Kim David Archer, Applicant-Appellant v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: February 10, 2016
• Docket: 15-0194
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-0194 Filed February 10, 2016

KIM DAVID ARCHER, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Mark R. Lawson,

Judge.

Kim Archer appeals the district court’s denial of his second application for

postconviction relief. AFFIRMED.

Les M. Blair III of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik and Darrel L.

Mullins, Assistant Attorneys General, for appellee.

Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ. 2

BOWER, Judge.

Kim Archer appeals the district court’s denial of his second application for

postconviction relief (PCR). Archer claims counsel for his first PCR trial was

ineffective for his failure to obtain or present certain pieces of evidence. We

affirm on appeal.

In 2008, Archer was charged with one count of second-degree sexual

abuse and one count of third-degree sexual abuse. A jury found Archer guilty on

both counts, and he was sentenced. Archer filed his first application for PCR in

2009. In 2012, this application was denied by the district court, and this denial

was affirmed on appeal.1 Archer filed his second application for PCR in 2013.

After a hearing, the district court denied this application. Archer now appeals.

On appeal, Archer claims his PCR counsel was ineffective for failing to

present the victim’s diary, which supposedly contained a recantation of the

victim’s earlier testimony; for failing to present the victim at the first PCR

proceeding to testify regarding new allegations of dishonesty in her trial

testimony; and for failing to present evidence of the victim’s criminal record.2

Claims of ineffective assistance of counsel are reviewed de novo,

Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012), as these claims have their

“basis in the Sixth Amendment to the United States Constitution.” State v. Canal,

1 Archer v. State, No. 12-0995, 2013 WL 4769344, at *6 (Iowa Ct. App. Sept. 5, 2013). 2 Archer has also raised issues on appeal pro se and has not provided any citation for these issues. A party’s failure in a brief to cite authority in support of an issue may be deemed a waiver of that issue. Iowa R. App. P. 6.903(2)(g)(3) (stating the argument section shall include “[a]n argument containing the appellant’s contentions and the reasons for them with citations to the authorities relied on and references to the pertinent parts of the record . . . [and f]ailure to cite authority in support of an issue may be deemed waiver of that issue”). Therefore, we find these issues waived. 3

773 N.W.2d 528, 530 (Iowa 2009). An ineffective-assistance-of-counsel claim

requires Archer show his PCR counsel breached an essential duty and prejudice

resulted. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (citing Strickland

v. Washington, 466 U.S. 668, 687 (1984)).

Upon our de novo review, we find Archer has failed to show his first PCR

counsel breached an essential duty concerning any of the issues on appeal. Id.

at 142 (noting “the applicant must demonstrate the attorney performed below the

standard demanded of a reasonably competent attorney”). We affirm the district

court’s denial of Archer’s second application for PCR without further opinion

pursuant to Iowa Court Rule 21.26(1)(a), (c), (d), and (e).

AFFIRMED.