Opinion
No. 2-619 / 01-1600
Filed October 30, 2002
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge.
David Tensley appeals the district court's denial of his postconviction relief application. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, and William E. Davis, County Attorney, for appellee.
Considered by Hecht, P.J., and Vaitheswaran and Eisenhauer, JJ.
David Tensley, Jr. appeals the district court's denial of his postconviction relief action. Tensley maintains his postconviction counsel was ineffective in (1) not raising trial counsel's failure to point out that his pro se notice of appeal was timely filed, (2) failing to present evidence that he wanted to call witnesses at trial and what their testimony would have been, and (3) failing to present evidence of documents filed with the Iowa Supreme Court which demonstrated that trial counsel did not respond to the supreme court's notice, resulting in his appeal's dismissal. We affirm.
I. Background Facts and Proceedings. On May 26, 2000, Tensley was sentenced to an indeterminate term of imprisonment not to exceed five years, following his conviction for going armed with intent, in violation of Iowa Code sections 708.8 (1999). The sentence was to be served concurrently with a two-year sentence previously imposed for accessory after the fact. On June 26, 2000, Tensley mailed a pro se notice of appeal. On July 19, 2000, the supreme court ordered trial counsel either to proceed with the appeal or file a motion to withdraw. Trial counsel filed a motion to withdraw.
On July 27, 2000, the supreme court issued an order directing Tensley to file a statement of reasons why his appeal was not untimely. Tensley failed to respond to this directive, and on November 8, 2000, the supreme court granted trial counsel's motion to withdraw and dismissed the appeal. On November 27, 2000, Tensley filed a statement with the court requesting reconsideration of the dismissal. Tensley maintained he was in prison at the time the supreme court's notice was sent and that he did not receive a copy. The supreme court denied Tensley's motion.
On January 2, 2001, Tensley filed a postconviction relief action, alleging trial counsel was ineffective for failing to perfect his direct appeal. He further alleged trial counsel was ineffective in failing to call witnesses. The postconviction court ruled that Tensley did not prove that trial counsel failed to perform an essential duty by properly perfecting his appeal. The court additionally ruled that even if trial counsel was ineffective, it could not further proceed with his postconviction action because the supreme court had already ruled his original appeal was untimely. The court additionally concluded Tensley failed to prove that trial counsel failed to properly interview and call certain witnesses, since there was no evidence Tensley had requested such action from his counsel. Tensley has appealed, arguing postconviction counsel was ineffective in failing to properly raise these claims.
II. Scope of Review. Normally, a trial court's denial of a postconviction relief action is reviewed for correction of errors at law. Fenske v. State, 592 N.W.2d 333, 338 (Iowa 1999). Where, however, the applicant asserts violations of constitutional safeguards, our review is de novo. Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994).
III. Ineffective Assistance of Counsel. Tensley argues postconviction counsel was ineffective in (1) failing to raise the issue of trial counsel's failure to point out that his pro se notice of appeal was timely filed, (2) failing to present evidence on the question of what witnesses he wanted to call at trial and what their testimony would have been, and (3) failing to present evidence in the form of documents filed with the Iowa Supreme Court which demonstrated that trial counsel did not respond to the supreme court's notice, resulting in his appeal's dismissal.
Our ultimate concern in claims of ineffective assistance is with the "fundamental fairness of the proceeding whose result is being challenged." State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987). Tensley has the burden to prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Id. With regard to the first prong, Tensley must prove that trial counsel's performance was not within the normal range of competence. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999). In evaluating counsel's performance, we presume counsel acted competently. Id. The test for prejudice is whether a reasonable probability existed that the outcome of the trial would have been different but for counsel's alleged omissions. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
In order to show that postconviction counsel was ineffective, the defendant must do more than assert that counsel failed to raise or fully present a potential issue. Bugley v. State, 596 N.W.2d 893, 897 (Iowa 1999). He must also specifically state how the outcome of his trial would have changed absent counsel's alleged errors. Id. We conclude Tensley has not done so here, and that his claim of ineffective assistance of counsel must fail since he cannot establish the requisite prejudice on the underlying ineffective assistance of trial counsel claims.
Tensley contends trial counsel was ineffective in failing to properly preserve his direct appeal. He contends he informed trial counsel that he wanted to appeal, but that trial counsel failed to file one. He notes that he mailed his pro se notice of appeal on June 26, 2000, the thirtieth and last day on which he could have timely filed an appeal, and that it was therefore timely filed. We believe, however, that Tensley is barred from relitigating this issue in a postconviction relief action since it was previously decided adversely to him. State v. Seager, 571 N.W.2d 204, 207-08 (Iowa 1997).
The record is clear that the supreme court sent Tensley a letter dated July 27, 2000, ordering him, not counsel, to explain why his pro se appeal should be deemed timely. Although Tensley claims he did not receive this order, the order was not returned to the court. Despite his claims to the contrary, when asked during the postconviction proceedings whether he received a notice from the supreme court regarding the issue of untimeliness, Tensley responded he had. The record reveals that Tensley responded to the supreme court's November 8, 2000 order, and that this order was sent to the same address at which Tensley was incarcerated in July. Tensley failed to take any action on his appeal until after the appeal was dismissed on November 8, 2000, despite his awareness that trial counsel had filed a motion to withdraw. Trial counsel had no duty to respond to the court's request, since he had filed a motion to withdraw and was ultimately permitted to do so. Postconviction counsel was therefore not ineffective in failing to raise a meritless issue. State v. Westeen, 591 N.W.2d 203, 208 (Iowa 1999).
Tensley also contends postconviction counsel was ineffective in failing to present evidence on the question of what witnesses defendant wanted to call at trial and what their testimony would have been. Tensley testified at the postconviction hearing that he gave trial counsel a list of witnesses to be called, but that trial counsel failed to investigate it or call anyone of them in his defense. He maintained there was evidence in the record that the victim denied that he used a weapon on him.
We conclude Tensley has failed to state or show how the outcome of his trial would have been different absent trial counsel's alleged errors. The evidence in this case was overwhelmingly against Tensley. A number of eyewitnesses testified they observed Tensley display a weapon in a threatening manner, and that at one point the gun was actually discharged. Additionally, despite Tensley's claim he gave trial counsel a list of witnesses, trial counsel testified that Tensley never gave him such a list. The district court found and we agree that Tensley failed to show he had provided his attorney with names of witnesses. Postconviction counsel therefore had no duty to develop this claim.
Tensley lastly argues postconviction counsel failed to present evidence from the supreme court's file demonstrating that trial counsel did not respond to notice from the supreme court. He also argues postconviction counsel should have showed Tensley was not able to respond because he did not receive notice. Having already decided trial counsel was not ineffective and that Tensley is barred from relitigating the timeliness of the notice of appeal, we need not address these arguments. We therefore affirm the district court's ruling.