IN THE SUPREME COURT OF IOWA No. 13–0446
Filed January 2, 2015 Amended March 13, 2015
STATE OF IOWA,
Appellee,
vs.
CURTIS VANCE HALVERSON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.
Defendant seeks further review of a court of appeals decision affirming his conviction and finding defendant’s trial counsel was not ineffective for failing to challenge the sufficiency of the evidence to convict the defendant of possession of contraband at a residential facility. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH INSTRUCTIONS.
Thomas A. Hurd of Glazebrook, Moe, Johnston & Hurd LLP, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Tyron Rogers, Assistant County Attorney, for appellee. 2
APPEL, Justice.
In this case, we consider an ineffective-assistance-of-counsel claim
in which defense counsel failed to challenge the sufficiency of the
evidence to convict the defendant of possession of marijuana at a
residential facility under Iowa Code section 719.7(3)(c) (2011). In order to
commit the charged offense, the defendant must be held in an
“institution under the management of the [Iowa] department of
corrections [(IDOC)]”. Id. In this case, the defendant was being held at
the Burlington Residential Correctional Facility (residential facility) at the
time of the events giving rise to the charge. After receipt of the State’s
testimony, defense counsel made a motion for directed verdict based on
the State’s failure to make a prima facie case, 1 but specifically failed to
argue the evidence was insufficient to establish that the facility was an
institution under the management of the department of corrections. The
court denied the motion for directed verdict and the defendant was
convicted of the underlying charge.
On appeal, the defendant claims his trial counsel was ineffective
for specifically failing to assert there was insufficient evidence to support
the charge because the residential facility was not under the management of the department of corrections. The court of appeals
affirmed the judgment. We granted further review. For the reasons
stated below, we conclude the statutory argument was a claim “worth
making” under our caselaw, that counsel was ineffective for failing to
assert it, and that had the claim been timely asserted, the defendant
would have been acquitted of the underlying charge. As a result, the
1Defense counsel later recast its motion for directed verdict on this count as a
motion for judgment of acquittal, which was overruled. 3
decision of the court of appeals is vacated, the judgment of the district
court is reversed, and the case remanded with instructions to dismiss
the charge.
I. Factual and Procedural Background.
Curtis Halverson was in the custody of the residential facility—
commonly referred to as a halfway house—when officials detected the
smell of marijuana arising from a room to which he was assigned.
Residential officers searched the room and discovered a partially smoked
marijuana cigarette. After obtaining other incriminating evidence,
Halverson was charged with knowingly possessing marijuana on the
grounds of a facility “under the management of the department of
corrections” in violation of Iowa Code sections 719.7(1)(a), 719.7(3)(c),
and 719.7(4)(b), a class “D” felony. 2
Halverson pled not guilty and the matter proceeded to jury trial.
At trial, the State called three witnesses. The State’s witnesses testified
that the residential facility was a halfway house in which Halverson was
a resident, that the residential facility functioned “under the policies of
the Department of Corrections,” and that staff received a two-week
training course on their job duties “in association with or through the Department of Corrections.” After receipt of the testimony, defense
counsel made a conclusory motion for a directed verdict, but failed to
argue the evidence was insufficient to establish that the residential
facility was an institution under the management of the department of
corrections.
2Halverson was also charged with knowingly possessing an incendiary device on the grounds of a facility under the management of the department of corrections in violation of Iowa Code sections 719.7(1)(b), 719.7(3)(c), and 719.7(4)(a). This charge was dismissed when the trial court granted Halverson’s motion for judgment of acquittal on this count. 4
The court instructed the jury that in order to convict the defendant
it must find that “The Burlington Residential Correctional Facility is a
correctional institution or an institution under the management of the
Department of Corrections.” The jury convicted Halverson. The court of
appeals affirmed the conviction, and we granted further review.
II. Standard of Review.
Ineffective-assistance-of-counsel claims are reviewed de novo.
State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). Although at trial
Halverson’s counsel moved to dismiss the State’s case for insufficient
evidence, he failed to specifically assert that the State failed to show the
residential facility was under the management of the department of
corrections. See Iowa Code § 719.7(3)(c). As a result, the claim was not
preserved; however, our ordinary preservation rules do not apply to
claims of ineffective assistance of counsel. See State v. Ondayog, 722
N.W.2d 778, 784 (Iowa 2006). As a result, Halverson may raise his claim
for the first time on appeal. Id.
In his brief on appeal, Halverson does not specify whether he is
proceeding under the Sixth Amendment to the United States
Constitution or article I, section 10 of the Iowa Constitution. Where
there are parallel provisions in the Federal and State Constitutions and a
party does not indicate the specific constitutional basis under which the
party is proceeding, we regard both federal and state constitutional
claims as preserved. See King v. State, 797 N.W.2d 565, 571 (Iowa
2011).
The United States Supreme Court has said that under the Sixth
Amendment, in order to show ineffective assistance a defendant must
prove by a preponderance of the evidence that the attorney failed to
perform an essential duty and to the extent it denied the defendant a fair 5
trial, prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Although some
state courts have not utilized the Strickland test, the defendant does not
suggest ineffective-assistance-of-counsel claims should be reviewed
under the Iowa Constitution in a fashion different from its federal
counterpart. For purposes of this case, we therefore apply the Strickland
standard. See King, 797 N.W.2d at 571 (applying Strickland test when
counsel did not indicate whether case was being brought under the Iowa
or Federal Constitution); State v. Wilkes, 756 N.W.2d 838, 842 n.1 (Iowa
2008) (interpreting Iowa and Federal Constitutions identically, and
noting no argument was made that the Iowa Constitution should be
interpreted differently than the Federal Constitution in search and
seizure cases). Even in such cases, however, “we reserve the right to
apply the principles differently under the state constitution compared to
its federal counterpart.” King, 797 N.W.2d at 571; see, e.g., State v.
Bruegger, 773 N.W.2d 862, 883 (Iowa 2009); Wilkes, 756 N.W.2d at 842
n.1.
III. Discussion.
A. Introduction. In this ineffective-assistance-of-counsel case,
we begin by considering if the claim would have been meritorious had it
been raised by trial counsel. Counsel, of course, does not provide
ineffective assistance if the underlying claim is meritless. See State v.
Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). If, however, an underlying
claim has merit, we must determine whether the failure to make the
claim amounted to a breach of duty and whether the defendant was
prejudiced by the breach. See Strickland, 466 U.S. at 687, 104 S. Ct. at
2064, 80 L. Ed. 2d at 693. 6
B. Merits of the Underlying Claim. In order to answer the
question of whether Halverson’s trial counsel was ineffective, we first
consider whether the unasserted grounds for dismissal would have been
meritorious. In order to address this question, we review various
provisions of Iowa Code chapters 904 and 905. Iowa Code chapter 904
outlines the powers and responsibilities of the IDOC, while Iowa Code
chapter 905 structures the community-based correctional program. See
Iowa Code chs. 904–05. We then examine other sections of the Code that
shed light on the proper meaning of the phrase “under the management
of the [IDOC].”
At the outset, Iowa Code section 904.102 lists the institutions in
which the IDOC is “responsible for the control, treatment, and
rehabilitation of offenders.” The list includes nine state institutions,
“[r]ehabilitation camps,” and “[o]ther institutions related to an institution
in subsections 1 through 10 but not attached to the campus of the main
institution.” Id. The residential facility is not specifically named in the
list, and there was no evidence offered at trial to suggest that it is an
institution related to one of the listed facilities. As we have repeatedly
stated, we do not extend, enlarge, or otherwise change the meaning of a
statute under the guise of construction. See, e.g., State v. Tarbox, 739
N.W.2d 850, 853 (Iowa 2007); Auen v. Alcoholic Beverages Div., 679
N.W.2d 586, 590 (Iowa 2004); State v. Wedelstedt, 213 N.W.2d 652, 656
(Iowa 1973). Though the terms “management” and “control” are not
identical, the lack of inclusion of community-based correctional
programs like the residential facility in this Code section points in the
direction of a conclusion that the residential facility is not managed by
the IDOC. 7
The Iowa Code does, however, provide that the IDOC has certain
powers related to community-based corrections programs. The IDOC
“has primary responsibility” for the “development, funding, and
monitoring of community-based corrections programs.” Iowa Code
§ 7E.5(1)(n). The IDOC is also responsible for “[a]ccreditation and
funding of community-based corrections programs. . . .” Id.
§ 904.103(1); id. § 905.8 (The IDOC “shall provide for the allocation
among judicial districts in the state of state funds appropriated for the
establishment, operation, support, and evaluation of community-based
correctional programs and services.”). The IDOC is directed to “provide
assistance and support to the respective judicial districts” and to
“establish[] guidelines” related to residential treatment centers and
community-based correctional programs. Id. § 905.7. The director of the
IDOC is required to “[e]stablish and maintain a program to oversee . . .
community corrections programs and to provide community support to
ensure continuity and consistency of programs.” Id. § 904.108(1)(c).
These provisions suggest oversight, but not day-to-day management in
any operational sense in the activities of institutions such as the
residential facility in this case.
In addition, the IDOC has the power under certain circumstances
to “assume responsibility for administration of the district’s community-
based correctional program on an interim basis.” Id. § 905.9. Such an
assumption of responsibility, however, occurs only after the IDOC
completes a review of the district community-based correctional program,
submits the report in writing to the district board, requests a response
for any statutory or guideline violations found in the report (and if a
response is not received within sixty days, it may conduct a public
hearing on the matter), and determines that the community-based 8
correctional program will not be expeditiously brought into compliance
with applicable statutes and guidelines. Id. Plainly, under this
provision, the IDOC can assume responsibility for the administration of
the community-based correctional program, but this is an extraordinary
step reserved for rare occasions of substantial noncompliance by the
judicial district with IDOC policies and guidelines.
We now turn to Iowa Code chapter 905 related to community-
based correctional programs. A public agency is established for each
judicial district, which is directed “to provide a community-based
correctional program which meets the needs of that judicial district.” Id.
§ 905.2; see also id. § 669.2(5) (defining a district department as a state
agency under the Iowa Tort Claims Act). The Code establishes a board of
directors for each district department. Id. § 905.3. Among other duties,
the board of each judicial district department is required to “[a]dopt
bylaws and rules for the conduct of its own business and for the
government of the district department’s community-based correctional
program.” Id. § 905.4(1). While the IDOC establishes general policies
and guidelines for community-based correctional programs, the judicial
district’s board of directors establishes the bylaws and rules for day-to-
day operation.
The board of directors is further required to employ a director. Id.
§ 905.4(2). The duties of the director of the judicial district department
are provided in Iowa Code section 905.6, which provides among other
things, that the director “shall . . . [m]anage the district department’s
community-based correctional program, in accordance with the policies
of the district board and the Iowa department of corrections.” Id.
§ 905.6(2) (emphasis added). To the extent the term “management” in
Iowa Code section 719.7(3)(c) might be ambiguous, it is clear the 9
legislature believed the director of the judicial department, and not the
IDOC, has the duty to “manage” each community-based correctional
program. See Auen, 679 N.W.2d at 590 (“Absent a statutory definition or
an established meaning in the law, words in the statute are given their
ordinary and common meaning by considering the context within which
they are used.”).
There is no question the IDOC establishes policies and guidelines
that are applicable to community-based corrections and participates in
activities related to the funding of the facilities. The supervision of the
community-based correctional programs may be highly regulated by the
IDOC, but management of each residential facility is left to the judicial
district director unless the IDOC follows the elaborate procedures set out
in Iowa Code section 905.9 and “assume[s] responsibility for
administration of the district’s community-based correctional program on
an interim basis.”
The conclusion that each district department is responsible for the
management of its community-based correctional program is further
evidenced by criminal provisions of the Code. For example, Iowa Code
section 708.3A(5)(a) establishes the crime of assault on correctional staff.
In the definition section, “correctional staff” includes “a community-
based correctional facility, or an institution under the management of the
Iowa department of corrections.” Id. We assume, of course, the language
used in a statute is not redundant. See State v. Allen, 708 N.W.2d 361,
366 (Iowa 2006); T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d
159, 163 (Iowa 1999) (noting use of disjunctive “or” connotes separate
meanings). Thus, the inclusion of the phrase “a community-based
correctional facility” is not mere surplusage, but is included in the
statute to ensure coverage that would not otherwise result if only the 10
phrase “institution under the management of the Iowa department of
corrections” was utilized.
Similarly, under Iowa Code section 719.4(3), unauthorized absence
is a serious misdemeanor for a person who has been committed to “an
institution under the control of the Iowa department of corrections, to a
community-based correctional facility, or to a jail or correctional
institution.” While the language is not precisely parallel to our present
case, the Code section uses the disjunctive “or” and recognizes a
distinction between facilities under the control of the IDOC and a
community-based correctional facility. See id. And, as our cases have
stated, we strive to interpret a statute “ ‘consistently with other statutes
concerning the same or a related subject.’ ” State v. Nicoletto, 845
N.W.2d 421, 427 (Iowa 2014) (quoting State v. Pickett, 671 N.W.2d 866,
870 (Iowa 2003)).
Finally, we note the general rule of construction that criminal
statutes should be construed narrowly. See, e.g., State v. Romer, 832
N.W.2d 169, 176 (Iowa 2013) (“[W]e strictly construe criminal statutes
and resolve doubts in favor of the accused.” (Internal quotation marks
omitted.)); State v. Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007)
(same); Allen, 708 N.W.2d at 366 (same). To the extent there is an
unresolved ambiguity, our cases require a narrow construction of the
statute. See State v. Hearn, 797 N.W.2d 577, 585 (Iowa 2011).
Based on the above rules of construction and analysis, we
conclude the residential facility is not under the management of the
department of corrections unless the IDOC takes over the operation of
the program pursuant to Iowa Code section 905.9. In this case, however,
the State offered no evidence that such a takeover occurred. As a result,
if counsel had specifically asserted in his motion of acquittal that there 11
was insufficient evidence to show the residential facility was under the
management of the department of corrections, the defendant would have
been entitled to dismissal of the charge.
C. Ineffective Assistance. We now turn to the question of
whether counsel failed to perform an essential duty and whether
prejudice resulted. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693; State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). We
think each element is satisfied here under both the State and Federal
Constitutions. First, we conclude counsel failed to perform an essential
duty. Two cases are illustrative. First, in Allen, we found trial counsel
ineffective when he allowed a client to plead guilty to a drug-related
crime when there was no factual basis for the required element that the
facility be a “detention facility.” 708 N.W.2d at 363, 369. Additionally, in
State v. Mitchell, we noted that a county jail was not a correctional
institution for purposes of a criminal statute. 650 N.W.2d 619, 620–21
(Iowa 2002). As in Allen and Mitchell, we think a general examination of
the relevant Code provisions would have alerted a reasonable attorney to
the potential issue.
In sum, the question of whether the residential facility was under
the management of the IDOC cannot be dismissed as “not worth
making.” See State v. Graves, 668 N.W.2d 860, 883 (Iowa 2003). Once a
lawyer undertakes representation, “ ‘a lawyer is obliged not to omit any
essential lawful and ethical step in the defense.’ ” State v. Vance, 790
N.W.2d 775, 785 (Iowa 2010) (quoting ABA Standards for Criminal
Justice: Prosecution Function and Defense Function 4-1.2, cmt., at 123
(3d ed. 1993)). Reasonable preparation and study would have revealed to
trial counsel the potential avenue to dismiss the charge. See id. at 786.
Further, counsel should have known that in order to preserve a 12
sufficiency-of-the-evidence claim, a specific objection must be lodged to
alert the trial court to the nature of the challenge. See Brubaker, 805
N.W.2d at 170.
We ordinarily preserve ineffective-assistance-of-counsel claims for
postconviction relief proceedings. State v. Palmer, 791 N.W.2d 840, 850
(Iowa 2010). In appropriate cases, however, we will consider the merits
of ineffective-assistance claims on direct appeal as long as the record is
adequate. Id.
The record is adequate in this case. The failure of Halverson’s trial
counsel to preserve the claim cannot be attributed to reasonable tactics
or strategy. See Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001)
(noting tactical and strategic decisions of counsel must be made only
after thorough investigation of the law and facts). The State does not
suggest the failure to specify the basis for dismissal was a strategic
decision, and we can discern no basis for an argument that the decision
not to specifically raise the issue was based on reasonable strategic or
tactical considerations. See id.; see also Brubaker, 805 N.W.2d at 174.
Further, we have previously held that claims of ineffective assistance for
failure to challenge sufficiency of the evidence may be raised on direct
appeal. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003) (allowing an
ineffective-assistance claim on direct appeal when trial counsel was
allegedly ineffective for failing to make clear the specific grounds for his
motion for judgment of acquittal).
We also conclude Halverson has been prejudiced by the failure of
his counsel to assert the claim. In order to show prejudice under
Strickland, the defendant must show that “but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. 13
Here, had the defense been timely and specifically asserted, the trial
court would have had no alternative but to dismiss the charge as pled in
the trial information. See Brubaker, 805 N.W.2d at 174 (finding trial
counsel was ineffective and had trial counsel made the proper objection
regarding the sufficiency of evidence, the district court would have
dismissed the charge). Although the State contends that hypothetically a
district court might have allowed an amendment to conform to proof, the
State concedes there is not an alternative under Iowa Code section
719.7(3) that would apply to this case.
IV. Conclusion.
For the above reasons, we conclude Halverson’s trial counsel was
ineffective under the State and Federal Constitutions as a result of his
failure to assert there was insufficient evidence to show the residential
facility was an institution under the management of the department of
corrections. Had such a claim been timely asserted, the charge against
him would have been dismissed. We therefore conclude the decision of
the court of appeals must be vacated, the judgment of the district court
reversed, and the case remanded with instructions to dismiss the charge.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED WITH
INSTRUCTIONS.
All justices concur except Mansfield and Waterman, JJ., who
concur specially. 14
#13–0446, State v. Halverson
MANSFIELD, Justice (concurring specially).
I join the court’s opinion except for part II. In part II, I have
concerns that the court is laying the groundwork for adopting, sua
sponte, a new doctrine of ineffective assistance of counsel under the Iowa
Constitution.
I am not joining part II for two reasons. First, our court should
only be deciding the case before it, not planting a flag for possible future
decisions. Second, I question the practice of changing longstanding
constitutional interpretations sua sponte. Rather, changes to our
precedent should occur only when we are given a framework, under
adversarial briefing, for doing so.
I begin with what the defendant argued in his brief and in his
application for further review, quoted verbatim:
To establish a claim of ineffective assistance of counsel, the Applicant has the burden to prove the following: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668[, 104 S. Ct. 2052, 80 L. Ed. 2d 674] (1984); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, the Applicant faces the strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). The Court will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second element is satisfied if a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct. App. 1994).
Reading the foregoing, the majority concludes that the defendant
“does not specify whether he is proceeding under the Sixth Amendment
to the United States Constitution or article I, section 10 of the Iowa
Constitution.” This statement is accurate so far as it goes. However, the 15
defendant’s first citation is to Strickland, which is a very familiar
precedent decided only under the United States Constitution. 466 U.S. at
684–85, 104 S. Ct. at 2063, 80 L. Ed. 2d at 691–92. I would therefore
conclude that the Federal Constitution is the asserted ground for
reversal.
The most one can say for the majority’s position is that the second
of the four Iowa cases cited by the defendant—Hepperle—mentions the
right to counsel under both Constitutions. 530 N.W.2d at 739.
Therefore, if we do some detective work and read all the defendant’s
authorities, we can find a reference to the state constitution in one of
them. Yet, I do not believe that an appellant can preserve a separate
ground for appeal without arguing or mentioning that ground, just
because a court decision cited by the appellant refers to that ground.
See Sanchez v. State, 692 N.W.2d 812, 820 (Iowa 2005) (holding class of
undocumented immigrants waived their argument that denial of driver’s
licenses violated the Iowa Constitution because they “fail[ed] to examine
this claim in their brief and fail[ed] to address any specific application of
the language of [the state constitution] to this case”).
Regardless, the defendant has not urged that the right to counsel
under the Iowa Constitution should be interpreted differently. To date,
we have followed the Strickland standard under both the United States
and the Iowa Constitutions. See State v. Clark, 814 N.W.2d 551, 567
(Iowa 2012) (applying the two-prong Strickland test under both
Constitutions); State v. Fountain, 786 N.W.2d 260, 265–66 (Iowa 2010)
(same); State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006) (same);
Collins v. State, 588 N.W.2d 399, 401–02 (Iowa 1998) (same); State v.
Kinkead, 570 N.W.2d 97, 103 (Iowa 1997) (same); Hepperle, 530 N.W.2d 16
at 739 (same); State v. Munz, 355 N.W.2d 576, 584 (Iowa 1984) (same).3
We should not retreat from these precedents when no one asks us to do
so.
Although the majority refers obliquely to other courts “not
utiliz[ing] the Strickland test,” an important distinction should be made.
These jurisdictions had pre-Strickland ineffective-assistance standards
under their state constitutions that they simply kept after Strickland was
decided. 4 They did not follow Strickland for thirty years and then decide,
one day, not to follow it. And certainly, I am aware of no court that has
gone its own way without being asked to do so.
If the unnecessary language in part II were omitted, I would not file
this special concurrence and would join the court’s opinion in its
entirety. The balance of the court’s opinion is very well-reasoned, and I
agree with it.
Waterman, J., joins this special concurrence.
3I have previously said that I believe our court’s view of what amounts to a failure to perform an essential duty under Strickland is “expansive.” See Rhoades v. State, 848 N.W.2d 22, 33–34 (2014) (Mansfield, J., concurring specially). But we have taken this expansive view while applying Strickland; we have never suggested that we are taking a different approach to ineffective assistance of counsel under the Iowa Constitution. 4See Wilson v. State, 711 P.2d 547, 549 (Alaska Ct. App. 1985) (retaining the standard set forth in Risher v. State, 523 P.2d 421, 425 (Alaska 1974)); State v. Smith, 712 P.2d 496, 500 n.7 (Haw. 1986) (“The test for measuring ineffectiveness adopted by this court in State v. Antone, [615 P.2d 101, 104 (Haw. 1980),] is not that declared by the Supreme Court in Strickland . . . . But for purposes of judging claims of inadequate representation brought under article I, section 14 of the Hawaii Constitution, we shall continue to apply the standard enunciated in . . . Antone.”); People v. Claudio, 629 N.E.2d 384, 385–86 (N.Y. 1993) (explaining how, prior to Strickland, the New York courts had developed “a somewhat different test for ineffective assistance of counsel under article I, § 6 of the New York Constitution” and applying that test); Stevens v. State, 902 P.2d 1137, 1141–42 (Or. 1995) (en banc) (clarifying that the pre-Strickland state constitutional standard from Krummacher v. Gierloff, 627 P.2d 458, 468 (Or. 1981) (en banc), still applied after Strickland).