IN THE COURT OF APPEALS OF IOWA
No. 13-0840 Filed July 16, 2014
FRANK D. BOURRAGE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Judge.
Frank Bourrage appeals from the dismissal of his application for
postconviction relief, alleging that the application was dismissed as a result of the
ineffective assistance of his postconviction counsel. REVERSED AND
REMANDED.
Courtney T. Wilson of Gomez May, L.L.P., Davenport, for appellant.
Thomas J. Miller, Attorney General, Heather Quick, Assistant Attorney
General, Michael J. Walton, County Attorney, and Amy Devine, Assistant County
Attorney, for appellee State.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ. 2
POTTERFIELD, J.
Frank Bourrage appeals from the dismissal of his application for
postconviction relief, alleging that the dismissal resulted from the ineffective
assistance of his postconviction counsel. We reverse and remand for hearing on
the merits.
I. Factual and Procedural Background
On August 31, 2011, Bourrage was sentenced on two convictions:
burglary in the second degree and robbery in the second degree. Both
sentences were for imprisonment not to exceed fifteen years and to run
consecutively. Bourrage appealed. We vacated the sentences and remanded.
On resentencing, the sentences were modified to run concurrently.
On February 25, 2013, Bourrage filed a pro se application for
postconviction relief on several grounds including ineffective assistance of trial
counsel. On February 28, the district court appointed counsel for the
postconviction-relief proceedings. Appointed counsel did not amend Bourrage’s
pro se application. The State filed an answer to Bourrage’s application and
moved for summary judgment on March 18, 2013, alleging Bourrage’s claims of
ineffective assistance of trial counsel had been decided on direct appeal and that
his complaint about the seizure of his cell phone was without merit. Bourrage’s
counsel did not file a resistance or response. On April 8, the district court
granted the motion and dismissed the case.
On April 24, Bourrage filed a pro se motion to reinstate his postconviction-
relief action. The motion was denied on May 16. On May 22, Bourrage filed a
second pro se motion to reinstate with the district court. On May 24, he filed a 3
notice of appeal with our supreme court. On June 10, the second pro se motion
was scheduled for an oral hearing on July 2. On June 14, Bourrage filed his
notice of appeal with our supreme court a second time. On June 17, before the
hearing on the second motion to reinstate, Bourrage filed the notice of appeal
with the district court.
On July 31, our supreme court issued an order stating that Bourrage’s
multiple filings throughout April, May, and June were consistent with a good faith
effort to take a timely appeal.1 Pursuant to that order, Bourrage is now before
this court to appeal the district court’s grant of summary judgment, dismissal of
the postconviction-relief action, and denial of his motion to reinstate. He asserts
ineffective assistance of postconviction counsel and requests that we reverse the
district court’s dismissal and remand for consideration of the merits of his
postconviction-relief claims.
II. Scope and Standard of Review
An appeal from a postconviction-relief proceeding is ordinarily reviewed
for correction of errors at law. Goosman v. State, 764 N.W.2d 539, 541 (Iowa
2009). A postconviction-relief applicant may be statutorily entitled—but is not
constitutionally entitled—to legal representation. Iowa Code § 822.5 (2013); see
also Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994). If the applicant is provided
counsel, he has a right to effective counsel, and we review ineffective-
1 As a side-effect of Bourrage’s aggressive filing strategy, many of his pro se filings failed to comply with the relevant procedural rules. In its July 31 order, the Iowa Supreme Court struck a pro se brief filed on July 17, 2013. Additionally, Bourrage’s May 5, 2014 pro se supplemental brief is not timely and “will not be considered by the court.” Iowa R. App. P. 6.901(2)(a). 4
assistance-of-postconviction-counsel claims de novo. Collins v. State, 588
N.W.2d 399, 401–02 (Iowa 1998).
III. Discussion
To prevail on an ineffective assistance of counsel claim, the defendant
must establish both that counsel failed to perform an essential duty and that the
defendant was prejudiced as a result. See State v. Williams, 695 N.W. 2d 23,
28–29 (Iowa 2005). However, if counsel’s representation was so deficient as to
create a structural error—i.e., an error “affecting the framework within which the
trial proceeds”—the defendant is entitled to a new proceeding “without the need
to show the error actually caused prejudice.” Lado v. State, 804 N.W.2d 248,
252 (Iowa 2011) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).
We begin under “a strong presumption that the performance of counsel
falls within a wide range of reasonable professional assistance.” Fullenwider v.
State, 674 N.W.2d 73, 75 (Iowa 2004). Counsel’s representation is considered
inadequate only when it falls “below the standard demanded of a reasonably
competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
Bourrage predicates his ineffective assistance claim on the fact that his
counsel failed both to file a resistive response to the State’s motion for summary
judgment and to communicate to him that he could file a resistive response pro
se. “[I]neffective assistance is more likely to be established when the alleged
actions or inactions of counsel are attributed to a lack of diligence as opposed to
the exercise of judgment.” Ledezma, 626 N.W.2d at 142. Though our record is
limited, the facts that we do have on record cannot be attributed to anything but a
lack of diligence. 5
First, despite Bourrage’s best efforts, the pro se application for
postconviction relief states the bases for relief in only general terms. Counsel
had the opportunity to amend the application to more thoroughly present the
claims after discussing them with his client. The record does not indicate
whether appointed counsel in fact met with his client.
Second, the nature of the State’s motion for summary judgment clearly
calls for a resistance. The motion asserts the boilerplate claim that Bourage’s
“claims of ineffective assistance of counsel have already been denied by the
Court of Appeals when they affirmed the applicant’s convictions.” The bases for
the postconviction claims of ineffective assistance, however, are clearly distinct
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IN THE COURT OF APPEALS OF IOWA
No. 13-0840 Filed July 16, 2014
FRANK D. BOURRAGE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith,
Judge.
Frank Bourrage appeals from the dismissal of his application for
postconviction relief, alleging that the application was dismissed as a result of the
ineffective assistance of his postconviction counsel. REVERSED AND
REMANDED.
Courtney T. Wilson of Gomez May, L.L.P., Davenport, for appellant.
Thomas J. Miller, Attorney General, Heather Quick, Assistant Attorney
General, Michael J. Walton, County Attorney, and Amy Devine, Assistant County
Attorney, for appellee State.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ. 2
POTTERFIELD, J.
Frank Bourrage appeals from the dismissal of his application for
postconviction relief, alleging that the dismissal resulted from the ineffective
assistance of his postconviction counsel. We reverse and remand for hearing on
the merits.
I. Factual and Procedural Background
On August 31, 2011, Bourrage was sentenced on two convictions:
burglary in the second degree and robbery in the second degree. Both
sentences were for imprisonment not to exceed fifteen years and to run
consecutively. Bourrage appealed. We vacated the sentences and remanded.
On resentencing, the sentences were modified to run concurrently.
On February 25, 2013, Bourrage filed a pro se application for
postconviction relief on several grounds including ineffective assistance of trial
counsel. On February 28, the district court appointed counsel for the
postconviction-relief proceedings. Appointed counsel did not amend Bourrage’s
pro se application. The State filed an answer to Bourrage’s application and
moved for summary judgment on March 18, 2013, alleging Bourrage’s claims of
ineffective assistance of trial counsel had been decided on direct appeal and that
his complaint about the seizure of his cell phone was without merit. Bourrage’s
counsel did not file a resistance or response. On April 8, the district court
granted the motion and dismissed the case.
On April 24, Bourrage filed a pro se motion to reinstate his postconviction-
relief action. The motion was denied on May 16. On May 22, Bourrage filed a
second pro se motion to reinstate with the district court. On May 24, he filed a 3
notice of appeal with our supreme court. On June 10, the second pro se motion
was scheduled for an oral hearing on July 2. On June 14, Bourrage filed his
notice of appeal with our supreme court a second time. On June 17, before the
hearing on the second motion to reinstate, Bourrage filed the notice of appeal
with the district court.
On July 31, our supreme court issued an order stating that Bourrage’s
multiple filings throughout April, May, and June were consistent with a good faith
effort to take a timely appeal.1 Pursuant to that order, Bourrage is now before
this court to appeal the district court’s grant of summary judgment, dismissal of
the postconviction-relief action, and denial of his motion to reinstate. He asserts
ineffective assistance of postconviction counsel and requests that we reverse the
district court’s dismissal and remand for consideration of the merits of his
postconviction-relief claims.
II. Scope and Standard of Review
An appeal from a postconviction-relief proceeding is ordinarily reviewed
for correction of errors at law. Goosman v. State, 764 N.W.2d 539, 541 (Iowa
2009). A postconviction-relief applicant may be statutorily entitled—but is not
constitutionally entitled—to legal representation. Iowa Code § 822.5 (2013); see
also Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994). If the applicant is provided
counsel, he has a right to effective counsel, and we review ineffective-
1 As a side-effect of Bourrage’s aggressive filing strategy, many of his pro se filings failed to comply with the relevant procedural rules. In its July 31 order, the Iowa Supreme Court struck a pro se brief filed on July 17, 2013. Additionally, Bourrage’s May 5, 2014 pro se supplemental brief is not timely and “will not be considered by the court.” Iowa R. App. P. 6.901(2)(a). 4
assistance-of-postconviction-counsel claims de novo. Collins v. State, 588
N.W.2d 399, 401–02 (Iowa 1998).
III. Discussion
To prevail on an ineffective assistance of counsel claim, the defendant
must establish both that counsel failed to perform an essential duty and that the
defendant was prejudiced as a result. See State v. Williams, 695 N.W. 2d 23,
28–29 (Iowa 2005). However, if counsel’s representation was so deficient as to
create a structural error—i.e., an error “affecting the framework within which the
trial proceeds”—the defendant is entitled to a new proceeding “without the need
to show the error actually caused prejudice.” Lado v. State, 804 N.W.2d 248,
252 (Iowa 2011) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)).
We begin under “a strong presumption that the performance of counsel
falls within a wide range of reasonable professional assistance.” Fullenwider v.
State, 674 N.W.2d 73, 75 (Iowa 2004). Counsel’s representation is considered
inadequate only when it falls “below the standard demanded of a reasonably
competent attorney.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).
Bourrage predicates his ineffective assistance claim on the fact that his
counsel failed both to file a resistive response to the State’s motion for summary
judgment and to communicate to him that he could file a resistive response pro
se. “[I]neffective assistance is more likely to be established when the alleged
actions or inactions of counsel are attributed to a lack of diligence as opposed to
the exercise of judgment.” Ledezma, 626 N.W.2d at 142. Though our record is
limited, the facts that we do have on record cannot be attributed to anything but a
lack of diligence. 5
First, despite Bourrage’s best efforts, the pro se application for
postconviction relief states the bases for relief in only general terms. Counsel
had the opportunity to amend the application to more thoroughly present the
claims after discussing them with his client. The record does not indicate
whether appointed counsel in fact met with his client.
Second, the nature of the State’s motion for summary judgment clearly
calls for a resistance. The motion asserts the boilerplate claim that Bourage’s
“claims of ineffective assistance of counsel have already been denied by the
Court of Appeals when they affirmed the applicant’s convictions.” The bases for
the postconviction claims of ineffective assistance, however, are clearly distinct
from those that we decided on Bourrage’s direct appeal. See State v. Bourrage,
No. 11-1412, 2012 WL 4101771, at *1 (Iowa Ct. App. Sept. 19, 2012).
The State’s motion also presents facts regarding the search of Bourrage’s
cell phone, arguing that it was a seizure incident to arrest. These facts and legal
assertions call for a resistance to summary disposition and an expansion on the
factual and legal basis of Bourrage’s claim regarding that search. The State’s
motion asserts that the pro se application has not raised any issue of material
fact. Bourrage’s counsel took no action to address this assertion. Even a basic
resistance from counsel would have at the very least resulted in a hearing.
In Iowa, we have noted that a structural error occurs—and no showing of
prejudice is needed—when a defendant or applicant is actually or constructively
denied counsel or when counsel fails to put the case to meaningful adversarial
testing. See State v. Feregrino, 756 N.W.2d 700, 707 (Iowa 2008); see also
Lado, 804 N.W.2d at 253 (finding applicant was “constructively without counsel” 6
and application was “dismissed without . . . meaningful adversarial testing”).
Counsel’s failure to act in this case is a structural error in both senses. Therefore
we do not consider whether Bourrage was prejudiced by the district court’s
dismissal. We find that Bourrage was deprived of effective assistance of
counsel.
IV. Conclusion
Bourrage’s appointed counsel failed to resist the State’s motion for
summary judgment, and that failure left Bourrage constructively without counsel
and his claims without meaningful adversarial testing. The district court’s
dismissal is reversed and the postconviction action is remanded for hearing on
REVERSED AND REMANDED.