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Daniel Lado pleaded guilty to dependent adult abuse. Later, Lado filed a pro se petition for postconviction relief that contained a request for appointment of counsel. The district court appointed Lado counsel. After no action was taken on Lado's application, the district court dismissed Lado's petition pursuant to Iowa R. Civ. P. 1.944. Lado filed a pro se notice of appeal, alleging dismissal under rule 1.944 resulted from ineffective assistance of counsel. The court of appeals (1) affirmed the dismissal, and (2) found Lado's counsel was ineffective but preserved his claim for postconviction relief because it found the record was insufficient to determine whether the district court would have granted Lado's postconviction relief application if his counsel had acted competently. The Supreme Court vacated the court of appeals and reversed the district court, holding (1) Lado's counsel committed structural error in failing to seek a continuance to prevent dismissal under rule 1.944 or to make application to the court for the reinstatement of his case after it was dismissed by operation of the rule; and (2) the error constructively denied Lado the right to counsel. Remanded to district court for adjudication on the merits.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF IOWA
Filed September 2, 2011
STATE OF IOWA,
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, D.J. Stovall,
Applicant seeks further review of court of appeals decision
affirming the dismissal of his petition for postconviction relief and
claim for further postconviction relief action. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED, AND
Mark C. Smith, State Appellate Defender, and Thomas J. Gaul,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant
Attorney General, John P. Sarcone, County Attorney, John Judisch and
Celene Gogerty, Assistant County Attorneys, for appellee.
Daniel Lado appeals the district court’s dismissal of his application
for postconviction relief for failure to prosecute under Iowa Rule of Civil
Lado claims his failure to advance his application
resulted from ineffective assistance of counsel.
The court of appeals
found Lado’s counsel was ineffective, but preserved his claim for
postconviction relief because it could not determine from the record
whether there was a reasonable probability that the proceeding would
have been different had counsel sought a continuance.
constructively denied Lado the right to counsel and rendered the
postconviction relief proceeding inherently unreliable.
vacate the decision of the court of appeals, reverse the district court’s
dismissal, and remand the case for adjudication on the merits of Lado’s
postconviction relief application.
I. Background Facts and Proceedings.
Daniel Lado pleaded guilty to dependent adult abuse in July 2006.
The trial court imposed a ten-year prison term, suspended the sentence,
and placed Lado on probation.
In January 2007, after an evidentiary
hearing, Lado’s probation was revoked, and his prison sentence was
reinstated. While Lado did not appeal the revocation decision, he did file
several requests for his sentence to be reconsidered, which the court
On May 9, 2007, Lado filed a pro se petition for postconviction
relief which contained a request for appointment of counsel.
eighteen months, no action was taken on Lado’s application.
finally brought Lado’s request for appointed counsel to the district
On November 5, 2008, the district court appointed
Lado counsel. The court’s order instructed appointed counsel to confer
with Lado within sixty days, investigate the basis of his application, and
amend the application if necessary. The order also specifically warned
appointed counsel Lado’s application was under a rule 1.944 dismissal
notice for failure to prosecute.
Lado’s counsel filed an application to copy the file on December 10,
2008. On January 7, 2009, the court granted Lado’s application. On
January 29, the State filed an answer to Lado’s pro se petition, and the
State also filed a motion for summary judgment and dismissal of Lado’s
The State alleged summary judgment should be granted for
several reasons, including “the application is subject to dismissal
pursuant Iowa Rule of Civil Procedure 1.944.” On February 6, the State
filed an amended and substituted motion for summary judgment and
dismissal, again asking for dismissal pursuant to rule 1.944.
In response, appointed counsel filed an application for extension
on February 19. Counsel admitted he had not reviewed the entire file or
discussed the State’s motion with Lado.
Counsel, however, made no
motion to extend or seek relief from the rule 1.944 time requirement.
The court set a hearing for March 17, and ordered the parties to
provide written materials at least two days before the hearing. The State
filed a written argument in support of its motions for summary judgment
Lado’s counsel filed nothing.
Lado’s counsel did
represent him at his hearing, which was not reported. The district court
entered its order of dismissal on May 6, 2009, finding that the case had
been dismissed on January 1, 2009, by operation of rule 1.944.
district court did not address any issue on the merits of Lado’s
postconviction relief application in its order.
Lado filed a pro se notice of appeal alleging dismissal under rule
1.944 resulted from ineffective assistance of counsel.
The case was
transferred to the court of appeals. The court of appeals affirmed the
dismissal. The court of appeals concluded Lado had proven his counsel
breached an essential duty.
However, the court of appeals preserved
Lado’s claim for postconviction relief because it found the record was
insufficient to determine whether the district court would have granted
Lado’s postconviction relief application if his counsel had acted
competently. Lado petitioned for further review, which we granted.
II. Standard of Review.
This court generally reviews an appeal from a denial of a
postconviction relief application for correction of errors at law. Everett v.
State, 789 N.W.2d 151, 155 (Iowa 2010). When the applicant’s claims
are of a constitutional nature, this court engages in a de novo review. Id.
Lado, however, has a statutory, not constitutional right to effective
assistance of counsel on postconviction relief. See Dunbar v. State, 515
N.W.2d 12, 14–15 (Iowa 1994) (finding Iowa Code section 633A.5 (1991),
now codified as Iowa Code section 822.5, provides a right to counsel in
postconviction relief proceedings which necessarily implies “effective
assistance”). In accord with Dunbar, we still apply a de novo review. See
id. (making factual and legal determinations without deference to the
III. Ineffective Assistance of Counsel.
In Dunbar, we used federal constitutional law to guide our analysis
of the postconviction relief applicant’s statutory right to effective
assistance of counsel.
See Dunbar, 515 N.W.2d at 15 (analyzing the
Strickland two-prong test). Since the parties do not advocate any other
framework, we will use constitutional ineffective-assistance-of-counsel
precedent to guide our analysis in this case.
To establish an ineffective-assistance-of-counsel claim, a claimant
must demonstrate “(1) his trial counsel failed to perform an essential
duty, and (2) this failure resulted in prejudice.”
State v. Straw, 709
N.W.2d 128, 133 (Iowa 2006) (citing Strickland v. Washington, 466 U.S.
668, 687–88, 104 S. Ct. 2052, 2064–65, 80 L. Ed. 2d. 674, 693 (1984)).
The claimant must prove both elements by a preponderance of the
Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
address each prong in order.
A. Breach of Essential Duty. An attorney breaches an essential
duty when “counsel’s representation [falls] below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L.
Ed. 2d at 693.
“ ‘Miscalculated trial strategies and mere mistakes in
judgment normally do not rise to the level of ineffective assistance of
counsel.’ ” Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008) (quoting
Ledezma, 626 N.W.2d at 143). Ineffective assistance, however, is more
likely when counsel’s alleged actions or inactions result from a lack of
diligence, rather than use of judgment. Ledezma, 626 N.W.2d at 142–43.
“Clearly, there is a greater tendency for courts to find ineffective
assistance when there has been ‘an abdication—not exercise—of . . .
McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir. 1974)).
Lado’s counsel was apprised of the pending rule 1.944 dismissal
notice. The State moved for summary judgment and dismissal on rule
The State’s amended and substituted motion for
summary judgment and dismissal again asked for dismissal pursuant to
rule 1.944. Lado’s counsel never sought a continuance of the case under
the rule, nor did counsel file an application for reinstatement as allowed
by the rule. Permitting a client’s postconviction relief application to be
dismissed because of inaction is never an effective trial strategy.
Counsel’s failure to seek a continuance of the case, or to apply to have
Counsel therefore breached an essential duty
resulting in the case being dismissed.
Ordinarily, a claimant must prove “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” to establish prejudice. Strickland,
466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This is because
“the right to the effective assistance of counsel is recognized not for its
own sake, but because of the effect it has on the ability of the accused to
receive a fair trial.” United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct.
2039, 2046, 80 L. Ed. 2d 657, 667 (1984). In other words, a person’s
right to counsel is only implicated when attorney error undermines the
reliability and fairness of the criminal process.
assistance claims involve “trial error” which implicates counsel’s
performance during the course of a legal proceeding.
Roe v. Flores-
Ortega, 528 U.S. 470, 481–82, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985,
998 (2000). The actual-prejudice approach manifests that not all “trial
errors” undermine the reliability and fairness of the legal proceeding. Id.
Defense counsel, however, may also commit “structural errors.”
Structural errors are not merely errors in a legal proceeding, but errors
“affecting the framework within which the trial proceeds.”
Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d
302, 331 (1991).
We have recognized structural error occurs when:
(1) counsel is completely denied, actually or constructively, at a crucial
prosecution’s case against meaningful adversarial testing; or (3) where
surrounding circumstances justify a presumption of ineffectiveness, such
as where counsel has an actual conflict of interest in jointly representing
State v. Feregrino, 756 N.W.2d 700, 707 (Iowa
2008) (citing Cronic, 466 U.S. at 659, 104 S. Ct. at 2047, 80 L. Ed. 2d at
Under these circumstances, “[n]o specific showing of prejudice [is]
required” as the criminal adversary process itself is “presumptively
unreliable.” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047, 80 L. Ed. 2d at
668; see also Penson v. Ohio, 488 U.S. 75, 77–78, 88, 109 S. Ct. 346,
348–49, 354, 102 L. Ed. 2d 300, 307, 314 (1988) (finding complete denial
of counsel where appellate counsel’s appeal was entitled “Certification of
Meritless Appeal and Motion” and contained no argument).
another way, when counsel commits a structural error, the defendant
does not have to show he would have obtained a different outcome
absent the counsel’s structural error because such an analysis “would be
a speculative inquiry into what might have occurred in an alternate
universe.” United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.
Ct. 2557, 2565, 165 L. Ed. 2d 409, 420 (2006) (presuming prejudice
where trial court erroneously inhibited defendant from having his choice
of counsel). In cases where defense counsel fails to file an appeal against
the defendant’s wishes, the Court has determined the “serious denial of
Iowa case law on “structural error” is minimal and primarily concerns a
defendant’s adherence to procedural requirements in waiving a jury trial. We originally
held failure to adhere to the waiver-of-jury-trial rule requirements was a structural
error, but, in a more thoroughly reasoned opinion, changed course. State v. Stallings,
658 N.W.2d 106, 111 (Iowa 2003), overruled by State v. Feregrino, 756 N.W.2d 700,
707–08 (Iowa 2008). Outside of these cases, our case law provides few applications of
the entire judicial proceeding itself . . . similarly demands a presumption
of prejudice.” Flores-Ortega, 528 U.S. at 483, 120 S. Ct. at 1038, 145 L.
Ed. 2d at 999. In sum, when a structural error occurs in a proceeding,
the underlying criminal proceeding is so unreliable the constitutional or
statutory right to counsel entitles the defendant to a new proceeding
without the need to show the error actually caused prejudice.
postconviction relief application was subject to rule 1.944 dismissal.
Counsel at no point sought a continuance to obtain relief from the rule’s
consequences. Additionally, after the court dismissed the case pursuant
to the rule, counsel never made application to the court to have the case
reinstated as allowed by the rule. When the State filed its motions for
summary judgment and dismissal alleging Lado’s application should be
dismissed pursuant to rule 1.944, Lado’s counsel sat silent and did not
Not surprisingly, the court dismissed Lado’s application for
failure to prosecute. Lado was constructively without counsel during his
postconviction relief proceeding as his application was dismissed without
any consideration of its merits or meaningful adversarial testing. This is
the type of error that renders the entire postconviction relief proceeding
Accordingly, Lado’s statutory right to
effective counsel entitles him to have his postconviction relief dismissal
reversed and to proceed with his postconviction relief proceeding.
Lado has proven his counsel was ineffective in failing to seek a
continuance to prevent dismissal under Iowa Rule of Civil Procedure
1.944 or to make application to the court for the reinstatement of his
case after it was dismissed by operation of the rule. Counsel’s failure
was a structural error that allowed Lado’s application to be denied
without consideration of the merits or adversarial testing. This type of
structural error renders the entire postconviction relief proceeding
unreliable and undermines Lado’s right to a fair trial.
prejudice is presumed. The decision of the court of appeals is vacated,
the district court’s dismissal is reversed, and the case is remanded to the
district court for adjudication on the merits.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED, AND CASE REMANDED.
All justices concur except Mansfield, J., who takes no part.