IN THE COURT OF APPEALS OF IOWA
No. 21-0725
Filed June 21, 2023
TERRELL ONTERIAL LOBLEY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.
Terrell Lobley appeals the denial of his application for postconviction relief
following his 2007 convictions for second-degree murder and intimidation with a
dangerous weapon. AFFIRMED.
Thomas Hurd of Law Office of Thomas Hurd PLC, Des Moines, for
appellant.
Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.
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VAITHESWARAN, Presiding Judge.
The State charged Terrell Lobley with crimes arising out of a shooting in
Davenport. A jury found him guilty of second-degree murder and intimidation with
a dangerous weapon. See State v. Lobley, No. 07-0167, 2008 WL 2357672, at *1
(Iowa Ct. App. June 11, 2008). The court of appeals affirmed his convictions. Id.
at *3. Lobley filed an application for postconviction relief. The district court denied
the application following an evidentiary hearing.
On appeal, Lobley contends his trial attorney was ineffective in failing to
(1) impeach the State’s key witness; (2) investigate another potentially beneficial
witness; and (3) file a posttrial motion to set aside the verdicts as inconsistent and
irreconcilable. Lobley had to show (1) deficient performance and (2) prejudice.
See Strickland v. Washington, 466 U.S. 668, 687 (1984). “Our ultimate concern is
with ‘the fundamental fairness of the proceeding whose result is being
challenged.’” State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987) (citing Strickland,
466 U.S. at 696).
The first issue is premised on counsel’s cross-examination of Roy
Washington, a State witness who was incarcerated with Lobley. Lobley contends
“multiple available impeachable offenses were not utilized to impeach”
Washington. He points to “two first degree thefts back in ’96,” separate convictions
for theft in the ‘third and fourth degree’” and a recent plea to “theft 5th.” In his view,
the State opened the door to consideration of the convictions. The State responds
that the evidentiary rule on use of prior convictions to attack witness credibility
contained a time limit of ten years, subject to the court’s balancing of probative
value and prejudicial effect. See Iowa R. Evid. 5.609. The State vigorously denies
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opening the door to consideration of the dated crimes and also argues “[f]urther
impeachment with additional theft convictions would not have led the jury to
discount Washington’s testimony and acquit Lobley.”
Washington testified at Lobley’s trial more than ten years after his 1996
convictions. That fact alone diminished their probative value as an impeachment
tool. Additionally, those convictions and others were not needed to undermine
Washington’s credibility, in light of admitted evidence of the same nature.
Washington acknowledged he had pending charges of second-degree burglary
and fourth-degree criminal mischief as a habitual offender, which the State would
dismiss if Washington agreed to testify against Lobley. He stated the possible
sentence as a habitual offender was “15 years” and he would be required to serve
“[s]even” if the charges were not dismissed. When Lobley’s attorney suggested
he was more concerned with the length of the sentence he was facing than the
circumstances of Lobley’s case, Washington responded, “You’re damn right.”
Washington also agreed he was presently in jail on the charges, previously pled
guilty to and served time for first-degree theft, and previously had been in prison
for a parole violation. In short, Washington’s credibility was severely impugned
without evidence of the additional convictions.1 For purposes of impeachment,
those convictions were cumulative.
The second issue relates to counsel’s claimed failure to investigate a
possibly beneficial witness who also was incarcerated with Lobley. Lobley’s
attorney admitted he did not speak to the witness. He explained, he “had no
1In light of our conclusion, we find it unnecessary to address whether the State
opened the door to consideration of the outdated convictions.
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indication that [the witness] would be a favorable witness” and would “contradict
what was said by Roy Washington.” “[I]n fact,” counsel stated, the witness “very
well could have just confirmed [Lobley’s] confession” as recounted by Washington.
That was far from a speculative risk, given Washington’s suggestion that the
witness wanted to “jump on” Lobley. As the postconviction court pointed out,
counsel’s decision not to investigate the witness “would have involved a strategic
decision” because “[c]ounsel would have run the serious risk of having [the
witness] learn of the[ ] substantial benefit Washington would receive from his
testimony,” which “could have incentivized [the witness] to testify similarly, which
would have resulted in the State ending up with an even stronger case against the
applicant.” We conclude counsel did not engage in deficient performance by
declining to investigate the witness.
We are left with Lobley’s claim that counsel was ineffective in failing to file
a new trial motion to challenge inconsistent verdicts.2 The claim is premised on
an opinion decided four years after his trial. See State v. Halstead, 791 N.W.2d
805, 815 (Iowa 2010). There, the court held “a criminal conviction of a compound
offense cannot stand when the defendant has been acquitted of the underlying
predicate offense.” Id. at 806.
Counsel did not have an obligation to predict a change in the law. State v.
Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982) (“[A]n attorney need not be a ‘crystal
gazer’ who can predict future changes in established rules of law in order to provide
2 The State contends that, if Lobley’s argument can be read as a direct challenge
to the verdicts, rather than a challenge under an ineffective-assistance-of-counsel
rubric, it is unpreserved because the issue was not raised in the trial court. We
agree.
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effective assistance to a criminal defendant.”). But, even if Halstead was the law
at the time of Lobley’s trial, we agree with the district court that its holding did not
apply to Lobley’s circumstances because Lobley “was convicted and not acquitted
of what the Halstead court would term the underlying predicate crime, and
conversely he was not convicted of what would be termed the compound felony,
but was instead convicted of one of its lesser-included offenses.” See State v.
Sanchez, No. 14-1912, 2016 WL 530409, at *4 (Iowa Ct. App. Feb. 10, 2016)
(“Halstead is inapposite because [the defendant] was not acquitted of a predicate
felony and found guilty of a compound felony.”).
We conclude Lobley’s trial attorney was not ineffective. We affirm the denial
of Lobley’s postconviction-relief application.
AFFIRMED.