IN THE COURT OF APPEALS OF IOWA
No. 15-2175
Filed June 21, 2017
TERRELL LAMON BAILEY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, John M.
Wright, Judge.
Applicant appeals from the district court’s denial of his application for
postconviction relief. AFFIRMED.
Jeffrey L. Powell of The Law Office of Jeffrey L. Powell, P.L.C.,
Washington, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2
POTTERFIELD, Judge.
Terrell Bailey appeals from the district court’s denial of his application for
postconviction relief (PCR).
Bailey filed his original application for PCR in May 2014; he then amended
the application in July 2014 and again in September 2015. He sought relief after
a jury found him guilty of three counts of delivery of a controlled substance
(marijuana).
Bailey and the State agreed the matter would be submitted to the district
court on November 15, 2015, on briefs only without a hearing. On October 23,
Bailey filed both his brief in support of his application and an appendix. The
State filed its response soon after with references to the appendix filed by Bailey.
Bailey then filed a reply brief.
The district court considered five claims of ineffective assistance of trial
and appellate counsel and one claim that the State had “violated the Applicant’s
due process rights through spoiliation [sic] of exculpatory evidence.” It then
issued a written ruling denying Bailey’s claims on the merits on November 20. In
the ruling, the court referred to the briefs submitted by the parties but stated,
“[N]either party filed the appendix to which both parties refer in their briefs. The
Court has only the briefs to consider when reviewing the Applicant’s Second
Amended Application” for PCR. Both the State and Bailey agree that this
statement by the district court was in error.
Next, Bailey filed a notice of appeal. He then filed a motion asking our
supreme court to remand the case “for further proceedings with directions to the
3
District Court to give a full and fair consideration of the appendix.” Our supreme
court denied the motion.
Bailey filed an appellate brief. He did not make any claims or arguments
regarding the merits of the district court’s ruling on his application. Nor did he
specify in what respect the appendix would have made a substantive difference
in the district court’s ruling. Instead, he used his appellate brief to reiterate his
claim that his case should be remanded to the district court for further
proceedings. Our supreme court transferred the case to us.
We cannot consider the merits of Bailey’s claims as presented to the
district court in his application for PCR. Although we review constitutional issues
raised in a PCR de novo, Bailey has not raised any arguments or claims
regarding his underlying application. See Berryhill v. State, 603 N.W.2d 243,
244–45 (Iowa 1999); see also Iowa R. App. P. 6.903(2)(g)(3) (requiring the
appellant’s brief to contain an “argument containing the appellant’s contentions
and the reasons for them with citations to authorities relied on” and stating failure
to do so “may be deemed waiver of that issue”). That leaves only the issue of
whether Bailey’s case should be remanded for further consideration by the
district court. Our supreme court has already ruled against Bailey’s first such
request, and we see no reason to treat Bailey’s second request differently. We
affirm.
AFFIRMED.
Bower, J., concurs; Danilson, C.J., dissents.
4
DANILSON, Chief Judge. (dissenting)
I respectfully dissent. I believe the trial judge essentially entered a
judgment on the pleadings with the aid of the parties’ briefs, without a pending
motion for judgment on the pleadings, and notwithstanding the State’s answer
denying most of the allegations. The State contends that error was not
preserved because Bailey did not move the district court to expand its ruling by
considering the appendix of evidence pursuant to Iowa Rule of Civil Procedure
1.904(2). However, our supreme court has stated:
If the court’s ruling indicates that the court considered the issue and
necessarily ruled on it, even if the court’s reasoning is “incomplete
or sparse,” the issue has been preserved. See Meier [v. Senecaut,
641 N.W.2d 532, 540 (2002)]; see also Jensen v. Sattler, 696
N.W.2d 582, 585 (Iowa 2005) (finding error was preserved even
though “the summary judgment record is not a model of clarity”).
Meier distinguishes between the situation where error was
preserved even though “the record or ruling on appeal contains
incomplete findings or conclusions,” 641 N.W.2d at 539, and the
situation where the issue was “not considered by” the district court
and thus error was not preserved, id. at 540.
Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). Here, all the issues were
considered and ruled upon but none of the evidence was considered. Although
the supreme court denied a limited remand, such a remand would require
retention of jurisdiction. I would remand this case back without retaining
jurisdiction and require a different judge to consider the evidence and decide the
issues anew. Consideration of the parties’ issues without considering the
stipulated evidence is much akin to structural error and undermines the right to a
fair trial. See Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011).