MONTOLLIE WARREN, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-737 / 08-1679
Filed November 25, 2009
MONTOLLIE WARREN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, James E. Kelley,
Judge.
An applicant appeals the district court’s denial of his application for
postconviction relief, contending, among other things, that the court erred in
finding trial counsel was not ineffective for failing to challenge the proof on one
element of his burglary charge. AFFIRMED.
Brian Farrell, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Assistant
Attorney General, Michael Wolf, County Attorney, and Elizabeth Srp, Assistant
County Attorney, for appellee State.
Considered by Vaitheswaran, P.J., Mansfield, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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VAITHESWARAN, P.J.
Montollie Warren appeals the denial of his postconviction relief
application.
I.
Background Facts and Proceedings
Eric Lundquist hosted a party at his house. He invited several people,
including Warren. Warren brought his girlfriend, Lennette Varner. During the
party, Warren and Varner had an argument which culminated in physical
violence. Specifically, Warren backhanded Varner, knocking her to the floor, and
attacked another guest who tried to separate the two. Warren was escorted to
the garage. Varner, who had Warren’s car keys, followed Warren. Upon seeing
her, Warren attacked her again. At this juncture, Warren was told to leave and
one of the guests gave him a ride to his hotel.
Approximately one and a half or two hours later, Warren returned to
Lundquist’s house. He entered through the garage, came into the kitchen, and
assaulted Lundquist and another guest with a baseball bat.
A jury found Warren guilty of first-degree burglary and other crimes.
Warren filed a direct appeal that only raised a challenge to a fine that was
imposed at sentencing.
After the appeal was resolved, Warren filed an
application for postconviction relief, raising several ineffective-assistance-ofcounsel claims, including an assertion that he ―was invited into the house.‖
Following a hearing, the district court denied the application.
On appeal, Warren’s attorney challenges the proof on one element of the
burglary charge. He maintains Warren’s previous attorneys were ineffective in
3
failing to raise the issue. In a pro se filing, Warren separately raises several
other issues.
II.
Burglary
The jury was instructed that the State would have to prove the elements of
first-degree burglary, including that ―[t]he defendant did not have permission or
authority to break into or enter the house.‖ Warren’s attorney argues that the
State failed to satisfy its burden of proving this element. While he concedes that
Warren’s trial attorney raised this issue via a motion for directed verdict, which
was also renewed at the close of trial, he asserts that counsel also should have
―raise[d] the issue in a motion for new trial or other post-trial motion.‖
To prevail on this ineffective-assistance-of-counsel claim, Warren must
show that counsel’s performance was deficient and prejudice resulted.
See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674, 693 (1984).
On the prejudice prong, Warren must show a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.
Id. at 694, 104 S. Ct. at 2068, 80
L. Ed. 2d at 698. We only find it necessary to address the prejudice prong.
At trial, Lundquist testified that he asked Warren to leave and he did not
invite Warren back. He continued, ―And I sure didn’t invite him back with a
baseball bat.‖ According to Lundquist, Warren barged in uninvited a short time
later, wielding a baseball bat.
Based on this record, we conclude there is no reasonable probability that
the district court would have granted a new trial under any applicable standard
for assessing new trial motions.
We reach this conclusion notwithstanding
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contradictory testimony from one of Warren’s friends, as that testimony was not
consistent with the witness’s prior deposition statements. Because there was no
reasonable probability of a different outcome, appellate and postconviction
counsel were not ineffective in failing to raise this argument.
III.
Other Claims
Warren
first
asserts
that
―[c]ounsel
violated
Appellant
6th
amendment—gives you the right to a fair trial, and effective assistance of
counsel.‖ This claim is too vague to be considered. See Dunbar v. State, 515
N.W.2d 12, 15 (Iowa 1994) (―The applicant must state the specific ways in which
counsel’s
performance
was
inadequate
and
identify
how
competent
representation probably would have changed the outcome.‖).
Warren next states, ―Counsel failed to investigate for physical evidence of
alleged choking of homeowner with baseball bat, or request for evidence of
physical attack on homeowner.‖ As the State points out, injury to the homeowner
was not an element of first-degree burglary that the State was charged with
proving. The jury instruction on first-degree burglary only required a showing that
Warren ―intentionally or recklessly inflicted bodily injury on Tanya Lundsford,‖ a
guest at the party. Accordingly, trial counsel did not breach an essential duty in
failing to pursue this issue. See State v. McPhillips, 580 N.W.2d 748, 754 (Iowa
1998).
Warren also asserts that counsel was ineffective in failing to seek the
postconviction judge’s recusal on the ground that he previously heard the
underlying criminal matter.
Only personal bias or prejudice coming from an
extrajudicial source can be classified as a disqualifying factor. State v. Millsap,
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704 N.W.2d 426, 432 (Iowa 2005). As Warren has not shown that the judge
displayed any extrajudicial bias or prejudice against him, we conclude that
postconviction counsel was not ineffective in failing to pursue that issue.
Next, in two separate assignments of error, Warren argues that trial
counsel was ineffective in failing to point out inconsistencies between various
witnesses’ deposition and trial testimony. This issue was not preserved for our
review.
See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (―It is a
fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we will decide them on appeal.‖).
Warren argues broadly that trial counsel did not ―prepare defense or
offense for trial,‖ but also argues more specifically that counsel was ineffective in
not asserting a claim of self-defense to any of the assault charges. ―A person is
justified in the use of reasonable force when the person reasonably believes that
such force is necessary to defend oneself or another from any imminent use of
unlawful force.‖ Iowa Code § 704.3 (2007). The record contains insufficient
evidence to create a submissible issue on whether Warren was defending
himself when he reentered Lundquist’s home wielding a baseball bat.
Accordingly, we conclude trial counsel had no duty to raise this issue.
Warren also appears to argue that counsel was ineffective in failing to
seek an instruction on trespass as a lesser-included-offense of burglary. As this
argument was raised for the first time in his reply brief, we decline to consider it.
See Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992) (―[W]e have long held that
an issue cannot be asserted for the first time in a reply brief.‖).
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Finally, Warren complains that ―[c]ounsel didn’t argue the fact of
discrimination, and prejudice on defendant, in which [sic] court didn’t produce any
African-Americans in Jury Pool.‖ On this issue, the district court stated:
Defendant presented no evidence of the population statistics
of Clinton County to show that in the jury pool there would have
been a certain number of African American citizens called by a
random selection process. The Applicant as a Defendant in a
criminal case would first have to prove by a preponderance of the
evidence that the jury pool was improperly called by the clerk of
court. There is complete failure of proof on this issue by the
Applicant. See State v. Jones, 490 N.W.2d 787, 791 (Iowa 1992).
We agree with the district court.
When asked about this claim at the
postconviction hearing, Warren simply stated, ―there was not one African
American present to be struck from selection.‖ This falls short of the required
prima facie showing he needed to make.
See Jones, 490 N.W.2d at 792
(quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d
579, 586–87 (1979)).
IV.
Disposition
We affirm the district court’s denial of Warren’s application for
postconviction relief. 1
AFFIRMED.
1
After this appeal was submitted and transferred to the Court of Appeals, Warren filed a
motion titled ―interlocutory appeal.‖ We deny the motion as untimely.
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