IN THE COURT OF APPEALS OF IOWA
No. 15-1715
Filed August 17, 2016
TYRONE DARNELL JONES,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
Tyrone Darnell Jones appeals from the district court’s denial of his
application for postconviction relief. AFFIRMED.
Andrea K. Buffington of Ranes Law Firm, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
2
MULLINS, Judge.
Tyrone Darnell Jones appeals from the district court’s denial of his
application for postconviction relief (PCR), alleging his postconviction counsel
was ineffective. We affirm.
Jones was convicted by a jury of robbery in the second degree in 2012.
His conviction was affirmed on appeal by a panel of this court. See State v.
Jones, No. 12-1871, 2013 WL 6405379, at *4 (Iowa Ct. App. Dec. 5, 2013).
Jones filed a pro se PCR application in September 2014. In his PCR application,
Jones generally alleges his conviction violates the United States and Iowa
Constitutions or laws, he has evidence not previously presented that requires
vacation of his sentence, he is unlawfully in custody, and his conviction or
sentence is otherwise subject to collateral attack. Specifically, Jones claims
certain witnesses who testified against him made up their statements about him
to lessen their own punishment.
He was appointed counsel in January 2015. In February 2015, the State
filed a motion for summary judgment and dismissal. No response was filed. A
hearing was held on the motion in August 2015. At the hearing, Jones’s counsel
stated,
Your Honor, as I mentioned before we went on the record, I
have not filed a formal resistance in this matter on Mr. Jones’[s]
behalf due to the fact that in my professional opinion doing so
would be frivolous.
I have explained that at length to Mr. Jones. I also have
explained to Mr. Jones that he has the right, as a postconviction
applicant, to raise any pro se arguments that he believes are
necessary, and that you would probably give him the opportunity to
do so.
3
The PCR court then addressed Jones, allowed Jones to present his case,
and explained to Jones what issue the court understood Jones’s arguments
raised.1 In September 2015, the PCR court issued its ruling granting the State’s
motion. Jones appealed.
Postconviction proceedings are generally reviewed for errors at law. See
Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). When, as here, the appellant
raises an ineffective-assistance-of-postconviction-counsel claim, we apply a de
novo review. See Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).
On appeal, Jones makes one claim, that his PCR counsel was ineffective.
An applicant may raise an ineffective-assistance claim in an appeal from the
PCR court’s denial of his PCR application. See Dunbar v. State, 515 N.W.2d 12,
16 (Iowa 1994). In order to succeed on a claim of ineffective assistance of
counsel—whether attributable to trial counsel or PCR counsel—a defendant must
prove counsel breached a duty and prejudice resulted. See Ledezma v. State,
626 N.W.2d 134, 141 (Iowa 2001). Both elements must be proven by a
preponderance of the evidence, and we reject the claim if it fails on either
ground. Id. at 142. A breach of duty is shown if counsel performed below the
standards of a “reasonably competent attorney” as measured against the
“prevailing professional norms.” Id. (citation omitted). To prove prejudice, Jones
must show “a reasonable probability that, but for counsel’s unprofessional errors,
1
At the PCR hearing, Jones’s argument largely appeared to be—and the court
interpreted it to be—a challenge to the sufficiency of the evidence at trial. The PCR
court asked Jones if he had been represented by counsel and had challenged the
sufficiency of the evidence on appeal. Jones answered in the affirmative. However, it
does not appear the sufficiency of the evidence was raised on appeal. See Jones, 2013
WL 6405379, at *2.
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the result of the proceeding would have been different.” Lado, 804 N.W.2d at
251 (citation omitted).
Jones argues his PCR counsel was so substandard a structural error
occurred, specifically that there was no meaningful adversarial testing of his
claims. See id. at 252 (identifying three recognized structural errors, including
“where counsel does not place the prosecution’s case against meaningful
adversarial testing”). Therefore, Jones argues prejudice should be presumed.
See id. (noting that, where a structural error has occurred, “‘[n]o specific showing
of prejudice [is] required’ as the criminal adversary process itself is
‘presumptively unreliable.’” (alterations in original) (citation omitted)). In support
of his claim, Jones relies upon the court’s findings in Lado and in Dockery v.
State, No. 13-2067, 2016 WL 351251 (Iowa Ct. App. Jan. 27, 2016).
In Lado, the defendant filed a pro se PCR application and requested
counsel; approximately eighteen months later, counsel was appointed and
instructed that Lado’s application was under an Iowa Rule of Civil Procedure
1.944 dismissal notice for failure to prosecute. 804 N.W.2d at 250. The State
then filed for dismissal on several grounds including rule 1.944. Id. Counsel
failed to seek relief from the rule 1.944 time requirement and admitted he had not
reviewed the entire file or discussed the State’s motion with Lado. Id. The Court
instructed both parties to provide written materials at least two days before a
hearing on the State’s motion, which Lado’s counsel failed to do. Id. Following
the hearing, the State dismissed Lado’s application pursuant to rule 1.944
without considering the merits of Lado’s application. Id. In finding Lado’s
counsel had committed a structural error, the Iowa Supreme Court reasoned,
5
“[p]ermitting a client’s postconviction relief application to be dismissed because of
inaction is never an effective trial strategy. Counsel’s failure to seek a
continuance of the case, or to apply to have the case reinstated, resulted from
abdication, not exercise, of professional judgment.” Id. at 251. Because of
Lado’s counsel’s inaction, his PCR application was dismissed without any
consideration of its merits. Id. at 252-53.
In Dockery, PCR counsel pursued only one ground for relief, a ground not
tenable in a PCR proceeding; PCR counsel failed to amend or supplement
Dockery’s pro se action, despite the State pursing dismissal based on the
application setting forth insufficient facts; PCR counsel failed to secure Dockery’s
presence at trial, and thus he was unable to present his own claims; and PCR
counsel failed to ensure the court addressed Dockery’s pro se claims. 2016 WL
351251, at *4.
Here, the record indicates PCR counsel considered Jones’s potential
claims and discussed her evaluation with Jones. Under our rules, counsel can
only advance claims “well grounded in fact and . . . warranted by existing law or
[by] a good faith argument for the extension, modification, or reversal of existing
law.” Iowa R. Civ. P. 1.413(1); Gamble v. State, 723 N.W.2d 443, 446 (Iowa
2006). Counsel was not required to assess the validity of Jones’s pro se claims.
Gamble, 723 N.W.2d at 446. However, she did ensure Jones was telephonically
present to argue his pro se claims, reminded Jones of his right to raise pro se
claims, and reminded the court of its obligations to consider said claims, which
the court did. Jones’s claims were addressed by the PCR court in its ruling, not
dismissed procedurally for want of prosecution.
6
While we note defense counsel should not “criticize or diminish their own
client’s case” as “that role should be filled, if at all, by counsel for the resisting
party,” id., we cannot conclude Jones’s counsel’s statement that filing a
resistance “would be frivolous” constitutes ineffective assistance of counsel rising
to the level of a structural error.
Finding no structural error, Jones must prove he was prejudiced by any
alleged ineffective assistance of his PCR counsel. Yet Jones has failed to
identify or argue a single claim his PCR counsel should have pursued that would
have entitled him to relief. Compare Weatherly v. State, No. 14-1890, 2016 WL
1130043, at *2 (Iowa Ct. App. Mar. 23, 2016) (affirming the denial of the
defendant’s PCR application noting the defendant “fail[ed] to identify a single
ground of ineffective assistance of counsel that should have been raised by PCR
counsel”), and Allard v. State, No. 11-1641, 2013 WL 1227352, at *3 (Iowa Ct.
App. Mar. 27, 2013) (noting the applicant “identifies no meritorious claim that
postconviction counsel should have raised or raised more effectively”), with
Dockery, 2016 WL 351251, at *3 (noting defendant specified two claims his PCR
counsel should have raised had his PCR counsel done proper investigation:
“(1) trial counsel in the underlying criminal action allowed him to plead guilty to
third-degree theft without a factual basis being shown in the record, and (2)
counsel in the probation-revocation proceedings represented him in spite of a
conflict of interest”).
As noted by the PCR court, the only fact Jones put forth in support of his
claims was that the witnesses who testified against him at trial had lied.
Ultimately, Jones has failed to prove how any action by his PCR counsel would
7
have made the result of the proceeding different. Accordingly, we affirm the PCR
court’s dismissal of Jones’s application.
AFFIRMED.