Gatluak Chuol Bol v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 20-1603
Filed November 23, 2021
GATLUAK CHUOL BOL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
______________________________________________________________
Appeal from the Iowa District Court for Marshall County, John J. Haney,
Judge.
Gatluak Chuol Bol appeals the dismissal of his second postconviction-relief
application. Bol alleges his postconviction counsel was ineffective for failing to
identify a claim of ineffective assistance of trial counsel. AFFIRMED.
R. Ben Stone of Parrish Kruidenier Dunn Gentry Brown Bergmann &
Messamer, LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
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SCHUMACHER, Judge.
Gatluak Chuol Bol appeals the dismissal of his second postconviction relief
(PCR) application. He contends his PCR counsel was ineffective in failing to
identify a claim of ineffective assistance of trial counsel. Bol asserts his trial
counsel failed to use information available for cross-examination to attack a
witness’s credibility and the district court should not have summarily dismissed his
application without affording him an evidentiary hearing. We determine Bol’s claim
was previously litigated. Assuming arguendo there was a breach, Bol cannot
establish prejudice. Accordingly, we affirm the summary disposition entered by
the district court.
I. Facts and Prior Proceedings
Bol was charged with third-degree sexual abuse, in violation of Iowa Code
sections 702.17, 709.1, and 709.4(1)(a) (2014), and assault with intent to commit
sexual abuse, in violation of Iowa Code sections 708.1 and 709.11. Before his
trial, the parties were informed Bol’s counsel had represented Officer Ramon
Maxey in an unrelated family-law matter. The State planned to use Officer Maxey
as a witness at trial. Both Bol and Officer Maxey signed conflict-of-interest waivers,
and the case proceeded to trial. Bol was convicted by a jury on both charges in
December 2015 and sentenced to an indeterminate twelve-year prison term.
Bol’s conviction was affirmed on direct appeal. State v. Bol, No. 16-0370,
2017 WL 936110, at *5 (Iowa Ct. App. Mar. 8, 2017). Our court summarized the
facts of Bol’s appeal as follows:
In late October 201[4], L.H. started working the night shift
at the JBS Swift plant. After a training session in early November,
she lost her way back to the company office and encountered
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coworker Bol. When she asked him directions, he . . . eventually said
he would escort her there. Instead, he led her down a long hallway
into the basement.
In that isolated location, Bol pushed her up against the wall
and tried to kiss her. L.H. told Bol to leave her alone and tried to walk
away. But he blocked her departure with his arm and tried to open
her shirt and kiss her neck. She also thought he was reaching for his
penis so that she would “have some kind of relations with him.” She
rebuffed him, saying: “No, I’m not that girl. I’m not doing this.” He
then pushed her head toward his penis, and L.H. recalled him saying
“something like suck my dick” as “he was reaching into his pants.”
L.H. yelled, but she could not be heard on the floors above over the
whir of machinery.
As she tried to scramble away, L.H. fell to the floor. She felt
a light bulb hit her head. . . . Bol pulled off her clothes, tried to
penetrate her anus, then pulled out her tampon, and penetrated her
vagina. During the sex act, he was startled and released her arms.
She was able to pull up her uniform pants and run for help. Shaking
and crying, she immediately reported the rape.
When police interviewed Bol, he denied committing the sex
act and predicted they would not find his DNA on L.H.’s body or
clothing. But later testing did show Bol’s DNA on L.H.’s underwear
and on swabs of her vagina, inner thighs, and anus. Police also
found the broken light bulb and tampon on the basement floor of the
plant. In a later interview, Bol admitted arguing with L.H. in the
basement but said nothing sexual happened, and he could not
explain how his DNA ended up on her body.
....
At trial, the State offered testimony from L.H., several
investigating officers, and a criminalist who had compared the
DNA samples. Bol took the stand in his own defense, telling the jury
L.H. twice asked him for directions that night and then came back a
third time “looking for sex” in exchange for money. He claimed
the sex act in the basement was consensual, but she “took off”
because they fought over the payment arrangement.
Apparently accepting L.H.’s testimony and rejecting Bol’s version
of events, the jury returned guilty verdicts on both counts.
Id. at *1–2.
Bol filed his first PCR application on August 10, 2017, and amended it on
April 11, 2018. The petition alleged, among other things, that counsel was
ineffective and a conflict of interest existed between Bol’s trial counsel and Officer
Maxey. The district court denied the application and this court affirmed the district
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court’s denial of postconviction relief. Bol v. State, No. 19-0225, 2020 WL
3571807, at *3 (Iowa Ct. App. July 1, 2020).
While the appeal of his first PCR action was pending, Bol filed a second
PCR application—the subject of this appeal. The application made several
allegations, only one of which is raised in the instant appeal. Bol alleges his PCR
appellate counsel was ineffective for failing to recognize and pursue trial counsel’s
failure to obtain and use information available for cross-examination. This claim
specifically targeted any information gained by trial counsel during representation
of Officer Maxey in an unrelated family law matter. The State moved for summary
dismissal, which the district court granted. Bol appeals.
II. Standard of Review
We review a grant of a motion to dismiss a PCR application for correction
of errors at law. Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018). When the
PCR application claims ineffective assistance of counsel, our review is de novo.
Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).
III. Analysis
Iowa Code section 822.6 provides:
2. When a court is satisfied, on the basis of the application,
the answer or motion, and the record, that the applicant is not entitled
to postconviction relief and no purpose would be served by any
further proceedings, the court may indicate to the parties its intention
to dismiss the application and its reasons for dismissal. The
applicant shall be given an opportunity to reply to the proposed
dismissal. In light of the reply, or on default thereof, the court may
order the application dismissed or grant leave to file an amended
application or direct that the proceedings otherwise continue.
Disposition on the pleadings and record is not proper if a material
issue of fact exists.
3. The court may grant a motion by either party for summary
disposition of the application, when it appears from the pleadings,
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depositions, answers to interrogatories, and admissions and
agreements of fact, together with any affidavits submitted, that there
is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.
Two methods are available for disposition of PCR applications without a trial
on the merits. The first method allows for such disposition on the court’s initiative
and entitles the applicant to notice of the court’s intention to dismiss the application
and its reasons for dismissal. Hines v. State, 288 N.W.2d 344, 346 (Iowa 1980);
see also Iowa Code § 822.6(2).
The second method allows for such disposition on the motion of either party.
Hines, 288 N.W.2d at 346; see also Iowa Code § 822.6(3). The goal here “is to
provide a method of disposition once the case has been fully developed by both
sides, but before an actual trial.” Id. (emphasis added).
Disposition under the second method is “analogous to the summary
judgment procedure provided in Iowa Rules of Civil Procedure 237-240” (now rules
1.981-1.983). Summage v. State, 579 N.W.2d 821, 822 (Iowa 1998). The
language in paragraph three of section 822.6 is comparable to Iowa Rule of Civil
Procedure 1.981 (formerly rule 237) relating to summary judgments.
The moving party has the burden of showing the nonexistence of a material
fact and the court is to consider all materials available to it in the light most
favorable to the party opposing summary judgment. Knudson v. City of Decorah,
622 N.W.2d 42, 48 (Iowa 2000); Behr v. Meredith Corp., 414 N.W.2d 339,341
(Iowa 1987). A genuine issue of material fact exists if reasonable minds could
draw different inferences and reach different conclusions from the undisputed
facts. Behr, 414 N.W.2d at 341.
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To prevail in his claim, Bol must show that his counsel (1) breached an
essential duty, and (2) prejudice resulted. See Lamasters v. State, 821 N.W.2d
856, 866 (Iowa 2012). Both elements must be proven by a preponderance of the
evidence. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). If the applicant
fails to establish prejudice, the claim “can be decided on that ground alone without
deciding whether the attorney performed deficiently.” Id. Claims of ineffective
assistance of appellate counsel are treated the same as ineffective assistance of
trial counsel claims. Jasper v. State, 477 N.W.2d 852, 855 (Iowa 1991).
For breach of duty, Bol must establish that his attorney’s conduct fell below
the standard of a “reasonably competent attorney.” See Lamasters, 821 N.W.2d
at 866. Starting with a presumption that the attorney performed competently, “we
measure the attorney’s performance against ‘prevailing professional norms.’”
Ledezma, 626 N.W.2d at 142 (citation omitted). To establish prejudice, Bol must
show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984). A reasonable probability is a “probability
sufficient to undermine confidence in the outcome.” Id.We turn to Bol’s sole claim on appeal. Bol’s assertions that counsel
breached an essential duty are contradicted by the record originating from Bol’s
first PCR action and this court’s opinion affirming the dismissal of Bol’s original
claims.
Bol raises four of his ineffective-assistance claims on appeal:
(1) trial counsel failed to argue Bol’s speedy-indictment rights were
violated, (2) trial counsel failed to “appropriately advise and inform
Bol about consequences of testifying at trial,” (3) trial counsel failed
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to “recognize conflict of interest and withdraw,” and (4) trial counsel
failed to “assert and remedy disparity in the jury panel.”
....
On this record, we question whether there was a conflict of
interest because (1) counsel’s representation of the witness had
ended before he began representing Bol and (2) it does not appear
counsel’s past representation of the witness—in an unrelated family-
law matter—materially limited counsel’s representation of Bol. See
State v. McKinley, 860 N.W.2d 874, 882 (Iowa 2015). Even if there
was a conflict, Bol was certainly able to and, in fact, did waive the
conflict. Iowa Rule of Professional Conduct 32:1.7(b)(4) allows an
attorney to represent a client if “each affected client gives informed
consent, confirmed in writing.” That is what happened here. Bol and
the witness both signed documents entitled “Waiver of Conflict
Interest.” The signed documents provided each waived “any and all
conflict or conflicts” and authorized trial counsel to represent Bol.
And Bol provides no reason to believe the waivers were insufficient.
So this ineffective-assistance claim fails as well.
Bol, 2020 WL 3571807, at *1, 3.
In his second PCR, Bol urges us to carve out a new claim from the litigated
PCR claim regarding the conflict of interest by arguing that the failure of trial
counsel to fully utilize his knowledge related to his past representation of Officer
Maxey for impeachment represents breach of his essential duty, which was also
unrecognized by his first PCR counsel. Bol argues none of the six grounds for
relief argued to the district court by PCR counsel, including the conflict of interest
claim, involved the cross-examination of Officer Maxey by defense counsel. We
disagree. Bol raised this issue in his first PCR action in the context of the waiver
of conflict of interest. Consequently, Bol’s first PCR counsel did not breach an
essential duty.
Even if we were carve out a separate claim and drill down to the narrow
issue of cross-examination of the officer within the litigated conflict of interest claim,
Bol cannot establish prejudice on this record. Officer Maxey played a minimal role
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in the trial and the events that preceded it. His involvement was limited to taking
Bol into custody and reading him his Miranda rights. The only evidence that he
testified to that was not corroborated by other witnesses was that Bol seemed
unsurprised when Officer Maxey told him a crime had occurred. While relevant,
this is a minor detail given the other evidence presented during the trial.1 During
the trial, defense counsel and the State were clear the jury’s decision hinged on
the competing versions of events presented by the victim and Bol. There is not a
reasonable probability that a more thorough attack of Officer Maxey’s credibility,
including any cross-examination about an unrelated family law matter, would have
changed the outcome of the trial. Bol’s failure to establish prejudice also defeats
his claim. See Ledezma, 626 N.W.2d at 142.
IV. Conclusion
We reject Bol’s claim that his PCR counsel was ineffective. The issue of
the conflict of interest was litigated in Bol’s initial PCR. We find the issue of cross-
examination of Officer Maxey was tangential to this claim. Even if we were to
determine a breach of essential duty, which we do not, Bol cannot establish
prejudice on this record given the limited involvement of the officer in in the trial.
Accordingly, we affirm the district’s courts dismissal of Bol’s second claim.
AFFIRMED.
1 Twelve witnesses testified over the course of the trial, including several other
officers who interacted with Bol.