Opinion
No. 3-428 / 02-0418.
Filed June 25, 2003.
Appeal from the Iowa District Court for Cerro Gordo County, John S. Mackey, Judge.
Cedric McDonald appeals from the district court's dismissal of his claim for post conviction relief. AFFIRMED.
Richard Tompkins, Mason City, and Cedric McDonald, pro se, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Paul Martin, County Attorney, and Gregg Rosenbladt, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Cedric McDonald appeals from the district court's dismissal of his claim for post conviction relief. We affirm.
I. Factual and Procedural Background. McDonald was charged on December 11, 1995, with two counts of robbery in the first degree, burglary in the first degree, burglary in the second degree, theft (exercising control over stolen property), and possession of a firearm as a felon. On July 29, 1996, McDonald entered guilty pleas to two counts of second-degree robbery, one count of second-degree burglary, and one count of second-degree theft. McDonald subsequently filed a motion in arrest of judgment contending his pleas were not knowingly and voluntarily made. The district court overruled the motion and sentenced McDonald to a term of imprisonment.
McDonald's direct appeal counsel moved to withdraw on the ground that the appeal was frivolous. The motion was granted, and the appeal was dismissed. A pro se application for post conviction relief alleging various claims of ineffective assistance of trial counsel was filed by McDonald on October 2, 1998. Amendments to the application were filed on February 15, 1999, and March 17, 1999, asserting that the district court erred in overruling McDonald's motion to suppress and that direct appeal counsel was ineffective. After a hearing, the district court found no merit in McDonald's claims and dismissed the application.
On July 6, 2000, McDonald filed a second application for post conviction relief asserting ineffective assistance of trial and appellate counsel. Trial was held on September 27, 2001. On February 11, 2002, the district court filed Findings of Fact, Conclusions of Law and Judgment dismissing the application.
In the appeal now before the court, McDonald claims the district court erred in failing to grant post conviction relief because 1) trial, appellate, and post conviction counsel provided ineffective assistance by failing to seek suppression of evidence obtained after law enforcement officials continued an interrogation despite McDonald's requests for counsel; 2) trial, appellate, and post conviction counsel provided ineffective assistance by failing to "raise or object or move to modify the [district] court's ruling on the motion to suppress for utilizing background facts used by the trial court to sustain the motion to dismiss"; and 3) trial counsel had a conflict of interest.
II. Scope and Standards of Review. Because McDonald's ineffective assistance of counsel claims implicate his Sixth Amendment right to counsel, our review is de novo. State v. Ray, 516 N.W.2d 863, 865 (Iowa 1994). The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established, and we need not repeat them here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142-45 (Iowa 2001).
III. Suppression Claims. McDonald's brief asserts the district court failed, in this second post conviction proceeding, to rule upon claims of ineffective assistance by counsel who failed to pursue two suppression issues. McDonald's failure to obtain a ruling in the district court precludes our review of these claims. See Iowa R.Civ.P. 1.904(2). Accordingly, we affirm on these issues.
IV. Conflict of Interest Claim. McDonald's first trial counsel was Chief Public Defender Patrick Byrne, who withdrew. Thereafter, Susan Flander and Leslie Hult Dalen, assistant public defenders, succeeded Byrne. McDonald contends he is entitled to post conviction relief because (1) the conflict which disqualified Byrne also disqualified Flander and Dalen and (2) Dalen's representation was affected by a conflict of interest because of her relationship with a lawyer in the county attorney's office. The post conviction court did not rule on the first of these conflict of interest claims. Accordingly, it is waived. See Iowa R.Civ.P. 1.904(2).
The district court found Dalen's relationship with a member of the prosecutor's office did not begin until after the representation of McDonald concluded. After a de novo review of the record, we agree with the district court's finding and adopt it as our own. Counsel breached no duty by failing to raise this issue.