IN THE COURT OF APPEALS OF IOWA
No. 18-0578 Filed January 9, 2019
KEISHA L. MAGEE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David P.
Odekirk, Judge.
Keisha Magee appeals the denial of her application for postconviction relief.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Ashley Stewart, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Keisha Magee appeals the denial of her application for postconviction relief
(PCR) claiming PCR counsel committed two structural errors in her case. She
alternatively claims she was provided ineffective assistance of counsel. We find
Magee has not established structural error occurred during the postconviction trial
and her ineffective-assistance claims brought on appeal for the first time should be
asserted in a separate application.
I. Background Facts & Proceedings
In the early morning hours of September 29, 2013, Magee went to a friend’s
home believing her paramour, John Bass, was on the premises. Magee had a
history of assaulting Bass, and a no-contact order was in place protecting Bass
from Magee. The friend indicated Bass was not at the house and then allowed
Magee in to use the restroom. Magee had been drinking and using illegal
substances that evening. Magee found Bass in an upstairs room. They went
downstairs and argued. Magee punched Bass. Magee then went to the kitchen,
got a knife, and stabbed Bass in the chest in front of two witnesses. Bass died
from the wound.
Magee turned herself in at the police station later that day. She was highly
emotional and was sent to the hospital for the night when she exhibited breathing
difficulties.
In November, the State charged Magee with first-degree murder. Magee
entered into a plea agreement with the State and pleaded guilty to second-degree
murder on April 4, 2014. Magee waived her presentence investigation report and
requested immediate sentencing. She was sentenced to the statutory 3
indeterminate sentence of not more than fifty years imprisonment with a mandatory
minimum of thirty-five years. She did not appeal.
On June 25, 2014, Magee filed an application for PCR counsel but no
application for PCR. She was appointed counsel on July 3, and different counsel
was appointed on November 17, for reasons unrelated to Magee’s case. A Iowa
Rule of Civil Procedure 1.944 notice of dismissal was generated on July 21, 2015.
An application for PCR was filed December 18, 2015, along with a renewed
request for counsel. The application alleged Magee “was not in [the] right state of
mind to make [a] decision on any plea agreement.” Magee’s requested relief was
to renegotiate her plea deal or for a new trial to present new evidence.
On January 7, 2016, the court dismissed the action by operation of rule
1.944, but PCR counsel filed a motion to reinstate the petition, which was granted
on February 5, 2016. Trial was scheduled and rescheduled several times, finally
taking place on January 16, 2018. Magee appeared by phone and testified.
Magee’s trial counsel also testified. The district court denied Magee’s application
for PCR on March 29. She appeals.
II. Standard of Review
We generally review postconviction proceedings for correction of errors at
law. Iowa R. App. P. 6.907; Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018).
However, a PCR application alleging ineffective assistance of counsel raises a
constitutional claim, and our review is de novo. Moon, 911 N.W.2d at 142. 4
III. Analysis
Magee does not allege any legal error by the court or appeal any of the
issues raised and decided in the PCR action.1 Her claims on appeal relate to the
performance of PCR counsel, who Magee claims provided ineffective assistance.
In particular, Magee claims counsel failed to investigate and present evidence and
expert testimony regarding her mental health. Magee categorizes the errors as
structural and if not structural errors then as general ineffective-assistance-of-
counsel claims.
A. Structural error. A structural error arises when counsel’s error
affects the trial’s framework. Krogmann v. State, 914 N.W.2d 293, 313 (Iowa
2018). Iowa courts recognize three types of structural error: “(1) counsel is
completely denied, actually or constructively, at a crucial stage of the proceeding;
(2) where counsel does not place the prosecution’s case against meaningful
adversarial testing; or (3) where surrounding circumstances justify a presumption
of ineffectiveness, such as where counsel has an actual conflict of interest.” Lado
v. State, 804 N.W.2d 248, 252 (Iowa 2011); see also Weaver v. Massachusetts,
137 S. Ct. 1899, 1908 (2017) (categorizing error as structural when the right at
issue protects an interest other than from erroneous conviction, when the effects
of the error are too hard to measure, and when the error always results in
fundamental unfairness). Structural error may render the underlying proceeding
1 Magee’s PCR application requested to withdraw her plea, claiming she was not in the right state of mind to decide on a plea agreement, supported by her change in medication and a mental-health appointment. At her plea hearing, Magee told the court she was on prescription medication meant to help her understand what was going on and what she was doing. 5
“so unreliable the constitutional or statutory right to counsel entitles the defendant
to a new proceeding without the need to show the error actually caused prejudice.”
Lado, 804 N.W.2d at 252. We look at the type of structural error presented in the
case and its effect on the fairness of the criminal proceedings to determine if
prejudice must be shown. Krogmann, 914 N.W.2d at 324 (finding an unlawful total
freeze of assets impairing the defendant’s ability control his defense was
presumptively prejudicial). But see Weaver, 137 S. Ct. at 1908 (noting not all
structural errors “lead to fundamental unfairness in every case”).
The first structural error Magee alleges is her PCR counsel failed to
investigate and present evidence on her mental illness. She argues this failure
constitutes a failure to prepare or present evidence of her claims in a meaningful
adversarial context. Magee claims counsel, despite requesting medical records
and meeting with past treating physicians, did not complete even a minimal
investigation.
Magee testified at length during the PCR hearing. She testified as to her
history of mental-health problems, the effects of her medications and other
controlled substances, and differences in her general actions and reactions when
medicated and not on her medications. During the PCR hearing, she asked if PCR
counsel had mailed consent forms, which PCR counsel confirmed.
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IN THE COURT OF APPEALS OF IOWA
No. 18-0578 Filed January 9, 2019
KEISHA L. MAGEE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David P.
Odekirk, Judge.
Keisha Magee appeals the denial of her application for postconviction relief.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Ashley Stewart, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Keisha Magee appeals the denial of her application for postconviction relief
(PCR) claiming PCR counsel committed two structural errors in her case. She
alternatively claims she was provided ineffective assistance of counsel. We find
Magee has not established structural error occurred during the postconviction trial
and her ineffective-assistance claims brought on appeal for the first time should be
asserted in a separate application.
I. Background Facts & Proceedings
In the early morning hours of September 29, 2013, Magee went to a friend’s
home believing her paramour, John Bass, was on the premises. Magee had a
history of assaulting Bass, and a no-contact order was in place protecting Bass
from Magee. The friend indicated Bass was not at the house and then allowed
Magee in to use the restroom. Magee had been drinking and using illegal
substances that evening. Magee found Bass in an upstairs room. They went
downstairs and argued. Magee punched Bass. Magee then went to the kitchen,
got a knife, and stabbed Bass in the chest in front of two witnesses. Bass died
from the wound.
Magee turned herself in at the police station later that day. She was highly
emotional and was sent to the hospital for the night when she exhibited breathing
difficulties.
In November, the State charged Magee with first-degree murder. Magee
entered into a plea agreement with the State and pleaded guilty to second-degree
murder on April 4, 2014. Magee waived her presentence investigation report and
requested immediate sentencing. She was sentenced to the statutory 3
indeterminate sentence of not more than fifty years imprisonment with a mandatory
minimum of thirty-five years. She did not appeal.
On June 25, 2014, Magee filed an application for PCR counsel but no
application for PCR. She was appointed counsel on July 3, and different counsel
was appointed on November 17, for reasons unrelated to Magee’s case. A Iowa
Rule of Civil Procedure 1.944 notice of dismissal was generated on July 21, 2015.
An application for PCR was filed December 18, 2015, along with a renewed
request for counsel. The application alleged Magee “was not in [the] right state of
mind to make [a] decision on any plea agreement.” Magee’s requested relief was
to renegotiate her plea deal or for a new trial to present new evidence.
On January 7, 2016, the court dismissed the action by operation of rule
1.944, but PCR counsel filed a motion to reinstate the petition, which was granted
on February 5, 2016. Trial was scheduled and rescheduled several times, finally
taking place on January 16, 2018. Magee appeared by phone and testified.
Magee’s trial counsel also testified. The district court denied Magee’s application
for PCR on March 29. She appeals.
II. Standard of Review
We generally review postconviction proceedings for correction of errors at
law. Iowa R. App. P. 6.907; Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018).
However, a PCR application alleging ineffective assistance of counsel raises a
constitutional claim, and our review is de novo. Moon, 911 N.W.2d at 142. 4
III. Analysis
Magee does not allege any legal error by the court or appeal any of the
issues raised and decided in the PCR action.1 Her claims on appeal relate to the
performance of PCR counsel, who Magee claims provided ineffective assistance.
In particular, Magee claims counsel failed to investigate and present evidence and
expert testimony regarding her mental health. Magee categorizes the errors as
structural and if not structural errors then as general ineffective-assistance-of-
counsel claims.
A. Structural error. A structural error arises when counsel’s error
affects the trial’s framework. Krogmann v. State, 914 N.W.2d 293, 313 (Iowa
2018). Iowa courts recognize three types of structural error: “(1) counsel is
completely denied, actually or constructively, at a crucial stage of the proceeding;
(2) where counsel does not place the prosecution’s case against meaningful
adversarial testing; or (3) where surrounding circumstances justify a presumption
of ineffectiveness, such as where counsel has an actual conflict of interest.” Lado
v. State, 804 N.W.2d 248, 252 (Iowa 2011); see also Weaver v. Massachusetts,
137 S. Ct. 1899, 1908 (2017) (categorizing error as structural when the right at
issue protects an interest other than from erroneous conviction, when the effects
of the error are too hard to measure, and when the error always results in
fundamental unfairness). Structural error may render the underlying proceeding
1 Magee’s PCR application requested to withdraw her plea, claiming she was not in the right state of mind to decide on a plea agreement, supported by her change in medication and a mental-health appointment. At her plea hearing, Magee told the court she was on prescription medication meant to help her understand what was going on and what she was doing. 5
“so unreliable the constitutional or statutory right to counsel entitles the defendant
to a new proceeding without the need to show the error actually caused prejudice.”
Lado, 804 N.W.2d at 252. We look at the type of structural error presented in the
case and its effect on the fairness of the criminal proceedings to determine if
prejudice must be shown. Krogmann, 914 N.W.2d at 324 (finding an unlawful total
freeze of assets impairing the defendant’s ability control his defense was
presumptively prejudicial). But see Weaver, 137 S. Ct. at 1908 (noting not all
structural errors “lead to fundamental unfairness in every case”).
The first structural error Magee alleges is her PCR counsel failed to
investigate and present evidence on her mental illness. She argues this failure
constitutes a failure to prepare or present evidence of her claims in a meaningful
adversarial context. Magee claims counsel, despite requesting medical records
and meeting with past treating physicians, did not complete even a minimal
investigation.
Magee testified at length during the PCR hearing. She testified as to her
history of mental-health problems, the effects of her medications and other
controlled substances, and differences in her general actions and reactions when
medicated and not on her medications. During the PCR hearing, she asked if PCR
counsel had mailed consent forms, which PCR counsel confirmed.
PCR counsel also cross-examined Magee’s trial counsel. Trial counsel
stated Magee had lucid recall and their interactions provided no concerns as to
Magee’s competency. Trial counsel stated he did not see a mental-health,
insanity, or diminished-responsibility defense succeeding. Upon questioning, trial
counsel discussed the difficulty of asserting a diminished-capacity or intoxication 6
defense in the county. PCR counsel obtained an admission from trial counsel that
Magee’s mental health had not been investigated thoroughly and trial strategy and
defenses were not discussed, which trial counsel attributed to Magee’s desire to
settle the case. PCR counsel did not submit any medical records into evidence at
trial.
Based on this record, we are unable to determine if PCR counsel failed to
adequately investigate Magee’s mental state at the time she pleaded guilty. The
transcript indicates some sort of consent form changed hands between Magee and
PCR counsel. We have no way to determine if PCR counsel requested records
and chose not to introduce them for strategic purposes, or if the records were never
requested. The failure to request Magee’s mental-health records when her mental
health is the basis of her claim could constitute a breach of duty, but we also
recognize the possibility the records might not support Magee’s claims and counsel
may have made a strategic decision to not offer the records into evidence.
Magee’s allegations on appeal that PCR counsel failed to investigate or
present evidence in support of her claim lacks sufficient evidence of lack of action
to overcome the presumption of counsel’s performance falling within the range of
reasonable professional assistance. See State v. Ondayog, 722 N.W.2d 778, 785
(Iowa 2006). Magee has not established structural error in her PCR trial based on
PCR counsel’s failure to investigate.
The second structural error Magee alleges is PCR counsel’s failure to
present an expert to establish her guilty plea was involuntary due to her mental
health. PCR counsel did not file any motion with the court to appoint an expert
witness at the State’s expense. As above, we have no way to determine if this 7
was a failure to investigate or a reasoned decision based on Magee’s medical
records. We do not find this potential error would have rendered the entire
proceeding constitutionally unfair. This claim does not fall within the narrow rubric
of structural error.
B. General ineffective assistance of counsel. As an alternative to
structural error, Magee asserts a standard ineffective-assistance-of-counsel claim.
The ineffectiveness of PCR counsel is a new claim on appeal with no testimony or
evidence in the record relating to any investigation counsel may or may not have
done, any resulting strategy or failure to present evidence, or an identified expert
and the evidence the expert would have presented. The issue raised in this appeal
was not raised and decided by the district court. Magee has not established an
undisputed breach of duty by postconviction counsel. We find Magee’s claim of
ineffective assistance of PCR counsel falls within the category of claims to be
asserted in a separate application for PCR. See Goode v. State, ___ N.W.2d ___,
___, 2018 WL 6004877, at *5 (Iowa 2018) (holding claims of ineffective assistance
of PCR counsel made for the first time on appeal should be asserted in a separate
application rather than addressed by the district court on remand).