Opinion
No. 5-565 / 04-1433
Filed January 19, 2006
Appeal from the Iowa District Court for Pottawattamie County, Keith E. Burgett, Judge.
Robert M. Henry appeals from the district court's summary dismissal of his application for postconviction relief. AFFIRMED.
Edward W. Bull of Bull Law Office, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, Matthew Wilber, County Attorney, and Robert A. Wichser, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., Zimmer, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Robert M. Henry appeals from the district court's summary dismissal of his application for postconviction relief.
I. Background Fact Proceedings
On December 13, 1988, Henry pleaded guilty to first-degree robbery and willful injury for breaking into Francis Leonard's home and beating him with the butt of a revolver. Leonard died within a few days after Henry's sentencing on the robbery and willful injury convictions.
As a result of Leonard's death, the State charged Henry with first-degree murder and first-degree burglary. Henry was convicted on both counts and sentenced accordingly.
On direct appeal we rejected Henry's double jeopardy claims, as well as his challenge to the trial court's ruling admitting evidence of Henry's prior crimes. See State v. Henry, 483 N.W.2d 2, 4 (Iowa Ct.App. 1992).
In February 1993 Henry filed an application for postconviction relief claiming he was denied effective assistance of trial and appellate counsel. For reasons not entirely clear from the record, the State's answer to Henry's application was not filed until August 28, 2002. On December 16, 2002, the State filed a motion for summary dismissal of Henry's postconviction relief application pursuant to Iowa Code section 822.6 (1993). There is no indication in the record that either Henry or his attorney filed anything in response to the State's motion until after the May 2003 hearing on the State's motion. His attorney filed a resistance to the State's motion for summary dismissal following the hearing.
After the court's ruling was entered, Henry filed a pro se motion to amend and enlarge findings and a separate motion to vacate the judgment due to ineffective assistance of postconviction counsel. His motions were summarily overruled on August 30, 2004, resulting in this appeal.
II. Standard of Review
We review the dismissal of an application for postconviction relief to correct errors of law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998). Our review is de novo when there is an alleged denial of constitutional rights. McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995).
III. Merits
Henry concedes he did not preserve the ineffective assistance of trial counsel claims raised in his postconviction relief application by raising them on direct appeal. In his postconviction relief application, he raised claims in the context of ineffective assistance of appellate counsel. See LeGrand v. State, 540 N.W.2d 667, 668 (Iowa Ct.App. 1995) (holding that ineffective assistance of appellate counsel may provide sufficient reason or cause to permit the issue of ineffective assistance of trial counsel to be raised for the first time in a postconviction relief proceeding).
Iowa Code section 814.7, effective July 1, 2004, provides that ineffective assistance of counsel claims need not be raised on direct appeal from the criminal proceedings in order to preserve such claims for postconviction relief purposes. See Iowa Code § 814.7 (2005). Generally, "statutes controlling appeals are those that were in effect at the time the judgment or order appealed from was rendered." Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003) (citation omitted). The order sustaining the State's motion for summary dismissal of Henry's postconviction relief application was filed prior to the effective date of section 814.7, but the order overruling Henry's motion to amend and enlarge was filed after the statute's effective date. Because the ruling on Henry's motion pursuant to rule 1.904(2) did not change the court's original judgment, section 814.7 does not apply in this case. See Snyder v. Allamakee County, 402 N.W.2d 416, 418 (Iowa 1987) ("In Iowa, a final judgment is a judgment that conclusively determines the rights of the parties and is finally decisive of the controversy."); In re Marriage of Okland, 699 N.W.2d 260, 266 (Iowa 2005) (holding that "a rule 1.904(2) motion filed by a party following a denial of the party's prior rule 1.904(2) motion is improper and cannot extend the time for appeal if the judgment remained unchanged following the first motion." (emphasis added)).
Iowa Code section 822.6 allows the court to summarily dismiss an applicant's request for postconviction relief:
The court may grant a motion by either party for summary disposition of the application, when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreement of facts, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Ordinarily, when the State seeks to avoid a full trial on the merits by a motion for summary judgment, it bears the burden to establish the absence of material factual issues. Arnold v. State, 540 N.W.2d 243, 246 (Iowa 1995). However,
where the claim of ineffective assistance of counsel is not the basis for relief from conviction but rather a proffered excuse for not having raised a particular claim for relief, the applicant bears the initial burden to satisfy the requirements of section 822.8. If the State files a motion for summary judgment calling upon the applicant to disclose its proof on the section 822.8 requirement, it becomes necessary to provide specific facts rather than mere legal conclusions.
Id. Henry's claims of ineffective assistance of counsel were "a proffered excuse" for not having raised particular claims on direct appeal. Therefore, Henry was required to show the grounds raised in his postconviction relief application were not raised on direct appeal because his appellate counsel acted below the range of normal competency. Rivers v. State, 615 N.W.2d 688, 689 (Iowa 2000). He was required to "state the specific ways in which counsel's performance was inadequate and how competent representation would have changed the outcome." Id. (citation omitted).
Other than making a blanket statement that his appellate counsel was ineffective for failing to object to alleged constitutional violations, Henry failed to provide, in either his postconviction relief application or his resistance to the State's motion of summary dismissal, any support for his assertions. Therefore, the district court did not err in granting summary dismissal.