IN THE COURT OF APPEALS OF IOWA
No. 22-0459
Filed May 10, 2023
JONATHAN ANTIONE BROWN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.
A postconviction applicant appeals the denial of relief on his conviction for
murder in the second degree. AFFIRMED.
Blake D. Lubinus, Brainard, Minnesota, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
2
TABOR, Presiding Judge.
A jury found Jonathan Brown guilty of second-degree murder in the stabbing
death of Timothy Washington. We affirmed his conviction on direct appeal. See
State v. Brown, No. 16-1021, 2017 WL 3065148 (Iowa Ct. App. July 19, 2017). In
this postconviction-relief (PCR) appeal, Brown contends his criminal trial attorneys
were ineffective in two ways: (1) by not raising a fair-cross-section challenge to the
jury pool and (2) by not providing zealous advocacy after Brown “backed out” of a
plea deal. Brown also challenges the performance of his PCR trial attorney.
Because Brown fails to show counsel breached a material duty in either the
criminal or PCR proceedings, we affirm the denial of relief.
I. Facts and Prior Proceedings
After a sixty-hour work week in June 2015, union electrician Timothy
Washington went to a friend’s house to relax and drink. But the house party took
an ugly turn. Outside, several fights broke out, including a one-on-one fight
between Washington and another party goer. Then three other guests, including
Brown, rushed up and joined the brawl. Witnesses testified that Brown stabbed
Washington four to five times in the chest. Then Brown and the others ran, leaving
Washington in the yard to bleed to death.
The State charged Brown with murder in the first degree. On the eve of his
jury trial, Brown entertained a plea offer from the State that would have resulted in
an indeterminate forty-five-year sentence. Mid-way through the plea colloquy,
Brown changed his mind and decided to proceed to trial on the murder charge.
After five days of testimony, the jury returned a verdict finding Brown guilty of
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murder in the second degree, and the court sentenced him to an indeterminate
fifty-year sentence.
Our court affirmed Brown’s conviction, rejecting his claim that the district
court abused its discretion in admitting evidence that he participated in other
stabbings that occurred at the party. Brown, 2017 WL 3065148, at *1. We also
found that the admission of hearsay statements from a video of Brown’s police
interview was harmless error given the probative force of the State’s evidence. Id.
at *2. Finally, we refused to find his trial counsel ineffective for failing to request a
limiting instruction about the evidence challenged on direct appeal. Id. The
supreme court denied further review, and procedendo issued in September 2017.
Self-represented, Brown petitioned for PCR in April 2018. The court
appointed counsel, who withdrew when Brown retained Nate Nieman to represent
him in July 2019. Nieman sought three continuances for the PCR trial, asserting
he needed more time to review the record and draft an amended application.1 But
he never amended the application. The PCR trial took place by videoconference
in February 2022. Nieman called Brown as his only witness. The State called
Brown’s two criminal trial counsel, Tomás Rodriguez and Trevor Andersen. At the
end of the PCR hearing, Nieman rested on the arguments “contained in the pro se
application.” Two weeks later, the district court denied Brown’s PCR petition. He
now appeals.
1 He filed those motions in July 2019, February 2020, and March 2021.
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II. Scope and Standard of Review
As a baseline, we review PCR rulings for correction of legal error. Brooks
v. State, 975 N.W.2d 444, 445 (Iowa Ct. App. 2022). But when applicants raise
constitutional issues, including ineffective assistance of counsel, our review is de
novo. Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018). Although Brown’s right
to effective assistance from PCR counsel is statutory rather than constitutional, we
still apply a de novo review to those claims. See Lado v. State, 804
N.W.2d 248, 250 (Iowa 2011); see also Dunbar v. State, 515 N.W.2d 12, 15 (Iowa
1994) (holding statutory right to counsel means the right to effective assistance of
that counsel). What’s more, Brown may complain of ineffective assistance even
though he privately retained his PCR counsel. See State v. Kellogg, 263
N.W.2d 539, 543−44 (Iowa 1978).
III. Analysis
A. Ineffective Assistance of Criminal Trial Counsel
In his effort to obtain a new trial, Brown contends he received ineffective
assistance from the attorneys assigned to his criminal case. To merit relief, Brown
must show his attorneys failed to perform an essential duty, and that failure caused
prejudice. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). On the
performance prong, we ask whether counsel acted within the normal range of
competency, starting from the presumption that they did. See State v. Cromer, 765
N.W.2d 1, 7–8 (Iowa 2009). Brown “must rebut the presumption of competence
by showing a preponderance of the evidence that trial counsel’s representation fell
below an objective standard of reasonableness.” State v. Lorenzo Baltazar, 935
N.W.2d 862, 868 (Iowa 2019) (cleaned up). On the prejudice prong, Brown must
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show his attorneys’ errors were so serious as to deprive him of a fair trial.
Strickland, 466 U.S. at 687. There must be a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” See id. at 694.
Brown alleges two omissions on the part of his criminal trial attorneys. First,
he argues they should have raised a fair-cross-section objection to the jury pool.
Second, he questions the zeal of their representation after he rejected a plea
bargain on the eve of trial. We will examine each allegation in turn.
1. “Plain” Error?
In his PCR application, Brown alleged that defense attorney Rodriguez was
remiss in “not objecting to the make-up of the jury.” Brown claimed it was not a
fair cross section of Polk County. The district court rejected that allegation, noting
that Brown’s trial predated State v. Plain, which adopted a new test for fair-cross-
section claims. See 898 N.W.2d 801, 827 (Iowa 2017) (overruling reliance on
absolute-disparity test in State v. Jones, 490 N.W.2d 787, 793 (Iowa 1992)). The
district court reasoned that Rodriguez had no duty to raise a meritless objection.
Brown criticizes the district court’s reasoning, insisting that “blind adherence
to an old precedent that was overruled a scant fourteen months later betrays a lack
of imagination and diligence of criminal counsel.” Brown’s criticism is misplaced.
Our court rejected a similar claim of ineffective assistance of trial counsel when the
applicant’s conviction occurred before the court decided Plain. See Bol v. State,
No. 19-0225, 2020 WL 3571807, at *3 (Iowa Ct. App. July 1, 2020) (citing
Thongvanh v. State, 938 N.W.2d 2, 15–16 (Iowa 2020), which held Plain did not
apply retroactively).
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And even if Rodriguez could have made the disparity arguments later
advanced by Plain’s counsel, Brown has not offered enough data about his jury
pool to show that such a challenge would have prevailed and won him a new trial.
See Jones v. State, No. 18–0134, 2019 WL 3330451, at *6 (Iowa Ct. App.
July 24, 2019) (“[B]ecause we cannot say trial counsel would have been
successful in making a fair-cross-section challenge, we cannot find he breached a
duty in failing to do so.”). Like the district court, we find no breach of duty or
prejudice on this issue.
2. Zealous Representation?
Brown also complains that Rodriguez “did not fully and fairly advocate for
him” after he “backed out” of a plea deal with the State.2 On that issue, Brown
testified: “He told me that it was in my best bet to take the plea and not go to trial.”
Brown also testified that Rodriguez told his family that he was guilty and “should’ve
took the deal.” Rodriguez—who had three decades of experience as a criminal
defense attorney—disputed Brown’s testimony. He told the PCR court: “I did not
have that conversation with any of his family members” and added “I don’t have
those types of conversations with family members.” The district court found
Rodriguez to be the more credible witness.
2 Brown’s argument heading also asserts that his attorneys “failed to provide
discovery.” But Brown does not develop that argument, so we decline to address
it. See Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (refusing to “speculate
on the arguments [an appellant] might have made and then search for legal
authority and comb the record for facts to support such arguments”).
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Even if we believed Brown, it is unclear how counsel’s assessment that he
should have taken the plea deal rose to a breach of duty. Indeed, defense counsel
is expected to give frank advice:
A lawyer has a duty to give the accused an honest appraisal of his
case. . . . The constitutional right to counsel does not mean counsel
will be optimistic in his private appraisal of the evidence and his
advice to the accused. Counsel has a duty to be candid; he has no
duty to be optimistic when the facts do not warrant optimism.
Brown v. United States, 264 F.2d 363, 369 (D.C. Cir. 1959) (Burger, C.J.,
concurring).
Brown insists that the district court “ignored the very real breakdown in [his]
trust in the zeal of his lawyers.” But Brown is not challenging the criminal court’s
refusal to appoint substitute counsel.3 See generally State v. Lopez, 633
N.W.2d 774, 778–79 (Iowa 2001) (explaining that the Sixth Amendment does not
guarantee a “meaningful relationship between an accused and his counsel” and
only a “complete breakdown in communication” is sufficient cause for substitution).
Rather, Brown alleges that his attorneys were ineffective because he did not see
them as enthusiastic in their advocacy. “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. The applicant has to both
“state the specific ways” counsel performed deficiently and “identify how
competent representation probably would have changed the outcome.” Id. So
Brown’s allegation is not specific enough to show the breach of a material duty.
We thus affirm the district court’s denial of relief on this claim.
3 The day after the jury reached its verdict, Brown moved to remove court-
appointed counsel. But they continued to represent him in posttrial motions.
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B. Ineffective Assistance of PCR Trial Counsel
As a second line of attack, Brown contends we should remand for a new
PCR trial because he did not receive effective assistance from attorney Nieman.
The State argues that Brown did not preserve error on this claim because it was
“never considered or ruled upon by the PCR court.” But the State’s argument
overlooks decades of precedent holding that an ineffective-assistance-of-counsel
claim is “an exception to the general rule of error preservation.” See State v.
Lucas, 323 N.W.2d 228, 232 (Iowa 1982) (noting “these claims (realistically) are
not made by attorneys against their own actions”); see also Goode, 920 N.W.2d
at 526 (recognizing exception to error-preservation rule for claims of ineffective
assistance of PCR counsel). So Brown’s claim is properly before us.
As a backup position, the State contends that Goode recognizes only a
“narrow exception” allowing an appellate court to reach the merits of an
unpreserved claim that PCR trial counsel was ineffective, if the existing record is
sufficiently developed to allow resolution. See 920 N.W.2d at 526. We agree with
that reading of Goode. In fact, the parties there acknowledged that the record on
appeal was “inadequate to address the new claim of ineffective assistance of
postconviction counsel.” Goode, 920 N.W.2d at 526. Like Goode, Brown would
need more evidence to support his claim that he received ineffective assistance of
PCR counsel. So we cannot decide his claim in this appeal.
The trickier question is what happens next. Brown asks that we remand the
case for a new PCR hearing. He insists that remedy is the only way he can receive
the level of representation to which he is entitled under chapter 822. But in Goode,
our supreme court rejected the idea of a remand, finding it was “contrary to the
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symmetry of our appellate process and our role as a court of review.” Id. That
said, Goode was decided before the legislature abrogated the relation-back
doctrine of Allison v. State, 914 N.W.2d 866 (Iowa 2018). See Brooks v. State, 975
N.W.2d 444, 446 (Iowa Ct. App. 2022) (recognizing abrogation). And the supreme
court relied on Allison in holding that Goode’s claims of ineffective assistance of
PCR counsel must be filed as a separate application in the district court. Goode,
920 N.W.2d at 525. As Brown notes on appeal, without the relation-back doctrine,
he would be foreclosed from seeking relief in a new PCR because the three-year
statute of limitations expired in September 2020. What’s more, Brown argues that
attorney Nieman’s three requests for continuances contributed to the running of
that clock.
We need not decide whether a remand would ever be proper to resolve a
claim of ineffective assistance of PCR counsel. It is enough to decide that it is
unnecessary here. We only “preserve” claims of ineffective assistance of PCR
counsel for future proceedings when they meet the same standard of “stat[ing] the
specific ways in which counsel’s performance was inadequate and identify[ing]
how competent representation would have changed the outcome.” Dunbar, 515
N.W.2d at 15. Brown fails the Dunbar test. In this appeal, Brown complains about
two aspects of Nieman’s performance: (1) he requested three continuances,
without ever amending the pro se application, and (2) he called no witnesses other
than Brown. But Brown offers no suggestion as to how Nieman should have
amended the application or what witnesses he should have lined up. 4 Without
4True, the district court mentioned that Nieman did not call Brown’s family
members to bolster his claim that Rodriguez told them Brown should have
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more facts, we cannot tell that Nieman had a material duty to amend the PCR
application or to call additional witnesses. As in Dunbar, Brown’s claims are “too
general in nature” to allow us to preserve them for a second PCR proceeding. Id.
(finding “[f]or example, Dunbar does not propose what an investigation would have
revealed or how anything discovered would have affected the result obtained
below”). In the end, we can neither address nor preserve the claim that PCR
counsel was ineffective.
AFFIRMED.
accepted the plea deal. But as discussed above, proving those conversations
occurred would not have shown a breach of duty.