IN THE COURT OF APPEALS OF IOWA
No. 12-0826
Filed April 30, 2014
ERIC C. MILLER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Applicant appeals from the district court’s ruling denying his application for
postconviction relief. AFFIRMED.
Erin Carr, of Carr & Wright, P.C., Des Moines, for appellant.
Eric Miller, Fort Madison, pro se appellant.
Thomas J. Miller, Attorney General, Tyler Buller, Assistant Attorney
General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County
Attorney, for appellee.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.
Eric Miller appeals from the district court’s denial of his application for
postconviction relief. For the reasons set forth below, we affirm the district court.
I.
On November 15, 2007, following a jury trial, Miller was convicted of
murder in the first degree and sentenced to imprisonment for a term of life. The
facts and circumstances surrounding the murder are set forth in great detail in
State v. Miller, No. 07-2051, 2009 WL 249646, at *1 (Iowa Ct. App. Feb. 4,
2009), and need not be repeated here. Prior to his trial, Miller successfully
sought to suppress admissions made to the police following improperly
administered Miranda warnings. The trial court, however, denied Miller’s motion
to suppress similar admissions made after Miller was properly Mirandized two
separate times by police officers during further interrogation.
On direct appeal, Miller’s appellate counsel elected not to appeal issues
related to the suppression motion, concluding that the issues lacked merit.
Specifically, appellate counsel correctly concluded controlling legal authority held
that in the absence of coercion subsequent statements made after proper
Miranda warnings were given were admissible. See Oregon v. Elstad, 470 U.S.
298, 318 (1985) (“We hold today that a suspect who has once responded to
unwarned yet uncoercive questioning is not thereby disabled from waiving his
rights and confessing after he has been given the requisite Miranda warnings.”);
Irving v. State, 533 N.W.2d 538, 542 (Iowa 1995) (recognizing Elstad as
controlling authority on this issue). Instead, appellate counsel focused on a
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single issue: whether Miller’s trial counsel rendered ineffective assistance by
failing to object to testimony regarding prior bad acts. This court denied the
appeal. See Miller, 2009 WL 249646, at *1.
In November 2010, Miller filed a pro se application for postconviction
relief. Subsequently, Miller was appointed postconviction counsel.
Postconviction counsel filed an amended application for postconviction relief.
The district court summarized Miller’s and postconviction counsel’s grounds for
relief as follows: (1) Miller’s appellate counsel was ineffective for failing to appeal
the denial of portions of Miller’s motion to suppress his admissions and for
focusing appellate argument on a single issue, (2) the prosecutor engaged in
prejudicial misconduct, (3) Miller’s conviction was against the weight of the
evidence, and (4) the State failed to prove the malice element of murder in the
first degree beyond a reasonable doubt. After summarizing each of Miller’s and
postconviction counsel’s arguments, the district court rejected the same and
denied Miller’s application for postconviction relief.
II.
Miller first contends that his direct appeal counsel was ineffective for
failing to appeal the trial court’s ruling on his motion to suppress the admissions
made after receiving proper Miranda warnings. Claims of ineffective assistance
of appellate counsel are judged using the same two-pronged test used to review
claims of ineffective assistance of trial counsel. See Ledezma v. State, 626
N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 922 (Iowa
1998). To establish deficient performance, the applicant must establish that
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appellate counsel failed to raise an issue that reasonably competent counsel
would have raised. However, “[s]electing assignments to assert as grounds for
reversal is a professional judgment call [courts] are reluctant to second-guess.”
Osborn, 573 N.W.2d at 922. “Hindsight may show the judgment call was wrong.
But this is a far cry from qualifying as ineffective representation.” Id. at 922-23
(alteration and citation omitted). To prove appellate counsel’s deficient
performance resulted in prejudice, the applicant must show the underlying claim
would have prevailed if it had been raised on direct appeal. See Ledezma, 626
N.W.2d at 141. Thus, we must review the merits of the underlying claim to
determine whether appellate counsel was ineffective, see id. at 141-42, while
recognizing that counsel has no duty to raise an issue that has no merit. See
State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009). We review ineffective-
assistance-of-counsel claims de novo. See Ledezma, 626 N.W.2d at 141.
In his motion to suppress filed prior to trial, Miller claimed he received an
incomplete Miranda warning from his arresting officer—the officer forgot to give
notice that an attorney would be appointed if Miller could not afford one—and
claimed the improper Miranda warning necessarily tainted any subsequent
statements made after proper Miranda warnings were given. Miller concedes
this claim fails under the Federal Constitution. See Elstad, 470 U.S. at 318. He
asks this court to evaluate the claim under article I, section 9, of the Iowa
Constitution. This argument was not presented to the postconviction court and
cannot be raised for the first time on appeal. See State v. Rutledge, 600 N.W.2d
324, 325 (Iowa 1999) (“Nothing is more basic in the law of appeal and error than
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the axiom that a party cannot sing a song to us that was not first sung in trial
court.”). Even if error had been preserved on the issue, we conclude that
appellate counsel did not breach an essential duty in failing to raise the Iowa
constitutional claim on direct appeal due to the Irving court’s approval of Elstad.
See, e.g., State v. Gomez, No. 11-0350, 2012 WL 2122266, at *12 (Iowa Ct.
App. June 13, 2012) (holding that counsel did not breach an essential duty in
failing to argue for suppression of statements under the Iowa Constitution given
the approval of Elstad in Irving).
Miller filed a separate pro se brief on appeal. He appears to claim he
received ineffective assistance of postconviction counsel insofar as
postconviction counsel failed to raise several claims: (1) arguments relating to
improper instructions, (2) the court’s combined jury instructions served to operate
as an ex post facto law, (3) Miller’s trial information was not a true trial
information and was therefore void, (4) the individual who signed the trial
information claiming to be “Attorney for Defendant” was an imposter or a thief,
and (5) the trial court lacked subject matter jurisdiction over his proceedings.1
After review of the postconviction relief record and Miller’s claims on appeal, we
reject Miller’s claims. The claims were not presented to the district court. See
Rutledge, 600 N.W.2d at 325. Even assuming the claims have been properly
presented for our review, they fail on the merits.
1
The State does not attempt to distinguish or otherwise contest the ongoing vitality of
the conclusion in Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994), that there is a
statutory right to the effective assistance of postconviction counsel.
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III.
For the foregoing reasons, we affirm the district court’s denial of Miller’s
application for postconviction relief.
AFFIRMED.