JOSE DARIO RUESGA, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-867 / 05-1598
Filed November 30, 2006
JOSE DARIO RUESGA,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Polk County, Robert A. Hutchinson,
Judge.
Jose Dario Ruesga appeals from the district court’s denial of his
application for postconviction relief. AFFIRMED.
James S. Nelson of Cook, Brown & Scott, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney
General, John P. Sarcone, County Attorney, Nan Horvat, Assistant County
Attorney, and Melodee Hanes, Special Assistant County Attorney.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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EISENHAUER, J.
Jose Dario Ruesga appeals from the district court’s denial of his
application for postconviction relief.
He contends the district court erred in
concluding his trial counsel was not ineffective because he failed to object to the
prosecutor’s questions regarding the veracity of other witnesses’ testimony.
Armed with new counsel on appeal, he now contends his attorney in the
postconviction proceedings was ineffective in several respects.
On September 7, 1992, Ruesga pled guilty to felony child endangerment.
On September 14, 1992, a jury convicted him of two additional counts of child
endangerment and one count of willful injury. These convictions were the result
of severe injuries inflicted on Jonathan Waller, a four year old.
Waller died from complications of the injuries several years later. Ruesga
was then charged with first-degree murder. Following a jury trial, Ruesga was
convicted and sentenced to life in prison. His conviction was affirmed in State v.
Ruesga, 619 N.W.2d 377 (Iowa 2000).
On December 17, 2001, Ruesga filed a pro se application for
postconviction relief.
On October 27, 2004, the date of the postconviction
hearing, Ruesga filed an “Amended Pro Se Motion” raising new issues. The
district court treated the motion as a supplemental postconviction application and
allowed the new issues to be raised. Trial was continued until June 21, 2005.
On August 22, 2005, the court denied the application. Ruesga appeals.
We typically review postconviction relief proceedings on error. Ledezma
v. State, 626 N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917,
920 (Iowa 1998). However, when the applicant asserts a claim of constitutional
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nature, such as ineffective assistance of counsel, we evaluate the totality of the
circumstances in a de novo review. Ledezma, 626 N.W.2d at 141.
To prevail on a claim of ineffective assistance of counsel, Ruesga must
show that his attorney’s performance fell outside the normal range of
competency, and the deficient performance so prejudiced his case as to give rise
to a reasonable probability that, but for counsel’s alleged errors, the outcome of
the proceedings would have been different. Dunbar v. State, 515 N.W.2d 12, 15
(Iowa 1994). There is a strong presumption counsel performed competently, and
the claimant has the burden to prove that counsel was ineffective.
Id.
An
ineffective assistance of counsel claim may be disposed of if the defendant fails
to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Ruesga contends the postconviction court erred in denying his application
for postconviction relief because the prosecutor committed misconduct in
questioning him about the veracity of other witnesses’ testimony in violation of
State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003).
Because of the
overwhelming evidence of Ruesga’s guilt—after all he did plead guilty to causing
a “severe head injury” to Waller—and his theory of defense, expressed in his
own closing argument, admitting he lied and accusing other witnesses of lying,
we conclude Ruesga was not prejudiced by the prosecutor’s questions.
Ruesga also contends his postconviction counsel was ineffective.
He
claims counsel should have raised the issue of trial counsel’s failure to object to
the prosecutor’s reference to his silence.
The prosecutor at his murder trial
referred to Ruesga’s silence following his arrest and during his 1992 trial. We
reject his claim. The United States Supreme Court has held questions regarding
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a defendant’s silence in a previous trial are acceptable when the defendant takes
the stand in a subsequent trial and those questions are relevant. Raffel v. United
States, 271 U.S. 494, 497, 46 S. Ct. 566, 568, 70 L. Ed. 1054, 1058 (1926). The
question was clearly relevant here where Ruesga waited until after he was
charged with murder to claim someone else injured Waller. See Anderson v.
Charles, 447 U.S. 404, 408-409, 100 S. Ct. 2180, 2182, 65 L. Ed. 2d 222, 227
(1980) (holding the rule barring use of silence against a criminal defendant does
not apply to cross-examination that merely inquires into prior inconsistent
statements). Furthermore, the prosecutor’s questions regarding Ruesga’s postarrest silence referenced an arrest for a crime to which Ruesga later pled guilty.
Ruesga also contends his postconviction counsel was ineffective in not
claiming appellate counsel was ineffective. He claims appellate counsel should
have raised the issue of whether his waiver of counsel was voluntary.
We
conclude appellate counsel breached no duty to raise the issue. This claim is
directly inconsistent with Ruesga’s original pro se appeal where he argued he
was denied his right to self-representation. He cannot have it both ways.
We affirm the district court’s denial of Ruesga’s application for
postconviction relief.
AFFIRMED.
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