Sickels v. Craig

Filing 27

ORDER Adopting without modification 24 Report and Recommendation. Petitioner's application for a writ of habeas corpus (Doc. No. 1 ) is denied. Petitioner's 26 Motion for Certificate of Appealability is denied. Signed by Chief Judge Leonard T Strand on 4/17/2017. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JOHN WEST SICKELS,
Petitioner,

No. C15-4080-LTS

vs.
ORDER

DAN CRAIG,
Respondent.
____________________________

This case is before me on a Report and Recommendation (R&R) filed by the
Honorable C.J. Williams, Chief United States Magistrate Judge, on February 24, 2017.
Doc. No. 24. Judge Williams recommends that I deny the application for a writ of habeas
corpus under 28 U.S.C. § 2254 (Doc. No. 1) filed by John West Sickels (petitioner) on
September 18, 2015. Petitioner filed timely objections (Doc. No. 25) to the R&R on
March 10, 2017. In addition, petitioner filed a motion for a certificate of appealability
(Doc. No. 26) on March 13, 2017.
I. RELEVANT PROCEDURAL HISTORY
The R&R includes a detailed recitation of the relevant facts and procedural history.
Doc. No. 24 at 1-10. To summarize, a jury found petitioner guilty of sexual abuse in the
second degree, with the victim being L.S. On direct appeal, petitioner argued that
insufficient evidence supported the jury’s determination, the prosecutor’s rebuttal argument
deprived him of a fair trial, the Iowa District Court improperly excluded evidence, the
prosecutor improperly cross-examined his character witnesses and the Iowa District Court
improperly awarded restitution.

The Iowa Court of Appeals affirmed petitioner’s

conviction. See State v. Sickels, No. 09-0897, 2010 Iowa App. LEXIS 1427, 2010 WL
4792316 (Iowa Ct. App. Nov. 24, 2010).

Petitioner then sought post-conviction relief (PCR) in the Iowa District Court. He
argued that his trial counsel provided ineffective assistance because he: (1) failed to move
for a separate trial from his co-defendant, (2) failed to investigate and argue the role of
L.S.’s boyfriend, including his influence on L.S., (3) failed to object to the use of a prior
bad act to impeach his character witnesses and (4) failed to argue properly that he should
be allowed to present evidence of L.S.’s past sexual behavior. The Iowa District Court
rejected all of these arguments. The Iowa Court of Appeals affirmed. See Sickels v. State,
No. 13-1848, 2015 Iowa App. LEXIS 279, 2015 WL 1331312 (Iowa Ct. App. Mar. 25,
2015).
Petitioner then sought federal habeas corpus relief. He asserts the same four
ineffective assistance of counsel claims that he asserted in the state PCR proceedings.
Doc. No. 17. Respondent contends that the Iowa courts properly applied federal law when
rejecting the petitioner’s claims. Doc. No. 18. After the parties completed their briefing,
Judge Williams filed the R&R. The petitioner now objects to all of Judge Williams’ legal
conclusions.
II.

STANDARD FOR REVIEWING A REPORT AND RECOMMENDATION
The standard of review with regard to a magistrate judge R&R is established by

statute:
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)(2)-(3) (providing procedure to file
written objections and making clear that, where a proper objection is made, the district
judge must determine de novo a magistrate judge’s recommendation on a dispositive
motion). Thus, when a party objects to any portion of an R&R, the district judge must
undertake a de novo review of the issue.
Any portions of a 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 judge]
would only have to review the findings of the magistrate judge for clear error”). “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 a 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.

APPLICABLE LEGAL STANDARDS

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) strictly
limits a federal court’s power to review habeas corpus petitions brought by state-court
prisoners. See White v. Kelley, 824 F.3d 753, 756 (8th Cir. 2016) (“‘In the interests of
finality and federalism, federal habeas courts are constrained . . . to exercise only a limited
and deferential review of underlying state court decisions.’” (quoting Sera v. Norris, 400
3

F.3d 538, 542 (8th Cir. 2005))); Abernathy v. Hobbs, 748 F.3d 813, 816 (8th Cir. 2014)
(“AEDPA modified a federal habeas court’s role in reviewing state prisoner applications
in order to prevent federal habeas retrials and to ensure state-court convictions are given
effect to the extent possible under law.”); Taylor v. Roper, 561 F.3d 859, 862 (8th Cir.
2009) (explaining that only a limited and deferential review of underlying state court
decisions is permitted when habeas corpus relief is sought); Lomholt v. Iowa, 327 F.3d
748, 751 (8th Cir. 2003) (noting review is limited and deferential). The AEDPA prohibits
the grant of habeas corpus relief unless the state 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).
When considering § 2254(d) matters, the court is guided by well-established
principles: (1) “an unreasonable application of federal law is different from an incorrect
application of federal law,” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting
Williams v. Taylor, 529 U.S. 362, 410 (2000)) (emphasis in original), see also Williams,
529 U.S. at 411 (emphasizing that a court “may not grant relief simply because it
concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly,” rather the application “must also be
unreasonable”), Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under
AEDPA is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially higher
threshold.”), Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir. 2010) (making clear that relief
is available only if the state court decision is both incorrect and unreasonable); (2) “even
a strong case for relief does not mean the state court’s contrary conclusion was

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unreasonable,” Harrington, 562 U.S. at 102; (3) the purpose of § 2254(d) is to “‘guard
against extreme malfunction in the state criminal justice systems,’” id. at 102-03 (quoting
Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment));
and (4) the burden is on the petitioner to “show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement,” id. at 103. Accord Moeller v. Weber, 649 F.3d 839, 843-44 (8th Cir.
2011). In addition, a “court is bound by the facts as found by the state courts, absent clear
and convincing evidence those findings were incorrect.” White, 824 F.3d at 757 (citing
Buchheit v. Norris, 459 F.3d 849, 852 (8th Cir. 2006)); accord Forrest v. Steele, 764 F.3d
848, 854 (8th Cir. 2014).
The Sixth Amendment to the United States Constitution provides, in pertinent part,
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his [or her] defen[s]e.” U.S. Const. amend. VI. Furthermore,
there is a constitutional right to effective assistance of counsel on direct appeal. See Evitts
v. Lucey, 469 U.S. 387, 396 (1985); Douglas v. California, 372 U.S. 353, 357-58 (1963).
An ineffective assistance of counsel claim has two components:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Williams, 529 U.S. at 390
(reasserting the Strickland standard). Although Strickland requires a showing of both
deficient performance and prejudice, “a court deciding an ineffective assistance claim
[need not] . . . address both components of the inquiry if the defendant makes an

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insufficient showing on one.” Strickland, 466 U.S. at 697. “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course
should be followed.” Id.; see also United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir.
1996) (“[A court] need not address the reasonableness of the attorney’s behavior if the
[petitioner] cannot prove prejudice.”).
To establish unreasonably deficient performance, a “defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” Strickland,
466 U.S. at 688. The “reasonableness of counsel’s challenged conduct [must be reviewed]
on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690.
There is a strong presumption of competence and reasonable professional judgment. See
id.; see also Strong v. Roper, 737 F.3d 506, 517 (8th Cir. 2013) (explaining that judicial
scrutiny of counsel’s performance is highly deferential); United States v. Taylor, 258 F.3d
815, 818 (8th Cir. 2001) (“We operate on the ‘strong presumption that counsel’s conduct
falls within a wide range of reasonable professional assistance.’” (quoting Strickland, 466
U.S. at 689)); Sanders v. Trickey, 875 F.2d 205, 210 (8th Cir. 1989) (stating that courts
must afford counsel broad latitude to make strategic and tactical choices). In sum, the
court must “determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690.
To establish prejudice, “[i]t is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding.” Id. at 693; see also
Harrington, 562 U.S. at 111 (“In assessing prejudice under Strickland, the question is not
whether a court can be certain counsel’s performance had no effect on the outcome or
whether it is possible a reasonable doubt might have been established if counsel acted
differently.”). Rather, a “defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
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the outcome.” Strickland, 466 U.S. at 694; see also Harrington, 562 U.S. at 112 (“The
likelihood of a different result must be substantial, not just conceivable.”). In other words,
“the question is whether there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at
695. In answering that question, the court “must consider the totality of the evidence
before the judge or jury.” Id.
In the context of deciding whether relief is available under 28 U.S.C. § 2254, the
Supreme Court has set forth a “doubly” deferential standard for ineffective assistance
claims. Harrington, 562 U.S. at 105 (“The standards created by Strickland and § 2254(d)
are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
(citations omitted)); see also Forrest, 764 F.3d at 853 (observing that, when review is
governed by § 2254(d) and Strickland, highly deferential review is given to the state court
decision and the state court, in turn, is highly deferential to the judgments of trial counsel).
“Federal habeas courts must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under § 2254(d).” Harrington, 562 U.S. at 105. And,
it is inappropriate to look “‘to the quality of the reasoning process articulated by the state
court’” or “the statement of reasons explaining the state court’s decision,” which “would
‘place the federal court in just the kind of tutelary relation to the state courts that [AEDPA
was] designed to end.’” Williams v. Roper, 695 F.3d 825, 834-35 (8th Cir. 2012) (quoting
Hennon v. Cooper, 109 F.3d 330, 334-35 (7th Cir. 1997)). Accordingly, the issue the
court must decide “is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Harrington, 562 U.S. at 105; see also Forrest, 764 F.3d at 854 (“In judging
the state court’s conclusions we must also remember that ‘[t]he Strickland standard is a
general one, so the range of reasonable applications is substantial.’” (quoting Harrington,
562 U.S. at 104)).

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IV.

DISCUSSION

Having conducted a de novo review of the record, which includes but is not limited
to the application for a writ of habeas corpus (Doc. No. 1), respondent’s answer (Doc. No.
6), the relevant state court documents (Doc. No. 7), petitioner’s brief (Doc. No. 17),
respondent’s brief (Doc. No. 18), petitioner’s reply brief (Doc. No. 22), the R&R (Doc.
No. 24) and the objections (Doc. No. 25), I find that there is no basis to grant relief under
28 U.S.C. § 2254(d). The R&R contains a very thorough and cogent analysis of the facts
and applicable law. Judge Williams’ recommended disposition of the application for a writ
of habeas corpus is fully supported by the factual record and controlling legal authorities.
Thus, I will adopt the R&R without modification.
Petitioner’s objections “all but ignore ‘the only question that matters under §
2254(d)(1)’” which is “whether it is possible fairminded jurists could disagree that . . .
arguments or theories [that support or could have supported the state court’s decision] are
inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington, 562
U.S. at 102 (quoting Lockyer v. Andrade, 538 U.S. 63, 71 (2003)). The question that
must be answered is not whether “‘the state court’s determination’ under the Strickland
standard ‘was incorrect but whether that determination was unreasonable—a substantially
higher standard.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro,
550 U.S. at 473).
There is no dispute that the Iowa courts rejected all of petitioner’s ineffective
assistance of counsel claim on the merits, and, therefore, the AEDPA’s limited review
applies. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (explaining that the standard
for evaluating state-court rulings demands that state-court decisions be given the benefit
of the doubt); Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir. 2004) (en banc) (noting that
the language of § 2254(d) plainly limits the applicability of AEDPA’s deferential standard
to claims that have been “adjudicated on the merits” in state court). The Iowa courts
correctly identified and applied clearly established federal law: Strickland and its two
8

requirements. The Iowa courts did not unreasonably apply Strickland to the facts of
petitioner’s case, and they reasonably concluded that trial counsel satisfied Strickland’s
performance prong. As for the other prong, it is clear from the record that petitioner
suffered no prejudice as a result of trial counsel’s representation. Because it is clear that
“fair-minded jurists could disagree” on the correctness of the Iowa courts’ determination
that petitioner’s ineffective assistance of counsel claims lack merit, federal habeas corpus
relief is precluded. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Additionally, the
law supports neither (1) petitioner’s assertion that the cumulative effect of trial counsel’s
errors gives rise to habeas corpus relief nor (2) petitioner’s contention that a certificate of
appealability should issue.
1.

Severance of trials

Before rejecting petitioner’s claim that trial counsel unconstitutionally failed to
conduct an inquiry into whether the co-defendant would be a poor witness and move for
a separate trial from the co-defendant on that basis, the Iowa Court of Appeals made
several findings: (1) petitioner knew that the co-defendant would not be a good witness but
never expressed his concern about the co-defendant to trial counsel, (2) the poor
performance of the co-defendant while testifying surprised trial counsel and the codefendant’s counsel and (3) petitioner’s speculation about how the co-defendant’s poor
performance affected the outcome does not establish a constitutional violation. See Sickels,
2015 Iowa App. LEXIS 279 at *4-5. When concluding that petitioner failed to establish
a reasonable probability that severing his trial from the co-defendant’s trial would have
changed the outcome, the Iowa Court of Appeals pointed out the existence of taped
interviews that quite likely would have been admitted as a statement of a co-conspirator
in furtherance of efforts to conceal a crime under Iowa’s evidentiary rules. Id. at *5-6.
With respect to trial counsel’s performance, the court emphasized the following:

9

Trial counsel had weighed the pros and cons of a joint trial. He
correctly believed [the co-defendant] would testify and most of
what he said would be helpful to [the petitioner]. He knew [the
co-defendant] was the only one who could corroborate [the
petitioner’s] portrayal of an intoxicated and flirtatious L.S.,
who allegedly flashed the two officers that evening after they
were the only remaining customers at the club. [Trial counsel]
had the impression that [the petitioner] believed [the codefendant’s] testimony would be helpful and wanted a joint
trial. [Trial counsel] also desired to keep the two parties
together because of the fear that [the co-defendant] would
work a deal with the prosecutor and testify against [the
petitioner]. [Trial counsel’s] selection of a strategy cannot be
considered ineffective assistance simply because it proved
unsuccessful. See Strickland[, 466 U.S. at 689].
Sickels, 2015 Iowa App. LEXIS 279 at *7.
Petitioner does not assert that the Iowa courts unreasonably determined the facts in
light of the evidence presented during the PCR proceedings. Consequently, the Iowa
courts’ findings are presumed correct under 28 U.S.C. § 2254(e). Petitioner argues that
the Iowa courts’ application of Strickland was unreasonable because, in applying the
presumptively-correct facts, the Iowa courts overlooked trial counsel’s duty to investigate.
Petitioner is mistaken. The Iowa courts did not unreasonably apply federal law as
determined by the United States Supreme Court in deciding, based upon the factual record,
that trial counsel provided representation that comports with constitutional requirements.
The entire record must be examined when determining what information trial
counsel had and whether trial counsel acted reasonably in light of such information. See
Velez v. Clarinda Corr. Facility, 791 F.3d 831, 836 (8th Cir. 2015). Clearly, the Iowa
courts did so. It is undisputed that trial counsel knew that the co-defendant participated
in recorded interviews where he made conflicting and detrimental statements. It is also
undisputed that neither petitioner’s trial counsel nor the co-defendant’s trial counsel
believed the co-defendant would be a poor witness. Based on the investigation conducted
by trial counsel, and his understanding that petitioner and the co-defendant would be
10

pursuing a general denial defense and testifying during trial, it is evident that trial counsel
reasonably believed the co-defendant’s testimony would support petitioner’s defense. Trial
counsel clearly understood the constitutional right of confrontation as set forth in Bruton
v. United States, 391 U.S. 123 (1968), and determined it would be best to have the codefendant testify in support of petitioner’s general denial defense. In light of the record,
it cannot be said that trial counsel conducted an inadequate investigation. See Rompilla v.
Beard, 545 U.S. 374, 383 (2005) (“[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.”); United States v. Orr, 636 F.3d 944, 952 (8th Cir. 2011) (explaining that
counsel has a duty to investigate the law and the facts that are relevant to plausible
options).
Petitioner takes issue with the Iowa courts’ determination under Iowa law that the
taped interviews of the co-defendant would be admitted even if the petitioner had been
tried separately. However, the AEDPA requires the court to determine whether the
decision “was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1) (emphasis added); see also Evenstad v. Carlson, 470 F.3d 777, 783 (8th Cir.
2006) (holding that § 2254(d)(1) requires the petitioner “to point to the [United States]
Supreme Court precedent he thinks the Minnesota state courts acted contrary to or applied
unreasonably” and that “it is not enough for [the petitioner] to argue that Minnesota state
courts misapplied state law”). Any argument that the Iowa courts misapplied Iowa
evidentiary law cannot be reexamined. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“[I]t is not the province of a federal habeas court to reexamine state-court determinations
on state-law questions.”); Rousan v. Roper, 436 F.3d 951, 958 (8th Cir. 2006)
(“‘Questions regarding admissibility of evidence are matters of state law, and they are
reviewed in federal habeas inquiries only to determine whether an alleged error infringes
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upon a specific constitutional protection or is so prejudicial as to be a denial of due
process.’” (quoting Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir. 1993); Hollins v.
Dep’t of Corr., 969 F.2d 606, 609 (8th Cir. 1992) (“Questions concerning the
admissibility of evidence are not cognizable in federal habeas proceedings ‘unless the
asserted error infringed a specific constitutional protection or was so prejudicial as to deny
due process.’” (quoting Urquhart v. Lockhart, 726 F.2d 1316, 1318 (8th Cir. 1984))).
Therefore, it is permissible to assume without deciding that the Iowa courts correctly
applied Iowa evidentiary law.
Moreover, there is no basis to conclude that a joint trial deprived petitioner of his
constitutional right to confront and cross-examine the co-defendant because he testified
during trial. See generally Bruton, 391 U.S. at 123. It is evident that trial counsel favored
a joint trial because the defenses of petitioner and the co-defendant were not mutually
antagonistic. See Hood v. Helling, 141 F.3d 892, 896 (8th Cir. 1998) (“Mutually
antagonistic defenses are those which force the jury to disbelieve the core of one defense
in order to believe the core of the other.”); cf. Christian v. Dingle, 577 F.3d 907, 910-12
(8th Cir. 2009) (determining that petitioner’s joinder with his codefendants and the state
trial court’s decision not to sever his trial did not constitute an unreasonable application of
clearly established federal law as determined by the Supreme Court in Zafiro v. United
States, 506 U.S. 534 (1993), because the facts in each case determine whether a joint trial
results in prejudice to a defendant and any remedy is left to the sound discretion of the
court); Hollins, 969 F.2d at 608-09 (stating that habeas corpus relief is not available unless
the failure to grant severance rendered the trial fundamentally unfair). Although petitioner
now contends that he should have been tried separately, his defense at the time of trial was
that he and L.S. engaged in consensual sexual activity and the co-defendant’s defense was
that he neither aided nor abetted petitioner because L.S. engaged in consensual sexual
activity.

Petitioner and the co-defendant presented evidence, which included their

testimony, that tended to show that petitioner and L.S. engaged in consensual sexual
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activity.

Given petitioner’s theory of defense and the co-defendant’s corroborating

testimony, it cannot be said that trial counsel pursued an unreasonable defense strategy.
Petitioner’s ineffective assistance of counsel claim is based on the possibility that
the co-defendant might not have chosen to testify during a joint trial. But, when asserting
such possibility, petitioner ignores the requirement under Strickland that the challenged
conduct be viewed as of the time of trial counsel’s conduct and the events that actually
occurred prior to and during his trial. He also ignores the nature of admissible evidence
and the possibility that the co-defendant would have testified against petitioner if separate
trials were conducted. Indeed, the Iowa courts observed that trial counsel’s representation
met constitutional requirements because, under Iowa law, the co-defendant’s prior taped
statements would have been admissible as statements of a co-conspirator in furtherance of
efforts to conceal the crime. Moreover, trial counsel’s fear about the co-defendant offering
damning evidence as a cooperating witness is entitled to deference.

Given the

reasonableness of the theory of defense pursued in light of the facts and the law, the Iowa
court’s adjudication of petitioner’s ineffective assistance of counsel claim was neither an
unreasonable application of, nor contrary to, Strickland.
Ultimately, the Iowa courts held that petitioner’s trial counsel did not provide
ineffective assistance under the standard set forth in Strickland because trial counsel
presented credible evidence during the PCR proceedings that his decision not to seek a
severance was a tactical decision supported by reasonable professional judgment. Trial
counsel understood that petitioner, as a principal, and the co-defendant, as an aider and
abettor, were maintaining that petitioner’s sexual contact with L.S. was consensual. Trial
counsel reasoned that if the jury found petitioner and the co-defendant to be credible, it
would acquit both of them. It is also apparent that trial counsel thought it would be unwise
if the co-defendant cooperated with the prosecutor and testified against petitioner.
Petitioner does not dispute that trial counsel considered the relative benefits of
seeking a separate trial and determined that it would be better if the co-defendant
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participated in a joint trial. This is fatal to his ineffective assistance of counsel claim
because it is inappropriate to second-guess trial counsel’s strategic decisions. See Flowers
v. Norris, 585 F.3d 413, 417-18 (8th Cir. 2009) (finding that the Arkansas Supreme Court
reasonably applied Strickland when it determined that counsel’s decision not to seek a
severance was a strategic decision and that, as a result, the petitioner did not satisfy the
requirements of § 2254(d)(1)); see also Abernathy, 748 F.3d at 816 (recognizing that,
under Strickland, the court must “‘refrain[] from . . . second-guessing of trial counsel’s
strategic decisions’” (quoting Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir. 1995))); Evans
v. Luebbers, 371 F.3d 438, 445 (8th Cir. 2004) (holding that “strategic and tactical
decisions made by counsel, though they may appear unwise in hindsight, cannot serve as
the basis for an ineffective-assistance claim under Strickland”); Henderson v. Norris, 118
F.3d 1283, 1287 (8th Cir. 1997) (“We presume attorneys provide effective assistance and
will not second-guess strategic decisions or exploit the benefits of hindsight.”); Sanders,
875 F.2d at 209-10 (explaining that broad latitude to make strategic and tactical choices
regarding the appropriate action to take or refrain from taking is afforded when acting in
a representative capacity).
Further, after examining the evidence presented at trial and the evidence sought to
be excluded during trial, the Iowa courts concluded that substantial evidence supported the
jury’s finding of guilt. Given the strength of the evidence against petitioner, the Iowa
courts did not err in denying relief on the basis that petitioner did not suffer prejudice due
to the allegedly ineffective assistance of trial counsel. See Kennedy v. Kemna, 666 F.3d
472, 484-85 (8th Cir. 2012).
2.

Presentation of defense

The Iowa Court of Appeals summarized the defense in the following manner:
Trial counsel’s defense effort was primarily based on the
assertion that L.S., in an intoxicated condition, had consented
to sexual intercourse but because of her fear of losing her job,
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and more importantly, the anticipated reaction of her abusive
live-in boyfriend, she ultimately decided she would deny she
had consented to the act.
Sickels, 2015 Iowa App. LEXIS 279 at *7-8. The Iowa Court of Appeals also summarized
petitioner’s contentions regarding the defense that trial counsel should have presented: (1)
trial counsel should have done more and pursued his defense more vigorously and in
greater detail, that is, done more to establish L.S.’s alcohol problem and her boyfriend’s
violent tendencies and (2) trial counsel should have specifically argued that L.S.’s
boyfriend entered the club after closing, discovered evidence L.S. had been unfaithful, got
into a fight with L.S., drank alcohol and then left the club with L.S. Id. at *8. With
respect to the former contention, the Iowa Court of Appeals determined that trial counsel
conducted a complete and reasonable investigation when he hired an investigator and took
extensive depositions and made offers of proof during trial to establish petitioner’s defense.
Id. Regarding the latter contention, the Iowa Court of Appeals pointed out that the
evidence did not show that L.S.’s boyfriend entered the club on the night of the offense
and the evidence did show that L.S.’s boyfriend became aware of what happened
approximately one week after the offense. Id. at *8-9. It also determined that, because
trial counsel’s argument was forceful, exhaustive and directed the jury to the facts in the
record that supported the defense’s strategy, trial counsel provided competent
representation. Id. at *9.
Petitioner does not rebut the Iowa Court of Appeals’ determination that trial counsel
conducted a complete and reasonable investigation in light of the defense’s strategy. It is
telling that petitioner completely ignores the fact that his assertions about the role L.S.’s
boyfriend had on the evening of the offense do not address in any way the changing stories
of petitioner and the co-defendant. Petitioner’s factual theory of the case completely fails
to provide an explanation for why he initially denied having any sexual contact with L.S.
It is also hinged on the assumption that the co-defendant would continue to assert that

15

petitioner did not rape L.S. and the assumption that blaming the victim with little, if any,
evidentiary support is a wise strategy.
Contrary to petitioner’s assertion, trial counsel did not pursue an aimless defense.
Rather, he pursued a defense that he could support with some evidence and that a
reasonable jury might find credible. But, more importantly, petitioner misapplies the law,
which is clear that it is inappropriate to second-guess trial counsel’s strategic decision, see
Abernathy, 748 F.3d at 816, and to take into account “‘the quality of the reasoning process
articulated by the state court’” or “the statement of reasons explaining the state court’s
decision,” Williams, 695 F.3d at 834-35 (quoting Hennon, 109 F.3d at 334-35).
Petitioner’s complaints about trial counsel amount to hindsight disagreement over trial
strategy and tactics, and, as such, they fall far short of the showing necessary to establish
an ineffective assistance claim under Strickland. Hence, it is not difficult to conclude that
there is a reasonable argument that trial counsel satisfied Strickland’s deferential standard.
See Harrington, 562 U.S. at 105. Petitioner is not entitled to relief under 28 U.S.C. §
2254(d)(1) on this assertion of ineffective assistance of counsel.
3.

Admission of prior bad act evidence

On direct appeal, the Iowa Court of Appeals reviewed whether the prosecutor
improperly introduced evidence of past bad behavior after the Iowa District Court granted
the defense’s motion in limine. The court concluded that by introducing evidence of his
good reputation for peacefulness and nonviolence through character witnesses, petitioner
opened the door to the prosecutor’s brief cross-examination regarding an earlier incident
in which petitioner and the co-defendant behaved in a sexually inappropriate manner while
drinking at a bar. See Sickels, 2010 Iowa App. LEXIS 1427 at *25-28; see also State v.
Martin, 704 N.W.2d 665, 673 (Iowa 2005) (explaining that even if an evidentiary error
occurred, such error is subject to harmless error review); State v. Sallis, 574 N.W.2d 15,
16 (Iowa 1998) (stating that the district court is afforded wide latitude regarding
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admissibility of prejudicial evidence and its ruling will be disturbed only upon finding an
abuse of discretion).
During appellate PCR proceedings, the Iowa Court of Appeals noted that the
petitioner requested that two character witnesses be called to testify that he had a reputation
for peacefulness and nonviolence and explained that Iowa’s evidentiary rules therefore
permitted the introduction of specific incidences of conduct on cross-examination. See
Sickels, 2015 Iowa App. LEXIS 279 at *10-11. The court made it clear that any objection
to the prosecutor’s cross-examination would have been overruled, that trial counsel cannot
be faulted for failing to raise a meritless objection and that trial counsel had no reason to
object because he correctly believed the prior bad act would have no impact on the
character witnesses’ opinions of petitioner’s traits of peacefulness and nonviolence. Id.
at *11-12. In addition, the court pointed out that the Iowa District Court: (1) adhered to
its prior ruling pursuant to trial counsel’s motion in limine when it did not allow the
prosecution to present a rebuttal witness to explain petitioner’s prior bad act and (2) gave
limiting instructions, including (a) one instructing that the statements, arguments, questions
and comments propounded by the attorneys did not constitute evidence and could not be
considered as such and (b) another instructing that the questions and answers about
petitioner’s prior bad act could only be used for the limited purpose of determining
whether the character witnesses knew about the petitioner’s reputation for peacefulness and
could not be used as evidence that he committed the crime charged. Id. at *10-12.
It is inappropriate to reexamine state court determinations on state law questions
concerning the admissibility of evidence unless the asserted error infringed a specific
constitutional protection or was so prejudicial as to deny due process. See Rousan, 436
F.3d at 958. Because petitioner fails to cite authority supporting a reasonable assertion
that a constitutional violation occurred as a result of the admission of the limited testimony
at issue, is permissible to assume without deciding that the Iowa courts correctly applied
Iowa evidentiary law. In light of the fact that the Iowa Court of Appeals’ findings
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regarding the admissibility of evidence are not objectionable, it necessarily follows (1) that
trial counsel had no duty to object to the prosecutor’s attempts to impeach petitioner’s
character witnesses and (2) that petitioner suffered no prejudice, especially in light of the
fact that the character witnesses maintained their opinions and the jury was advised that
it could consider the questions and answers about petitioner’s prior bad act for a limited
purpose. Cf. Pfau v. Ault, 409 F.3d 933, 939-41 (8th Cir. 2005) (appellate counsel did
not provide ineffective assistance because (1) the trial court did not abuse its discretion in
admitting limited evidence during trial, especially after the defense opened the door to the
admission of the relevant evidence, (2) the trial court took great pains to ensure the
questioning of a witness was brief and limited in scope and (3) the State heeded the trial
court’s caution by briefly discussing an association with a group solely to impeach the
witness). Here, petitioner presented evidence of his reputation for peacefulness and
nonviolence and there is a reasonable argument that trial counsel satisfied Strickland’s
deferential standard. See Harrington, 562 U.S. at 105. Petitioner is not entitled to relief
under 28 U.S.C. § 2254(d)(1) on this assertion of ineffective assistance of counsel.
4.

Exclusion of evidence

On direct appeal, the Iowa Court of Appeals concluded that the Iowa District Court
did not abuse its discretion when it excluded testimony concerning L.S.’s actions several
months prior to the sexual assault under Iowa’s rape shield law. See Sickels, 2010 Iowa
App. LEXIS 1427 at *23-25. Like petitioner’s other claims of ineffective assistance of
counsel, the Iowa Court of Appeals succinctly rejected petitioner’s assertion of ineffective
assistance of counsel concerning trial counsel’s efforts to admit evidence of L.S.’s prior
actions. See Sickels, 2015 Iowa App. LEXIS 279 at *12-15. Before doing do, it found
that the petitioner had already litigated on direct appeal the Iowa District Court’s exclusion
of evidence under Iowa’s rape shield law and concluded that even if the law did not

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prevent petitioner from relitigating the evidentiary issue, petitioner’s claim lacked merit
because the victim never made a false claim. Id.
Petitioner is not able to call into question the determination on direct appeal that no
abuse of discretion occurred when the Iowa District Court granted the prosecutor’s motion
to exclude evidence under Iowa’s rape shield law and reaffirmed its ruling after trial
counsel made an offer of proof during trial. See Lannert v. Jones, 321 F.3d 747, 752-54
(8th Cir. 2003) (finding that petitioner could not constitutionalize exclusion of evidence
under state law); Davidson v. Bowersox, 288 F.3d 1076, 1078-79 (8th Cir. 2002)
(explaining that because petitioner did not cite a single federal case indicating that the state
court’s decision to exclude evidence under state law amounted to a federal constitutional
defect, petitioner failed to raise a question that could be addressed under § 2254(d)(1)).
Here, it is evident that there is a reasonable argument that trial counsel satisfied
Strickland’s deferential standard. See Harrington, 562 U.S. at 105. Therefore, petitioner
is not entitled to relief under 28 U.S.C. § 2254(d)(1) on this assertion of ineffective
assistance of counsel.
5.

Ineffective assistance of counsel claims in the aggregate

Petitioner failed to rebut the direct appeal finding that substantial evidence supported
the jury’s verdict. See Sickels, 2010 Iowa App. LEXIS 1427 at *13. A review of the
record indicates that trial counsel made decisions based on a legitimate concern that the codefendant would testify against petitioner if the trial court granted a request to sever the
trials. A cooperating witness would have bolstered the State’s case and would have
undercut the defense being pursued.

Neither petitioner’s trial counsel nor the co-

defendant’s counsel anticipated that the co-defendant would make a poor witness or would
be vulnerable under cross-examination. Further, even if the Iowa District Court did
erroneously exclude evidence or admit evidence, the court’s evidentiary rulings constitute
harmless error beyond a reasonable doubt, which means petitioner suffered no prejudice
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as a result of trial counsel’s representation. It is clear that the defense faced an almost
insurmountable challenge given the inconsistent statements that petitioner and the codefendant provided to investigators. Thus, a reasonable probability that the outcome of
the trial would have been different does not exist.
Petitioner contends that trial counsel’s combined failures rendered his trial unfair.
Cf. Forrest, 764 F.3d at 860 (noting that although the petitioner presented discrete failures
of defense counsel and made no attempt to unite the failures under a common theory of
ineffectiveness, the petitioner was now contending that the Missouri Supreme Court
unreasonably applied clearly established federal law when it assessed claim-by-claim the
reasonableness of defense counsel’s performance).
petitioner’s contention.

The law does not support the

The Strickland standard does not demand a cumulative

performance inquiry. See id. No Supreme Court decision “purport[s] to aggregate each
discrete and potentially unrelated claim of ineffectiveness into a single performance
inquiry.” Id. at 861. Rather, “‘[a] fair assessment of attorney performance requires that
every effort be made . . . to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time’” of each decision. Id.
(quoting Strickland 466 at 689). Here, the Iowa courts “reasonably applied Strickland by
analyzing individually each of the [discrete ineffective assistance of counsel claims raised
by the petitioner] and considering those circumstances appearing relevant to each claim.”
Id. Nonetheless, even if a cumulative error review is appropriate, relief is not justified
because the sum of no prejudice at all from any of the alleged errors is no prejudice at all
in the aggregate.
6.

Certificate of appealability

Based on the foregoing, I find that petitioner has failed to make the requisite
showing to obtain a certificate of appealability under 28 U.S.C. § 2253(c) with regard to
any issue. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (“Where a district court
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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.”
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000))).
V. CONCLUSION
After thoroughly reviewing the record, I find that petitioner’s claims are without
merit. Petitioner is not entitled to a writ of habeas corpus because the Iowa courts neither
reached a decision contrary to that reached by the United States Supreme Court on a
question of law nor correctly identified the applicable principles of federal law but then
unreasonably applied that law to the facts of petitioner’s claims. See 28 U.S.C. §
2254(d)(1).

Nor do I find that any decision by the Iowa courts was based on an

unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2). Consequently, the
claims petitioner has raised in the application for a writ of habeas corpus do not warrant
relief under 28 U.S.C. § 2254(d). Finally, I conclude that there is no reason to grant a
certificate of appealability. See 28 U.S.C. § 2253.
IT IS HEREBY ORDERED:
1.

Petitioner’s objections (Doc. No. 25) are OVERRULED.

2.

Judge Williams’ Report and Recommendation (Doc. No. 24) is ADOPTED
WITHOUT MODIFICATION.

3.

Petitioner’s application for a writ of habeas corpus (Doc. No. 1) is
DENIED.

4.

Petitioner’s motion for a certificate of appealability (Doc. No. 26) is
DENIED, as petitioner failed to make the requisite “substantial showing”
with respect to any of the claims raised in his application for a writ of habeas
corpus. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). If he desires
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further review of his application for a writ of habeas corpus, petitioner may
request the issuance of a certificate of appealability by a judge of the Eighth
Circuit Court of Appeals in accordance with Tiedeman v. Benson, 122 F.3d
518, 520-22 (8th Cir. 1997).

IT IS SO ORDERED.
DATED this 17th day of April, 2017.

________________________________
LEONARD T. STRAND
CHIEF UNITED STATES DISTRICT JUDGE

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