Powell v. State of Iowa et al

Filing 60

ORDER - Because I find that an evidentiary hearing is not warranted with regard to any claim in this case, I will permit Powell to file a final merits brief. See text of Order for details. Petitioners Brief due by 8/1/2016. Respondents Brief due by 9/15/2016. Petitioners Reply Brief due 10/3/2016. Signed by Judge Leonard T Strand on 6/2/16. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JAYME POWELL,
Petitioner,

No. C13-4020-LTS

vs.

ORDER

JIM McKINNEY,
Respondent.
____________________
I.

INTRODUCTION

This case is before me on petitioner Jayme Powell’s August 25, 2013, Amended
and Substituted Petition (Doc. No. 20) for Writ of Habeas Corpus (Petition), and a
request for oral argument made in his August 17, 2015, merits brief (Doc. No. 55) on
Ground II. On October 8, 2015, respondent Jim McKinney filed his brief (Doc. No. 56)
on the merits of Ground II.
Powell’s Petition raises two primary claims. First, he argues that he received
ineffective assistance of counsel when his trial attorney failed to object to DNA evidence
(Ground I). Doc. No. 20 at 4. Second, he argues that his rights under the Confrontation
Clause were violated when the trial court admitted blood evidence without giving Powell
an opportunity to cross-examine the nurse who drew his blood (Ground II). Id. at 6.
This order addresses the procedural stance of both Ground I and Ground II.
II.
A.

FACTUAL AND PROCEDURAL BACKGROUND

State Court Proceedings
On August 28, 2006, a jury found Powell guilty of first-degree burglary and

second-degree burglary. Doc. No. 29-2 at 3. The Iowa District Court sentenced Powell

to a term of incarceration not to exceed twenty-five years. On September 22, 2006,
Powell filed his notice of appeal to the Iowa Supreme Court. Doc. No. 57-1. On January
18, 2008, that Court found the appeal to be frivolous and dismissed it. Doc. No. 57-3.
On December 29, 2008,1 Powell, filed an Amended and Substituted Application for PostConviction Relief in the Iowa District Court, arguing that his trial counsel provided
ineffective assistance: (1) by failing to adequately investigate allegations of blood
tampering, (2) in his selection of his theory of defense, (3) by failing to obtain telephone
records to prove an alibi, (4) in not requesting a change in venue, (5) by failing to use
the word “innocent” in his opening statement or closing arguments, and (6) in his crossexamination of several witnesses. Doc. No. 29-2 at 20-26. Powell was represented by
attorney Harold Widdison.

Id. at 25. On October 22, 2008, the State of Iowa filed a

Motion for Summary Judgment, which it then amended on June 15, 2009. Doc. Nos.
57-5, 57-6.
After conducting a hearing, the Iowa District Court filed an 18-page ruling on
September 25, 2009, in which it granted the motion and dismissed Powell’s claims. Doc.
No. 57-7.

The court took judicial notice of the entire criminal file and also considered

evidence submitted by the parties (including the deposition testimony of Powell’s trial
counsel). Id. The court then addressed each of Powell’s claims in detail and concluded
by holding both (a) that none of Powell’s allegations rose to the level of ineffective
assistance of counsel and, in any event, (b) there is “no reasonable probability that the
results of the proceedings would have been different.” Id. at 17-18.
Powell filed a timely Notice of Appeal. Attorney Widdison continued to represent
Powell on appeal. Doc. No. 29-2 at 27-58. On June 13, 2012, the Iowa Court of Appeals

1

Powell’s original Application for Post-Conviction Relief Pursuant to Iowa Code Chapter 822
was filed February 19, 2008. Many of the briefs and orders describe Powell’s application for
post-conviction relief as his February 2009 application, instead of his February 2008 application.
These references appear to be in error. See Doc. No. 29-2 at 32. In any case, there is no
February 2009 habeas application in the record before me.

2

affirmed the denial of Powell’s application for post-conviction relief. Id. at 1-2. Habeas
App. 27-58. On October 12, 2012, the Iowa Supreme Court denied Powell’s request for
further review, thus terminating the post-conviction proceedings.
B.

Federal Habeas Proceedings
Powell filed a pro se Petition (Doc. No. 1) for Writ of Habeas Corpus in this court

on February 13, 2013. On March 18, 2013, Senior United States District Judge Donald
E. O’Brien entered an order (Doc. No. 5) granting Powell’s request for the appointment
of counsel. Attorney Rockne Cole was then appointed to represent Powell. As noted
above, Powell then filed an Amended and Substituted Petition (Doc. No. 20) on August
26, 2013, in which he raises two grounds for relief:
1.

Ground I, ineffective counsel under Sixth and Fourteenth
Amendments to U.S. Constitution, to wit: counsel failed to
exclude DNA evidence that was collected in this case.

2.

Ground II, petitioner’s Sixth Amendment right to
confrontation was violated when the state admitted the blood
evidence taken by E.R. nurse Jo Hegenbart without allowing
Mr. Powell an opportunity to cross-examine her.

Respondent filed his Answer (Doc. No. 28) and a Motion to Dismiss (Doc. No.
29) on December 20, 2013. Judge O’Brien held a hearing on respondent’s Motion to
Dismiss on June 6, 2014, and issued an order (Doc. No. 41) denying that motion on
August 25, 2014.2 The primary issue Judge O’Brien addressed was whether Powell’s
claims were procedurally defaulted because they were not raised before the appropriate
state court. Doc. No. 41 at 5. Analyzing Powell’s state court petition for post-conviction
relief, Judge O’Brien determined that Ground I, Powell’s attorney’s failure to object to

2

This case was reassigned to United States District Judge Mark W. Bennett on August 20, 2015,
after Judge O’Brien passed away. The case was then reassigned to me on February 17, 2016,
upon my appointment as a United States District Judge.

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DNA evidence, was not procedurally defaulted. Id. at 11. As such, Judge O’Brien
determined that Powell “has properly preserved the issue of the blood sample and that
issue will be allowed to proceed to an evidentiary hearing.” Id. Judge O’Brien then
permitted Powell to further brief the issue of whether Ground II, the confrontation clause
issue, was procedurally defaulted. Id. at 13.
On January 8, 2015, while serving as a United States Magistrate Judge, I
established a briefing schedule (Doc. No. 42) for submission of this case on the merits
in accordance with Judge O’Brien’s order.

After requesting and receiving many

extensions of his briefing deadline, Powell ultimately filed a Motion for an Evidentiary
Hearing (Doc. No. 50) on Ground II instead of a merits brief. On July 23, 2015, I held
a telephonic status conference with the parties to determine why Powell filed that motion.
Powell’s attorney argued that because Judge O’Brien had already determined that an
evidentiary hearing would be held on Ground I, it would be helpful to the court for the
facts relevant to Ground II to be developed further at that evidentiary hearing. On July
30, 2015, I entered an order (Doc. No. 54) denying Powell’s request for an evidentiary
hearing on Ground II and, again, ordered the parties to submit merits briefs with regard
to that claim for relief. Powell then filed his merits brief (Doc. No. 55) on Ground II on
August 17, 2015.
On October 8, 2015, the respondent filed his responsive merits brief (Doc. No.
56) along with voluminous state court records (Doc. No. 57) that had not previously been
made part of the record in this case.3 Now that this case has been reassigned to me, I
have reviewed those state court records in an effort to determine whether an evidentiary
hearing is appropriate with regard to Ground I.

3

The “Habeas Appendix” (Doc. No. 29-2) filed by respondent on December 20, 2013, in support
of his motion to dismiss understandably contained only those records the respondent relied upon
in support of that motion.

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III.

DISCUSSION

Congress has determined that an evidentiary hearing is appropriate in a Section
2254 habeas action only if the applicant shows that:
(A)

the claim relies on—
(i)
a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii)
a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(e)(2) (emphasis added); see also White v. Dingle, 757 F.3d 750, 757
(8th Cir. 2014) (setting forth the statutory requirements and noting that the appellate court
reviews the denial of an evidentiary hearing for an abuse of discretion).
Powell appears to rely on subsection (A)(ii). He has taken the position in this case
that his state court post-conviction proceedings were summarily dismissed on procedural
grounds in a manner that prevented development of the factual record. For example, in
his June 22, 2015, Motion for an Evidentiary Hearing, Powell wrote:
Here, the State post-conviction court refused to hold an evidentiary
hearing. Instead, it summarily dismissed the application on September 25,
2009. Powell v. State, 820 N.W.2d 159 (Iowa Ct. App. 2012) (“After
receiving briefing and hearing argument, the district court summarily
dismissed Powell’s application on September 25, 2009.”).
[ ] As such, there are not factual findings to defer to . . . . Here, the
State had a full and fair opportunity to allow Mr. Powell to develop the
factual basis of his claims in State court. He tried to do so, but his claim
was summarily dismissed, apparently on procedural grounds. Under these
circumstances, the Court owes no deference to the factual findings,
especially where no evidence was taken nor factual findings made.
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Doc. No. 50 at 2-3. Now that the state court records have been filed in this case, it turns
out that this is not accurate. The Iowa District Court granted summary judgment (Doc.
No. 57-7) against Powell, which does mean (by definition) that his case was “summarily
dismissed.” However, this dismissal was not based on “procedural grounds” and did not
occur before Powell had the opportunity “to develop the factual basis of his claims.”
Instead, the Iowa District Court not only (a) took judicial notice of the entire criminal
case record, but also (b) considered evidence developed during the post-conviction
proceedings, including Powell’s own affidavit and the deposition of Michael Williams
(trial counsel for Powell in the criminal case). Doc. No. 57-7 at 1, 4; Doc. No. 57-12
at 215-36, 309-13. Tellingly, when Powell appealed the Iowa District Court’s grant of
summary judgment, his attorney did not argue that Powell had been deprived of the
opportunity to develop the factual record. Doc. No. 57-10. Instead, he made repeated
citations to the evidentiary record and argued that the evidence gave rise to genuine issues
of material fact such that summary judgment was not appropriate. Id.
Judge O’Brien did not have the benefit of the entire state court record when he
determined that Ground I “will be allowed to proceed to an evidentiary hearing.” I do.
Based on my careful review of that record, I find that Powell has failed to make the
showings required for an evidentiary hearing. As such, I will not conduct an evidentiary
hearing in this matter. Ground I and Ground II will be submitted and decided by written
arguments. Because this is a significant procedural development, I will require briefing
with regard to Ground I (which has not yet been briefed) and also will permit the parties
to supplement their briefing on Ground II, if they so choose. With regard to Ground II,
I believe it would be especially helpful for Powell to address the issue of procedural
default.

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IV.

CONCLUSION

Because I find that an evidentiary hearing is not warranted with regard to any
claim in this case, I will permit Powell to file a final merits brief. That brief must address
the merits of Ground I and may include additional arguments with regard Ground II.
That brief shall be filed on or before August 1, 2016.
Respondent shall file a response to Powell’s brief no later than September 15,
2016. Powell may, but is not required to, file a reply on or before October 3, 2016.
This matter will be then be fully submitted and ready for decision. Because of the age
of this case, and the pattern of requests for extensions, the parties are advised that no
extensions of these briefing deadlines will be granted absent a showing of exceptional and
unforeseeable circumstances.
IT IS SO ORDERED.
DATED this 2nd day of June, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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