IN THE COURT OF APPEALS OF IOWA
No. 17-1277
Filed August 15, 2018
SHAWN DESHAY HOOSMAN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
The applicant appeals from the denial of his application for postconviction
relief. AFFIRMED.
Thomas A. Hurd of Glazebrook, Greenberg & Hurd, LLP, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., McDonald, J, and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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BLANE, Senior Judge.
Shawn Hoosman appeals from the denial of his application for
postconviction relief (PCR). He maintains his PCR counsel committed structural
error and asks that we remand for a new trial of his PCR application.
I. Background Facts and Proceedings.
In 2006, Hoosman was charged with possession of more than ten grams of
crack cocaine with intent to deliver, possession of psilocybin mushrooms with
intent to deliver, possession of marijuana with intent to deliver, failure to affix a
drug tax stamp, and driving while barred. The drug charges included habitual-
offender sentencing enhancements due to Hoosman’s history of drug and felony
convictions.
Hoosman filed a motion to suppress “any and all evidence obtained as a
result of a search” of his family’s residence as well as “any and all physical or
testimonial evidence obtained” after officers seized Hoosman. After a hearing, the
district court denied the motion.
After a multi-day trial in 2008, the jury found Hoosman guilty of each charge
except possession of psilocybrin mushrooms with intent to deliver. In a second
trial, the jury found Hoosman was an habitual offender who was subject to the
sentence enhancements. Hoosman was sentenced to concurrent terms of
imprisonment not to exceed forty-five years.
Hoosman filed a direct appeal, in which he asserted
the district court erred in: (1) admitting evidence resulting from a
search under “disputed consent”; (2) denying Hoosman’s motion for
mistrial during opening argument; (3) finding Hoosman had
constructive possession of the controlled substances at issue; (4)
limiting evidence of the controlled buys; (5) admitting the
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investigator’s “loaded questions” in a videotaped interview with
Hoosman; and (6) not allowing reputation evidence of the
investigator.
State v. Hoosman, No. 09-0067, 2010 WL 1579428, at *1 (Iowa Ct. App. Apr. 21,
2010). A panel of our court affirmed Hoosman’s convictions, and procedendo
issued on May 21, 2010.
Hoosman filed his application for PCR in August 2010. After a number of
continuances and changes in counsel, the district court filed an order in May 2013
advising Hoosman it was the court’s “intention to dismiss this matter unless an
amended Application for [PCR] is filed herein setting forth grounds upon which
relief may be granted” as “four of [Hoosman’s claims] involve allegations which
could and should have been raised at the time of” his direct appeal. The court
ordered Hoosman to amend his application within sixty days.
Hoosman did not amend his application, and the court dismissed it on
November 7. Hoosman resisted the court’s dismissal and filed an amended PCR
application, in which he raised thirteen claims of ineffective assistance by trial
counsel.
The district court granted Hoosman’s motion to reinstate his application,
and the matter proceeded to an evidentiary hearing in May 2014. At the
evidentiary hearing, the only evidence presented was Hoosman’s testimony. He
did not call his trial attorney as a witness, and the State presented no evidence.
The court filed its written ruling in October, dismissing Hoosman’s PCR
application as he “failed to preserve ineffective assistance of trial counsel for
review.” Hoosman appealed the PCR court’s decision. A panel of this court
reversed and remanded the case to the district court, as an ineffective-assistance-
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of-counsel claim need not be raised on direct appeal in order for it to be raised in
a PCR proceeding. See Hoosman v. State, No. 14-1870, 2016 WL 1704013, at
*2 (Iowa Ct. App. Apr. 27, 2016). On remand, the district court was to rule on the
merits from the record already created.
In October 2016, the district court issued its ruling on each of Hoosman’s
thirteen claims of ineffective assistance of trial counsel, denying and dismissing
the application in its entirety.
Hoosman appeals.
II. Standard of Review.
Where, as here, a PCR petitioner claims ineffective assistance of PCR
counsel, our review is de novo. Allison v. State, ___ N.W.2d ___, ___, 2018 WL
3198793, at *3 (Iowa 2018).
III. Discussion.
Hoosman maintains his PCR counsel committed structural error by failing
to depose or subpoena his trial counsel to testify, when all thirteen of Hoosman’s
PCR claims involved the allegation that trial counsel provided ineffective
assistance.
Generally, when an applicant claims counsel provided ineffective
assistance, the applicant has the burden to establish (1) his counsel failed to
perform an essential duty and (2) this failure resulted in prejudice. Lado v. State,
804 N.W.2d 248, 251 (Iowa 2011). However, when a claimant maintains counsel
committed structural errors, “no specific showing of prejudice is required as the
criminal adversary process itself is presumptively unreliable.” Id. at 252 (altered
for readability). “Structural errors are not merely errors in a legal proceeding, but
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errors ‘affecting the framework within which the trial proceeds.’” Id. (quoting
Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). When a structural error occurs,
“the underlying criminal proceeding is so unreliable the constitutional or statutory
right to counsel entitles the defendant to a new proceeding without the need to
show the error actually caused prejudice.” Id.
Our supreme court has recognized three categories of structural error,
where:
(1) counsel is completely denied, actually or constructively, at a
crucial stage of the proceeding; (2) where counsel does not place the
prosecution’s case against meaningful adversarial testing; or (3)
where surrounding circumstances justify a presumption of
ineffectiveness, such as where counsel has an actual conflict of
interest in jointly representing multiple defendants.
Id. Courts have found structural error where counsel allowed the claimant’s PCR
application to be dismissed or where counsel failed to file an appeal altogether.
See, e.g., id. at 253; see also Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000).
Such conclusions make sense, as “no presumption of reliability can be accorded
to judicial proceedings that never took place.” Dockery v. State, No. 13-2067, 2016
WL 351251, at *4 (Iowa Ct. App. Jan. 27, 2016) (citing Roe, 528 U.S. at 484).
This is not a case where the attorney’s actions allowed the applicant’s
claims to be dismissed without consideration of the merits. In fact, PCR counsel
prevented Hoosman’s application from being dismissed pursuant to the automatic
dismissal rule. See Iowa R. Civ. P. 1.944. And PCR counsel filed a timely appeal
of the PCR court’s October 2014 decision, which ultimately resulted in a reversal
for a new ruling on the merits.
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Hoosman maintains PCR counsel’s decision to not call his trial counsel as
a witness resulted in a complete failure to advance Hoosman’s claims and
constitutes structural error. We acknowledge there are certain claims of ineffective
assistance where the claimant’s own “subjective, self-serving testimony” is not
sufficient proof, see Dempsey v. State, 860 N.W.2d 860, 869 (Iowa 2015), but it
does not follow that trial counsel’s testimony would necessarily benefit Hoosman’s
claims. For example, a number of Hoosman’s PCR claims dealt with trial counsel’s
alleged failure to pursue suppression of evidence, but trial counsel did pursue
suppression—Hoosman just did not like the ruling. Similarly, Hoosman
complained trial counsel failed to request that the State be ordered to name the
confidential informants and failed to contest the State’s use of evidence of pre-
serialized cash found in Hoosman’s possession; trial counsel did both. And at
least two of Hoosman’s PCR claims were already decided by this court on
Hoosman’s direct appeal. As trial counsel’s testimony could have no effect on any
of these aforementioned claims, we cannot conclude the failure to call trial counsel
amounted to a structural error.
It is possible PCR counsel could have done more to pursue Hoosman’s
claims of ineffective assistance against trial counsel, but we cannot say Hoosman
was constructively denied counsel or that PCR counsel failed to present
Hoosman’s claims in any meaningful adversarial context. Thus, Hoosman’s claim
of structural error fails.1
1
Hoosman does not argue in the alternative that we should consider his claim under the
Strickland ineffective-assistance standard; he does not attempt to establish how PCR
counsel’s actions—or inactions—caused him to suffer prejudice. Strickland v.
Washington, 466 U.S. 668 (1984). Therefore, we do not consider the issue.
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We affirm the dismissal of Hoosman’s PCR application.
AFFIRMED.