
was elicited by Conner’s counsel during cross-examination; second, Bevel testified about the
defensive wound making Dr. Smock’s testimony duplicative; and third, like the basilar skull
fracture, the defensive wound testimony was relatively insignificant compared to the rest of
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Dr. Smock’s testimony. As to the first issue, Conner cannot complain about testimony that
duplicates testimony elicited by his own counsel on cross-examination. When Conner’s counsel
chose to pursue a line of questioning which sought to explain why the wounds on Father’s head
were not consistent with the claw of a hammer, he elicited the following testimony: “the reason
we don’t see two [marks] is because the other claw was blocked by the finger resulting in that
laceration.” Conner cannot denounce testimony which he elicited. State v. Gleason, 123 Idaho
62, 66, 844 P.2d 691, 695 (1992). Accordingly, if that testimony is duplicative of the testimony
he now challenges, we cannot see how that testimony affected the verdict. Similarly, Conner
cannot properly challenge the testimony of the defensive wound as being prejudicial when it is
largely duplicative of another expert’s testimony. Bevel testified as follows: “the three-quarter-
inch cut on the tip of [Father’s] left index finger was consistent with a defensive wound.” This
testimony renders any issue with Dr. Smock’s substantially similar testimony harmless. If the
purpose of Dr. Smock’s testimony was to support the State’s theory of an attack versus a fall
from a ladder, any discussion about a defensive wound would be relatively insignificant,
especially in the context of the other evidence. For all of these reasons, we cannot say Conner
has demonstrated Dr. Smock’s testimony regarding the defensive finger wound was prejudicial
to the outcome of his trial.
Finally, in regard to Dr. Smock’s testimony on the superficial abraded area on Father’s
head, Dr. Smock’s discussion of the superficial abraded area is relatively insignificant, does not
appear to be an observation upon which Dr. Smock’s opinion is based, and was not significantly
relied upon to reach his opinion. The superficial abraded area, which was the least prominent
and least discussed of the wounds found on Father’s body, cannot be said to be more critical to
the State’s case than the basilar skull fracture or the defensive finger wound. Conner makes very
little effort, if any, to allege how this particular piece of testimony prejudiced him. Without such
an argument, we cannot say it affected the outcome of the verdict or prejudiced him for purposes
of Strickland.
B. Cumulative Error
Under the doctrine of cumulative error, a series of errors, harmless in and of themselves,
may in the aggregate show the absence of a fair trial. Bias v. State, 159 Idaho 696, 705, 365 P.3d
1050, 1059 (Ct. App. 2015) (citing State v. Adamcik, 152 Idaho 445, 483, 272 P.3d 417, 455
(2012)). The district court analyzed the three instances of excludable testimony and held that
9
even in the absence of that testimony, the outcome of the trial would be the same. 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. Thus, the district court considered the
cumulative impact of the excludable testimony and found that Conner could not establish
prejudice from that testimony. Conner, again, does not seriously argue that the cumulative
impact of the three instances of excludable testimony is sufficient to allege prejudice. Nor could
he. As set forth above, the testimony was largely duplicative, of little significance, and did not
alter Dr. Smock’s overarching opinion that the victim’s lethal injuries were caused by a hammer
and the death was not an accident.
C. The Context of Dr. Smock’s Testimony
Conner’s primary argument on appeal regarding prejudice centers upon a claim that the
violation of the exclusion order was done in “bad faith” and amounted to Dr. Smock being
“coached” by the prosecutor so as to remedy inconsistencies in the State’s prior expert witnesses’
testimony. Conner complains that “the court simply excised the few things it stated it would
have struck from Dr. Smock’s testimony and held it wouldn’t have changed the outcome.”
Conner asserts the State’s bad faith was a last ditch effort to rectify the “problems . . . [it]
perceived it had” with contradictory expert testimony:
While the court recognizes that the defense had moved to strike Dr.
Smock’s testimony in its entirety, it never addresses why. But what really
happened is that the defense basically argued a bad faith violation of the rule of
exclusion of witnesses on the part of the state undertaken in order to remedy
inconsistencies between the testimony between the state’s prior expert witnesses
which led to the new opinions by Dr. Smock which were outside the scope of his
disclosure.
Conner’s assertion that he basically argued bad faith below is neither accurate nor enough to
preserve the issue on appeal. Conner neither asked for nor obtained a finding from the district
court that the State acted in bad faith. Moreover, Conner did not cite to the district court’s, or
this Court’s, legal argument supporting the claim that bad faith warrants striking the entirety of a
witnesses’ testimony or that the district court abuses its discretion in failing to do so. State v.
Zichko, 129 Idaho 259, 263, 923 P.2d 966, 970 (1996) (“When issues on appeal are not
supported by propositions of law, authority, or argument, they will not be considered.”). The
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same deficiencies apply to Conner’s unsupported claim that the State “apparently coached” Dr.
Smock in his testimony.
Next, we address, as the district court did, Conner’s claim that the violations were used to
intentionally tie up inconsistencies among the other expert witnesses. The district court held:
Conner argues that the violation of the exclusion order gave Dr. Smock
the opportunity to reconcile the inconsistency between his testimony and that of
Dr. Groben. The Court disagrees. In fact, some of Dr. Smock’s testimony
contradicted Dr. Groben’s testimony. Dr. Groben testified that one of the injuries
was not, in his opinion, the result of a blow from the claw of a hammer, but from
a flat surface. Trial counsel made this point on cross-examination. At all times,
Dr. Smock opined that the victim’s death was not an accident and that the injuries
were caused by a hammer.
In addition, the district court stated:
Conner argues that he was prejudiced because Dr. Smock was a pivotal
and critical witness for the State. He shored up the testimony of Dr. Groben and
he helped form a forensic bridge between Dr. Groben’s testimony and Dr. Bevel’s
testimony. The Court disagrees. The State has explained in detail the testimony
of the other two experts, Dr. Bevel and Dr. Groben. That discussion will not be
repeated here. The testimony of Dr. Smock may have been a bridge, but the
excluded testimony is not the deck or girders of the bridge. The evidence does
not support the argument that Dr. Smock altered his testimony to conform to
Dr. Groben’s opinion. In fact, some of Dr. Smock’s testimony contradicted
Dr. Groben’s testimony.
We agree with the district court. As noted, the exclusable testimony was relatively
insignificant. It did not tie up inconsistencies among the other expert witnesses, but was contrary
in some ways. Most importantly, the testimony at issue does not go to the heart of Dr. Smock’s
opinion or the State’s theory; namely, that Father was killed with a hammer as opposed to falling
from a ladder. Conner has failed to demonstrate a prima facie case of ineffective assistance of
counsel under the prejudice prong of Strickland. The district court did not err in summarily
dismissing Conner’s petition for post-conviction relief.
IV.
CONCLUSION
The district court did not err when it determined Conner failed to sufficiently allege
prejudice for Strickland purposes. Therefore, the order summarily dismissing Conner’s petition
for post-conviction relief is affirmed.
Chief Judge HUSKEY and Judge BRAILSFORD CONCUR.
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