Halstead v. Miller

Filing 10

REPORT AND RECOMMENDATIONS recommend that Respondent's 8 Motion to dismiss be granted as to all grounds for relief raised in the petition and that this action be dismissed with prejudice. Objections to R&R due by 11/26/2014. Signed by Magistrate Judge Leonard T Strand on 11/12/2014. (copy w/nef to non-ecf Petitioner) (des) (Main Document 10 replaced on 11/12/2014) (kfs).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
DAVID J. HALSTEAD,
Petitioner,

No. C14-3023-MWB

vs.

REPORT AND
RECOMMENDATION ON
MOTION TO DISMISS PETITION
FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2254

JAMES McKINNEY,
Respondent.

____________________

TABLE OF CONTENTS 
I.

INTRODUCTION........................................................................... 2

II.

FACTUAL AND PROCEDURAL BACKGROUND .................................. 2

III.

APPLICABLE STANDARDS ............................................................ 5

IV.

DISCUSSION................................................................................ 7
A.
Applicable Standards ............................................................... 7
B.
Analysis ............................................................................... 8
1.
Grounds One, Two, Three and Five .................................... 8
a.
Exhaustion and Procedural Default ............................ 8
b.
Exception to the Procedural Default Rule .................. 10
2.
Ground Four .............................................................. 14

IV.

CONCLUSION AND RECOMMENDATION ....................................... 16

I.

INTRODUCTION

On April 18, 2014, David J. Halstead, an inmate at the Fort Dodge Correctional
Facility (FDCF), filed a pro se petition (Doc. No. 1) for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Respondent James McKinney (Respondent), the warden at FDCF,
has filed a motion (Doc. No. 8) to dismiss the petition. He contends that the grounds
asserted in the petition were not exhausted at the state level and are now procedurally
defaulted. Halstead did not file a resistance.1 The matter is fully submitted. This case
has been referred to me (Doc. No. 9) by United States District Judge Mark W. Bennett
for preparation of a report and recommendation disposition.
II.

FACTUAL AND PROCEDURAL BACKGROUND

The Iowa Supreme Court described the facts and proceedings of Halstead’s trial
and direct appeal as follows:
Lester Recinos lived in a group home in Sioux City, Iowa, when he became
a crime victim. On August 1, 2008, Recinos failed to return to the group
home by curfew. At 2:30 a.m., a group-home employee saw Recinos being
pulled from a parked minivan. As Recinos fell to the ground, a man kicked
and punched him. Passengers in the van ordered the attacker to take jewelry
and money from Recinos. The group-home employee called the police.
The ensuing investigation implicated David Halstead, allegedly a passenger
in the van, in the crime.
The State charged Halstead with four criminal offenses: assault while
participating in a felony; theft in the first degree, which served as the
predicate felony for assault while participating in a felony; robbery in the
second degree; and conspiracy to commit a forcible felony (robbery in the

1

A pro se litigant generally is not excused from complying with procedural rules. McNeil v.
United States, 508 U.S. 106, 113 (1993). Because Halstead failed to resist the motion, it could
be granted on that basis alone. See Local Rule 7(f) (“If no timely resistance to a motion is filed,
the motion may be granted without notice.”). However, in light of the fact that the motion seeks
relief that would terminate the case, I will address its merits.

2

second degree). A jury convicted Halstead of assault while participating in
a felony and robbery in the second degree. The jury acquitted Halstead of
theft in the first degree and instead found him guilty of theft in the fifth
degree, a misdemeanor lesser included offense of theft in the first degree.
Halstead filed a motion for a new trial. In the motion, Halstead asserted
that the jury's verdict on assault while participating in a felony, a compound
felony, was inconsistent with his acquittal on the charge of theft in the first
degree, the only available predicate felony under the jury instructions in the
case. The trial court overruled the motion, and this appeal followed.
State v. Halstead, 791 N.W.2d 805, 806-807 (Iowa 2010). The Court made it clear that
Halstead appealed only from his conviction for assault while participating in a felony,
referring to his other convictions as “unappealed convictions” and, later, his
“unchallenged convictions on theft in the fifth degree and robbery in the second degree.”
Id. at 806, 816-17.
The Court reversed Halstead’s conviction for assault while participating in a
felony, finding that it was based on an inconsistent verdict because the jury acquitted
Halstead of the underlying predicate felony. Id. at 806, 815-16. Therefore, Halstead
prevailed on the only issue considered on direct appeal. The Iowa Supreme Court
remanded the case for resentencing. Id. The State then dismissed the reversed charge,
making resentencing unnecessary. The district court nonetheless offered to resentence
Halstead, if he so requested, but he did not make that request.
After his direct appeal, Halstead filed an action for postconviction relief (PCR) in
which he asserted two claims of ineffective assistance of trial counsel: (1) failure to call
his brother, Dan Halstead, as a trial witness and (2) failure to present an intoxication
defense. The district court denied Halstead’s PCR application on November 27, 2012,
finding counsel was not ineffective and there was no prejudice. Halstead appealed that
decision, raising the same two issues on appeals. On October 2, 2013, the Iowa Court

3

of Appeals affirmed the district court’s decision. Halstead v. State, 840 N.W.2d 727, 
2013 WL 5498090 (Iowa Ct. App. 2013) (unpublished table decision). The court stated:
The district court's detailed ruling thoroughly addressed the issues
presented and correctly found that counsel was not ineffective. Halstead
was unable to show trial counsel breached a professional duty on either
ground. Pursuant to Iowa Court Rule 21.26(1)(a), (d), and (e), this court
affirms the district court's denial of Halstead's application.
2013 WL 5498090, at *1. Halstead did not seek further review by the Iowa Supreme
Court.
Halstead then filed his petition (Doc. No. 1) in this court. He raises the following
grounds for relief:
Ground One: “Evidence insufficient, presented evidence prejudiced jury without
video evidence, booking sheet, expert testimony.” Doc. No. 1 at *4.
Ground Two: “Ineffective assistance of Counsel—Counsel failed to call expert
witness testimony for witness list.” Id.
Ground Three: “Expert testimony, blood stain expert, evidence shown to jury
and disregarded.” Id. at *5.
Ground Four: “Predicate acquittals according to jury instructions, evidence
insufficient according to jury instructions, predicates are elements of compounds.” Id.
Ground Five:2 “The trial ct. changed the sentence structure redefining Robbery
2nd as a ‘specific intent’ ‘forcible felony’ subject to the §902.12 sentencing code (70%
mandatory), indistinct jury instruction number 21, resentencing has not taken place,
unconstitutional or ill-defined manner that the 70% mandatory sentence was applied in
open court – a due process violation.” Id. at *6.
Respondent filed his motion to dismiss (Doc. No. 8) on July 30, 2014.

2

Ground Five is described in the section of the petition designated for an explanation of any
failure to exhaust claims.

4

III.

APPLICABLE STANDARDS

The Federal Rules of Civil Procedure authorize a pre-answer motion to dismiss
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
A motion to dismiss a section 2254 petition on procedural grounds, such as the
petitioner’s failure to exhaust state remedies, is proper under the Rules Governing Section
2254 Proceedings (the 2254 Rules). See, e.g., White v. Lewis, 874 F.2d 599, 602 (9th
Cir. 1989); Ebert v. Clarke, 320 F. Supp. 2d 902, 909 (D. Neb. 2004); McLeod v.
Moscicki, No. 02 Civ. 9335 (WHP), 2003 WL 22427757, at *3 (S.D.N.Y. Oct. 22,
2003) (noting that pursuant to Federal Rule of Civil Procedure 81(a), the Federal Rules
of Civil Procedure apply to habeas cases to the extent they are not inconsistent with the
2254 Rules).
The Supreme Court has provided the following guidance in considering whether a
pleading properly states a claim:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled
to relief.” As the Court held in [Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)], the pleading standard Rule
8 announces does not require “detailed factual allegations,” but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.
Id., at 555, 127 S. Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286,
106 S. Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers “labels
and conclusions” or “a formulaic recitation of the elements of a cause of
action will not do.” 550 U.S. at 555, 127 S. Ct. 1955. Nor does a complaint
suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id., at 557, 127 S. Ct. 1955.
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Id., at 570, 127 S. Ct. 1955. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
Id., at 556, 127 S. Ct. 1955. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that
5

a defendant has acted unlawfully. Ibid. Where a complaint pleads facts
that are “merely consistent with” a defendant's liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’ ” Id.,
at 557, 127 S. Ct. 1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
Courts assess “plausibility” by “‘draw[ing] on [their own] judicial experience and
common sense.’” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting
Iqbal, 556 U.S. at 679). Also, courts “‘review the plausibility of the plaintiff's claim as
a whole, not the plausibility of each individual allegation.’” Id. (quoting Zoltek Corp. v.
Structural Polymer Grp., 592 F.3d 893, 896 n. 4 (8th Cir. 2010)). While factual
“plausibility” is typically the focus of a Rule 12(b)(6) motion to dismiss, federal courts
may dismiss a claim that lacks a cognizable legal theory. See, e.g., Somers v. Apple,
Inc., 729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio, 726 F.3d 448, 469 (3d Cir.
2013); Commonwealth Prop. Advocates, L.L.C. v. Mortg. Elec. Registration Sys., Inc.,
680 F.3d 1194, 1202 (10th Cir. 2011); accord Target Training Intern., Ltd. v. Lee, 1 F.
Supp. 3d 927, 937 (N.D. Iowa 2014).
In deciding a motion brought pursuant to Rule 12(b)(6), the court may consider
certain materials outside the pleadings, including (a) “the materials that are ‘necessarily
embraced by the pleadings and exhibits attached to the complaint,’” Whitney, 700 F.3d
at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n. 4 (8th Cir. 2003)),
and (b) “‘materials that are part of the public record or do not contradict the complaint.’”
Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (quoting
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). Thus, the
court may “consider ‘matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint whose authenticity is unquestioned;’
without converting the motion into one for summary judgment.” Miller, 688 F.3d at 931
6

n. 3 (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (3d ed. 2004)).3
IV.
A.

DISCUSSION

Applicable Standards

A petition for writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it appears that (1) the applicant
has exhausted the remedies available in the courts of the State, (2) there is an absence of
available State corrective process or (3) circumstances exist that render such process
ineffective to protect the rights of the applicant. 28 U.S.C. §2254(b)(1)(A)-(B)(ii). In
order to exhaust a claim, the prisoner must give the state courts a full and fair opportunity
to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
The reason is as follows:
State courts, like federal courts, are obliged to enforce federal law. Comity
thus dictates that when a prisoner alleges that his continued confinement for
a state court conviction violates federal law, the state courts should have
the first opportunity to review this claim and provide any necessary relief.
. . . This rule of comity reduces friction between the state and federal court
systems by avoiding the “unseem[liness]” of a federal district court's
overturning a state court conviction without the state courts having had an
opportunity to correct the constitutional violation in the first instance.
Id. at 844-45 [citations omitted]. The claim must have been “fairly presented” to the
state courts, Vasquez v. Hillery, 474 U.S. 254, 257 (1986), which means the petitioner
raised the same factual grounds and legal theories in the state courts that he or she now
raises in federal court. Wemark v. Iowa, 322 F.3d 1018, 1021 (8th Cir. 2003).

3

In support of his motion, Respondent relies on various filings in the Iowa state court actions.
Doc. No. 8-2. I find these materials to be matters of public record that are properly considered
in analyzing the motion.

7

An Iowa prisoner whose appeal was transferred to the Iowa Court of Appeals must
file an application for further review by the Iowa Supreme Court to exhaust his or her
claims properly in the state courts. Welch v. Lund, 616 F.3d 756, 759 (8th Cir. 2010).
Additionally, to satisfy the “fairly presented” requirement, the petitioner is required to
“refer to a specific federal constitutional right, a particular constitutional provision, a
federal constitutional case, or a state case raising a pertinent federal constitutional issue”
in the state court. Abdullah v. Groose, 75 F.3d 408, 411-12 (8th Cir. 1996).
If a petitioner has not yet presented his habeas claims to the state courts, those
claims are defaulted if a state procedural rule precludes the petitioner from raising the
issue now. Abdullah, 75 F.3d at 411. Federal courts will not review a procedurally
defaulted habeas claim because the state court is deprived of the opportunity to address
those claims in the first instance. Id. The Supreme Court stated:
We now make it explicit: In all cases in which a state prisoner has defaulted
his federal claims in state court pursuant to an independent and adequate
state procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
B.

Analysis
1.

Grounds One, Two, Three and Five

a.

Exhaustion and Procedural Default.

In his motion to dismiss, Respondent argues Grounds One, Two, Three and Five
were not exhausted and are now procedurally defaulted. He contends these grounds were
not raised in Halstead’s direct appeal or his PCR application. Respondent asserts that
because these grounds were not presented to the state courts for one full round of review,
8

they cannot form the basis of a federal habeas petition. After carefully reviewing the
state court proceedings, I agree.
As noted above, only those grounds that were fairly and fully presented to the state
courts are reviewable in an action brought under section 2254. Halstead presented three
issues to the Iowa courts, one on direct appeal and two in his PCR application. Those
were (1) insufficient evidence to warrant a conviction on Count IV (assault while
participating in a felony) based on the inconsistent verdict, (2) ineffective assistance of
counsel based on trial counsel’s failure to call Halstead’s brother, a co-defendant, as a
witness and (3) ineffective assistance of counsel based on trial counsel’s failure to raise
intoxication as a defense. Halstead now raises five grounds for relief. Only Ground
Four, which I will discuss below, involves an issue raised in the Iowa state courts.
Grounds One, Two, Three and Five are being raised for the first time in this federal
habeas action. Halstead failed to meet the exhaustion requirement with regard to those
four grounds. Additionally, Iowa law prevents him from now raising new claims in the
Iowa courts. See Iowa Code § 822.8.4 Therefore, and unless any exception applies,
these four grounds were not exhausted, are procedurally defaulted and are not available
for federal habeas review.

4

Stating as follows:
GROUNDS MUST BE ALL-INCLUSIVE.
All grounds for relief available to an applicant under this chapter must be raised
in the applicant's original, supplemental or amended application. Any ground
finally adjudicated or not raised, or knowingly, voluntarily, and intelligently
waived in the proceeding that resulted in the conviction or sentence, or in any
other proceeding the applicant has taken to secure relief, may not be the basis for
a subsequent application, unless the court finds a ground for relief asserted which
for sufficient reason was not asserted or was inadequately raised in the original,
supplemental, or amended application.

Iowa Code § 822.8.

9

b.

Exception to the Procedural Default Rule.

As noted above, a federal court cannot review a defaulted claim “unless the
prisoner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. In his
petition, Halstead claims he raised each of these grounds in his pro se motion for
postconviction relief and that his counsel changed or amended his complaint to exclude
the appeal points, explaining that evidentiary issues could not be raised in PCR
applications, only errors of law.

Halstead essentially claims his PCR counsel was

ineffective by not addressing the various ways he believed his trial counsel had failed
and, therefore, caused those claims to procedurally default.
Under Coleman, an attorney’s negligence in a postconviction proceeding does not
create cause for excusing procedural default. Id. at 752-53. However, the United States
Supreme Court recognized an exception to this rule in Martinez v. Ryan, 132 S. Ct. 1309
(2012). The exception arises when:
(1) the claim of “ineffective assistance of trial counsel” was a “substantial”
claim; (2) the “cause” consisted of there being “no counsel” or only
“ineffective” counsel during the state collateral review proceeding; (3) the
state collateral review proceeding was the “initial” review proceeding in
respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state
law requires that an “ineffective assistance of trial counsel [claim] ... be
raised in an initial-review collateral proceeding.”
Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 132 S. Ct. at 131819, 1320-21). In Martinez, the Court described the factual and procedural context as
follows:
The State of Arizona does not permit a convicted person alleging ineffective
assistance of trial counsel to raise that claim on direct review. Instead, the
prisoner must bring the claim in state collateral proceedings. In the instant
case, however, petitioner's postconviction counsel did not raise the
10

ineffective-assistance claim in the first collateral proceeding, and, indeed,
filed a statement that, after reviewing the case, she found no meritorious
claims helpful to petitioner. On federal habeas review, and with new
counsel, petitioner sought to argue he had received ineffective assistance of
counsel at trial and in the first phase of his state collateral proceeding.
Id. at 1313. The Court noted that under these circumstances, “the collateral proceeding
is in many ways the equivalent of a prisoner's direct appeal as to the ineffective-assistance
claim.” Id. at 1317. The Court then discussed the importance of effective counsel in
investigating and presenting the alleged errors of trial counsel. Id. at 1317-18. The
Court concluded that when a collateral proceeding was the prisoner’s first opportunity to
assert ineffective assistance of trial counsel claims, any procedural default with regard to
those claims should be excused if, “in the initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was ineffective.” Id. at 1320.
The Supreme Court expanded the Martinez exception in Trevino, a case in which
the petitioner was convicted in a Texas state court. While Texas does not explicitly
prohibit allegations of ineffective assistance of trial counsel on direct appeal, the Court
found that the “structure, design, and operation” of the Texas procedural system “does
not offer most defendants a meaningful opportunity to present a claim of ineffective
assistance of trial counsel on direct appeal.” Trevino, 133 S. Ct. at 1921. The Court
then found that there is no meaningful distinction between a state that explicitly bars
allegations of ineffective assistance on direct appeal and a state that “in theory grants
permission but, as a matter of procedural design and systemic operation, denies a
meaningful opportunity to do so.” Id. The Court held that the Martinez exception applies
to both scenarios. Id.
Like Texas, Iowa does not explicitly prohibit a defendant from raising ineffective
assistance claims on direct appeal. Iowa instead requires that all claims, including

11

ineffective assistance claims, be raised on direct appeal in order to preserve them for a
later PCR application:
We recognize the trial record is often inadequate for appellate courts to
resolve claims of ineffective assistance of trial counsel raised on direct
appeal. . . . Consequently, we often preserve ineffective assistance of
counsel claims for postconviction relief proceedings to allow a record on
the performance of trial counsel to be developed. . . . Nevertheless, we
have held that our frequent preference to preserve ineffective assistance
claims for postconviction relief does not alleviate the need to at least raise
the claim on appeal. When all claims are raised on appeal, the proper
course of action to resolve each claim can be judicially determined after an
independent review of the record. Thus, we can decide the issue on the
available record or preserve it for postconviction relief. Additionally,
ineffective assistance claims can, at times, be resolved by appellate courts
on direct appeal without the need to consider the conduct of trial counsel
when the record reveals an absence of prejudice. . . . Thus, a trial record
which is insufficient to judge the performance of counsel does not
necessarily render the appeal of the claim frivolous. Furthermore, a rule
which requires all claims to be raised on direct appeal is not necessarily
inexpedient.
Berryhill v. State, 603 N.W.2d 243, 245-46 (Iowa 1999). The Court concluded as
follows:
Thus, we reaffirm our principle that postconviction relief is not available to
litigate claims not raised on direct appeal, and emphasize that, although
counsel should raise the issue of the adequacy of a record to decide a claim
on appeal, appellate courts, not counsel, determine whether the record is
inadequate to decide a claim presented on appeal.
Id. at 246.
Notwithstanding this rule, the failure to raise an issue on direct appeal may be
excused upon a showing that appellate counsel was ineffective. See, e.g., Nguyen v.
State, 707 N.W.2d 317, 323 (Iowa 2005).

Thus, a defendant in Iowa has two

opportunities to raise claims that trial counsel was ineffective: (1) on direct appeal, when
the record may or may not be adequate to allow full review, and (2) on an application for
12

PCR, when the issue has been preserved on direct appeal or when preservation is excused
due to the ineffective assistance of appellate counsel.
This procedure differs significantly from that in Texas in at least one very
important respect: Texas defendants are not required to raise ineffective assistance claims
on direct appeal. Trevino, 133 S. Ct at 1918. Indeed, the Supreme Court found that
Texas courts actually discourage that practice. The Court stated: “Texas courts in effect
have directed defendants to raise claims of ineffective assistance of trial counsel on
collateral, rather than on direct, review.” Id. at 1919. The Court also pointed out that
“Texas' highest criminal court has explicitly stated that ‘[a]s a general rule’ the defendant
‘should not raise an issue of ineffective assistance of counsel on direct appeal,’ but rather
in collateral review proceedings.” Id. at 1920 (quoting Mata v. State, 226 S.W.3d 425,
430, n.14 (2007)). The Court found that “[T]he [Texas] criminal bar, not surprisingly,
has taken this strong judicial advice seriously,” citing a Texas Bar Journal article for the
proposition that the postconviction relief process “is the first opportunity for a capital
client to raise challenges to the effectiveness of trial or direct appeal counsel.” Id.
(quoting Guidelines and Standards for Texas Capital Counsel, 69 Tex. B.J. 966, 977,
Guideline 12.2(B)(1)(d) (2006)). The Court concluded with the following rhetorical
question:
How could federal law deny defendants the benefit of Martinez solely
because of the existence of a theoretically available procedural alternative,
namely direct appellate review, that Texas procedures render so difficult,
and in the typical case all but impossible, to use successfully, and which
Texas courts so strongly discourage defendants from using?
Id.
Based on the characterization set forth in Trevino, defense attorneys in Texas have
no incentive to investigate and raise ineffective assistance of counsel claims on direct
appeal because doing so is not only optional, but actually discouraged. By contrast, as
13

noted above, the Iowa Supreme Court has made it clear that such claims must be raised
on direct appeal, with the appellate court then deciding whether the factual record is
sufficiently developed to resolve those claims. A claim not raised on direct appeal is
waived, absent a showing that appellate counsel was ineffective in failing to do so. These
well-established principles give defense attorneys in Iowa an incentive to investigate and
raise ineffective assistance claims immediately, on direct appeal.
Based on this significant distinction, I find that the Martinez exception, as
expanded in Trevino, does not apply in Iowa. Halstead had the opportunity to raise his
trial counsel’s ineffective assistance on direct appeal. Having failed to do so, he had the
opportunity to do so at the PCR stage by attempting to show that his appellate counsel
was ineffective. However, he failed to raise the issues he now presents as Grounds One,
Two, Three and Five in either of those proceedings. As noted above, he no longer has
to opportunity to raise those claims in the Iowa state courts. Under Coleman, his
procedural default cannot be excused due to any alleged ineffective assistance on the part
of PCR counsel. Grounds One, Two, Three and Five were not fairly presented to the
state courts and cannot be considered in this action.

I must recommend that the

Respondent’s motion to dismiss be granted as to those four grounds.
2.

Ground Four 

In Ground Four, Halstead seeks review based on: “Predicate acquittals according
to jury instructions, evidence insufficient according to jury instructions, predicates are
elements of compounds.” Doc. No. 1 at 5. Respondent argues (a) to the extent Halstead
presented this issue on direct appeal, he prevailed and as such, this ground should not be
reviewed, and (b) to the extent Halstead is raising a new claim, that claim is not exhausted
and procedurally defaulted. I agree.

14

The only claim Halstead raised on direct appeal was that the evidence was
insufficient to warrant a conviction on Count IV (assault while participating in a felony).
This argument was based on the fact that the jury acquitted Halstead on the underlying
felony with regard to Count IV, but nonetheless found him guilty on Count IV. The Iowa
Supreme Court described the issue as follows:
In this case, we confront the validity of inconsistent jury verdicts in a
criminal trial in which a single defendant is convicted on a compound
offense that requires, as an element, a finding of guilt on a predicate
offense, but is acquitted on the underlying predicate offense.
State v. Halstead, 791 N.W.2d 805, 806 (Iowa 2010). Halstead prevailed on direct
appeal, as the Iowa Supreme Court vacated his conviction on Count IV and held that he
could not be retried on that charge. Id. at 816. The court then remanded the case for
resentencing on “Halstead's unchallenged convictions on theft in the fifth degree and
robbery in the second degree.” Id. at 816-17.
As it turns out, resentencing was unnecessary because the sentence on the two
unchallenged convictions ran concurrently with the vacated sentence on Count IV.
Nonetheless, as noted above, the Iowa District Court gave Halstead the option of being
resentenced, but he did not request resentencing. Regardless, he was victorious on this
issue on direct appeal. To the extent he raises the issue again here, it is moot.
To the extent Ground Four presents one or more new claims for relief, the same
exhaustion and procedural default principles discussed above would apply to those claims.
Halstead did not present any such claims to the Iowa state courts for one full round of
review and it is too late for him to do so now. Nor has he demonstrated any grounds for
excusing his procedural default. Therefore, if Ground Four presents new claims they
cannot be considered in this case. I must recommend that the Respondent’s motion to
dismiss be granted as to Ground Four, as well.

15

V.

CONCLUSION AND RECOMMENDATION

For the reasons set forth herein, I RESPECTFULLY RECOMMEND that
Respondent’s motion (Doc. No. 8) to dismiss be granted as to all grounds for relief
raised in the petition and that this action be dismissed with prejudice.
Objections to this Report and Recommendation in accordance with 28 U.S.C.
' 636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within fourteen (14) days of the
service of a copy of this Report and Recommendation. Objections must specify the parts
of the Report and Recommendation to which objections are made, as well as the parts of
the record forming the basis for the objections. See Fed. R. Civ. P. 72. Failure to object
to the Report and Recommendation waives the right to de novo review by the district
court of any portion of the Report and Recommendation as well as the right to appeal
from the findings of fact contained therein. United States v. Wise, 588 F.3d 531, 537
n.5 (8th Cir. 2009).
IT IS SO ORDERED.
DATED this 12th day of November, 2014.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

16