Eduardo Artemio Rodriguez Lopez v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: December 18, 2019
• Docket: 18-1945
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1945 Filed December 18, 2019

EDUARDO ARTEMIO RODRIGUEZ LOPEZ, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Dickinson County, David A. Lester,

Judge.

Eduardo Rodriguez Lopez appeals the order denying his application for

postconviction relief. AFFIRMED

Judy L. Freking of Judy L. Freking, P.C., Le Mars, for appellant.

Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant

Attorney General, for appellee State.

Considered by Doyle, P.J., and Tabor and Schumacher, JJ. 2

DOYLE, Presiding Judge.

Eduardo Rodriguez Lopez appeals from the order denying his application

for postconviction relief (PCR) from his 2012 conviction for second-degree sexual

abuse. Although we review the denial of a PCR application for correction of errors

at law, see Villa Magana v. State, 908 N.W.2d 255, 259 (Iowa 2018), we review

claims of ineffective assistance of counsel de novo, see Lamasters v. State, 821

N.W.2d 856, 862 (Iowa 2012). To succeed on a claim of ineffective assistance, a

PCR applicant must show counsel breached a duty and prejudice resulted. See

id. We may affirm the district court’s denial of an ineffective-assistance claim if

either element is lacking. See id.

The PCR court identified nine claims for PCR and found each failed

because this court rejected it on direct appeal or because Rodriguez Lopez failed

to provide a sufficient reason for not raising it on direct appeal. See Iowa Code

§ 822.8 (2015) (stating claims that were finally adjudicated or not raised in the

proceeding that resulted in the conviction may not be the basis for a subsequent

application unless the court finds a ground for relief for which for sufficient reason

was not asserted or was inadequately raised in the prior action). Of the claims it

found it could analyze under an ineffective-assistance-of-counsel rubric, the court

determined Rodriguez Lopez failed to show prejudice.

On appeal, Rodriguez Lopez argues his PCR counsel was ineffective by

failing to conduct a reasonable investigation into his claims and to identify all

possible grounds for PCR. He makes the general claim that “there exists a very

reasonable probability that the results of this [PCR] hearing would have been

different” had PCR counsel performed competently. But the fact that an error “had 3

some conceivable effect on the outcome of the proceeding” is not enough to show

prejudice. Strickland v. Washington, 466 U.S. 668, 693 (1984). “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.” Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (internal citation

omitted). Rodriguez Lopez’s claim of ineffective assistance of PCR counsel is too

general to address on appeal. See id.

Rodriguez Lopez also claims ineffective assistance of trial counsel.1 He first

contends trial counsel was ineffective by informing the court he would be ready to

try the case, which led the trial court to deny his motion to continue the trial.

Rodriguez Lopez claims he was prejudiced because trial counsel did not have

enough time to investigate the credibility of the complaining witness. But

Rodriguez Lopez raised a similar claim on direct appeal, where he argued the trial

court’s denial of his motion for a continuance violated his constitutional right to due

process and his right to present a defense. State v. Lopez, No. 12-1676, 2013 WL

5760608, at *8 (Iowa Ct. App. Oct. 23, 2013). He claimed he needed the

continuance so counsel could investigate whether the complaining witness denied

the abuse to others. Id. And we rejected his claim, finding it was “too vague and

uncertain” and Rodriguez Lopez failed to show prejudice. See id. at *10. Setting

1 To the extent these are novel claims, Rodriguez Lopez does not state a reason for failing to raise these claims in his PCR application as required by section 822.8. But we presume that this failure relates to his claims that PCR counsel was ineffective by failing to investigate and identify all possible grounds for PCR. See Collins v. State, 588 N.W.2d 399, 402-03 (Iowa 1998) (stating that ineffective assistance of PCR counsel may constitute sufficient reason for not raising an issue in a PCR action). 4

aside the question of whether Iowa Code section 822.8 bars Rodriguez Lopez from

relitigating the issue, the claim fails because he offers nothing more than

speculation to show prejudice.

Next, Rodriguez Lopez alleges his trial counsel was ineffective by misusing

the time and resources available, claiming he “did not have enough time with

defense counsel to gain an understanding of the critical stages of trial nor to gain

a sufficient amount of knowledge and understanding in order to meaningfully

participate in his own defense.” He incorporates several claims raised to and

rejected by the PCR court and repackages them as a claim of ineffective

assistance of counsel. Once again, even assuming section 822.8 does not bar

these claims, there is no showing of prejudice.

Finally, Rodriguez Lopez waived his claim of ineffective assistance of trial

counsel based on counsel’s failure to object to a voir dire question; his brief

provides no argument and cites no authority to support it. See Iowa R. App. P.

6.903(2)(g)(3) (stating the appellant’s brief must include an argument section

“containing the appellant’s contentions and the reasons for them with citations to

the authorities relied on” and “[f]ailure to cite authority in support of an issue may

be deemed waiver of that issue”). And we reject Rodriguez Lopez’s claim that the

trial court erred in overruling his motion for judgment of acquittal because section

822.8 bars it.

AFFIRMED.