IN THE COURT OF APPEALS OF IOWA
No. 14-0954
Filed April 27, 2016
JAMES CARSON EFFLER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie Kunkle Vaudt,
Judge.
James Effler appeals from the denial of his application for postconviction
relief. AFFIRMED.
Jessica Maffitt of Benzoni Law Office, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
2
DANILSON, Chief Judge.
James Effler appeals from the denial of his application for postconviction
relief. We conclude neither trial nor appellate counsel provided constitutionally
deficient performance and therefore affirm the district court’s ruling.
James Effler was convicted of first-degree kidnapping for taking a two-
year-old girl to the men’s bathroom of the Des Moines Central Library and
sexually abusing her. State v. Effler, 769 N.W.2d 880, 882 (Iowa 2009) (Effler II).
On direct appeal, Effler claimed the district court erred in denying his motion to
suppress incriminating statements made during an interrogation after he had
requested counsel. Id. He also asserts he was denied effective assistance of
counsel when his attorney failed to challenge the statements under the Iowa
Constitution. Id. This court reversed on the first issue and did not reach the
second. State v. Effler, No. 06-1417, 2008 WL 942051, at *6 (Iowa Ct. App. Apr.
9, 2008) (Effler I). The supreme court granted further review, and because “the
justices are equally divided on the issue of whether the motion to suppress
should have been granted,” Effler’s conviction was affirmed. Effler II, 769
N.W.2d at 884.
In an amended application for postconviction relief filed on June 17, 2013,
Effler raised the following grounds for relief: (1) counsel was ineffective by failing
to raise Iowa constitutional challenges in the motion to suppress statements
made by Effler during a police interrogation;1 (2) counsel was ineffective by
1
In a previous appeal, we ruled this claim of ineffective assistance of counsel, though
acknowledged by Effler II, 769 N.W.2d at 897, had not been previously adjudicated:
In regard to the second issue of ineffective assistance of counsel, the
[supreme] court acknowledged that three members of the court “would
3
failing to raise an as-applied cruel-and-unusual-punishment challenge to Effler’s
sentence of life imprisonment; (3) trial counsel was ineffective by failing to
properly advise Effler of the consequences of proceeding directly from trial to
sentencing, such as giving up his right to file a motion for new trial; and (4)
appellate counsel was ineffective in failing to raise on appeal trial counsel’s
ineffectiveness in proceeding to immediate sentencing. On May 27, 2014,
following a hearing, the district court denied Effler’s application for postconviction
relief (PCR). On appeal from the denial of his PCR application, Effler challenges
the district court’s ruling that counsel was not constitutionally deficient in failing to
raise the Iowa Constitution as an independent ground for suppressing his
confession.2
We generally review PCR proceedings for correction of errors at law.
Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008). “However, ineffective-
assistance-of-counsel claims are constitutional in nature, and as such, our review
is de novo.” Id.
Upon our de novo review, we agree with the district court’s well-written
and well-reasoned decision, finding Effler failed to prove counsel failed to
decline to find that counsel was ineffective.” Id. at 897 (Appel, J.,
specially concurring) (“It appears that there are three members of this six-
member court who would decline to find that counsel was ineffective.”).
However, pursuant to Iowa Code section 602.4107, beyond the finding
that the six-member court was equally divided (and the judgment of the
district court shall therefore stand affirmed), “the decision of the supreme
court is of no further force or authority.” Accordingly, we conclude the
[supreme] court did not make a final adjudication of the issue of
ineffective assistance of counsel, and that claim is not barred by res
judicata principles in this postconviction proceeding.
Effler v. State, No. 10-2038, 2013 WL 988644, at *4 (Iowa Ct. App. Mar. 13, 2013) (Effler
III). We thus remanded for a hearing on the ineffectiveness claims.
2
He does not challenge the other rulings of the district court.
4
perform an essential duty from which prejudice resulted. See id. (“In order to
prevail on [an ineffective-assistance-of-counsel] claim, the applicant must prove,
by a preponderance of the evidence, that trial counsel failed to perform an
essential duty and the applicant was prejudiced thereby.”). We adopt the district
court’s analysis:
In [State v.] Morgan, appellate counsel raised a state constitutional
claim under the article I, section 9 due process clause. 559 N.W.2d
[603], 609 [(Iowa 1997)]. In rejecting this claim, the Morgan court
made it very clear that requiring law enforcement personnel to ask
clarifying questions when faced with an equivocal request for
counsel was “in no way mandated by any provision of the Iowa
Constitution.” Id. (emphasis added).
It was the 2009 Iowa Supreme Court’s three/three split in
Effler II on further review in Effler’s direct appeal of whether his
request for counsel prior to confessing was ambiguous that
signaled potential for a sea change in how the 2009 Court might
interpret the Iowa Constitution if a claim was raised under it in such
factual circumstances in the future. Effler II revealed, for the first
time, an invitation by three members of the 2009 Court to criminal
defense lawyers to begin raising specific arguments under the Iowa
Constitution in situations where they believe criminal defendants
have unequivocally requested, and are denied, counsel prior to
making inculpatory statements. Effler II, 769 N.W.2d at 895-96.
(Appel, J., specially concurring).
We do not require criminal defense lawyers to be prescient.
State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982); Snethen v.
State, 308 N.W.2d 11, 16 (Iowa 1981). A lawyer must know he has
a duty, and that this duty is an essential duty, before he can breach
it and be considered “ineffective.” Effler argues that his trial
counsel should have considered “a gathering tide” of opinions by
the Iowa Supreme Court discussing raising independent challenges
under the Iowa Constitution. . . . His argument is more than offset
by two very material facts: (a) none of the opinions Effler relies
upon for his position squarely address facts like Effler’s, and (b)
many of the opinions he cites were decided and published after
Effler’s suppression hearing, trial, and direct appeal.
We therefore affirm.
AFFIRMED.