Jeremy Michael Cory v. State of Iowa , 919 N.W.2d 635 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 16-2059
Filed May 2, 2018
JEREMY MICHAEL CORY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Michael J. Moon,
Judge.
The applicant appeals from the district court’s summary dismissal of his
application for postconviction relief. AFFIRMED.
Christopher A. Clausen of Clausen Law Office, Ames, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.
Jeremy Cory appeals from the district court’s summary dismissal of his
application for postconviction relief (PCR). Here, Cory maintains the district court
erred in granting the State’s motion for summary dismissal. Alternatively, he
maintains PCR counsel provided ineffective assistance by allowing his PCR
application to be summarily dismissed.
I. Background Facts and Proceedings.
In 2014, a jury found Cory guilty of first-degree murder in the shooting death
of his wife.
Cory filed a direct appeal, arguing there was insufficient evidence to support
the jury’s verdict, the district court violated his right to present a defense by
excluding evidence of his alcoholism, and the district court improperly excluded
evidence of a burglary that occurred at his home two weeks after his arrest. See
State v. Cory, No. 14-1436, 2015 WL 7567527, at *1 (Iowa Ct. App. Nov. 25, 2015).
Cory also argued his trial counsel had provided ineffective assistance by failing to
seek to suppress statements Cory made to law enforcement under article I, section
10 of the Iowa Constitution. Id.A panel of our court affirmed Cory’s conviction “[g]iven the overwhelming
evidence of Cory’s guilt” and preserved his claim of ineffective assistance for
possible PCR proceedings. Id.Cory filed an application for further review, which our supreme court denied.
Procedendo issued on February 4, 2016.
He filed a pro se application for PCR on April 1, 2016. In it, Cory claimed
trial counsel had provided ineffective assistance by advising Cory not to testify on
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his own behalf “due to an imminent retrial.” He also claimed prosecutorial
misconduct, stating, “Prosecution withheld exculpatory evidence.” Lastly, he
stated, “The cumulative effect of all the errors was so prejudicial, applicant was
denied a fair and impartial trial.”
PCR counsel was appointed less than two weeks later and filed an
appearance on April 21.
On April 26, the State filed an answer and motion for summary disposition.
The State claimed summary dismissal was appropriate because there was no
genuine issue of material fact upon which reasonable minds could draw different
inferences, noting Cory and his trial counsel had engaged in a conversation on the
record in which Cory indicated he was choosing not to testify. Additionally, Cory’s
blanket statement that exculpatory evidence was withheld, without a claim
regarding specific evidence, was insufficient to withstand summary judgment.
Neither Cory nor his PCR attorney filed a resistance to the State’s motion.
After three continuances at the request of Cory’s PCR counsel and one at the
request of the State, the motion came on for hearing on October 17.
At the hearing, the State called Cory’s trial counsel to testify. She testified
she had conversations with Cory about his decision to testify on his own behalf,
stating:
Well, the conversations revolved around whether he should
testify, that he had a constitutional right to testify, that that choice
was going to be up to him. Ultimately, my recommendation was that
he not testify. Part of that was dealing with the fact that there were
gaps in his memory which could have been exploited by the
prosecution to make our case weaker. Part of that was also just that
it’s definitely a gamble whether you put someone on the stand
because you’re leaving them open to cross-examination. Um, but he
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was informed obviously that there could be a retrial if an appeal came
back reversing the decision.
Trial counsel further testified that she did not threaten Cory, tell him he could not
testify, nor promise or guarantee him that an appeal would result in the reversal of
his conviction. Additionally, the PCR court accepted into evidence records from
the trial, including the trial transcript in which Cory indicated to the court that he
had been able to speak with his trial counsel about his right to testify and it was his
decision not to do so. PCR counsel’s only question of trial counsel was if she had
been deposed in the PCR action; she indicated she had not.
PCR counsel presented no evidence at the PCR hearing, though he did
provide oral argument, stating:
We would resist the granting of the summary judgment. We believe
that the purpose of a PCR is to develop a record upon which a
judgment can be granted. At this point we haven’t had a chance to—
as counsel stated, we have a huge record on this case. I’ve had a
chance to go through all of it once. I haven’t had a chance to go
through all of it in detail with my client at this point. We haven’t had
a chance to depose trial counsel.
Based upon my initial assessment of everything that that’s
where I think his greatest concern lies is with the conduct of his trial
counsel both in the preparation of the trial and during the trial. The
transcript itself only indicates what happened in the courtroom. It
doesn’t indicate anything about what happened outside. During that
period of time he was also going through a pretty strong
detoxification from alcohol and drugs. So, that may also materially
affect the situation.
As the State indicated, I mean [the county attorney] is correct
there is a lot of speculation going on here. It’s very difficult to properly
provide for you a more detailed argument at this point without having
more time to go through, conduct proper depositions, and figure out
which arguments my client feels are in his best interests to make
before the Court.
So, for purposes of this we don’t feel that—we feel that it’s a
bit premature. We feel that what would be an appropriate remedy
for this would be to request a new application for postconviction
relief, which is what I’ve seen traditionally done to be filed within a
period of time to attempt to narrow down the issues. . . . So, at this
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point we don’t believe the record has been developed to any point
that it would be sufficient for a proper record to be made.
The PCR court granted the State’s motion for summary dismissal, finding Cory’s
claim that trial counsel provided ineffective assistance by advising him not to testify
in his own defense was without merit. The court noted trial counsel’s testimony at
the PCR hearing and the record from the underlying trial when Cory indicated he
understood his right to testify and was waiving the right. Additionally, the PCR
court found Cory had failed to set forth any evidence to support his claim the
prosecutor had withheld exculpatory evidence and ruled that a mere allegation,
unsupported by any affidavit or evidence, could not withstand the motion for
summary judgment.
Cory appeals.
II. Standard of Review.
“We normally review postconviction proceedings for errors at law.” Castro
v. State, 795 N.W.2d 789, 792 (Iowa 2011). This includes summary dismissals of
applications for PCR. Id. However, applications that allege ineffective assistance
raise a constitutional claim, which we review de novo. Id.III. Discussion.
A. PCR Court.
Although Cory maintains he is challenging the propriety of the district court’s
summary dismissal of his application for PCR, Cory has not claimed that a genuine
issue of material fact exists or that the court misapplied the law in reaching its
decision. See id. at 793 (“[S]ummary judgment is proper when the record reveals
only a conflict over the legal consequences of undisputed facts. The moving party
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is required to affirmatively establish that the undisputed facts support judgment
under the controlling law.” (citation omitted)). Cory claims “he should have been
allowed to develop the record regarding the performance of trial counsel prior to a
hearing on the motion for summary judgment or summary disposition.”
In other words, Cory is not claiming the PCR court erred based on the record
that was before it; rather, he is claiming he should have been allowed to create a
better record. But, as the PCR court noted in its ruling, PCR counsel did not ask
that the hearing on the motion for summary judgment be continued1 even though
counsel had no evidence, affidavits, records, or testimony prepared to offer at the
hearing.
Based on the record that was before the PCR court at the time of the hearing
for motion on summary judgment, we cannot say the court erred in granting the
State’s motion.
B. Ineffective Assistance of PCR Counsel.
Alternatively, Cory maintains PCR counsel was ineffective for allowing his
application for PCR to be summarily dismissed. In a claim of ineffective
assistance, the party claiming he or she received ineffective assistance has the
burden to establish that counsel breached an essential duty and prejudice resulted
from the breach. Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011). Here, Cory
concedes he “cannot specifically point to any action which” PCR counsel did or did
not do that “would have changed the outcome of this hearing.” Thus, the only way
Cory may obtain relief is if we determine PCR counsel committed structural error
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PCR counsel requested and obtained three continuances before the October hearing,
but he did not request a continuance leading up to or during the October 17 hearing.
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in his representation of Cory, as no specific showing of prejudice is required in
such an instance. See id. at 252 (providing that structural error occurs when: “(1)
counsel is completely denied, actually or constructively, at a crucial stage in the
proceeding; (2) where counsel does not place the prosecution’s case against
meaningful adversarial testing; or (3) where surrounding circumstances justify a
presumption of ineffectiveness, such as where counsel has an actual conflict of
interest in jointly representing multiple defendants”). But Cory has not asked us to
find structural error.
We note that Cory may still bring additional PCR actions, as the three-year
window does not close until February 2019. See Iowa Code § 822.3 (2016)
(requiring PCR applications to “be filed within three years from the date” “the writ
of procedendo is issued”). In this situation, we believe the most prudent option is
to preserve Cory’s claim that PCR counsel provided ineffective assistance to allow
for further development of the record in possible future PCR actions.
AFFIRMED.