Opinion
No. 3-158 / 02-0821
Filed April 4, 2003
Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.
Holt appeals the denial of his application for postconviction relief. AFFIRMED.
Scott Bandstra, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John Sarcone, County Attorney, and James Ward, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Harold Holt pled guilty and was sentenced to second-degree robbery and eluding or attempting to elude law enforcement officers. Iowa Code §§ 711.1, .3, 321.279 (1997). He appealed. Appellate counsel moved to withdraw, claiming the appeal was frivolous. See Iowa R.App.P. 6.104. Holt did not file a resistance. The Iowa Supreme Court granted the motion to withdraw and dismissed the appeal.
Holt applied for postconviction relief, arguing trial counsel was ineffective in failing to pursue an intoxication defense. Following a hearing, the district court dismissed the application. The court cited 1) a procedural infirmity and 2) the absence of prejudice. On appeal, we believe the first ground is dispositive.
"[P]ostconviction relief proceedings are not an alternative means for litigating issues that were or should have been properly presented for review on direct appeal." Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Where direct appeal counsel files a Rule 6.104 withdrawal motion, a defendant's failure to object to the motion may result in the waiver of subsequent postconviction relief claims, particularly those specifically reviewed in the motion. Bugley v. State, 596 N.W.2d 893, 897 n. 3 (Iowa 1999).
We conclude Holt waived his present ineffective assistance of trial counsel claim. In his Rule 6.104 motion to withdraw, appellate counsel stated, "[a]t no time does the defendant make any complaint about the representation he received nor the services provided by his attorney." Counsel further stated, "[t]here is nothing in this record to permit the court to determine other than that counsel's representation was adequate." Holt did not resist these or any other statements in counsel's motion, despite his receipt of the motion and a cover letter advising him to raise within thirty days "any points which you believe support your appeal." Therefore, Holt is now foreclosed from pursuing his present postconviction relief claim.
In reaching this conclusion, we have considered present appellate counsel's assertion that Holt had "sufficient reason" for failing to raise his claim on direct appeal. See Bugley, 596 N.W.2d at 896 (holding postconviction relief applicant may save a claim by showing "sufficient reason" for failing to raise it earlier). Specifically, he argues direct appeal counsel was ineffective in failing to raise the ineffective assistance of trial counsel claim. See Berryhill, 603 N.W.2d at 245 (stating ineffective assistance of appellate counsel may constitute sufficient reason for failing to raise a claim on direct appeal). The problem with this argument is that postconviction trial counsel did not raise the issue of Holt's prior appellate counsel's ineffectiveness and the district court did not address this question. Therefore, this argument has not been preserved for review. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002); Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991).
We conclude Holt waived his postconviction relief claim. Therefore, we affirm the district court's dismissal of his postconviction relief application.