Jonathan Armstrong v. State of Iowa ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1132
Filed July 20, 2022
JONATHAN ARMSTRONG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
An applicant appeals the summary disposition of his application for
postconviction relief. AFFIRMED.
Christopher J. Roth of Roth Weinstein, LLC, Omaha, Nebraska, for
appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ.
2
BADDING, Judge.
Years after his convictions for crimes committed during a “violent home
invasion,” Armstrong v. State, No. 17-1160, 2018 WL 4636094, at *1 (Iowa Ct.
App. Sept. 26, 2018), Jonathan Armstrong filed a postconviction-relief application
claiming he was actually innocent of those crimes. His claim was based on what
he said was an “unsolicited” report from a fellow inmate that “all purported
witnesses to [his] alleged crimes had expressed desires to recant their testimony,”
and “they intend to submit statements under oath to the court.” The State moved
for summary disposition, following which Armstrong requested that an investigator
be appointed at State expense to assist counsel in “locating and interviewing
witnesses.” Armstrong’s motion was denied. Because Armstrong did not
subsequently present any evidence to support his claim of actual innocence, the
court granted summary disposition. Armstrong appeals.
I. Background Facts and Proceedings
In 2012, a jury found Armstrong guilty of multiple offenses for his role in a
raid on a home with seven occupants, none of whom were able to identify
Armstrong as one of the home invaders.1 Armstrong appealed, challenging the
sufficiency of the evidence supporting his convictions and the effectiveness of his
trial counsel. See generally State v. Armstrong, No. 12-0426, 2013 WL 2107400(Iowa Ct. App. May 15, 2013). We agreed counsel was ineffective by failing to
1 Armstrong was convicted of one count of assault with intent to inflict serious
injury, five counts of third-degree kidnapping, six counts of first-degree robbery,
one count of first-degree burglary, and one count of carrying weapons. The court
ordered five of the robbery convictions to merge into the remaining robbery
conviction and sentenced him to a total prison sentence not to exceed twenty-five
years, with a mandatory seventy-percent minimum.
3
object to flawed jury instructions on third-degree kidnapping. We reversed his five
convictions for that crime and remanded for a new trial on those charges only. Id.
at *1. Armstrong’s remaining convictions were affirmed. After procedendo issued,
the State dismissed the kidnapping charges.
Armstrong filed his first postconviction-relief application in February 2014,
generally alleging “insufficient evidence” and ineffective assistance of trial and
appellate counsel. Following trial, the district court rejected Armstrong’s claims
and denied his application. Armstrong appealed and, finding he failed to “show a
reasonable probability of a different outcome even if counsel had followed the
playlist developed in the [postconviction-relief] application,” we affirmed.
Armstrong, 2018 WL 4636094, at *1.
Armstrong filed the application leading to this appeal in March 2020. In an
amended application filed by counsel in June, Armstrong asserted:
Since the conclusion of his 2014 application for postconviction
relief and within three years of the filing of his current application for
postconviction relief, Mr. Armstrong has discovered evidence that
was not available at the time of his criminal trial, which is evidence
of his absolute innocence and which evidence is so compelling that
no reasonable juror upon hearing the evidence could find him guilty
of the alleged crimes. To wit, a fellow inmate approached Mr.
Armstrong unsolicited and told him that all purported witnesses to
Mr. Armstrong’s alleged crimes had expressed desires to recant their
testimony as it relates to Mr. Armstrong. All witnesses have become
convinced that Mr. Armstrong was not one of the perpetrators against
them, and they intend to submit statements to the court under oath.
The State responded with a motion for summary disposition, asserting the
application was time-barred by the three-year statute of limitations, and Armstrong
failed to adequately show a new ground of fact to except him from the statute of
limitations. The State pointed out that no victim ever identified Armstrong as the
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culprit, and his conviction was based on DNA and cell phone evidence, as well as
accomplice testimony.
New counsel was appointed for Armstrong in September, with a hearing on
the motion for summary disposition set for November. In October, counsel moved
to continue the hearing so that several witnesses could be located, interviewed,
and asked to sign affidavits. Counsel also filed a motion for a private investigator
at State expense to assist in locating and interviewing those witnesses. The court
granted the motion to continue but set the motion for an investigator for hearing.
The State resisted the motion, arguing it did “not set forth sufficient information
demonstrating a reasonable need for the sought court-funded investigative
services.” The State added the alleged “inmate’s identity and whereabouts” were
known and, because there was “no asserted impediment preventing
postconviction counsel from communicating directly with that individual, the grant
of State-funded investigative services” was “premature and unnecessary.”
The court adopted the State’s reasoning and denied Armstrong’s motion for
a private investigator. But the court did provide that “[i]n the event that counsel’s
contact with the inmate leads to a sworn statement from the inmate that could
demonstrate more specifically the need for further investigation or development of
material evidence,” Armstrong could renew his request. In a later motion to
continue the summary disposition hearing, Armstrong’s attorney asserted she was
“still trying to locate” witnesses to obtain affidavits but was experiencing “difficulty
ascertaining current contact information for the witnesses.” Counsel also asserted
her contact with Armstrong had been limited because of COVID-19.
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The district court granted the motion to continue and moved the hearing to
May 2021. The day before the hearing, Armstrong’s attorney filed a resistance to
the State’s motion for summary disposition. The resistance, which was
unsupported by affidavits or other evidence, reiterated the alleged statements from
a fellow inmate “that the witnesses have expressed their desire to recant their
testimony as it relates to” Armstrong. Based on this “newly-discovered evidence,”
Armstrong claimed he was “actually innocent” within the meaning of Schmidt v.
State, 909 N.W.2d 778 (Iowa 2018) and excepted from the statute of limitations.
At the hearing, the State argued that because the record was limited to
Armstrong’s self-serving allegations, he “present[ed] nothing for the Court to even
allow him to move forward at this point.” Armstrong responded by arguing that the
State was flipping the burden applicable to summary disposition motions.
Assuming without deciding “that Armstrong has put forward newly discovered
evidence to avoid the time-bar dismissal of [section] 822.3,” the court found that
his unsupported claim of actual innocence did not give rise to a genuine issue of
material fact under section 822.6. The court accordingly granted the State’s
motion for summary disposition. Appealing that decision, Armstrong claims the
court abused its discretion in denying his motion for an investigator at State
expense, summary disposition was inappropriate, and postconviction counsel
rendered ineffective assistance.
II. Standards of Review
We review the district court’s denial of a motion for appointment of an
investigator at State expense for abuse of discretion, the same we would of a
denial of a motion for an expert at State expense. State v. Tate, No. 16-1929,
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2017 WL 4049512, at *1 (Iowa Ct. App. Sept. 13, 2017). We review summary
disposition rulings in postconviction proceedings for legal error. Linn v. State, 929
N.W.2d 717. 729 (Iowa 2019). Claims of ineffective assistance of postconviction
counsel are reviewed de novo. Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018).
III. Analysis
A. Appointment of Investigator
We begin with Armstrong’s challenge to the court’s denial of his motion for
an investigator at State expense. Offering little specifics, Armstrong only submits
that “[a] private investigator would have provided [him] an opportunity to offer
evidence vital to the material issue in the case,” and the services were necessary
because his counsel was unable to locate any witnesses.
An indigent party is not entitled to “services at state expense unless there
is a finding that the services are necessary in the interest of justice.” State v.
Leutfaimany, 585 N.W.2d 200, 208 (Iowa 1998). A reasonable need must be
demonstrated, and courts are discouraged from authorizing State funds when the
indigent party “merely seeks to embark on a random fishing expedition.” Id. In
order to prevent “this sort of evidentiary exploration,” courts are required “to
independently review facts asserted by counsel and grant the application if those
facts ‘reasonably suggest further exploration may prove beneficial to defendant in
the development of his or her defense.’” State v. Dahl, 874 N.W.2d 348, 352 (Iowa
2016) (citation omitted).
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Here, the record shows Armstrong knew the identity and location of the
“fellow inmate”2 who told him that “all purported witnesses to . . . Armstrong’s
alleged crimes” were ready to recant. Noting that fact in denying Armstrong’s
motion, the district court implicitly determined an investigator was unnecessary to
procure what the inmate had to offer. We agree.
Armstrong goes on to submit an investigator was nevertheless necessary
to “obtain affidavits from ‘undiscoverable witnesses.’” But these witnesses were
not undiscoverable since, based on Armstrong’s own allegations, they were known
by the fellow inmate, who was known to Armstrong. If the inmate gave Armstrong
information that needed further investigation, the court left the door open for
Armstrong to renew his request. Thus, even though the State should only object
to appointment of a private investigator for an indigent party in “rare
circumstances,” id. at 353, with this set of facts we are unable to conclude the
district court abused its discretion in denying Armstrong’s motion.
B. Summary Disposition
We next examine Armstrong’s claim that the court erred in granting
summary disposition. Though Armstrong acknowledges that he “did not provide
any evidence to resist the State’s motion,” he claims that should not have resulted
2 Armstrong seems to dispute this point on appeal even though his amended
postconviction application stated that “a fellow inmate approached Mr. Armstrong
unsolicited and told him” about the recanting witnesses. During some changes in
court-appointed counsel, Armstrong filed a pro se motion with the court requesting
“travel documents” for a certain inmate. The State assumed the inmate named in
Armstrong’s motion was the fellow inmate referred to in his amended
postconviction application and provided Armstrong with that inmate’s location.
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in entry of summary disposition because the State did not meet its burden to show
the non-existence of any genuine issue of material fact.
“The standards for summary judgment in postconviction relief actions are
analogous to summary judgment in civil proceedings.” Castro v. State, 795
N.W.2d 789, 793 (Iowa 2011). “To obtain a grant of summary judgment on some
issue in an action, the moving party must affirmatively establish the existence of
undisputed facts entitling that party to a particular result under controlling law.”
Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994), overruled on other grounds
by Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 448 (Iowa 2016). The moving
party can meet that burden by relying “on admissions in the pleadings, affidavits,
or depositions, answers to interrogatories, and admissions on file.” Id. (internal
citation omitted); accord Iowa R. Civ. P. 1.981(3). “A moving party cannot shift the
burden to the other party through a conclusory motion for summary judgment not
supported by undisputed facts.” Slaughter v. Des Moines Univ. Coll. of
Osteopathic Med., 925 N.W.2d 793, 819 (Iowa 2019) (Appel, J., dissenting).
“When the evidentiary matter tendered in support of the motion does not
affirmatively establish uncontroverted facts that sustain the moving party’s right to
judgment, summary judgment must be denied even if no opposing evidentiary
matter is presented.” Griglione, 525 N.W.2d at 813.
It is this latter point Armstrong hangs his hat on. He argues the State “failed
to produce any evidence” to dispute his claim “that a fellow inmate informed him
that witnesses wished to recant their testimony.” According to Armstrong, “[a]s the
record stands currently, it is impossible to ascertain which inmate informed
Armstrong of the recantation, nor can one ascertain who expressed their desire to
9
recant their testimony.” “The procedural consequence of this summary
disposition,” Armstrong continues, deprived him “of a meaningful opportunity to
develop a record in open court and assigned a heightened burden beyond which
the State Legislature intended.” We disagree.
We first note that the State’s motion was properly supported. As required
by Iowa Rule of Civil Procedure 1.981(8), a statement of undisputed facts was
attached to the State’s motion with specific reference to those parts of the
pleadings, depositions, and underlying criminal transcript “support[ing] such
contentions,” along with a memorandum of authorities. The focus of the State’s
motion, and the undisputed facts in support of it, was that Armstrong’s claim of
victim recantation was not plausible given the evidence presented at trial. The
State pointed out that because none of the victims of the home invasion ever
identified Armstrong as one of their assailants, there was nothing for them to
“recant.” Instead, Armstrong’s conviction was based on testimony from one of his
accomplices, which was corroborated by DNA and cell phone evidence placing
Armstrong at the scene of the crime. Yet at the hearing on the motion, Armstrong
countered that “there’s a difference between witnesses not being able to identify a
particular individual versus affirmatively stating that an individual did not commit
the crime.”
The problem is that because the State’s motion was properly supported,
Armstrong could “not rest upon the mere allegations or denials in the pleadings,”
Iowa R. Civ. P. 1.981(5), though that is exactly what he did. See Hlubek v. Pelecky,
701 N.W.2d 93, 96 (Iowa 2005) (“Speculation is not sufficient to generate a
genuine issue of fact.”). As the district court found:
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Armstrong has presented only second-hand hearsay from an
unnamed fellow inmate who claimed to know that all of the witnesses
to the home invasion crime no longer believed Armstrong was
involved in the crime. Neither Armstrong nor his unnamed source
has provided an affidavit. None of the crime victims, whose identities
are set out in the trial information, provided affidavits. The record is
devoid of an affidavit from either of the accomplices.
Armstrong suggests this lack of evidence was because his motion for a
private investigator at State expense was denied.3 But that doesn’t explain
Armstrong’s failure to file even his own affidavit setting out the basis for his claim
in more detail. See Feeback v. Swift Pork Co., No. 20-1467, 2022 WL 951097, at
*5 n.8 (Iowa Ct. App. Mar. 30, 2022) (noting that even self-serving affidavits “may
be evidence for the trier of fact to believe or disbelieve”), application for further
review granted (June 28, 2022). “Summary judgment is not a dress rehearsal or
practice run; ‘it is the put up or shut up moment in a lawsuit, when a [nonmoving]
party must show what evidence it has that would convince a trier of fact to accept
its version of the events.’” Slaughter, 925 N.W.2d at 808 (alteration in original)
(citation omitted). Because Armstrong did not “set forth specific facts showing the
existence of a genuine issue for trial” in response to the State’s properly supported
motion, Hlubeck, 701 N.W.2d at 95, we affirm the grant of summary disposition.
C. Ineffective Assistance of Postconviction Counsel
In a final effort to save his application from summary disposition, Armstrong
asserts postconviction counsel was ineffective in failing to investigate his actual-
3 We recognize that in Linn, 929 N.W.2d at 753, our supreme court found the
“failure to appoint an expert cannot be cited as a basis for summary judgment [in
a postconviction action] when the court erroneously denied the appointment of
such an expert.” But in Linn, unlike here, the facts supporting the applicant’s need
for an expert were apparent from the underlying trial record. See 929 N.W.2d at
721–27.
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innocence claim and procure witnesses in support of it. Because we have no idea
what measures counsel took, the record is inadequate for us to address the claim.
So it would have to be made in a separate postconviction-relief application. See
Goode, 920 N.W.2d at 526–27.
IV. Conclusion
We affirm the summary disposition of Armstrong’s postconviction-relief
application.
AFFIRMED.