Wilder v. State of Iowa

Filing 30

ORDER Accepting 23 Report and Recommendation with the modifications contained within this order, which grants 9 Motion to Dismiss for Failure to State a Claim. The petition (Doc. No. 1 ) is hereby dismissed with prejudice. I decline to grant a certificate of appealability with regard to any of Wilder's claims. See order text for details. Signed by Judge Leonard T Strand on 8/23/2016. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
WILLIE JAMES WILDER,
Petitioner,

No. C15-3107-LTS

vs.

ORDER

JAMES MCKINNEY,
Respondent.
____________________
This matter is before me on a Report and Recommendation (R&R) in which the
Honorable C.J. Williams, United States Magistrate Judge, recommends that I grant
respondent’s motion to dismiss this habeas action. Doc. No 23. Additionally, Judge
Williams recommends that I (a) deny a certificate of appealability (COA) on petitioner’s
sufficiency of the evidence claim but (b) grant a COA on petitioner’s ineffective assistance
of counsel claim. Id. Respondent has filed a timely objection to that portion of the R&R
in which Judge Williams recommends the grant of a COA. Doc. No. 28. Respondent
also objects to a portion of the R&R that discusses Iowa law concerning error
preservation. Id. Petitioner has filed a notice indicating that he has no objections to the
R&R. Doc. No. 29.
I.

RELEVANT PROCEDURAL HISTORY

The R&R includes a detailed recitation of the relevant facts and procedural history.
Doc. No. 23 at 2-5. To summarize, Wilder was convicted in the Iowa District Court for
Black Hawk County of robbery in the first degree and theft in the third degree. On direct
appeal, he argued that the evidence presented at trial was insufficient to convict him of
those charges. The Iowa Court of Appeals rejected that argument and affirmed Wilder’s

convictions. Wilder filed an application for further review by the Iowa Supreme Court,
but his application was denied.
Wilder then sought postconviction relief (PCR) – only with regard to his robbery
conviction – in the Iowa District Court. He argued that his trial counsel had been
ineffective with regard to trial strategy. This argument was rejected by both the Iowa
District Court and the Iowa Court of Appeals. While Wilder had the right to file an
application for further review by the Iowa Supreme Court, he missed the deadline for
doing so. Wilder’s PCR counsel admits fault for this failure, which deprived Wilder of
the opportunity to ask the Iowa Supreme Court to review the denial of his PCR request.
On April 6, 2015, Wilder filed this habeas action pursuant to 28 U.S.C. § 2254.
He asserts two ground for relief: (1) “Ineffective Assistance of Counsel” (hereafter the
Assistance Claim) and (2) “Insufficient Evidence” (hereafter the Sufficiency Claim).
Respondent filed his motion to dismiss on July 9, 2015. Respondent contends that both
grounds for relief are procedurally defaulted because Wilder did not exhaust his claims
in the Iowa state court system. Doc. No. 9-1. After all briefing was completed, Judge
Williams filed the R&R on June 22, 2016.
II.

STANDARDS FOR REVIEW OF A REPORT AND RECOMMENDATION
A district judge must review a magistrate judge’s R&R under the following

standards: 
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
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28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
III.

THE R&R

Judge Williams described the relevant standards for considering a motion to
dismiss and summarized the “exhaustion” requirements imposed on state habeas
petitioners by Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Doc.
No. 23 at 5-10. Judge Williams then separately addressed Wilder’s two grounds for
relief. With regard to the second ground (the Sufficiency Claim), Judge Williams noted
that Wilder concedes this claim is procedurally defaulted. Id. at 16 (citing Doc. No. 221 at 4). After describing the relevant events, Judge Williams agreed that this ground was
not properly exhausted and, therefore, is procedurally barred. Id. at 17. Judge Williams
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also noted, in the alternative, that the Sufficiency Claim would fail for other reasons even
if it had not been procedurally defaulted. Id. at 17-18.
As for the first ground (the Assistance Claim), Judge Williams found that by failing
to file a timely application for further review with the Iowa Supreme Court, Wilder did
not exhaust all remedies available to him under Iowa law. Id. at 12. Judge Williams
further found that no exception excused this procedural failure. Id. at 12-15. Thus,
Judge Williams concluded that Wilder’s claim for relief based on ineffective assistance
of counsel is procedurally defaulted. Id. at 15. He also found, in the alternative, that
the Assistance Claim would fail on its merits even if not defaulted. Id. at 15-16.
After recommending the denial of both of Wilder’s grounds for relief, Judge
Williams addressed the issue of whether a COA should issue.

Judge Williams

summarized the applicable legal standards and, ultimately, recommended that I grant a
COA on the Assistance Claim but not on the Sufficiency Claim. Id. at 19.
IV.
A.

DISCUSSION

Objections to the R&R
Respondent objects to Judge Williams’ recommendation that I grant a COA on

Wilder’s Assistance Claim. Doc. No. 28. Respondent also objects to Judge Williams’
statement, in the course of analyzing that claim, that Iowa law requires a defendant to
assert claims of ineffective assistance of counsel on direct appeal to preserve them for
postconviction review. Id. Wilder does not object to any portion of the R&R. For the
reasons set forth in Section II, supra, I will review de novo the portions of the R&R to
which Respondent has objected.

Because there are no objections to the remaining

portions of the R&R, I will review those portions for clear error.

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B.

Overview of the Exhaustion Requirement
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).
An Iowa prisoner whose PCR 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. 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).
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If a petitioner has not yet fully 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 has 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).
C.

The Coleman Exception (as modified by Martinez and Trevino)
Under Coleman, an attorney’s negligence during postconviction proceedings does

not create cause for excusing a procedural default. Id. at 752-53. However, the 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
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case, however, petitioner's postconviction counsel did not raise the
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 exception1 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
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 “the [Texas] criminal

1

While the exception at issue derives from Coleman, Martinez and Trevino, for the sake of
brevity I will refer to it as the “Martinez exception” throughout the remainder of this order.

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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 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.
D.

Iowa’s Appellate and Postconviction System
In Iowa’s state court system, a defendant is not barred from raising ineffective

assistance claims on direct appeal. Historically, in fact, such claims generally had to be
raised on direct appeal in order to preserve them for a later PCR application. Berryhill
v. State, 603 N.W.2d 243, 245-46 (Iowa 1999). Iowa law now provides that “[a] party
may, but is not required to, raise an ineffective assistance claim on direct appeal from
the criminal proceedings if the party has reasonable grounds to believe that the record is
adequate to address the claim on direct appeal.” Iowa Code § 814.7(2). Thus, such a
claim “need not be raised on direct appeal from the criminal proceedings in order to
preserve the claim for postconviction relief purposes.” Id. § 814.7(1).
E.

Discussion
1.

The Ineffective Assistance Claim

Wilder presented a claim of ineffective assistance of trial counsel to the Iowa
District Court and the Iowa Court of Appeals during his PCR proceedings. Once the
Iowa Court of Appeals rejected that claim, Wilder had the right to seek further review
by the Iowa Supreme Court. See, e.g., Welch, 616 F.3d at 758-59. His application for
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such review was due for filing “within 20 days following the filing of the court of appeals
decision.” Iowa R. App. P. 6.1103(1)(a). It is undisputed that he failed to meet this
deadline and that it is now far too late for Wilder to seek review by the Iowa Supreme
Court. Thus, Judge Williams correctly found that Wilder failed to exhaust all available
remedies under Iowa law and, therefore, that his ineffective assistance claim is
procedurally defaulted. Doc. No. 23 at 11-12.
Judge Williams then considered whether the Martinez exception applies, thus
excusing the procedural default. Id. at 12-15. This requires a comparison of Iowa’s state
court appellate structure to the Arizona system at issue in Martinez and the Texas system
at issue in Trevino. In Martinez, the Court noted that defendants in Arizona are prohibited
from asserting ineffective assistance claims on direct appeal. Martinez, 132 S. Ct. at
1313. Thus, collateral proceedings represent a defendant’s first opportunity to assert that
his or her trial counsel was ineffective. In Trevino, the Court explained that defendants
in Texas have no “meaningful opportunity” to raise ineffective assistance claims on direct
appeal.

Trevino, 133 S. Ct. at 1920.

Thus, again, a collateral attack is the first

“meaningful opportunity” to advance such claims.
Iowa’s system is significantly different.

As noted above, Iowa historically

required ineffective assistance claims to be raised on direct appeal in order to preserve
them for PCR consideration.

Berryhill, 603 N.W.2d at 245-46. That changed in 2004

with the enactment of Iowa Code § 814.7. See Acts 2004 (80 G.A.) ch. 1017, § 2.2

2

In Halstead v. McKinney, No. C14-3023-MWB, 2014 WL 5849214 (N.D. Iowa Nov. 12,
2014), report and recommendation adopted, 2014 WL 7339217 (N.D. Iowa Dec. 23, 2014), I
cited Berryhill for the proposition that defendants in Iowa are still required to raise ineffective
assistance claims on direct appeal, contrary to Iowa Code § 814.7. Unfortunately, this error led
to Judge Williams’ reference to my Halstead opinion for the same proposition. Doc. No. 23 at
14-15. While I find that the error has no material impact on the analysis, I do regret it. In light
of Section 814.7, I will sustain Respondent’s objection to that portion of the R&R which indicates
that ineffective assistance of counsel claims must be raised on direct appeal in Iowa to preserve
those claims for PCR review.

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Now, defendants may, but are not required to, raise ineffective assistance claims on direct
appeal. Iowa Code § 814.7(2). If such a claim is raised on direct appeal, the appellate
court “may decide the record is adequate to decide the claim or may choose to preserve
the claim” for PCR review. Id. § 814.7(3).
There is no indication in the record that Iowa, like Texas, actively discourages
defendants from asserting ineffective assistance claims on direct appeal. Indeed, within
the past week the Iowa Court of Appeals has resolved two such claims on direct appeal,
finding that the record in each case was adequate to decide the claim. State v. Williams,
No. 15-2102, 2016 WL 4384382, at *1-2 (Iowa Ct. App. Aug. 17, 2016); State v.
Pendleton, No. 15-1115, 2016 WL 4384653, at *3-4 (Iowa Ct. App. Aug. 17, 2016).
Thus, I find that Wilder was neither barred nor discouraged from asserting an ineffective
assistance of trial counsel claim on direct appeal and I agree with Judge Williams that the
Martinez exception does not apply.

Wilder’s procedural default of his ineffective

assistance of counsel claim, despite being caused by his PCR counsel’s mistake, is not
excused. Wilder is not entitled to seek federal habeas relief with regard to that claim.3
2.

The Sufficiency of the Evidence Claim

Neither party has objected to the portion of the R&R in which Judge Williams
addressed Wilder’s attack on the sufficiency of the evidence against him. As such, I have
reviewed Judge Williams’ analysis for clear error. Judge Williams found not only that
this claim has been procedurally defaulted, but also that it would fail on its merits even
if properly before the court. Doc. No. 23 at 16-18. I find no error in Judge Williams’
evaluation of this claim and therefore adopt this portion of the R&R in its entirety.

3

As noted above, Judge Williams also found, in the alternative, that Wilder’s ineffective
assistance claim would fail even if it was not procedurally defaulted. Doc. No. 23 at 15-16.
Because neither party objected to this alternative finding, I have reviewed it for clear error. I
agree with, and therefore adopt, that portion of the R&R.

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F.

Certificate of Appealability
Judge Williams recommends that I grant a COA with regard to the first ground

for relief (the Assistance Claim) but not with regard to the second (the Sufficiency Claim).
Because respondent has objected to the recommendation with regard to the Assistance
Claim, I will review that recommendation de novo. The recommendation as to the
Sufficiency Claim will be reviewed for clear error due to the lack of objections from
either party.
1.

Applicable Standards

“[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court's denial of his petition.” Miller-El v. Cockrell, 537 U.S. 322, 335
(2003) (citing 28 U.S.C. § 2253). Instead, an appeal may be taken only if a COA is
granted. 28 U.S.C. § 2253(c). A COA is appropriate only when the petitioner “has
made a substantial showing of the denial of a constitutional right.” Id.; see also MillerEl, 537 U.S. at 336-37; Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir.
2000); Mills v. Norris, 187 F.3d 881, 881 n.1 (8th Cir. 1999); Carter v. Hopkins, 151
F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998);
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). “A substantial showing is a showing
that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings.” Cox, 133 F.3d at 569. Thus,
“[w]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Miller-El, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)).

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2.

Analysis
a.

The Ineffective Assistance Claim

Based on my de novo review, I find that reasonable jurists would not find this
court’s denial of the Assistance Claim to be “debatable or wrong.” As such, I will sustain
the respondent’s objection to the portion of the R&R that recommends the grant of a COA
on this issue.
I reach this conclusion for two alternative reasons. First, as discussed above, I
find that Iowa’s approach to the review of ineffective assistance of counsel claims differs
so significantly from those at issue in Martinez and Trevino as to render the Martinez
exception plainly inapplicable.

Iowa neither bars nor discourages the assertion of

ineffective assistance claims on direct appeal. Instead, Iowa’s appellate courts consider
such claims on direct appeal when the record is adequately developed to permit such
consideration. Here, Wilder not only had the right to raise an ineffective assistance of
counsel claim on direct appeal, but he actually did raise that claim, during his PCR
proceedings, to both the Iowa District Court and the Iowa Court of Appeals. Wilder was
not deprived of a meaningful opportunity to challenge the effectiveness of his trial
counsel. Thus, no exception excuses his undisputed failure to exhaust all remedies
available to him under Iowa law.
Second, I find no room for debate among reasonable jurists regarding Judge
Williams’ alternative finding that the Assistance Claim would fail on its merits even if it
was not procedurally barred. Doc. No. 23 at 15-16. Wilder did not object to this
alternative finding. Judge Williams correctly concluded that Wilder’s complaints about
his trial counsel amount to hindsight disagreement over trial strategy and tactics, thus
falling far short of the showing necessary to establish an ineffective assistance claim under
Strickland v. Washington, 466 U.S. 668 (1984). Id. As such, a COA would not be
justified even if the Assistance Claim had not been procedurally defaulted.

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b.

The Sufficiency of the Evidence Claim

I find no error, clear or otherwise, with regard to Judge Williams’
recommendation that no COA issue on Wilder’s second ground for relief (the Sufficiency
Claim).
V.

CONCLUSION

For the reasons set forth above:
1.

I hereby accept the report and recommendation (Doc. No. 23) of United

States Magistrate Judge C.J. Williams, but with the following modifications:
a.

Respondent’s objection to the grant of a certificate of appealability

as to ground one (ineffective assistance of counsel) is sustained.

A certificate of

appealability will not be granted as to that claim.
b.

Respondent’s objection to the characterization of Iowa law

concerning preservation of error is sustained, as Iowa no longer requires ineffective
assistance of counsel claims to be raised on direct appeal to preserve those claims for
postconviction review. See Iowa Code § 814.7.
2.

In accordance with the report and recommendation, as modified,

respondent’s motion (Doc. No. 9) to dismiss is granted and the petition (Doc. No. 1) is
hereby dismissed with prejudice.
3.

I decline to grant a certificate of appealability with regard to any of Wilder’s

claims. Should Wilder wish to seek further review of his petition, he may request a
certificate of appealability from a Judge of the United States Court of Appeals for the
Eighth Circuit. See Tiedeman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997).

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IT IS SO ORDERED.
DATED this 23rd day of August, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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