GERARDO GONZALEZ, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-427 / 06-0621
Filed November 15, 2007
GERARDO GONZALEZ,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, John
Bauercamper, Judge.
Gerardo Gonzalez appeals the district court’s denial of his application for
postconviction relief. AFFIRMED.
Mark C. Smith, State Appellate Defender, and David Arthur Adams,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, William J Shafer, County Attorney, and Douglas D. Hammerand,
Assistant County Attorney, for appellee.
Gerardo Gonzalez, Pro Se.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
MILLER, J.
Gerardo Gonzalez appeals the district court’s denial of his application for
postconviction relief. We affirm.
I.
BACKGROUND FACTS AND PROCEEDINGS.
The applicant, Gerardo Gonzalez, was charged with and convicted of
murder in the first degree, in violation of Iowa Code section 707.2 (1999). The
charge stemmed from allegations that Gonzalez was angry about losing in a
street fight, and after the fight went to an apartment and shot Francisco “Lolito”
Costillo in the head at close range.
Gonzalez appealed his conviction, which this court affirmed in State v.
Gonzalez, No. 00-1689 (Iowa Ct. App. April 24, 2002). We found the following
facts in the direct appeal:
On January 14, 2000, Gonzalez and his roommates went to
the Horseshoe bar in Postville. Prior to going to the bar, the men
consumed a large amount of alcohol at their residence. While at
the bar, Gonzalez engaged in an argument with Santiago “Chago”
Vega about a fifty-dollar debt. Gonzalez and his friends remained
at the bar until closing time. While walking home, Gonzalez again
encountered Chago, as well as Francisco “Lolito” Costillo and his
friends. A fight ensued between the two groups. After the fight, the
participants dispersed. Shortly thereafter, Gonzalez and three of
his friends arrived at Lolito’s apartment. Gonzalez asked for Chago
but Lolito told him that Chago did not live at the apartment. At that
time, Gonzalez shot Lolito in the head at close range.
Id.
Following our affirmance of Gonzalez’s conviction, he filed a pro se
application for postconviction relief on April 14, 2003. The State filed a motion for
summary judgment, which the district court denied.
Gonzalez later filed a
supplement to his application and later an amendment to his application, alleging
3
additional grounds of ineffective assistance of both trial and appellate counsel. In
his postconviction application Gonzalez argued his trial attorneys were ineffective
for failing to challenge jurors Mervil Mabb and Marlene Blocker, and for calling
witnesses William Geary, Dr. Kishore Thampy, and expert Arlen Stegen to testify
without properly investigating and preparing their testimony. A hearing was held
on the application and in a written ruling filed March 20, 2006, the court denied
the application. In denying Gonzalez’s application the court concluded, in part,
that “[n]o grounds for challenge for cause was shown for jurors Mabb and
Blocker, nor was any actual prejudice shown”, “[n]o actual prejudice was shown
from the testimony of the witnesses Geary, Thampy, and Stegen”, and “[t]he
record in this case presents overwhelming evidence of guilt.”
Gonzalez
now appeals the postconviction court’s denial of his
postconviction application. On appeal he contends (1) the postconviction court
erred in denying his request to participate in the postconviction hearing, (2)
postconviction counsel was ineffective for failing to secure his participation in the
hearing on his postconviction application, (3) his trial attorneys were ineffective
for failing to investigate, prepare, and properly present witnesses Geary, Thampy
and Stegen, (4) his trial attorneys were ineffective for failing to seek removal of
jurors Mabb and Blocker, (5) appellate counsel was ineffective for failing to raise
on direct appeal his trial attorneys’ failure to properly investigate and present
these witnesses and the trial court’s abuse of discretion in failing to strike jurors
4
Mabb and Blocker, and (6) appellate counsel was ineffective for failing to file an
application for further review from this court’s decision affirming his convictions. 1
II.
SCOPE AND STANDARDS OF REVIEW.
We review the district court’s decision regarding Gonzalez’s participation
in the hearing on his postconviction application for an abuse of discretion. Mark
v. State, 370 N.W.2d 609, 610 (Iowa Ct. App. 1985).
We typically review
postconviction relief proceedings on error. Ledezma v. State, 626 N.W.2d 134,
141 (Iowa 2001). However, when the applicant asserts a claim of constitutional
nature, such as ineffective assistance of counsel, we evaluate the totality of the
circumstances in a de novo review. Id.
III.
MERITS.
A.
Participation in Hearing.
Gonzales participated in an initial, abbreviated hearing on September 22,
2005, which was stopped due to his claim of inadequate interpretation. He then
asked to be permitted to attend the subsequent hearing in person. The district
court ruled that Gonzalez’s presence was not necessary under Iowa Code
section 822.7 (2003). After the court denied Gonzalez’s request for personal
attendance at the hearing, Gonzalez asked to participate in the hearing by
telephone and requested that costs of such participation be paid for with judicial
branch funds. The court ruled that although judicial branch funds would not be
used to pay for the call, Gonzalez could listen to the proceeding by telephone
and the court would take recesses during the hearing to allow Gonzalez to speak
privately with his attorney.
1
Claims 3-6 are alleged by Gonzalez in his pro se appellate brief.
5
At the hearing on February 3, 2006, Gonzalez’s counsel reiterated his
objection and resistance to the court’s order denying Gonzalez’s request to be
present in person at the hearing, arguing he had a “right to be here, and also
raises his right to participate telephonically.” The court overruled the objection
concluding again that Gonzalez’s presence was not necessary based on the
issues presented.
The court further stated it had not denied Gonzalez the
opportunity to participate by telephone, it only found that judicial branch funds
would not be used to pay for it.
The court noted it had not received any
application requesting the State Indigent Defense Fund be directed to pay for
Gonzalez’s participation by telephone, although it had been open to receive such
applications.
On appeal Gonzalez first claims the district court erred in denying his
request to participate in the hearing on his postconviction application.
More
specifically, he claims the court abused its discretion by not allowing him to
attend in person or even participate by telephone.
Because postconviction proceedings are civil in nature, an applicant does
not have a constitutional right to be present. Webb v. State, 555 N.W.2d 824,
825 (Iowa 1996).
The district court’s discretion to exclude an inmate from
personally attending a postconviction hearing has been recognized by this court
in several prior cases. See id. at 826; Sallis v. Rhoads, 325 N.W.2d 121, 123
(Iowa 1982); Mark, 370 N.W.2d at 611. Refusal to allow personal attendance at
the hearing is supported by relevant statutory language.
Section 622.82 states an inmate “may be required to be produced
for oral examination,” and section 822.7 states the court “may order
6
applicant brought before it for the hearing.” (Section 622.82 also
works against [Gonzalez] because his hearing was held in a
different county than the one in which he was imprisoned-the
section states the inmate may be produced for oral examination in
the county where the person is imprisoned.)
Webb, 555 N.W.2d at 826. “[A] postconviction hearing need not include the
applicant’s testimony, particularly in the absence of proof that applicant’s
attendance was necessary.”
Id.
Furthermore, our supreme court has noted
practical and sound policy reasons for denying postconviction applicants the
absolute right to attend every hearing. “The personal attendance of . . . inmates
at every postconviction hearing would create problems of cost and security, and
would almost certainly encourage the filing of repetitive and groundless
applications for the purpose of getting ‘a day on the outside.’” Hahn v. State, 306
N.W.2d 764, 768 (Iowa 1981).
Given the court’s discretion in permitting the applicant’s participation, and
the costs and security issues involved, it is not too much to require the
postconviction applicant to make a preliminary showing of need before allowing
an incarcerated applicant to personally attend postconviction proceedings. See
Webb, 555 N.W.2d at 826; Sallis, 325 N.W.2d at 124. Here, the only reason
given by Gonzalez as to why his personal attendance was necessary was
because interpretation would be easier in person than over the phone. There
was no showing by Gonzalez as to why his personal presence at the hearing,
rather than utilizing the means authorized by statute to present an incarcerated
person’s testimony in a civil proceeding, was required. See Iowa Code § 622.82
(providing for a confined person’s examination by deposition); id. § 822.7
7
(providing for proof, in a postconviction proceeding, by, among other means,
affidavits and depositions).
Gonzalez did not meet his burden to show why his attendance was
necessary based on the issues he raised in his postconviction application. The
district court did not abuse its discretion in denying Gonzalez’s request to be
personally present at the postconviction hearing.
As set forth above, after the court denied Gonzalez’s request to personally
attend the hearing, he then requested to participate telephonically. First, we note
this request is totally inconsistent and contrary to the reason given by Gonzalez
for needing to personally participate in the hearing, that it would be too difficult to
utilize an interpreter over the phone and he would not be able to hear everything
that is being said by everyone all the time. Second, Gonzalez has not cited, and
we have not found, authority that would, absent agreement of the parties and the
court, allow a party to participate in a postconviction hearing by telephone.
Finally, as noted by the district court, the court did not deny Gonzalez’s request
for telephonic participation. Rather, it denied him judicial branch funds to pay for
such participation.
Gonzalez did not request funding from the state indigent
defense fund, which would appear to have been the proper source of funding for
any telephone participation. 2 Thus, Gonzalez’s claim that the trial court abused
its discretion in denying his request to participate telephonically in the hearing is
without merit.
2
Iowa Code section 815.11 provides in part that costs incurred on behalf of an indigent
under chapter 822 (postconviction) shall be paid from funds appropriated to the office of
the state public defender.
8
B.
Ineffective Assistance of Counsel.
A person claiming he or she received ineffective assistance of counsel
must prove by the preponderance of the evidence that (1) counsel failed to
perform an essential duty, and (2) prejudice resulted from the error. State v.
Doggett, 687 N.W.2d 97, 100 (Iowa 2004). To prove the first prong, failure of an
essential duty, the person must overcome a presumption that counsel was
competent and show that under the entire record and totality of circumstances
counsel’s performance was not within the range of normal competency. State v.
Buck, 510 N.W.2d 850, 853 (Iowa 1994); Brewer v. State, 444 N.W.2d 77, 83
(Iowa 1989); State v. Lockheart, 410 N.W.2d 688, 695 (Iowa 1987); Taylor v.
State, 352 N.W.2d 683, 685 (Iowa 1994); Whitsel v. State, 439 N.W.2d 871, 87273 (Iowa Ct. App. 1989). To prove the second prong, resulting prejudice, the
person must show that counsel’s failure worked to the person’s actual and
substantial disadvantage so there exists a reasonable probability that but for
counsel’s error the result of the proceeding would have been different. Doggett,
687 N.W.2d at 100; Ledezma, 626 N.W.2d at 143-44. Failure to prove either
element is fatal to the claim. Doggett, 687 N.W.2d at 100. On appeal we can
affirm a rejection of an ineffective-assistance-of-counsel claim if proof of either
element is lacking. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999); Taylor, 352
N.W.2d at 685.
1.
Postconviction Counsel.
Gonzalez first contends his postconviction counsel was ineffective for
failing to secure his participation in the postconviction hearing by (1) securing
9
funds, other than judicial branch funds, to allow for his telephonic participation, or
alternatively (2) adequately presenting his pro se claims at the hearing.
He
argues he was prejudiced by his inability to address his pro se issues and the
matter should be preserved for a new postconviction hearing.
Claims of ineffective assistance of postconviction counsel are preserved
for a further postconviction proceeding only if the applicant makes a minimal
showing of the potential viability of the claim. See State v. Alloway, 707 N.W.2d
582, 587 (Iowa 2006) (declining, in the context of a claim of ineffective assistance
of trial counsel on direct appeal, to preserve the claim).
This requires the
applicant to show the need to develop a further record, and to explain why the
actions of postconviction counsel were ineffective and how those actions resulted
in prejudice. See id. A bald assertion in insufficient. Id.
Gonzalez is required to allege some particular reason how, assuming his
attorney could have secured proper funds, his telephonic participation in the
hearing would likely have changed the outcome of the proceeding.
Lack of
participation in itself does not constitute prejudice. We conclude Gonzalez has
not sufficiently articulated how the outcome of the proceeding would likely have
been different if he had participated telephonically and has thus failed to
sufficiently articulate the prejudice prong of his claim. His counsel read his pro
se claims to the postconviction court during the hearing and presented argument
on the primary claims. Gonzalez makes no showing of how his participation
might have changed the outcome of the hearing. Gonzalez has not made even a
10
minimal showing of the potential viability of this claim and thus we reject his
request to preserve the issue for another postconviction hearing.
2.
Trial Counsel.
Gonzalez next contends his trial attorneys were ineffective for failing to
investigate, prepare, and properly present defense witnesses Bill Geary, Dr.
Kishore Thampy, and firearms expert Arlen Stegen.
Bill Geary owned the Horseshoe Bar in Postville. He was called by the
defense to testify at trial and was expected to testify that Gonzalez, with whom
he was familiar, was intoxicated on the night in question. 3
Prior to trial
Gonzalez’s attorneys had spoken to Geary and he told them that Gonzalez was
either drunk or high on drugs on the night in question. In addition, a private
investigator for the public defender’s office acquired and provided defense
counsel a written report of an interview of Geary in which Geary stated Gonzalez
appeared to be “stoned” when he saw him that night, and that he was frequently
going into the bathroom, where Geary believed Gonzalez and his friends often
used illegal drugs. The report also states that Geary believed he mentioned to
the Postville Police Chief, who was in the bar at closing time on the night in
question, that Gonzalez was drunk. At trial Geary testified that while Gonzalez
seemed to be under the influence of some substance, he did not think it was
alcohol and did not think he was drunk because he did not slur his speech and
he did not stumble. He did testify Gonzalez seemed to be “troubled” and wore a
“blank” expression. He agreed Gonzalez “didn’t seem to be tracking.”
3
One of Gonzalez’s main defense strategies was to demonstrate he was too intoxicated
on the night of the shooting to possess the specific intent necessary for murder in the
first degree.
11
Gonzalez claims his trial attorneys were ineffective because if they had
made an effort to investigate and talk to Geary before the trial they would have
known he was going to testify that Gonzalez was not intoxicated on the night in
question. He further asserts counsel should have used Geary’s prior inconsistent
statements to impeach Geary, or should have established during re-direct
examination or closing arguments that bar owners are often reluctant to give firm
opinions on a patron’s intoxication for fear of civil repercussions under Iowa’s
dramshop liability act.
We believe that trial counsel conducted an adequate investigation of
Geary prior to trial and based on the information before them could not have
anticipated that Geary would modify his testimony at trial.
Furthermore,
Gonzalez cannot establish resulting prejudice from counsels’ actions because at
least six other witnesses testified at trial that Gonzalez was in fact intoxicated on
the night in question. We conclude Gonzalez has not met his burden to show his
trial attorneys were ineffective in their handling of witness Geary.
Forensic psychiatrist Dr. Kishore Thampy was called as a defense expert
on the subject of intoxication.
He testified at trial about various scenarios,
describing the effects of different levels of a person’s blood alcohol
concentration. Gonzalez claims his trial attorneys should not have called Dr.
Thampy, or should have changed their strategy in questioning him, after Geary
testified Gonzalez was not drunk as that forced Thampy to speak only in
hypothetical terms rather than about Gonzalez specifically. He further asserts
Thampy’s testimony opened the door for rebuttal testimony, by the State’s expert
12
witness, Dr. Taylor, on Gonzalez’s ability to form specific intent.
Dr. Taylor
testified that he believed Gonzalez was capable of forming the specific intent to
kill on the night in question.
Assuming without deciding that Geary’s testimony affected Dr. Thampy’s
testimony, the hypotheticals testified to by Thampy were very detailed, clearly
drawn from the facts in the record in this particular case, and designed to apply
specifically to Gonzalez. Furthermore, Dr. Thampy concluded his testimony on
direct examination by opining that a hypothetical person matching Gonzalez’s
physical characteristics, his minimum blood alcohol level, and drinking history
would not have been able to form the specific intent to commit first-degree
murder. Accordingly, Thampy’s use of hypothetical situations did not diminish
the usefulness of his testimony to Gonzalez’s case.
Furthermore, Gonzalez had already presented other evidence attempting
to show he was too intoxicated to form the requisite specific intent for murder in
the first degree before Dr. Thampy testified. Six witnesses variously testified that
Gonzalez was “drunk,” “intoxicated,” or “very intoxicated.”
These witnesses
included not only friends, but also antagonists from the events of the evening
Gonzalez shot Lolito.
Thus, evidence from the State tending to rebut that
testimony would have been appropriate even absent Thampy’s testimony.
Accordingly, trial counsel were not ineffective in calling Dr. Thampy as a witness
or in presenting his testimony, and his testimony did not have the effect of
opening the door for the State’s rebuttal testimony concerning facts relevant to
Gonzalez’s ability to form the specific intent to kill. We conclude Gonzalez has
13
not met his burden to show his trial attorneys were ineffective in their handling of
witness Thampy.
Gonzalez’s next claim concerns the testimony of another defense witness,
firearms expert Arlen Stegen. Stegen testified he was the owner of a gun shop
and indoor shooting range, as well as a company which specialized in the design
of various kinds of guns and weaponry. He stated he had testified as an expert
in dozens of cases, served as a consultant for ammunition companies, and
worked with the federal government. Stegen opined that the gun used in this
case, a Jennings .22 caliber pistol, had a “terribly poor” design. He characterized
this model as “junk” and a “suicide special,” noting he would not sell that type of
gun or allow his customers to use it on his shooting range. He described the
guns as a “danger to everybody around them, including the shooter,” and said
that a Jennings .22 could fire unintentionally. Stegen also testified that the actual
weapon used in this case had been rusted and poorly maintained. He test-fired
the gun twice and it jammed on his third attempt.
On cross-examination Stegen testified that he had not attempted to make
this particular gun misfire, and in the tests he did conduct it never went off
accidentally.
In a requested courtroom demonstration he was not able to
properly assemble it.
Gonzalez claims that Stegen’s testimony on cross-
examination “destroy[ed] any hope of a successful accidental discharge defense”
and his trial attorneys’ “decision to present it was objectively unreasonable.”
14
We conclude that while Stegen may have been subjected to crossexamination that detracted somewhat from his testimony on direct examination,
his attorneys did not act unreasonably or otherwise provide ineffective assistance
in presenting Stegen’s testimony. Despite any diminishing effect of the crossexamination, Stegen’s extensive experience with weapons, his opinion of the
Jennings .22 as a poorly designed weapon, and the poor condition of the weapon
in particular, were presented to the jury.
We agree with the postconviction
court’s conclusion on this matter:
In reviewing the testimony and looking at the gun itself, it is clear
that the gun was in poor repair, and a reasonable implication is that
it could fire accidentally. It is also a reasonable conclusion for the
fact finder to make from the evidence that testing the gun [to cause
a misfire] would not have been safe or appropriate for any expert to
attempt.
We conclude Gonzalez has not established that his trial attorneys breached an
essential duty or that prejudice resulted from their handling of Stegen as an
expert witness. This claim of ineffective assistance must fail.
Finally, Gonzalez claims his trial attorneys were ineffective for failing to
challenge jurors Mervil Mabb and Marlene Blocker for cause.
Iowa Rule of
Criminal Procedure 2.18(5)(k) provides that a potential juror may be challenged
for cause if the potential juror has “formed or expressed such an opinion as to the
guilt or innocence of the defendant as would prevent the juror from rendering a
true verdict upon the evidence submitted on the trial.”
Juror Mervil Mabb suggested during voir dire that because he was from
Postville he might have difficulty setting aside his initial opinion. He was also
familiar with someone who perhaps was an uncle or other relative of the
15
prosecutor, and he knew defense witness Geary because his wife used to tend
bar at the Horseshoe Bar. Mabb ultimately stated that he could set aside any
preconceived opinions about the case, listen fairly to all the evidence presented,
make his decision based on all the evidence presented, and generally serve as a
fair and impartial juror.
In the postconviction action one of Gonzalez’s trial attorneys explained in
her deposition testimony that at the time a jury was being selected defense
counsel felt the facts Mabb was familiar with defense witness Geary and Mabb’s
wife had worked for Geary would be helpful to them in presenting Gonzalez’s
case. We conclude defense counsel were not ineffective for not challenging juror
Mabb for cause, as such a challenge would have been unwarranted or
questionable under rule 2.18(5)(k), and it was reasonable for counsel to believe
an advantage to Gonzalez might be gained by keeping an acquaintance of a
defense witness on the jury. See State v. Greene, 592 N.W.2d 24, 30 (Iowa
1999) (holding counsel is not ineffective for failing to raise meritless issues).
Juror Marlene Blocker’s teenage daughter had recently been the victim of
a sex crime and the case was being prosecuted in Allamakee County, the same
county as Gonzalez’s trial. This matter was fully discussed during jury selection
and Blocker stated she could be a fair and impartial juror despite the current
situation with her daughter. She was not challenged by the defense and was
chosen to serve on the jury.
16
During the trial, another issue regarding juror Blocker’s daughter arose.
While the trial was still in progress Blocker contacted the Allamakee County
Attorney’s Office regarding the status of the case involving her daughter. The
prosecutor brought this communication to the court’s attention and the court
found that neither Blocker nor the County Attorney, Bill Shafer, who had spoken
with her, had said or done anything inappropriate with regard to the Gonzalez
case. The court instructed juror Blocker to not have further contact with the
county attorney’s office until the Gonzalez trial concluded.
Subsequently, Blocker’s husband telephoned the county attorney’s office
with a concern regarding the Blockers’ daughter. Shafer had a police officer call
Mr. Blocker back to find out what the family’s concern was. Mr. Blocker informed
the officer they were concerned because they believed their daughter, through a
school project, was going to be visiting the jail and meeting with prisoners oneon-one. The Blockers were concerned about this because they did not want their
daughter to have any contact with her alleged assailant. Defense counsel and
prosecutor Shafer brought this matter to the court’s attention. Shafer informed
the court he had never heard of students having direct contact with the prisoners,
and he had spoken to the sheriff who assured him that such contact was not
going to happen and had never happened to his knowledge. At that time all
parties agreed the best course of action was to have an officer call Mr. Blocker
and assure him that no high school students would be meeting with any of the
inmates. The court instructed Shafer to have that done.
17
Gonzalez contends not only that Blocker should have been struck for
cause, but also that the contacts that occurred during trial between the Blockers
and the county attorney’s office disqualified Blocker from continuing to serve as a
juror in his trial. He argues his trial attorneys were ineffective for failing to ask the
court to replace Blocker with an alternate juror.
Blocker had stated during jury selection that she could be a fair and
impartial juror despite the current situation involving her daughter. We conclude
defense counsel were not ineffective for not challenging juror Blocker for cause
because such a request would have been unwarranted under rule 2.18(5)(k).
Furthermore, they were under no obligation to seek Blocker’s removal in the
course of trial as the contacts she had with the county attorney’s office during the
trial were not related to this case and were handled appropriately. We agree with
the postconviction court that Blocker’s contacts with the prosecutor’s office
“appear to be incidental and routine, with information being provided as it would
in any case, with nothing extraordinary warranting a challenge from defense
counsel.” We conclude defense counsel were not ineffective for not seeking to
have juror Blocker replaced during the trial.
3.
Appellate counsel.
Gonzalez next contends his direct appeal counsel was ineffective for
failing to (1) raise on direct appeal trial counsels’ failure to investigate, prepare,
and properly present witnesses Geary, Thampy, and Stegen, (2) raise on direct
appeal the trial court’s abuse of discretion for failing to strike jurors Mabb and
18
Blocker, and (3) file an application for further review following the affirmance of
Gonzalez’s conviction by this court.
We judge ineffective assistance of appellate counsel claims against the
same two-pronged test utilized for ineffective assistance of trial counsel claims.
Ledezma, 626 N.W.2d at 141.
To prove appellate counsel's deficient
performance resulted in prejudice, the applicant must show his ineffective
assistance of trial counsel claim would have prevailed if it had been raised on
direct appeal. Id. We have already determined Gonzalez’s trial attorneys were
not ineffective in their investigation, preparation, and presentation of witnesses
Geary, Thampy, and Stegen. Thus such a claim would not have prevailed had it
been raised on direct appeal.
Gonzalez’s claim that appellate counsel was
ineffective for failing to raise this on direct appeal must fail.
We have also determined that challenging jurors Mabb and Blocker for
cause would have been questionable or unwarranted under rule 2.18(5)(k).
Thus, appellate counsel was not ineffective for failing to raise the issue on direct
appeal. See Greene, 592 N.W.2d at 30 (holding counsel is not ineffective for
failing to raise meritless issues).
Finally, Gonzalez contends his appellate counsel was ineffective for failing
to file an application for further review with our supreme court following this
court’s affirmance of his conviction and that this omission effectively barred him
from federal review of his state conviction.
In complaining about the adequacy of an attorney's representation, it is not
enough to simply claim counsel should have done a better job. Dunbar v. State,
19
515 N.W.2d 12, 15 (Iowa 1994). The applicant must: (1) state the specific ways
in which counsel’s performance was inadequate, and (2) identify how competent
representation probably would have changed the outcome.
Id.
Claims of
ineffective assistance are preserved only when there is a minimal showing of the
potential viability of the claim. Alloway, 707 N.W.2d at 587; State v. Wagner, 410
N.W.2d 207, 215 (Iowa 1987).
This requires an explanation of why the
challenged actions of counsel were ineffective and how those actions resulted in
prejudice. Id. Bald assertions are insufficient. Id. Here, Gonzalez does not
state what portion or portions of this court’s decision affirming his conviction
should have been challenged in an application for further review to our supreme
court, what the supreme court might have done differently, or what claims might
be pursued in federal court.
We conclude Gonzalez has made no minimal
showing of the potential viability of his claim of ineffective assistance of appellate
counsel, and we find no basis for preserving this claim for yet another
postconviction proceeding. See id. His claim is too general in nature to allow us
to address it or to preserve it for yet another postconviction proceeding. See,
e.g., Dunbar, 515 N.W.2d at 15. We therefore decline to do so.
IV.
CONCLUSION.
We conclude the postconviction court did not err in denying Gonzalez’s
requests to attend the postconviction hearing in person or to expend judicial
branch funds for his telephone participation. Gonzalez did not request funding
from the state indigent defense fund. We further conclude Gonzalez did not
show how he was prejudiced by the fact his postconviction counsel did not
20
secure his telephonic participation in the postconviction hearing.
Neither
Gonzalez’s trial attorneys nor his appellate counsel were ineffective in any of the
ways claimed by Gonzalez in his pro se appellate brief. We have considered all
of Gonzalez’s claims, whether specifically addressed herein or not, and we find
them to be without merit or too general to address or preserve for yet another
postconviction proceeding.
AFFIRMED.
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