Opinion
No. 4-343 / 03-1460.
July 14, 2004.
Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.
John Molloy appeals from the district court's grant of the State's motion for summary judgment on Molloy's application for postconviction relief. AFFIRMED.
Catherine Levine, Des Moines, and Linda Murphy, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John Sarcone, County Attorney, and Jeff Noble, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
John Molloy appeals from the district court's grant of the State's motion for summary judgment on Molloy's application for postconviction relief. He contends his postconviction counsel was ineffective for failing to set forth specific facts in resistance to the State's motion for summary judgment. We affirm.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS.
In February of 1999 Molloy was convicted of murder in the first degree in the shooting death of Terry Spradau. He appealed from his conviction and this court affirmed the conviction. State v. Molloy, No. 99-373 (Iowa Ct.App. Jan. 10, 2001). None of the issues raised on direct appeal are relevant to this postconviction action. Molloy then filed a pro se application for postconviction relief on April 12, 2002. Molloy's application alleged that his trial counsel, Barry Boline, was ineffective in ten respects and that his appellate counsel, John Messina, was ineffective for failing to raise these claims of ineffective assistance of trial counsel on direct appeal. Eventually attorney Edward Bull was appointed to represent Molloy in the postconviction proceedings.
The State filed an answer to Molloy's application and later, on April 1, 2003, filed a motion for summary disposition of the application. Molloy filed a resistance to the State's motion for summary judgment, accompanied by an affidavit. However, the resistance and affidavit merely repeated the allegations of Molloy's application, and added nothing of substance. A hearing was held on the motion for summary judgment and the district court ruled that Molloy had failed to show there were any genuine issues of material fact concerning trial counsel Boline's representation. However, the court withheld ruling on the motion for summary judgment until appellate counsel Messina could be deposed and his deposition could be provided to the court.
Molloy deposed Messina and submitted the deposition to the trial court. After reviewing Messina's deposition the court granted the State's motion for summary judgment. The court held that Messina had in fact raised one of Molloy's ten claims of ineffective assistance of trial counsel on direct appeal. With respect to the other nine claims, the court found that appellate counsel had provided reasonable and credible reasons for not raising the issues on direct appeal, and that Molloy had failed to provide any specific facts showing the existence of a genuine issue of material fact for trial concerning his bare assertions of ineffective assistance of counsel.
Molloy appeals from the court's grant of summary judgment, contending his postconviction counsel was ineffective in failing to set forth specific facts in the resistance to the State's motion for summary judgment. Molloy relies on four of his claims of ineffective assistance of trial counsel and argues that postconviction counsel was ineffective for failing to allege specific facts bearing on these claims in order to show there were genuine issues of material fact.
II. MERITS.
We review claims of ineffective assistance of postconviction counsel de novo. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998). "[T]he statutory grant of a postconviction applicant's right to court-appointed counsel necessarily implies that that counsel be effective." Patchette v. State, 374 N.W.2d 397, 398 (Iowa 1985); see also Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994) (noting that although it is not a constitutional right, the statutory right to postconviction counsel implies a right to effective assistance of counsel).
The same standards that we apply to trial counsel competency also apply to subsequent counsel, and the client bears the same burden of proof to establish ineffectiveness of counsel. Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985). Thus, to prevail on his claim of ineffective assistance of postconviction counsel, Molloy must prove attorney Bull's performance fell outside a normal range of competency and that deficient performance so prejudiced him as to give rise to a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Dunbar, 515 N.W.2d at 15. He must prove his counsel failed in an essential duty and that prejudice resulted. Collins, 588 N.W.2d at 402. Representation is presumed competent and Molloy has the burden to prove by a preponderance of the evidence that counsel was ineffective. Dunbar, 515 N.W.2d at 15.
Molloy does not claim on appeal that the trial court erred in granting the State's motion for summary judgment. He makes the limited and specific claim that his postconviction counsel was ineffective for failing to present specific facts in the resistance to the motion for summary judgment on the following issues relating to Molloy's claims of trial counsel's ineffectiveness: (1) trial counsel failed to initiate criminal background checks that would have impeached State witnesses' testimony; (2) trial counsel failed to impeach police witness testimony when he refused to call a police expert witness to challenge investigative practices and procedures; (3) trial counsel failed to rebut State witness testimony and refused to question several State witnesses; and (4) trial counsel failed to impeach the testimony of State's witness, Tony Vang.
Section 822.6, which allows for summary dispositions in postconviction proceedings, provides in relevant part,
The court may grant a motion by either party for summary disposition of the application, when 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.
Summary disposition under this paragraph is analogous to the summary judgment procedure provided for in Iowa Rules of Civil Procedure 1.981-1.983. Manning v. State, 654 N.W.2d 555, 559 (Iowa 2002). Rule 1.981(3) provides, in pertinent part, that a resistance to a motion for summary judgment "shall include a statement of disputed facts."
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon mere allegations or denials in the pleadings, but the response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Summary judgment is only proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Manning, 654 N.W.2d at 560. "A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts." Id. Molloy contends that postconviction counsel was ineffective in failing to provide specific facts, sufficient to create a genuine issue of material fact for trial, in his resistance to the State's motion for summary judgment.
When complaining about the adequacy of an attorney's representation, it is not enough to simply claim that counsel should have done a better job. Dunbar, 515 N.W.2d at 15 (citing State v. White, 337 N.W.2d 517, 519 (Iowa 1983). Instead, Molloy must state the specific ways in which postconviction counsel's performance was inadequate and how competent representation probably would have changed the outcome. Rivers v. State, 615 N.W.2d 688, 690 (Iowa 2000) (quoting Bugley v. State, 596 N.W.2d 893, 898 (Iowa 1999)); Dunbar, 515 N.W.2d at 15.
Molloy's first three claims concerning ineffective assistance of trial counsel, as to which he alleges Bull should have presented more specific facts in the resistance, all involve claims that trial counsel failed to secure and/or present testimony or other evidence to impeach State's witnesses or rebut testimony presented by the State. However, Molloy does not even assert what facts, if any, the proposed criminal background checks would have revealed, which State's witnesses could have been impeached or by what evidence they could have been impeached, what State's witness testimony could have been rebutted or how it could have been rebutted, or how any of the unidentified evidence would therefore have supported his resistance. Although in his final claim Molloy specifically identifies the witness he claims trial counsel should have impeached, Tony Vang, he again does not specify how, or what facts are available to show, that Vang's testimony could have been impeached. In summary, although Molloy contends postconviction counsel should have "presented more specific facts" in the resistance to the motion for summary judgment, he does not make a minimal showing of, or even allege, what specific facts should have been alleged in the resistance to strengthen it.
Molloy cannot simply complain that postconviction counsel should have presented more specific facts in the resistance. He must identify at least some of the more specific facts he argues counsel should have included, and suggest how those facts would have supported his resistance and thus affected the result below. We conclude Molloy has failed to assert any specific facts that would create a genuine issue of material fact concerning his claim of ineffective assistance of postconviction counsel. We therefore further conclude that Molloy has not presented grounds for us to either address his claim of ineffective assistance of postconviction counsel in this appeal or preserve it for a further postconviction proceeding. See, e.g., Dunbar, 515 N.W.2d at 15 (holding, in appeal claiming postconviction counsel rendered ineffective assistance, that applicant's claims were too general in nature to allow court to address them or preserve them for a second postconviction proceeding).
III. CONCLUSION
We conclude Molloy has failed to show there were any specific and material facts postconviction counsel could have presented in the resistance to the motion for summary judgment that would have generated a genuine issue of material fact as to either trial or appellate counsel's ineffectiveness. We affirm the trial court's grant of summary judgment.