Opinion
No. 5-604 / 04-1646
Filed September 28, 2005
Appeal from the Iowa District Court for Black Hawk County, Thomas N. Bower, Judge.
Marlando Hoosman appeals the summary dismissal of his request for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Zimmer, JJ.
I. Background Facts Proceedings
Marlando Hoosman was convicted of going armed with intent and assault while participating in a felony based on a shooting outside Club Thirty-Something in Waterloo. On appeal, Hoosman claimed that reference to a different shooting, discussed below, should not have been admissible under Iowa Rule of Evidence 5.404( b). We rejected Hoosman's claims and affirmed his conviction. State v. Hoosman, No. 00-0961 (Iowa Ct.App. Feb. 28, 2001).
Hoosman was also convicted of willful injury, terrorism with intent, and going armed with intent based on a shooting outside the New World Lounge. In that appeal he claimed (1) evidence he was involved in the Club Thirty-Something shooting should have been inadmissible under rule 5.404( b), and (2) the court should have excluded hearsay testimony by Mary Outlaw that two friends told her Hoosman committed the shooting. He also raised the following ineffective assistance of counsel claims: (1) counsel failed to object to evidence of Hoosman's participation in the Club Thirty-Something shooting; (2) counsel failed to object to testimony of Rodney Berry that Hoosman owned a .40 caliber Glock, the type of gun used in the crime; and (3) counsel failed to object to Outlaw's testimony based on rule 5.403. Hoosman's claims were found to be without merit, and his convictions were affirmed. State v. Hoosman, No. 00-0724 (Iowa Ct.App. July 31, 2001).
On March 8, 2002, Hoosman filed pro se applications for postconviction relief from all of his convictions. Regarding his convictions for the Club Thirty-Something shooting, Hoosman claimed: (1) the district court abused its discretion by admitting evidence of the shooting at the New World Lounge; (2) defense counsel was ineffective for failing to object to evidence regarding the New World Lounge incident; (3) appellate counsel was ineffective and lacked interest in the appeal; (4) a limiting instruction was insufficient to cure the unfair prejudicing resulting from admission of evidence concerning the shooting at the New World Lounge; and (5) he received ineffective assistance because his trial counsel failed to object to prior non-sworn statements made by Aldreis Campbell and Todd Keller.
In his application for postconviction relief from his convictions arising from the New World Lounge shooting, Hoosman claimed: (1) the district court abused its discretion by admitting evidence of the shooting at Club Thirty-Something; (2) defense counsel was ineffective for failing to object to some evidence regarding the Club Thirty-Something incident; (3) defense counsel failed to properly object to the testimony of Berry regarding Hoosman's possession of a .40 caliber Glock; (4) the district court improperly admitted hearsay testimony from Outlaw; and (5) Outlaw's hearsay statements were also improper under rule 5.403.
The State filed motions to dismiss both of Hoosman's applications on the ground that the issues had been previously decided in Hoosman's direct appeals. Hoosman subsequently added an amended claim in each case, which alleged:
The Petitioner had had previous trials for these cases which had resulted in mistrials. During these trials, trial counsel had called witnesses on behalf of the petitioner/defendant. In the final trials (wherein petitioner was convicted) a number of these witnesses were not called by counsel to testify. The testimony of these witnesses would have resulted in a verdict of not guilty for the petitioner.
At the hearing on the motion to dismiss, the State asked to extend the motion to include the amended claim, and the district court agreed to the request.
The district court dismissed Hoosman's postconviction applications. The court noted that postconviction relief is not a means of relitigating claims that have already been decided. The court also determined Hoosman had failed to provide specific facts to support his claims of ineffective trial and appellate counsels. Hoosman appeals the denial of his request for postconviction relief.
II. Standard of Review
Our review of postconviction relief proceedings is for correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, when an applicant raises constitutional issues, our review is de novo. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999). To prevail on a claim of ineffective assistance of counsel, Hoosman must prove (1) his attorney failed to perform an essential duty and (2) prejudice resulted to the extent he was denied a fair trial. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
Iowa Code section 822.6 (2001) provides that a court may summarily dismiss a postconviction relief action when "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." The Iowa Rules of Civil Procedure governing summary judgment are controlling in these circumstances. Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002). The State, as the moving party, has the burden of showing the nonexistence of a material fact, and the court considers the evidence in the light most favorable to the party opposing the motion. Id.
In considering the summary disposition of a postconviction case under section 822.6, the supreme court has stated:
Generally, when the State seeks to avoid a full trial on the merits by a motion for summary judgment, the State bears the burden to establish the absence of material factual issues. 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 822.2 requirement, it becomes necessary to provide specific facts rather than mere legal conclusions.
Rivers v. State, 615 N.W.2d 688, 689 (Iowa 2000). An applicant must "state the specific ways in which counsel's performance was inadequate and how competent representation would have changed the outcome." Id. at 690 (quoting Bugley v. State, 596 N.W.2d 893, 898 (Iowa 1999)).
III. Merits
We first note that postconviction proceedings are not a means for litigating issues that have already been properly presented and decided by a court. See Iowa Code § 822.8; Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998). Issues 1, 2, and 4 from Hoosman's request for postconviction relief relating to the Club Thirty-Something shooting were addressed in the direct appeal. On appeal, we specifically found the district court had not abused its discretion in admitting evidence of a shooting at the New World Lounge. Hoosman, No. 00-0961. Due to this finding, defense counsel was not ineffective for failing to object to evidence concerning the New World Lounge incident. See id. Also, we determined the cautionary instruction was sufficient to remove the danger of prejudice. Id.
Furthermore, all of the issues raised by Hoosman in his request for postconviction relief relating to the New World Lounge shooting were decided in the direct appeal of those convictions. Again, we specifically determined the district court had not abused its discretion in admitting evidence of the Club Thirty-Something shooting. Hoosman, No. 00-0724. We also found defense counsel had objected to evidence of the Club Thirty-Something shooting. Id. We concluded Berry's hearsay testimony about the .40 caliber Glock handgun was not prejudicial because similar evidence was already in the record. Id. We found Outlaw's testimony came within the excited utterance exception to the hearsay rule and there was no error in the admission of her statements. Id. Finally, we addressed Hoosman's claim that Outlaw's testimony was inadmissible under Iowa Rule of Evidence 5.403 and rejected that claim. Id.
We conclude dismissal of these claims was proper because they had been addressed on direct appeal. Section 822.8 provides, "Any ground finally adjudicated . . . in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application. . . ." We affirm the dismissal of these claims.
We turn then to the remaining issues. In issue 3 in the Club Thirty-Something postconviction action, Hoosman claims he received ineffective assistance due to appellate counsel's failure to object in a more specific manner to the introduction of evidence relating to the New World Lounge shooting. However, the issue of whether that evidence was admissible was fully addressed on appeal. We conclude Hoosman has failed to show that appellate counsel was ineffective.
In issue 5, Hoosman claims he received ineffective assistance on the following grounds:
Defense attorney was Ineffective for not objecting to the non-sworn statements which Campbell and Keller gave to the Waterloo Police Department on the night of the alleged incident.
These statements were given to the jury after they had retired to the Jury Room and began deliberations over the Thirty-Something case. The Jury summoned the Trial Court to ask a question. The question was that the jury wanted to know if they could have the statements made by Aldreis Campbell and Todd Keller to help them in their deliberations over the case.
In all due respect, the Trial Court abused its discretion for allowing the statements made by Keller and Campbell, which were non-sworn statements, to be given to the jury after they had already started their deliberations over the Thirty-Something [case].
In this respect, the Defense Counsel's performance was once again deficient.
Mr. Hoosman was greatly prejudiced by the jury receiving the non-sworn statements made by Campbell and Keller, most notably after the jury had already begun to deliberate over the case.
This issue was not addressed in the direct appeal.
The State asserts that Hoosman failed to preserve this issue because he did not raise it on direct appeal, or allege that the failure to raise it was due to ineffective assistance of appellate counsel. However, under Iowa Code § 814.7, effective July 1, 2004, Hoosman was no longer required to preserve his ineffective assistance of counsel claims by raising them on direct appeal.
In order to avoid summary disposition, Hoosman was required to "state the specific ways in which counsel's performance was inadequate and how competent representation would have changed the outcome." Rivers, 615 N.W.2d at 690 (quoting Bugley, 596 N.W.2d at 898). Here, Hoosman failed to adequately describe how counsel's performance was inadequate. See id. It is unclear whether the failure was counsel's failure to object to the admission of the non-sworn statements during the trial, or counsel's failure to object to the jury's receipt of the statements after deliberations had started. Hoosman also does not state how competent representation would have changed the outcome of the trial. See id.
Lastly, in Hoosman's amended application for postconviction relief, he alleged:
The Petitioner had had previous trials for these cases which had resulted in mistrials. During these trials, trial counsel had called witnesses on behalf of the petitioner/defendant. In the final trials (wherein petitioner was convicted) a number of these witnesses were not called by counsel to testify. The testimony of these witnesses would have resulted in a verdict of not guilty for the petitioner.
Hoosman fails to state which witnesses were not called at his final trials or state what these witnesses' testimony would have been. An applicant must "state the specific ways in which counsel's performance was inadequate and how competent representation would have changed the outcome." Bugley, 596 N.W.2d at 898. Hoosman has not specifically stated how defense counsel was ineffective.
We affirm the decision of the district court which summarily disposed of Hoosman's postconviction claims.