Powell v. State of Iowa et al
Filing
68
ORDER - Petitioner Jayme Powells petition for writ of habeas corpus is denied and this action is dismissed. No certificate of appealability will be issued for any of Powells claims. Signed by Judge Leonard T Strand on 11/22/16. (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 Amended and Substituted
Petition (Doc. No. 20) for Writ of Habeas Corpus (Petition), filed August 25, 2013, and
his supplemental merits brief (Doc. No. 63-1) on Ground I, filed September 1, 2016.1
Respondent Jim McKinney filed his merits brief (Doc. No. 64) on October 17, 2016.
Powell claims he received ineffective assistance of counsel because his trial counsel failed
to investigate and object to the DNA evidence that was collected in his case. Doc. No.
63-1 at 2.
II.
BACKGROUND FACTS
The Iowa District Court for Woodbury County summarized the underlying facts
as follows:
On or about October 30, 2005, KayCee Smith was sleeping on a
couch at a friends [sic] apartment at 4701 Stone Avenue in Sioux City. The
apartment was a part of student housing for Western Iowa Tech. Smith
1
While the Petition advances two grounds for relief, Powell now acknowledges that Ground II
is procedurally defaulted. Doc. No. 63-1 at 1. Only Ground I is at issue.
testified at trial that she was attacked by an intruder, who struck her
repeatedly in the head. Smith testified she pretended to be unconscious in
hope the assailant would leave her alone but resumed attempts to escape
when she felt the assailant pulling down her pants. Walsh, the tenant of the
apartment, came out of her bedroom as a result of the noise and was struck
by the assailant, causing her head to hit the wall. Walsh stated she saw a
white Chevy Beretta leaving the apartment's complex. A neighbor
witnessed Walsh screaming outside the complex and called emergency
services. He testified that it was a white Chevy Corsica leaving the scene.
Officers arrived at the scene to investigate. Walsh and Smith were
later taken to a hospital to treat their injuries. Articles of clothing, including
a pair of underwear and Smith's rings were taken by the officers. An
investigation revealed blood not belonging to Smith on the underwear, as
well as on some drapes and elsewhere.
Officer Jason Fleckenstein testified at Applicant's trial.
Fleckenstein, a Sioux City Police Department officer, was investigating the
assault and based on the Applicant's ownership of a white Beretta, arrived
at Applicant's residence. Fleckenstein fabricated a story about investigating
a purse snatching in order to initiate contact with the Applicant. At this
time, Fleckenstein testified he noticed injuries to Applicant's hands which
led to the officer applying for a search warrant, part of which concerned
DNA evidence. In executing this warrant, Applicant was brought to the
Sioux City Police Department. Two buccal swabs were taken for the
purposes of DNA evidence. These buccal swabs were identified as large
"Q-tips" used to swab the inside of a mouth in order to obtain DNA. A
nurse from Mercy Medical Center also took blood from the Applicant.
Fleckenstein testified that after receiving the blood sample, he sealed it in
front of the Applicant and showed him the seal. He then testified he brought
the blood kit to the refrigerator in the police department's property system.
The blood sample, along with several objects from the scene of the assault
and the clothing of the victims, was sent to the Department of Criminal
Investigation. The results indicated that the Applicant's DNA was present
in various places, including some blood on a pair of panties.
DNA testing was undertaken by Applicant's trial counsel, but this
testing confirmed the results of the State's testing. According to Williams,
the testing also showed there was a lack of preservatives in the blood sample
on the panties, which would be incompatible with blood taken from a blood
2
kit. Williams, in his deposition, indicated that he used the same type of
blood kit as used by the State.
Doc. No. 57-7 at 2-4 (citations to state court record omitted).
III.
PROCEDRUAL HISTORY
Powell was found guilty of first-degree burglary and second-degree burglary on
August 2, 2006. He was sentenced to a term of incarceration not to exceed twenty-five
years. After his direct appeal was denied, Powell filed an application for post-conviction
relief (PCR) in the Iowa District Court, arguing that his trial counsel provided ineffective
assistance. Doc. No. 29-2 at 20-26. On October 22, 2008, the State filed a motion for
summary judgment, which it then amended on June 15, 2009. Doc. Nos. 57-5, 57-6.
The Iowa District Court granted the State’s motion, finding that Powell’s trial
counsel did not provide ineffective assistance. Doc. No. 57-7. Specifically, the court
determined that Powell’s trial counsel properly investigated allegations of blood
tampering and made a strategic choice to discontinue this investigation. Id. at 8-10. The
court also found no reasonable probability that the result of Powell’s case would have
been different if counsel’s allegedly deficient performance had not occurred. Id. at 10.
On June 13, 2012, The Iowa Court of Appeals affirmed the denial of Powell’s
PCR application. On October 12, 2012, the Iowa Supreme Court denied Powell’s request
for further review, finalizing the state proceedings. Powell then filed his habeas Petition.
IV.
A.
DISCUSSION
Section 2254 Standards
“As amended by [the Antiterrorism and Effective Death Penalty Act of 1996]
AEDPA, 28 U.S.C. § 2254 sets several limits on the power of a federal court to grant
an application for a writ of habeas corpus on behalf of a state prisoner.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). A federal court will not grant a petition for writ
of habeas corpus “unless it appears that (1) the applicant has exhausted the remedies
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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). If the claim has been fully
adjudicated in State court, federal courts may not grant habeas relief unless the
adjudication:
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). Review of the state-court decision is highly deferential. Cullen,
563 U.S. at 181 (citing Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
The state court reviews a post-conviction relief petition based on ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The person
challenging a conviction must show that (1) counsel provided deficient assistance to the
extent that “counsel's representation fell below an objective standard of reasonableness”
and (2) there was prejudice as a result. Id. at 688. The errors must be “so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment” and the defendant was deprived of a fair trial. Id. at 687. The state court
applies a “strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at 689.
Federal habeas courts must find that a state court's application of Strickland was
unreasonable in order to grant habeas relief. Harrington v. Richter, 562 U.S. 86, 101
(2011). This is a highly deferential inquiry because “[a] state court must be granted a
deference and latitude that are not in operation when the case involves review under the
Strickland standard itself.” Id. “Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under § 2254(d).
4
When § 2254(d) applies, the question is not whether counsel's actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied
Strickland's deferential standard.” Id. at 105. Therefore, “even a strong case for relief
does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing
Lockyer v. Andrade, 538 U.S. 63 (2003)). “A state court's determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of the state court’s decision.” Id. at 101 (quoting Yarborough v.
Alvarado, 541 U.S. 652 (2004)).
The petitioner bears the burden of showing that the state court's ruling was “so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at
103. “Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5
(1979) (Stevens, J., concurring in judgment)).
B.
Analysis
Powell contends his trial counsel provided ineffective assistance by failing to
investigate the State’s blood evidence thoroughly. In seeking federal habeas relief, he
argues that the state PCR court’s determination of the facts and application of Strickland
were both unreasonable. I will address each argument separately.
1.
The PCR Court’s Determination of the Facts
Powell argues that the PCR court failed to develop the record properly. In
particular, he contends several disputed issues of material fact existed that should have
precluded entry of summary judgment in favor of the State. For example, Powell notes
that he was not identified as the assailant at the original trial and he did not match the
description of the assailant. Also, while two vials of blood were taken from Powell
5
during the investigation, only one made it to the DCI laboratory while the location of the
other was never disclosed. Doc. No. 63-1 at 12-13. In resisting the State’s motion for
summary judgment, Powell argued that his conviction “was based 100% on blood DNA
evidence on the victim’s clothing” and suggested that “the second vial of blood was used
by someone to ‘enhance’ the trial evidence.” Id. at 13. Powell argues that his trial
counsel failed to investigate these issues and that the PCR court should have conducted
an evidentiary hearing to explore them.
The State contends that the issues of whether to hold an evidentiary hearing and
whether to grant a dispositive motion are matters of state procedural law that do not
implicate federal law. I agree. The PCR court’s decision to grant a motion for summary
judgment without conducting an evidentiary hearing was not a misapplication of federal
law or an unreasonable application of the facts. I reject this argument for federal habeas
relief.2
2.
The PCR Court’s Application of Strickland
Powell argues that the PCR court’s decision was a misapplication of Strickland
and contends that the court misinterpreted his argument.
a.
Deficient performance
Powell’s claim that his trial counsel was ineffective centers on his investigation of
the blood evidence and Powell’s belief that evidence tampering occurred. The PCR court
expressly acknowledged Powell’s argument that his blood “was planted on the underwear
at some point,” but found that his trial counsel’s actions were reasonable. Doc. No. 577 at 9. The court noted that Powell’s counsel pursued the blood tampering theory by
2
Making this argument more peculiar is the fact that Powell concedes there are no “grounds to
rebut any particular factual finding by the Court in adjudicating his claim.” Doc. No. 63-1 at
2. Thus, he states that he “will utilize the factual findings from the State post-conviction ruling
in Woodbury County.” Id.
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“conducting a test on the blood sample, looking for evidence that the stopper was pierced
by a needle and also looking for evidence of anti-coagulants, specifically testing for
sodium, on the panties.” Id. The court also found that Powell failed to present evidence
supporting his theory that another blood sample existed that did not contain anticoagulants. Id. Finally, the court noted that Powell’s trial counsel tested for the existence
of anti-coagulants in the blood kit the State provided him. Id. at 10. The court found
that even if the State provided the wrong blood kit, trial counsel’s findings would have
resulted from the wrongful acts of others, not ineffective assistance on trial counsel’s
part. Id. The court stated: “It cannot be said that trial counsel was ineffective for relying
on the rules and procedures and not locating evidence despite duplicitous actions from
others.” Id.
Even if I could find that Powell’s ineffective assistance of counsel claim has merit,
I would also have to find that no reasonable jurist could agree with the PCR’s court’s
determination. See Harrington, 562 U.S. at 102-103. I am unable to reach such a
conclusion.
The PCR court examined Powell’s blood tampering claim, found that
Powell’s trial counsel’s investigation was thorough and determined that counsel’s decision
to end the investigation after testing the State’s blood collection kit was reasonable. I
find no reason to disagree.
In an effort to determine whether blood tampering occurred, Powell’s counsel (a)
conducted a test on the State’s blood sample (specifically looking for anti-coagulants),
(b) looked for evidence that the vial’s stopper was pierced by a needle and (c) looked for
evidence of anti-coagulants (specifically testing for sodium) on the victim’s panties.
Powell’s counsel testified that he did not investigate whether there was a blood sample
without anti-coagulants because he used the same blood collection kit used by law
enforcement and found that it contained anti-coagulants, indicating that any planted blood
evidence would also contain anti-coagulants. Doc. No. 57-12 at 230-31. Powell contends
that his counsel’s conduct fell below basic investigatory standards. I disagree.
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While trial counsel is not required to investigate every possible defense or exhaust
every possible avenue or argument, a failure to investigate at all, or the performance of
little to no investigation, may amount to ineffective assistance of counsel. See Kenley v.
Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991) (citing Chambers v. Armontrout, 907
F.2d 825, 828 (8th Cir. 1990) (en banc)). “[T]he duty to investigate does not force
defense lawyers to scour the globe on the off chance something will turn up; reasonably
diligent counsel may draw a line when they have good reason to think further investigation
would be a waste.” Forrest v. Steele, 764 F.3d 848, 859 (8th Cir. 2014), cert. denied,
136 S. Ct. 35 (2015) (quoting Rompilla v. Beard, 545 U.S. 374, 383 (2005)).
Additionally, “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Id. (quoting Strickland, 466
U.S. at 690).
The state PCR court did not unreasonably apply Strickland in finding that Powell’s
trial counsel properly investigated Powell’s claim that the blood evidence was planted.
Counsel had the State’s blood sample examined for microscopic evidence of needle-point
entry, tested the victim’s panties for signs of anti-coagulants and determined that the
standard blood kit used for blood collection by law enforcement contained anticoagulants. Powell’s counsel reasonably determined, therefore, that if Powell’s blood
had been planted on the panties, that blood would have contained anti-coagulants. Testing
revealed that it did not. While Powell contends that his attorney should have gone further,
and investigated whether an officer circumvented procedures by using a blood collection
kit that did not contain anti-coagulants, he presents no evidence in support of this theory.
It is pure conjecture.
“We will not fault a reasonable strategy not to investigate further if it is based on
sound assumptions.” Kenley, 937 F.2d at 1308 (citing Pickens v. Lockhart, 714 F.2d
1455, 1467 (8th Cir. 1983)). Powell’s counsel conducted a reasonable investigation into
the possibility of blood evidence tampering. In deciding not to investigate further, he
was entitled to assume that the State provided him with the correct blood testing kit. The
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PCR court did not err in finding that Powell’s counsel’s strategic decision to end the
investigation and refrain from employing a blood-tampering defense at trial was
reasonable. As such, I reject Powell’s claim that his trial counsel’s performance was
constitutionally deficient.3
b.
Prejudice
The PCR court found that Powell failed to show that the outcome of his case would
have been different “but for” his counsel’s allegedly deficient performance. Doc. No.
57-7 at 10. I agree. The evidence of Powell’s guilt was overwhelming. Christenson v.
Ault, 598 F.3d 990, 997 (8th Cir. 2010) (“When there is overwhelming evidence of guilt
presented, it may be impossible to demonstrate prejudice.”) (citing Strickland, 466 U.S.
at 700). At trial, the State presented evidence of (a) witnesses having seen a white twodoor vehicle with a bra in the front window leaving the scene of the crime in a rush, (b)
a timeline that allowed for Powell to commit the offense, (c) testimony that Powell did
not visit the person he said he was visiting when he left his residence on the date of the
crime, (d) Powell’s return to his residence with cuts on his hand following the commission
of this crime, (e) Powell’s changing story of how he cut his hand (he initially said he was
in a fight and later said he wrecked his dirt bike), (f) Powell’s request of a friend to lie
to the police for him, (g) blood evidence at the scene of the crime matching Powell’s
blood, (h) the discovery of Powell’s vehicle with a bra in the front window, (i) Powell’s
square ring matching the shape of a cut sustained by the victim and (j) a shoeprint from
the scene that had the same class characteristics and tread design of the shoes Powell
wore.
Even without the blood evidence, the State presented ample evidence of Powell’s
guilt. Moreover, Powell has not established that additional investigation of the blood
3
Powell also argues the PCR court misinterpreted his blood-tampering argument. I
disagree. The PCR ruling shows that the court understood Powell’s theory to be that a vial of
his blood existed that did not contain anti-coagulants and that was planted on the victim’s panties.
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evidence by his trial counsel would have borne fruit. Because there is no evidence that
any blood evidence tampering occurred, Powell cannot demonstrate that the outcome of
his case would have been different if his counsel would have taken additional steps to
investigate the blood evidence. The PCR court did not unreasonably apply Strickland in
concluding that Powell failed to show prejudice resulting from his counsel’s allegedly
deficient performance. Powell is not entitled to federal habeas relief.
V.
CERTIFICATE OF APPEALABILITY
A certificate of appealability may be granted only when the petitioner “has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
see also Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003); 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)).
Here, I find that Powell has not made the necessary showing with regard to his
habeas claims. As such, I will not grant a certificate of appealability. Should Powell
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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VI.
CONCLUSION
For the reasons set forth herein, petitioner Jayme Powell’s petition for writ of
habeas corpus is denied and this action is dismissed. No certificate of appealability will
be issued for any of Powell’s claims.
IT IS SO ORDERED.
DATED this 22nd day of November, 2016.
________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE
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