Eduardo Artemio Rodriguez Lopez v. State of Iowa ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1945
Filed December 18, 2019
EDUARDO ARTEMIO RODRIGUEZ LOPEZ,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dickinson County, David A. Lester,
Judge.
Eduardo Rodriguez Lopez appeals the order denying his application for
postconviction relief. AFFIRMED
Judy L. Freking of Judy L. Freking, P.C., Le Mars, for appellant.
Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee State.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.
Eduardo Rodriguez Lopez appeals from the order denying his application
for postconviction relief (PCR) from his 2012 conviction for second-degree sexual
abuse. Although we review the denial of a PCR application for correction of errors
at law, see Villa Magana v. State, 908 N.W.2d 255, 259 (Iowa 2018), we review
claims of ineffective assistance of counsel de novo, see Lamasters v. State, 821
N.W.2d 856, 862 (Iowa 2012). To succeed on a claim of ineffective assistance, a
PCR applicant must show counsel breached a duty and prejudice resulted. See
id. We may affirm the district court’s denial of an ineffective-assistance claim if
either element is lacking. See id.The PCR court identified nine claims for PCR and found each failed
because this court rejected it on direct appeal or because Rodriguez Lopez failed
to provide a sufficient reason for not raising it on direct appeal. See Iowa Code
§ 822.8 (2015) (stating claims that were finally adjudicated or not raised in the
proceeding that resulted in the conviction may not be the basis for a subsequent
application unless the court finds a ground for relief for which for sufficient reason
was not asserted or was inadequately raised in the prior action). Of the claims it
found it could analyze under an ineffective-assistance-of-counsel rubric, the court
determined Rodriguez Lopez failed to show prejudice.
On appeal, Rodriguez Lopez argues his PCR counsel was ineffective by
failing to conduct a reasonable investigation into his claims and to identify all
possible grounds for PCR. He makes the general claim that “there exists a very
reasonable probability that the results of this [PCR] hearing would have been
different” had PCR counsel performed competently. But the fact that an error “had
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some conceivable effect on the outcome of the proceeding” is not enough to show
prejudice. Strickland v. Washington, 466 U.S. 668, 693 (1984). “The applicant
must state the specific ways in which counsel’s performance was inadequate and
identify how competent representation probably would have changed the
outcome.” Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (internal citation
omitted). Rodriguez Lopez’s claim of ineffective assistance of PCR counsel is too
general to address on appeal. See id.Rodriguez Lopez also claims ineffective assistance of trial counsel.1 He first
contends trial counsel was ineffective by informing the court he would be ready to
try the case, which led the trial court to deny his motion to continue the trial.
Rodriguez Lopez claims he was prejudiced because trial counsel did not have
enough time to investigate the credibility of the complaining witness. But
Rodriguez Lopez raised a similar claim on direct appeal, where he argued the trial
court’s denial of his motion for a continuance violated his constitutional right to due
process and his right to present a defense. State v. Lopez, No. 12-1676, 2013 WL
5760608, at *8 (Iowa Ct. App. Oct. 23, 2013). He claimed he needed the
continuance so counsel could investigate whether the complaining witness denied
the abuse to others. Id. And we rejected his claim, finding it was “too vague and
uncertain” and Rodriguez Lopez failed to show prejudice. See id. at *10. Setting
1 To the extent these are novel claims, Rodriguez Lopez does not state a reason
for failing to raise these claims in his PCR application as required by section 822.8.
But we presume that this failure relates to his claims that PCR counsel was
ineffective by failing to investigate and identify all possible grounds for PCR. See
Collins v. State, 588 N.W.2d 399, 402-03 (Iowa 1998) (stating that ineffective
assistance of PCR counsel may constitute sufficient reason for not raising an issue
in a PCR action).
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aside the question of whether Iowa Code section 822.8 bars Rodriguez Lopez from
relitigating the issue, the claim fails because he offers nothing more than
speculation to show prejudice.
Next, Rodriguez Lopez alleges his trial counsel was ineffective by misusing
the time and resources available, claiming he “did not have enough time with
defense counsel to gain an understanding of the critical stages of trial nor to gain
a sufficient amount of knowledge and understanding in order to meaningfully
participate in his own defense.” He incorporates several claims raised to and
rejected by the PCR court and repackages them as a claim of ineffective
assistance of counsel. Once again, even assuming section 822.8 does not bar
these claims, there is no showing of prejudice.
Finally, Rodriguez Lopez waived his claim of ineffective assistance of trial
counsel based on counsel’s failure to object to a voir dire question; his brief
provides no argument and cites no authority to support it. See Iowa R. App. P.
6.903(2)(g)(3) (stating the appellant’s brief must include an argument section
“containing the appellant’s contentions and the reasons for them with citations to
the authorities relied on” and “[f]ailure to cite authority in support of an issue may
be deemed waiver of that issue”). And we reject Rodriguez Lopez’s claim that the
trial court erred in overruling his motion for judgment of acquittal because section
822.8 bars it.
AFFIRMED.