Opinion
No. 6-150 / 04-1965
Filed April 12, 2006
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.
James E. Gamble appeals the district court's ruling denying his application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, John Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee State.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
James E. Gamble appeals the district court's ruling denying his application for postconviction relief. He claims he received ineffective assistance of both trial and appellate counsel. We affirm.
I. Background Facts and Proceedings
Mark Hart stopped at a convenience store in Des Moines shortly after 11:30 p.m. on October 11, 2000. While he was at the store, Gamble entered his car and asked for a ride. Fearing for his safety, Hart agreed. After driving and stopping several times under Gamble's direction, they encountered Betty Cross, an acquaintance of Gamble's. Over the course of the night, Cross and Gamble robbed Hart and threatened his life. Eventually, the car was stopped by police. A jury convicted Gamble of robbery in the second degree in violation of Iowa Code sections 711.1 and 711.3 (1999). He was also convicted of being a habitual offender in violation of section 902.8. He was sentenced to a term not to exceed fifteen years. Gamble appealed, and the court of appeals affirmed the conviction. State v. Gamble, No. 01-0292 (Iowa Ct.App. July, 3, 2002).
Gambled filed a petition for postconviction relief on October 7, 2003. His court-appointed counsel, however, filed a report with the court in January 2004, stating that he could not find adequate evidence or law to support Gamble's claims. Counsel then filed an amended application for postconviction relief arguing that Gamble's trial counsel was ineffective for failing to introduce impeachment evidence against the victim, Mark Hart. The district court denied Gamble's petition on November 18, 2004. It agreed with Gamble's counsel that the original claims in his petition did not establish a basis for postconviction relief. It incorporated by reference the reasoning counsel set forth in the January 2004 report. It further determined that trial counsel's decision not to impeach Hart was a reasonable trial strategy.
The court wrote: "The court agrees with [counsel's] analysis of the invalidity of these claims, and determines they do not establish a basis for postconviction relief based upon the reasoning set forth in [counsel's] findings which are incorporated by reference herein."
Gamble appeals the district court's ruling. Through a pro se brief, he raises many of the claims he alleged in his petition. Through counsel's brief, he challenges the district court's ruling with regard to trial counsel's ineffective assistance.
II. Standard of Review
We generally review postconviction relief proceedings for errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the petitioner alleges ineffective assistance of counsel, we review that claim de novo. Nguyen v. State, 707 N.W.2d 317, 322-23 (Iowa 2005) (noting claims alleging ineffective assistance are constitutionally derived and thus reviewed de novo). Though we are not bound by the district court's factual findings when we review de novo, we give weight to its credibility determinations. Ledezma, 626 N.W.2d at 141.
III. Merits
Gamble argues he received ineffective assistance of both trial and appellate counsel. He also claims the district court erred by failing to adequately address his postconviction claims. We address each argument in turn.
A. Ineffective Assistance of Counsel
In order to show his counsel was ineffective, Gamble must show not only that his counsel breached an essential duty, but also that the breach prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). We may resolve the claim on either prong. Id. at 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 699.
In reviewing Gamble's claim, we are to consider the totality of the evidence. Id. at 695, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. The test we employ for the first element is objective: whether counsel's performance was outside the range of normal competency. State v. Kone, 557 N.W.2d 97, 102 (Iowa Ct.App. 1997). We start with a strong presumption that counsel's conduct was within the "wide range of reasonable professional assistance." Strickland, 466 U.S. at 687, 104 S. Ct. at 2052, 80 L. Ed. 2d at 694. The test for the second element is whether there is a reasonable probability that, without counsel's errors, the outcome of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2052, 80 L. Ed. 2d at 698. A reasonable probability is one that undermines confidence in the outcome. Id.; Kone, 557 N.W.2d at 102. We only presume prejudice if counsel completely fails to subject the prosecution's case to meaningful adversarial testing. United States v. White, 341 F.3d 673, 678 (8th Cir. 2003).
We analyze both ineffective assistance of appellate counsel claims and ineffective assistance of trial counsel claims with the test explained above. Gamble, however, did not raise the issue of ineffective trial counsel in his direct appeal. Normally, a claim not raised in direct appeal may not be raised in postconviction relief proceedings. Ledezma, 626 N.W.2d at 143. Ineffective assistance of counsel can be a sufficient reason for not raising the issue previously. Id. However, we presume that "counsel has no duty to raise an issue that has no merit." State v. Griffin, 691 N.W.2d 734, 737 (2005). Therefore, to show his appellate counsel's alleged deficient performance prejudiced him, Gamble must show he would have prevailed on his ineffective assistance of trial counsel claim in direct appeal. Ledezma, 626 N.W.2d at 143. Before we can determine whether error has been properly preserved, we must analyze the merits of his ineffectiveness of trial counsel claims. Id.
Gamble argues his trial counsel was ineffective because he failed to (1) consult with Gamble; (2) investigate Gamble's case; (3) introduce evidence of Gamble's intoxication; and (4) introduce evidence to impeach Mark Hart. We address each issue separately below.
1. Failure to Consult
According to Gamble's counsel's report of January 2004, jail records indicate Gamble's trial counsel never visited him. There was, however, evidence of considerable correspondence between the two. At the postconviction trial, trial counsel testified to numerous conversations he had with Gamble. He claimed he and Gamble had a good relationship and that they talked about the case and trial strategy. Gamble, however, claims his counsel only spoke to him during the walk to the courtroom. In order to show his counsel was ineffective, Gamble must show he was somehow prejudiced by his counsel's failure to spend time with him. In other words, he must not only state the specific ways in which his counsel was defective, but also show competent representation would have changed the outcome of his trial. State v. Pierson, 554 N.W.2d 555, 562 (Iowa Ct.App. 1996). Gamble does not reveal how counsel's additional time would have changed his defense, let alone the outcome of the case. We therefore conclude Gamble has failed to make any showing of prejudice with regard to this portion of his claim.
2. Failure to Investigate
Gamble argues that his trial counsel should have edited the videotape of his arrest to exclude the portion showing officers removing drugs and two crack pipes from Gamble's pockets. Elsewhere in his briefs to us, however, he alleges his counsel should have let the jury view the search of him in order to show no money was found on his person. We do not think the video could have been edited to show the failure to find one thing but exclude the finding of another thing. Whatever prejudice Gamble might have experienced by the jurors seeing the drugs taken from him was balanced by the value he experienced by the jurors seeing that no money was found on him.
Gamble also argues that his counsel should have found and entered videotape security surveillance taken at the convenience store. He also argues there were witnesses at the convenience store who could have testified to Mark Hart's voluntariness. Gamble, however, does not indicate how such evidence would have changed the outcome of his trial. Hart testified he consented to drive Gamble when he first entered his car. The incidents giving rise to the charges did not occur until long after Hart and Gamble left the convenience store. Also, there is no indication any security videos exist. Thus, Gamble was not prejudiced by his counsel's failure to enter video or call witnesses from the convenience store
Finally, Gamble argues his counsel should have entered into evidence Mark Hart's cell phone records. Again, Gamble fails to indicate how this evidence would have changed the outcome of the trial. Both Mark Hart and his girlfriend testified to the calls Mark made to her while he was with Gamble. Cell phone records would only show the times of the calls, not the content of the conversations. Time was never in dispute. Thus, Gamble was not prejudiced by his attorney's failure to enter the records.
3. Intoxication Defense
Gamble argues his attorney should have pursued an intoxication defense. His counsel testified at the postconviction trial that he thought the better defense strategy was to argue that Mark Hart was a willing participant in a group effort to buy drugs, and to place the blame for the robbery on Betty Cross, Gamble's co-defendant. Counsel also testified that Gamble agreed with this strategy.
Counsel's trial strategy seems reasonable. Gamble, by all accounts, presented himself well at trial. Cross, on the other hand, did not. Further, Gamble's actions during the night were not consistent with a diminished capacity defense. He was able to give Hart driving directions, had the wherewithal to ask Hart for identification to prove he was not a police officer, spoke rationally and coherently with Hart's girlfriend on the telephone, took Hart's keys when he went into his home, and drove Hart's vehicle. It seems reasonable that counsel may have concluded a diminished capacity defense and misplaced blame defense was inconsistent. It also seems reasonable that counsel may have wanted to avoid confusing the jury with an additional defense when Gamble's actions were inconsistent with the defense. Miscalculated trial strategies rarely rise to the level of ineffective assistance of counsel. State v. Andrews, 705 N.W.2d 493, 498 (Iowa 2005). Because we conclude counsel's trial strategies were reasonable, we do not find ineffective assistance of counsel. See State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999).
4. Impeachment of Victim
Gamble argues his counsel should have introduced evidence to impeach Mark Hart. At the time of trial, Hart had convictions for operating while intoxicated and operating a motor vehicle without consent. Gamble argues the convictions could have been introduced under Iowa Rule of Evidence 609 as probative on Hart's credibility. At the postconviction trial, Gamble's counsel testified that he did not specifically remember what he knew about Hart's criminal history at the time of trial, but that he did know Hart had an alcohol related offense. He testified that, even if he had been fully aware of the convictions, it would not have changed his trial strategy.
We have to agree that counsel's strategy was reasonable. Without deciding whether the convictions would have been allowed into evidence under rule 609, we conclude it was reasonable trial strategy to assume they would have actually garnered more sympathy for Hart. Hart's operating without owner's consent conviction and his first OWI came on Father's Day when Hart was eighteen. His father had died of Lou Gehrig's disease approximately a year before. According to his mother, Hart was one of his father's primary caretakers throughout the debilitating disease. Again, miscalculated trial strategies rarely rise to the level of ineffective assistance. Andrews, 705 N.W.2d at 498. Counsel testified he did not want Hart to appear sympathetic to the jury. We conclude Gamble's trial counsel's strategy was reasonable.
Because we conclude Gamble's trial counsel was not ineffective, we conclude his appellate counsel was under no duty to raise the issue. Gamble's ineffective assistance of counsel claims therefore fail.
B. Postconviction Claims
Gamble argues the district court did not adequately address the claims he made in his postconviction petition. Under Iowa Code section 822.7, the district court is to "make specific findings of act, and state expressly its conclusions of law, relating to each issue presented" in a postconviction relief petition. Gamble claims that by incorporating by reference the findings and conclusions made by postconviction counsel in the January 2004 report, the district court failed to perform its duty under section 822.7. The State, however, argues his claims are waived because he failed to file a motion to enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2).
A rule 1.904(2) motion is required when the district court fails to decide an issue, claim, or legal theory properly presented for adjudication. Meier v. Senecaut III, 641 N.W.2d 532, 539 (Iowa 2002). Because Gamble argues the district court failed to make any conclusions or findings with regard to his claims, we conclude he should have filed a motion pursuant to rule 1.904(2) to preserve them. We also feel it necessary to note, however, that by incorporating Gamble's counsel's report, the district court did not, as Gamble argues, delegate its duty to decide the issues. For both the sake of appearances and the convenience of our review, we would prefer the district court not incorporate counsel's reports or motions by reference. Technically, however, since the district court reviewed the claims and agreed with counsel's determinations and conclusions, there is nothing wrong with it adopting his findings.
The district court ruling denying Gamble's petition for postconviction relief is affirmed.