Opinion
No. 2-763 / 01-1906
Filed January 29, 2003
Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.
Defendant appeals from district court dismissal of postconviction application, in which he sought to challenge his probation revocation. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant Attorney General, Stephen Holmes, County Attorney, and Angelina Newman, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel, and Mahan, JJ.
Mazhar Malik's probation on an indecent exposure conviction was revoked for failure to comply with sex offender treatment, and three other violations. He appeals from the district court's denial of his postconviction relief application, in which he sought to challenge his revocation. Even though Malik has discharged his sentence, he is still liable for county room and board restitution. Thus, Malik's appeal continues to present a justiciable controversy. See State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002). Upon our de novo review, State v. Watson, 620 N.W.2d 233, 235 (Iowa 2000), we affirm.
Malik contends the probation revocation court's failure to adequately inquire into a conflict between himself and his attorney required reversal of his revocation. See State v. Watson, 620 N.W.2d at 238 ("If an actual conflict existed and the trial court knew or should have known of the conflict, yet failed to make inquiry, reversal is required."). Even if we assume this claim was adequately raised to the district court through the testimony and evidence at the postconviction hearing, the court never ruled on the issue. As such, it is not preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002); Starling v. State, 328 N.W.2d 338, 341 (Iowa Ct.App. 1982).
Malik alternatively presents this claim as one of ineffective assistance of postconviction relief counsel. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). His argument is premised on the assumption the circumstances of Malik's case required application of the so-called "automatic reversal" rule. Based on our reading of Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), this is a faulty assumption. Reversal without a further showing is required only under "special circumstances," where there was evidence of a conflict that actually adversely affected the attorney's performance. Id. at ___, 122 S.Ct. at 1242-43, 152 L.Ed.2d at 302, 304. In this case, it is clear Malik and his probation revocation counsel had severe disagreements, Malik did not trust his attorney and in fact suspected the attorney of tampering with evidence, and the attorney was very concerned Malik might make public allegations of unethical or illegal behavior. However, there is no evidence, only speculative assumption, that these issues impacted the attorney's performance.
We further note the Mickens court appeared critical of the "unblinking" application of the doctrine to "all kinds of alleged attorney ethical conflicts," observing that the originating case addressed only an attorney actively representing conflicting interests. Mickens, ____ U.S. at ___, 122 S.Ct. at 1245, 152 L.Ed.2d at 306. (citation omitted).
Malik argues postconviction relief counsel was also ineffective for not raising his probation revocation attorney's failure to introduce certain evidence relating to his sex offender treatment. To the extent the evidence went to the validity of his pre-treatment polygraph, the revocation court found Malik would have been referred to treatment regardless of the polygraph results. To the extent Malik urges the evidence would have damaged the credibility of his counselor, he has not shown introduction of the evidence would have altered the determination that his failure to complete treatment was a violation of his probation. Accordingly, he has not demonstrated a reasonable probability that, but for the omitted evidence, the result of the revocation proceeding would have been different. See State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).
Finally, Malik argues his postconviction counsel should have submitted evidence to challenge the accuracy and reliability of the transcripts from the probation revocation hearing. Even if we assume Malik would have been able to point up inaccuracies in the transcripts, he does not even allege, much less demonstrate, how these inaccuracies would have impacted his case. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (requiring ineffective assistance of counsel claims to be sufficiently specific, both as to how counsel's performance was deficient, and how competent representation probably would have changed the outcome of the proceedings). Having reviewed all arguments on appeal, we find the district court must be affirmed.