Demont Moore, Applicant-Appellant v. State of Iowa ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0527
Filed April 8, 2015
DEMONT MOORE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Henry W. Latham II,
Judge.
Defendant appeals from the dismissal of his third application for
postconviction relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, MIchael J. Walton, County Attorney, and Amy Devine, Assistant County
Attorney, for appellee State.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2
DANILSON, C.J.
Demont Moore appeals from the dismissal of his third application for
postconviction relief (PCR) as being time-barred. Moore maintains his PCR
counsel was ineffective for failing to develop a record regarding newly discovered
evidence. Because Moore’s counsel has no duty to raise a meritless issue, we
affirm.
I. Background Facts and Proceedings.
On July 21, 2002, Deanna Shipp was shot and killed in a drive-by shooting
in Davenport, Iowa. During the investigation, a number of guns, bullets, and shell
casings were seized and tested. A lab report detailing the results of tests on the
various items was included with the minutes of testimony filed with the trial
information. Moore was among a number of people who were arrested and
charged with involvement in the shooting. He was charged with murder in the
first degree, willful injury, and terrorism with intent.
Pursuant to a plea agreement, Moore pled guilty to attempted murder on
January 14, 2003. On February 3, 2003, he was sentenced to an indeterminate
term of incarceration not to exceed twenty-five years.
Moore filed a direct appeal from his conviction, but he later withdrew it.
He filed his first application for PCR on January 23, 2004. The district
court denied the application, and Moore appealed. The appeal was dismissed as
untimely.
Moore filed his second application for PCR on October 6, 2005. The
application was also denied. Moore appealed, and we affirmed the denial in
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Moore v. State, No. 07-0420, 2008 WL 2357730, at *1 (Iowa Ct. App. June 11,
2008).
On November 23, 2011, Moore filed his third application for PCR, which is
the subject of this appeal. Moore claimed the State withheld information about
three Remington shell casings that were exculpatory. 1 In its answer, the State
denied the allegations and urged dismissal of the application as time-barred.
The district court held a hearing on the application on February 8, 2014.
The court found that the evidence Moore maintained was newly discovered was
not in fact new, and thus Moore’s application was time-barred. The court granted
the State’s request for summary disposition on March 14, 2014. Moore appeals.
II. Standard of Review.
We typically review postconviction-relief proceedings on error. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant
asserts claims of a constitutional nature, our review is de novo. Id. Thus, here
we review the applicant’s claim of ineffective assistance de novo. Id.III. Discussion.
It is undisputed Moore’s third application for PCR was filed outside of the
three-year statute of limitations. See Iowa Code § 822.3 (“All other applications
must be filed within three years from the date the conviction or decision is final
or, in the event of an appeal, from the date the writ of procedendo is issued.”
However, Moore maintains his application was not untimely because of newly
discovered exculpatory evidence. See id. (“This limitation does not apply to a
1
Moore also claimed the judge who presided over his original plea and sentencing
should not have been allowed to preside over his PCR action because of a conflict of
interest. Moore does not re-assert the claim on appeal, and we consider it waived.
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ground of fact or law that could not have been raised within the applicable time
period.”). He maintains PCR counsel was ineffective for failing to develop a
record on the issue of newly-discovered evidence, which would have excused his
otherwise untimely application.
In order to prevail on his ineffective-assistance claim, Moore must show
“(1) counsel failed to perform an essential duty and (2) prejudice resulted.”
Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006). Both elements must be
proved by a preponderance of the evidence. State v. Null, 836 N.W.2d 41, 48
(Iowa 2013). If Moore fails to prove either element, his claim must fail. See
State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003).
Moore claims his attorney failed to create a record that proved his
application for postconviction relief was not time-barred. PCR counsel examined
Moore at the hearing, and it is clear Moore’s theory, related to or arising from the
shell casing, was not new evidence because the shell casings were listed as
exhibits in the minutes of testimony attached to the trial information. Because
counsel has no duty to raise a meritless issue, Moore’s ineffective claim fails.
See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[C]ounsel has no duty
to raise an issue that has no merit.”) We affirm.
AFFIRMED.