IN THE COURT OF APPEALS OF IOWA
No. 15-2118 Filed February 22, 2017
VICTOR ESQUIVAL SERRATO, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Thomas G.
Reidel, Judge.
Applicant seeks postconviction relief from his convictions for first-degree
murder and nonconsensual termination of a human pregnancy. AFFIRMED.
Jeffrey M. Lipman of Lipman Law Firm, P.C., West Des Moines, for
appellant.
Victor E. Serrato, Anamosa, appellant pro se.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. 2
BOWER, Judge.
Victor Serrato seeks postconviction relief from his convictions for first-
degree murder and nonconsensual termination of a human pregnancy. Serrato
raised a variety of issues on appeal. We find issues not properly raised under
the Iowa Rules of Appellate Procedure will not be considered. On the five issues
specifically raised on appeal, the district court considered the issues and
determined they were without merit. We affirm the district court’s decision
denying Serrato’s application for postconviction relief.
I. Background Facts & Proceedings
Serrato was charged with killing Mimi Carmona, who was pregnant at the
time. Serrato and Carmona were observed arguing in the parking lot of a bar in
Muscatine, Iowa, on October 21, 2006. Carmona’s body was found in Illinois on
October 22. Serrato was convicted of first-degree murder, in violation of Iowa
Code section 707.2 (2005), and nonconsensual termination of a human
pregnancy, in violation of section 707.8. Serrato’s convictions were affirmed on
appeal. State v. Serrato, 787 N.W.2d 462, 472 (Iowa 2010). The supreme court
found there was sufficient evidence to prove beyond a reasonable doubt Iowa
had territorial jurisdiction to prosecute Serrato. Id.
On March 18, 2011, Serrato filed a pro se application for postconviction
relief, raising four issues. Although Serrato was represented by counsel, he filed
a supplemental brief on November 17, 2011, setting out eleven issues he was
raising in his postconviction action. Postconviction counsel filed an amended
application for postconviction relief on December 17, 2013, raising four claims of
ineffective assistance of counsel. Postconviction counsel submitted a brief, 3
which addressed whether Serrato received ineffective assistance due to trial
counsel’s failure to seek to suppress certain evidence because Serrato had not
been informed of his Miranda rights. The State responded with a brief also
addressing the issue of the Miranda warning. At the postconviction hearing, the
parties only addressed the issue of the adequacy of the Miranda warning.
The district court denied Serrato’s application for postconviction relief.
The court determined Serrato was not in custody at the time he made statements
to officers and, therefore, a Miranda warning was not required. Based on this
conclusion, the court found it did not need to address any further allegations
made by Serrato in his brief.
Postconviction counsel filed a motion pursuant to Iowa Rule of Civil
Procedure 1.904(2), claiming the court should have addressed whether Serrato’s
rights were violated when the State obtained a DNA sample. Serrato also filed a
pro se rule 1.904(2) motion, stating the court should address issues he raised
concerning (1) the Vienna Convention, (2) territorial jurisdiction, (3) felony
murder, (4) voir dire, and (5) the Miranda warning.
The district court denied the rule 1.904(2) motions. The court found
Serrato consented to the taking of a DNA sample. As to Serrato’s pro se claims,
the court found they were without merit. Serrato now appeals.
II. Standard of Review
In general, postconviction claims are reviewed for the correction of errors
at law. More v. State, 880 N.W.2d 487, 498 (Iowa 2016). On a claim of
ineffective assistance of counsel, our review is de novo. Nguyen v. State, 878
N.W.2d 744, 750 (Iowa 2016). 4
III. Discussion
Serrato asks to have this case remanded to the district court for a ruling
on his pro se issues. He states he raised four issues in his application for
postconviction relief, two more issues in his amended application, and an
additional five issues in his pro se supplemental brief, and he claims eleven pro
se issues should be addressed.1 Serrato then particularly notes the five issues
raised in his pro se rule 1.904(2) motion. In a pro se appellate brief, Serrato
again raises the issue of territorial jurisdiction. He also states, “The court failed
to address all of the pro se issues.”
There are specific rules for raising issues on appeal. See Iowa R. App. P.
6.903(2)(g). Each issue should be addressed in a separately numbered division,
with reference to error preservation, the scope of review, citations to the record
and legal authority, and a statement of the relief sought. Id. “Failure to cite
authority in support of an issue may be deemed waiver of that issue.” Iowa R.
App. P. 6.903(2)(g)(3).
We determine it is not sufficient to ask us to address eleven pro se issues
or “all of the pro se issues,” without further specification in the appellate briefs as
to what issues are being raised on appeal. The failure to set out the issues
Serrato believes should be addressed would require the court to “research and
cull the record” to determine what pro se issues Serrato had raised. See Hanson
v. Harveys Casino Hotel, 652 N.W.2d 841, 843 (Iowa Ct. App. 2002). Due to the
1 By our count, Serrato has raised more than eleven issues in his application for postconviction relief, supplemental brief, amended application, and rule 1.904(2) motion. While there may be some duplication of issues in these documents, the total is more than eleven. This raises some confusion as to which eleven issues, out of all the issues raised, Serrato is asking to have addressed on appeal. 5
failure to comply with the rules of appellate procedure, we will address only those
issues specifically raised in Serrato’s appellate brief and pro se appellate brief.
See In re Estate of DeTar, 572 N.W.2d 178, 181 (Iowa Ct. App. 1997) (noting we
may, “as a matter of grace,” address a party’s issues, despite failure to comply
with the Iowa Rules of Appellate Procedure, if we can do so without assuming a
partisan role).
We determine the following issues were properly raised on appeal and
consider only these issues: (1) whether Serrato was improperly denied the
benefit of consulting with the Mexican Consulate, in accordance with the Vienna
Convention; (2) was Serrato denied an impartial jury due to the rulings on his
claims regarding territorial jurisdiction; (3) whether Serrato received ineffective
assistance because defense and appellate counsel did not argue nonconsensual
termination of a pregnancy could not be the predicate crime for felony murder;
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IN THE COURT OF APPEALS OF IOWA
No. 15-2118 Filed February 22, 2017
VICTOR ESQUIVAL SERRATO, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Thomas G.
Reidel, Judge.
Applicant seeks postconviction relief from his convictions for first-degree
murder and nonconsensual termination of a human pregnancy. AFFIRMED.
Jeffrey M. Lipman of Lipman Law Firm, P.C., West Des Moines, for
appellant.
Victor E. Serrato, Anamosa, appellant pro se.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ. 2
BOWER, Judge.
Victor Serrato seeks postconviction relief from his convictions for first-
degree murder and nonconsensual termination of a human pregnancy. Serrato
raised a variety of issues on appeal. We find issues not properly raised under
the Iowa Rules of Appellate Procedure will not be considered. On the five issues
specifically raised on appeal, the district court considered the issues and
determined they were without merit. We affirm the district court’s decision
denying Serrato’s application for postconviction relief.
I. Background Facts & Proceedings
Serrato was charged with killing Mimi Carmona, who was pregnant at the
time. Serrato and Carmona were observed arguing in the parking lot of a bar in
Muscatine, Iowa, on October 21, 2006. Carmona’s body was found in Illinois on
October 22. Serrato was convicted of first-degree murder, in violation of Iowa
Code section 707.2 (2005), and nonconsensual termination of a human
pregnancy, in violation of section 707.8. Serrato’s convictions were affirmed on
appeal. State v. Serrato, 787 N.W.2d 462, 472 (Iowa 2010). The supreme court
found there was sufficient evidence to prove beyond a reasonable doubt Iowa
had territorial jurisdiction to prosecute Serrato. Id.
On March 18, 2011, Serrato filed a pro se application for postconviction
relief, raising four issues. Although Serrato was represented by counsel, he filed
a supplemental brief on November 17, 2011, setting out eleven issues he was
raising in his postconviction action. Postconviction counsel filed an amended
application for postconviction relief on December 17, 2013, raising four claims of
ineffective assistance of counsel. Postconviction counsel submitted a brief, 3
which addressed whether Serrato received ineffective assistance due to trial
counsel’s failure to seek to suppress certain evidence because Serrato had not
been informed of his Miranda rights. The State responded with a brief also
addressing the issue of the Miranda warning. At the postconviction hearing, the
parties only addressed the issue of the adequacy of the Miranda warning.
The district court denied Serrato’s application for postconviction relief.
The court determined Serrato was not in custody at the time he made statements
to officers and, therefore, a Miranda warning was not required. Based on this
conclusion, the court found it did not need to address any further allegations
made by Serrato in his brief.
Postconviction counsel filed a motion pursuant to Iowa Rule of Civil
Procedure 1.904(2), claiming the court should have addressed whether Serrato’s
rights were violated when the State obtained a DNA sample. Serrato also filed a
pro se rule 1.904(2) motion, stating the court should address issues he raised
concerning (1) the Vienna Convention, (2) territorial jurisdiction, (3) felony
murder, (4) voir dire, and (5) the Miranda warning.
The district court denied the rule 1.904(2) motions. The court found
Serrato consented to the taking of a DNA sample. As to Serrato’s pro se claims,
the court found they were without merit. Serrato now appeals.
II. Standard of Review
In general, postconviction claims are reviewed for the correction of errors
at law. More v. State, 880 N.W.2d 487, 498 (Iowa 2016). On a claim of
ineffective assistance of counsel, our review is de novo. Nguyen v. State, 878
N.W.2d 744, 750 (Iowa 2016). 4
III. Discussion
Serrato asks to have this case remanded to the district court for a ruling
on his pro se issues. He states he raised four issues in his application for
postconviction relief, two more issues in his amended application, and an
additional five issues in his pro se supplemental brief, and he claims eleven pro
se issues should be addressed.1 Serrato then particularly notes the five issues
raised in his pro se rule 1.904(2) motion. In a pro se appellate brief, Serrato
again raises the issue of territorial jurisdiction. He also states, “The court failed
to address all of the pro se issues.”
There are specific rules for raising issues on appeal. See Iowa R. App. P.
6.903(2)(g). Each issue should be addressed in a separately numbered division,
with reference to error preservation, the scope of review, citations to the record
and legal authority, and a statement of the relief sought. Id. “Failure to cite
authority in support of an issue may be deemed waiver of that issue.” Iowa R.
App. P. 6.903(2)(g)(3).
We determine it is not sufficient to ask us to address eleven pro se issues
or “all of the pro se issues,” without further specification in the appellate briefs as
to what issues are being raised on appeal. The failure to set out the issues
Serrato believes should be addressed would require the court to “research and
cull the record” to determine what pro se issues Serrato had raised. See Hanson
v. Harveys Casino Hotel, 652 N.W.2d 841, 843 (Iowa Ct. App. 2002). Due to the
1 By our count, Serrato has raised more than eleven issues in his application for postconviction relief, supplemental brief, amended application, and rule 1.904(2) motion. While there may be some duplication of issues in these documents, the total is more than eleven. This raises some confusion as to which eleven issues, out of all the issues raised, Serrato is asking to have addressed on appeal. 5
failure to comply with the rules of appellate procedure, we will address only those
issues specifically raised in Serrato’s appellate brief and pro se appellate brief.
See In re Estate of DeTar, 572 N.W.2d 178, 181 (Iowa Ct. App. 1997) (noting we
may, “as a matter of grace,” address a party’s issues, despite failure to comply
with the Iowa Rules of Appellate Procedure, if we can do so without assuming a
partisan role).
We determine the following issues were properly raised on appeal and
consider only these issues: (1) whether Serrato was improperly denied the
benefit of consulting with the Mexican Consulate, in accordance with the Vienna
Convention; (2) was Serrato denied an impartial jury due to the rulings on his
claims regarding territorial jurisdiction; (3) whether Serrato received ineffective
assistance because defense and appellate counsel did not argue nonconsensual
termination of a pregnancy could not be the predicate crime for felony murder;
(4) was defense counsel denied the ability to properly voir dire the jurors; and (5)
is Serrato entitled to greater protection under the Iowa Constitution on his claims
regarding the violation of his Miranda rights. In Serrato’s pro se brief, he
specifically refers to his territorial jurisdiction claim, which is already set out here.
Serrato claims the district court should have ruled on these five issues.
Section 822.7 provides, “The court shall make specific findings of fact, and state
expressly its conclusions of law, relating to each issue presented.” Substantial
compliance with the rule is sufficient. Gamble v. State, 723 N.W.2d 443, 446
(Iowa 2006). “Even if the court does not respond to all of the applicant’s
allegations, the ruling is sufficient if it responds to all the issues raised.” Id.
“[T]he district court must give the applicant an opportunity to be heard on his pro 6
se claims and must then rule on each issue raised.” Jones v. State, 731 N.W.2d
388, 392 (Iowa 2007). In the court’s ruling on the rule 1.904(2) motions, the court
addressed each of the five issues raised in Serrato’s pro se motion.
A. Serrato claimed he was not born in the United States and “was
denied the benefit of a Consulate; which is his right under Article 36 of the
Vienna Convention.” He stated officers were required to inform him of his rights
under the Vienna Convention. The district court found there was a ruling on this
issue during Serrato’s criminal proceedings. We find no error in the court’s
conclusion. On May 22, 2007, the district court ruled the Mexican Consulate had
been notified at the time Serrato was arrested.
B. Serrato claimed he was denied a trial by an impartial jury in the
state where the crime was committed, as required by the Sixth Amendment. He
states because Carmona’s body was found in Illinois, the trial should have been
held in Illinois. The district court found this issue had been addressed by the
Iowa Supreme Court in Serrato’s direct appeal. The Iowa Supreme Court fully
considered Serrato’s claims regarding territorial jurisdiction and concluded
Serrato was subject to Iowa’s territorial jurisdiction. Serrato, 787 N.W.2d at 471.
We determine Serrato’s claim the trial should have been held in Illinois was
previously rejected by the supreme court. See id.
C. Serrato claimed he received ineffective assistance from defense
and appellate counsel because they did not argue the offense of nonconsensual
termination of a pregnancy could not be used as the predicate felony offense for
felony murder. The district court found “the jury was instructed under the
elements of premeditated murder, not under the theory of felony murder.” We 7
agree with the court’s conclusion Serrato was prosecuted under a theory of
premeditated murder, not felony murder. The supreme court stated, “To commit
murder in the first degree, Serrato must have acted with malice aforethought and
have killed Carmona willfully, deliberately, and with premeditation.” Id. at 469.
D. Serrato claimed he was denied a fair and impartial trial because
defense counsel was not able to properly voir dire the jurors concerning prejudice
from media reporting on the trial. The district court noted the jury selection
process began on page 103 of the trial transcript and concluded on page 508.
The court found, “The transcript revealed [defense counsel] was able to fully and
completely voir dire prospective jurors concerning any potential prejudice.” We
find no error in the district court’s conclusion this issue has no merit.
E. Serrato claimed he was entitled to greater protection under the
Iowa Constitution concerning the violation of his Miranda rights. The district court
concluded there was no requirement to inform Serrato of his Miranda rights
because he was not in custody during the time period in question. See State v.
Ortiz, 766 N.W.2d 244, 251 (Iowa 2009) (noting officers are required to advise
suspects of their rights under the Fifth and Fourteenth Amendments before
beginning custodial interrogation (citing Miranda v. Arizona, 384 U.S. 436, 479
(1966))). The court stated, “Even if Serrato is correct that somehow the Iowa
Constitution provides greater protection concerning his Miranda rights, this
argument is without merit as the Miranda rights do not kick in until Serrato is
deemed to be in custody.” We find no error in the court’s conclusion. See State
v. Schlitter, 881 N.W.2d 380, 395 (Iowa 2016) (“Law enforcement officers are 8
required to give Miranda warnings when a suspect is in custody and subjected to
interrogation.”).
We determine the district court fully considered the five issues Serrato
raised in his pro se rule 1.904(2) motion and determined those issues were
without merit. We affirm the district court’s decision denying Serrato’s application
for postconviction relief.
AFFIRMED.