Deandre Goode v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0282
Filed October 20, 2021
DEANDRE GOODE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Michael J.
Schilling, Judge.
A twice unsuccessful applicant for postconviction relief challenges the
performance of his postconviction counsel. AFFIRMED.
Thomas Hurd of Law Office of Thomas Hurd P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Tabor, P.J., and Greer and Badding, JJ.
2
TABOR, Presiding Judge.
Rejecting his alibi defense, a jury convicted DeAndre Goode of robbery in
the second degree. We affirmed his conviction on direct appeal.1 In his first appeal
from the denial of postconviction relief (PCR), Goode claimed PCR trial counsel
should have challenged his criminal trial counsel’s failure to bolster his alibi
defense with Facebook posts allegedly showing he was home during the robbery.
Relying on Allison v. State, 914 N.W.2d 866, 891 (Iowa 2018), our supreme court
held that Goode could litigate the performance of PCR trial counsel by filing a
second application that related back to the date he filed his first action.2 So Goode,
acting pro se, again applied for relief, alleging “there exist Facebook post,
comment, and location time & date to support applicant’s alibi which was never
produced by prior attorneys.” But once appointed, new counsel again did not offer
the Facebook photos. In this second PCR appeal, Goode takes another spin on
the hamster wheel. He challenges the effectiveness of his second PCR trial
counsel, asking us either to preserve the claim for a third action or to grant a limited
remand so Goode can offer the evidence purported to support his alibi.3
Because neither remedy is available to Goode, we affirm without preserving
the issue for another PCR.
1 State v. Goode, No. 13-1028, 2014 WL 3511816 (Iowa Ct. App. July 16, 2014).
2 Goode v. State, 920 N.W.2d 520, 527 (Iowa 2018).
3 Goode also proposes a third option: adopt a rule presuming he was prejudiced
by PCR counsel’s omission because Goode had no notice that he should submit
a written brief in support of his pro se claim. Contrary to Goode’s argument, his
counsel’s performance did not amount to structural error as occurred in Lado v.
State, 804 N.W.2d 248, 253 (Iowa 2011) (holding Lado was constructively without
counsel). Goode’s counsel did not “sit silent” and allow Goode’s application to be
dismissed. Rather, counsel chose to raise a different issue to obtain relief. We
thus decline to presume prejudice.
3
I. Facts and Prior Proceedings
In November 2012, George Petree was robbed and beaten by three men
as he arrived home from grocery shopping. The assailants took his wallet, which
contained his driver’s license, debit card, social security card, and his bank account
number. The next month, someone applied for a credit card in Petree’s name.
Investigators managed to trace the internet service where that credit card
application originated to Goode’s apartment.4 Investigators also obtained
surveillance footage from a Wal-Mart store showing Goode and two companions
purchasing an Xbox with the credit card taken out in Petree’s name. When police
showed Petree a photo lineup, he identified Goode as the person who punched
him in the face.
When questioned by investigators, Goode denied knowledge of the
robbery. Confronted with the Wal-Mart video, Goode admitted being at the store,
but claimed he thought his friend, Hamb, was buying the Xbox with a gift card.
In February 2013, the State charged Goode with robbery in the second
degree, in violation of Iowa Code sections 711.1 and 711.3 (2012). At his jury trial
that May, Goode presented an alibi defense. Both he and his girlfriend testified
that Goode never left his apartment the night of the robbery. They both testified
that Goode posted photographs of his daughter on Facebook that night, using the
girlfriend’s cell phone as a “hot spot” because Goode said he did not arrange for
internet service after moving into the apartment. The jury found Goode guilty as
charged.
4The record contained conflicting evidence whether Goode lived at the apartment
alone or with Marcus Hamb.
4
In his direct appeal, Goode challenged the sufficiency of the evidence,
alleging trial counsel was ineffective for not contesting the element of specific intent
to commit a theft. We held a reasonable fact finder could have determined that
Goode “had, or aided and abetted another who had, the specific intent to commit
a theft and in carrying out the theft committed an assault.” Goode, 2014 WL
3511816, at *5. We preserved for PCR Goode’s claims that trial counsel was
ineffective for not objecting to proposed jury instructions or the mention of his willful
injury conviction.
In August 2014, Goode first applied for PCR. His pro se application alleged:
“There are photos and GPS location uploads documented on the social media
website Facebook that place me at home with my child at the time of the robbery I
was convicted of.” Once appointed, Goode’s counsel filed a brief alleging criminal
trial counsel should have moved to exclude the photo array shown to the victim.
The brief did not mention the Facebook evidence. But in denying relief, the district
court did address the pro se claim: “Goode provides little explanation or argument
that his Facebook evidence constitutes newly discovered evidence. . . . Because
Goode has not met his burden to show that his evidence is grounds for his
conviction to be vacated, his application must be denied on this issue.”
On appeal from that denial, Goode claimed his PCR counsel was ineffective
for failing “to present physical evidence at the PCR hearing to support the
Facebook-alibi claim” and for not briefing that issue. Goode, 920 N.W.2d at 523.
The supreme court declined “to remand the claim of ineffective assistance of
postconviction counsel raised for the first time on appeal.” Id. at 527. Instead, the
court held that Goode could pursue the issue in a separate application. Id. Based
5
on Allison, the court held the three-year statute of limitations was “not an
impediment to pursuing a second PCR application relating to the claim in this case
if promptly filed following the appeal.” Id. at 526.
About three months later, Goode, pro se, filed his second PCR application,
again alleging the existence of the Facebook posts as support for his alibi defense.
Still pro se, Goode amended his application a month later. Under a form heading
stating, “These items are not attached for the following reasons:” he wrote, “The
Facebook post are on the internet on the Facebook website.”
In August 2019, second PCR counsel filed an amended application, reciting
the procedural history, including first PCR counsel’s failure to address the
“Facebook-alibi claim.” Yet when alleging the grounds for relief, counsel did not
mention the Facebook evidence. Instead, the amended application claimed
criminal trial counsel was ineffective in not moving to exclude “an audio recording
purporting to be Goode pretending to be the victim trying to get a pin code for a
debit card.” Counsel closed with this proviso: “Nothing in this Amended Application
for [PCR] is intended to supplant the allegations set forth in the pro se application
for [PCR]. This Amended Application is a supplement thereto.” Counsel’s brief
also omitted any reference to the Facebook issue.
Without holding a hearing, in February 2020, the district court denied
Goode’s second PCR application. The court rejected the issue raised by counsel.
It also returned to Goode’s pro se allegation about the Facebook evidence. After
finding the posts did not qualify as newly discovered evidence, the court analyzed
the claim as ineffective assistance of counsel:
6
The court is unable to find that prior post-conviction counsel was
ineffective for failing to present physical evidence at the first PCR
hearing to support the Facebook-alibi claim or failing to argue the
claim in his written brief. The court does not know what the
Facebook posts show or say, and therefore Goode has failed to
present any evidence to indicate that the Facebook posts would have
been relevant and that his prior post-conviction counsel failed in a
duty, or that any prejudice resulted.
Goode now appeals the denial of his second application for PCR, alleging for the
first time that his second PCR counsel was ineffective for failing to present
evidence of the Facebook photos.
II. Standard of Review
In general, we review the denial of PCR for correction of errors at law.
Goode, 920 N.W.2d at 523. But when the applicant alleges ineffective assistance
of PCR counsel, we examine the record de novo. Id.
III. Analysis
In what seems like déjà vu, Goode claims his second PCR trial counsel was
ineffective “for failing to present evidence Goode’s claim Facebook photos would
support his alibi defense.” 5 His brief contends: “it is exceptionally clear that what
Goode is desiring to do is identify photos from Facebook which contain metadata
including the date, time, and GPS location embedded in the photos.” Yet he
acknowledges the record is inadequate for us to address his claims of ineffective
assistance. So he proposes two ways to proceed: (1) grant a limited remand so
5Goode argues the failure of criminal trial counsel and two PCR trial attorneys to
present the Facebook evidence showed their incompetence. But the State
counters: “It is at least as likely that Goode’s attorneys chose not to present that
evidence because it did not support Goode’s alibi.”
7
he can present this information to the district court or (2) preserve this issue for a
third PCR.
The State believes neither path is open to Goode. On the possibility of a
limited remand, the State points to the supreme court’s holding in the first PCR
appeal. “[T]he issue raised by Goode was not an issue raised and decided in the
district court. It was a new issue alleging ineffective assistance of postconviction
counsel.” Goode, 920 N.W.2d at 526. The court held that remand would be
“contrary to the symmetry of our appellate process and our role as a court of
review.” Id. Instead, the only route available to Goode was filing a second PCR
action, which related back to the timely filed first action. Id. at 527. We agree with
the State, if remand was unavailable the first time around, it is unavailable to decide
the effectiveness of his second PCR counsel.
Which brings us to the possibility of preserving Goode’s claim of ineffective
assistance of his second PCR counsel for a third PCR action. As the State argues,
this resolution is off the table for two reasons.
First, Allison—and Goode in its reliance on Allison—only contemplated one
round of relating back to the original timely filed application. Indeed, our court has
said over and over that Allison does not apply to third or subsequent PCR
applications. Woodberry v. State, No. 19-1693, 2021 WL 4304232, at *1 (Iowa
App. Sept. 22, 2021); Moon v. State, No. 19-2037, 2021 WL 610195, at *4 (Iowa
Ct. App. Feb. 17, 2021); Smitherman v. State, No. 19-0331, 2020 WL 3571814, at
*2 (Iowa Ct. App. July 1, 2020); Long v. State, No. 19-0726, 2020 WL 2061934, at
*4 (Iowa Ct. App. Apr. 29, 2020); Morris v. State, No. 18-1021, 2019 WL 3714820,
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at *2 n.2 (Iowa Ct. App. Aug. 7, 2019); Kelly v. State, No. 17-0382, 2018 WL
3650287, at *4 (Iowa Ct. App. Aug. 1, 2018).
Second, even if Allison applied to a third PCR action, 2019 legislation
abolished the relation-back doctrine for allegations of ineffective assistance claims
in postconviction proceedings. 2019 Iowa Acts ch. 140, § 34 (codified at Iowa
Code § 822.3); see Johnson v. State, No. 19-1949, 2021 WL 210700, at *3 (Iowa
Ct. App. Jan. 21, 2021) (finding enactment abrogated Allison). If Goode were to
file a third PCR application, it would be outside the three-year statute of limitations
in Iowa Code section 822.3. The deadline was August 15, 2017—three years after
procedendo issued following his direct appeal. And because he floated the
Facebook claim as part of his alibi defense at trial, Goode cannot assert it was a
ground of fact or law that could not have been raised in the applicable time period.
See Iowa Code § 822.3; see Quinn v. State, 954 N.W.2d 75, 77 (Iowa Ct. App.
2020) (“[E]vidence presented to support Quinn’s claim of actual innocence was
unquestionably available to him within the limitations period . . . .”).
On this record, we decline to preserve the claim of ineffective assistance of
Goode’s second PCR counsel for a third PCR.
AFFIRMED.