Tournier v. Iowa, State of

Filing 11

MEMORANDUM OPINION AND ORDER granting 10 Motion to Dismiss. The 1 Petition is denied and this action is dismissed with prejudice. A certificate of appealability shall not issue. Signed by Judge Leonard T Strand on 8/30/2024. (Copy to Petitioner) (mmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
DALE R. TOURNIER,
Petitioner,

No. C22-2066-LTS-KEM

vs.
MEMORANDUM
OPINION AND ORDER

STEPHEN WEIS,
Respondent.

___________________________
I.

INTRODUCTION

This matter is before me on a motion (Doc. 10) by respondent Stephen Weis to
dismiss petitioner Dale Tournier’s petition (Doc. 1) for a writ of habeas corpus under 28
U.S.C. § 2254. Tournier has not filed a response and the time for doing so has expired.
Oral argument is not necessary. See Local Rule 7(c).
II.
A.

BACKGROUND

State Court Conviction and Sentence
In 2017, following a bench trial, Tournier was convicted of one count of second-

degree sexual abuse of a child under the age of twelve. State v. Tournier, 926 N.W.2d
786, 2018 WL 6707740, at *1 (Iowa Ct. App. Dec. 19, 2018) (unpublished). The Iowa
Court of Appeals summarized the facts and trial proceedings as follows:
Dale Robert Tournier’s daughter had an older neighborhood friend who
often played at her home. One evening, the friend told her grandmother
that Tournier touched her in her genital and anal area.
The State charged Tournier with two counts of second-degree sexual abuse
of a child under the age of twelve. See Iowa Code §§ 709.1; 7093(b)
(2016). At a bench trial, the child, who was in first grade, testified to
Tournier’s sex acts. Following trial, the district court found Tournier guilty

of one count involving digital penetration of the child’s vagina and not guilty
of the other count charging a different type of sex act.
Tournier moved for a new trial on the ground the finding of guilt “was
contrary to the evidence.” Alternatively, he asked the court to “vacate the
judgment, . . . take additional testimony, and amend its findings of fact.”
The district court denied Tournier’s new trial motion and his request to
vacate the judgment. The court imposed judgment and sentence including
a fee for room and board at the county jail.
Id. Tournier was sentenced to 25 years in prison and required to register as a sex
offender. Tournier v. State, 987 N.W.2d 450, 2022 WL 3069288, at *1 (Iowa Ct. App.
Aug. 3, 2022).
B.

Direct Appeal
Tournier appealed, arguing (1) the district court abused its discretion in declining

to grant him a new trial and in refusing to set aside the finding of guilty and receive
further testimony and (2) the district court erred in imposing the jail fee without first
determining the amount of the fee.

The Iowa Court of Appeals affirmed the

Id.

conviction but vacated the portion of the sentence imposing an obligation to pay the jail
fee without first determining Tournier’s ability to pay a specified amount. Id. Tournier
applied to the Iowa Supreme Court for further review, which was granted. State v.
Tournier, 926 N.W.2d 774, 2019 WL 1868199 (Iowa Apr. 26, 2019) (per curiam)
(unpublished). The court affirmed the conviction, vacated the restitution part of his
sentence and remanded to the district court to impose restitution consistent with its recent
decision in State v. Albright, 925, N.W.2d 144 (Iowa 2019), abrogated by State v.
Crawford, 972 N.W.2d 189 (Iowa 2022).
C.

PCR Application
On September 27, 2019, Tournier applied for post-conviction relief (PCR) in the

Iowa District Court, which was denied. See Tournier v. State, 987 N.W.2d 450, 2022
WL 3069288, at *1 (Iowa Ct. App. Aug. 3, 2022) (unpublished). On appeal, the Iowa
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Court of Appeals concluded his ineffective assistance of counsel claims 1 were either
unpreserved or failed to show both a breach of an essential duty and prejudice. Id. at *4.
The court also concluded that res judicata barred it from reviewing his claim that the trial
court abused its discretion by failing to grant him a new trial. As such, the court affirmed
denial of his PCR action. The Iowa Supreme Court denied further review and procedendo
issued on September 29, 2022. Doc. 8-10 at 1.
D.

Federal Habeas Petition
Tournier mailed his habeas petition (Doc. 1) to this court on November 9, 2022,

and it was filed on November 14. He presents the following claims:
1.

The court abused its discretion when it denied the defense request to
set aside the verdict and take the additional testimony of K.T. (Claim
1)

2.

The PCR trial court erred by dismissing his application because he
should have had a jury rather than a bench trial (Claim 2)

3.

The weight of the evidence was contrary to the verdict and therefore
the court abused its discretion when it failed to grant him a new trial
and the trial judge had a personal bias (Claim 3)

Doc. 1 at 5-9. In an initial review order (Doc. 5), I found that Tournier’s petition was
timely filed but noted there was an issue as to whether all claims were properly exhausted.
Doc. 5 at 6-7. The respondent then filed the present motion to dismiss, arguing that (1)
the petition contains no exhausted claims, (2) Tournier’s new trial claims are not
cognizable on habeas review, (3) claims 2 and 3 have been defaulted in other ways and
(4) if any claim is exhausted, it should be dismissed with prejudice. See Doc. 10-1.

1

Tournier claimed counsel was ineffective with regard to waiving his right to a jury trial, failing
to call K.T. as a witness and failing to investigate and take certain depositions before trial.

3

III.
A.

APPLICABLE STANDARDS

Motion to Dismiss
The Federal Rules of Civil Procedure authorize a pre-answer motion to dismiss

for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
The Supreme Court has provided the following guidance in considering whether a
pleading properly states a claim:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled
to relief.” As the Court held in [Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)], the pleading standard
Rule 8 announces does not require “detailed factual allegations,” but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. Id., at 555, 127 S. Ct. 1955 (citing Papasan v. Allain, 478
U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). A pleading
that offers “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” 550 U.S. at 555, 127 S. Ct.
1955. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid
of “further factual enhancement.” Id., at 557, 127 S. Ct. 1955.
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Id., at 570, 127 S. Ct. 1955. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
Id., at 556, 127 S. Ct. 1955. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Ibid. Where a complaint pleads facts
that are “merely consistent with” a defendant's liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’” Id.
at 557, 127 S. Ct. 1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009).
Courts assess “plausibility” by “‘draw[ing] on [our own] judicial experience and
common sense.’” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting
Iqbal, 556 U.S. at 679, 129 S. Ct. 1937). Courts “review the plausibility of the plaintiff's
claim as a whole, not the plausibility of each individual allegation.” Id. (citation omitted).
While factual plausibility is typically the focus of a Rule 12(b)(6) motion to dismiss,
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federal courts may dismiss a claim that lacks a cognizable legal theory, such as failure to
comply with the applicable statute of limitations or procedural requirements. See, e.g.,
Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013); Commonwealth Prop.
Advocates, L.L.C. v. Mortg. Elec. Reg. Sys., Inc., 680 F.3d 1194, 1202 (10th Cir. 2011);
accord Target Training Int'l, Ltd. v. Lee, 1 F. Supp. 3d 927, 937 (N.D. Iowa 2014).
In deciding a motion brought pursuant to Rule 12(b)(6), the court may consider
certain materials outside the pleadings, including (a) “the materials that are ‘necessarily
embraced by the pleadings and exhibits attached to the complaint,’” Whitney, 700 F.3d
at 1128 (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)),
and (b) “‘materials that are part of the public record or do not contradict the complaint.’”
Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (quoting
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). Thus, the
court may “consider ‘matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint whose authenticity is unquestioned;’
without converting the motion into one for summary judgment.” Miller, 688 F.3d at 931
n.3 (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (3d ed. 2004)).
B.

Habeas Corpus
“The writ of habeas corpus stands as a safeguard against imprisonment of those

held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). However,
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). Section 2254(a) provides that a federal court shall
entertain an application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a state court “only on the ground that he is in custody in
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a).
A federal court’s review of a state court decision under § 2254 is deferential.
Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). A state court decision on the merits
should not be overturned unless it:
(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).
IV.

ANALYSIS

Weis argues that none of Tournier’s claims made it through a complete round of
state-court review as a federal constitutional claim, such that each is unexhausted and the
court lacks jurisdiction to decide any of them. He also argues the claims are procedurally
defaulted because there is no further recourse in state court for any of the claims. As
such, Weis argues the court should exercise technical exhaustion jurisdiction to dismiss
the claims. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006).
With regard to Claim 1 – that the trial court abused its discretion in refusing to set
aside the verdict and take the testimony of K.T. – Weis argues Tournier has not asserted
any violation of a federal right such that it is not a cognizable federal claim. See Estelle
v. McGuire, 502 U.S. 62, 68 (1991) (“[I]t is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions. In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.”).
On direct appeal, Tournier argued “the district court abused its discretion when it
summarily denied the defense request to set aside the judgment and take additional
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testimony pursuant to Iowa Rule of Criminal Procedure 2.24(2)(c).” Doc. 8-3 at 47.
While Tournier acknowledged that the issue could be addressed under ineffective
assistance of counsel requiring de novo review, see id. at 49-50, n.4, he did not approach
the issue from that angle. Rather, his argument focused on the proper standard of review
for a motion under Iowa Rule of Criminal Procedure 2.24(2)(c) and acknowledged that
his counsel filed an appropriate motion for a new trial. Id. at 60-63. Specifically, he
argued the district court “abused its discretion when it summarily denied Tournier’s
request pursuant to Rule 2.24(2)(c) because it failed to take into consideration any
additional testimony under the exceptional circumstances of the confusing nature of the
verdict, which under the circumstances was unreasonable.” Id. at 71. At the end of his
argument he added: “If this Court finds that trial counsel failed to adequately preserve
the issue by failing to provide either affidavits or offers of proof as to the proposed
witnesses[’] testimony, Tournier requests this Court consider this issue under an
ineffective assistance of counsel framework, and preserve the issue for post-conviction
relief.” Id.
The Iowa Court of Appeals concluded the court did not abuse its discretion in
declining to vacate the judgment and take additional testimony and found it unnecessary
to address Tournier’s argument concerning the standard to be applied under Rule
2.24(2)(c). Doc. 8-7. Nor did it address the claim as an ineffective assistance of counsel
issue. Id. The Iowa Supreme Court affirmed this decision on appeal. Doc. 8-8 at 1-2.
In his PCR action, Tournier made several ineffective assistance of counsel claims,
including that counsel was ineffective in failing to call K.T. as a witness, arguing that
counsel “made a tacit admission of ineffective assistance of counsel by seeking to
introduce K.T.’s testimony in his Motion for New Trial after the court rendered his Guilty
Verdict on Count I.” Doc. 8-11 at 32-34. He also argued that the district court abused
its discretion in denying his motion for a new trial because the weight of the evidence
was contrary to the verdict and based on the court’s undisclosed personal bias. Id. at 5070. The district court denied his claims. Doc. 8-14 at 1. On appeal, the Iowa Court of
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Appeals found that Tournier had not preserved error on the issue of any bias by the trial
court. Id. at 2. On the issue of calling K.T. as a witness, the court explained that counsel
and Tournier agreed not to call K.T. as a witness for various reasons and Tournier made
no argument as to why this strategy was unreasonable. Id. at 4. The court noted that
even if Tournier could show there was a breach of an essential duty, he could not establish
that calling K.T. would have changed the outcome. Id.
In this case, Tournier does not assert Claim 1 as an ineffective assistance of counsel
claim and otherwise fails to allege any violation of the United States Constitution or other
federal law. While he raised this claim on direct appeal all the way to the Iowa Supreme
Court, he did not assert it as having a federal basis. See Doc. 8-3. As such, it is
unexhausted. See Turnage v. Fabian, 606 F.3d 933, 936 (8th Cir. 2010) (“the petitioner
must have referred 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 a claim before the state courts”). It is also procedurally defaulted
as Tournier can no longer bring this claim (asserting a federal basis) in state court. See
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) (“Just as in those cases in which a
state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet
the State’s procedural requirements for presenting his federal claims has deprived the
state courts of an opportunity to address those claims in the first instance. A habeas
petitioner who has defaulted his federal claims in state court meets the technical
requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”).
Claim 1 is dismissed as procedurally defaulted and lacking a cognizable basis for federal
habeas review.
Regarding Claims 2 and 3, Weis argues Tournier failed to cite a federal basis for
these claims below, making them unexhausted and procedurally defaulted. Additionally,
he notes the Iowa Court of Appeals found Tournier had failed to preserve error on these
claims, which is an adequate and independent state law ground that precludes federal
habeas review.
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In Claim 2, Tournier asserts the PCR trial court erred by dismissing his PCR
petition. Doc. 1 at 6. As to the supporting facts he states:
Through this entire process I have inquired whether [K.T.] should be
deposed and why I was forced to accept a bench trial when clearly a jury
trial would have been a fairer trial. I always believed Judge Foy was
bias[ed] because he had a hearing 10 minutes before my trial, that was a
guilty plea of a man who admitted to molesting 2 little girls. Mr. Foy
listening to a confession 10 minutes before my trial made him bias[ed].
Id. In Claim 3, Tournier alleges: “The court abused its discretion when it failed to grant
me a new trial because the weight of the evidence was contrary to the verdict and was
based on the court[’]s personal bias.” Id. at 8. He asserts a similar factual basis as to
Claim 2. Id.
On his PCR appeal, the Iowa Court of Appeals concluded Tournier had not
preserved error that trial counsel was ineffective with regard to waiving a jury trial based
on (1) not properly vetting the district court judge for personal biases, (2) not having the
waiver proceedings ten days before trial as required by Iowa Rule of Criminal Procedure
2.17(1) and (3) failing to advise him the judge would have information about his prior
convictions whereas a jury would not. Doc. 8-14 at 2. The court did consider his claim
as to whether counsel was ineffective in failing to adequately inform him about his
decision to waive his right to a jury trial but found that Tournier had filed a written waiver
to a jury trial, followed by a waiver hearing in which the district court conducted a
thorough colloquy. Id. at 3. The court concluded that no evidence rebutted Tournier’s
knowing, voluntary and intelligent waiver to a jury trial under the United States or Iowa
Constitution and his counsel breached no essential duty in advising him about the jurytrial waiver. Id.
As noted in the Initial Review Order (Doc. 5), Tournier presented Claim 2 only
as an ineffective assistance of counsel claim below, not as a claim of error by the court
as he does here, which lacks a federal basis and was not presented below. Claim 3 – that
the weight of the evidence was against the verdict – also failed to cite a federal basis
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below and the PCR appeals court declined to address it because it had been fully litigated
in Tournier’s direct appeal. Id. at 4. The court also concluded that the issue of any bias
by the trial judge was not preserved as it was not raised or ruled on by the PCR district
court. Id. at 2. Claims 2 and 3 fail because they are unexhausted, but also procedurally
defaulted as the time for bringing such claims (with a federal basis) has expired. See
Iowa Code §§ 822.3, 822.8. Claim 3 is also barred by res judicata. The lack of error
preservation as to Count 2 and res judicata as to Count 3 are independent and adequate
state procedural grounds barring federal review. See Barnett v. Roper, 541 F.3d 804,
808 (8th Cir. 2008) (noting the rule that a federal court will not review a state court
decision that rests on “independent and adequate procedural grounds” “applies to bar
federal habeas claims that a state has declined to consider because of the prisoner’s failure
to satisfy a state procedural requirement.” (quoting Coleman, 501 U.S. at 729-30)). As
such, Claims 2 and 3 must be dismissed.
To the extent any of Tournier’s claims have been properly exhausted and are not
procedurally defaulted, Weis argues that the remaining unexhausted claims make the
petition mixed, which requires dismissal. See Rose v. Lundy, 455 U.S. 509, 510 (1982)
(“Because a rule requiring exhaustion of all claims furthers the purposes underlying the
habeas statute, we hold that a district court must dismiss such ‘mixed petitions,’ leaving
the prisoner with the choice of returning to state court to exhaust his claims or of
amending or resubmitting the habeas petition to present only exhausted claims to the
district court.”). While I have found that each of Tournier’s claims is unexhausted and
procedurally defaulted, I agree with Weis that dismissal is appropriate on this basis, as
well.
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
10

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, 759 (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)). Similarly,
when a federal habeas petition is dismissed on procedural grounds without reaching the
underlying constitutional claim, “the [movant must show], at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” See Slack, 529 U.S. at 484.
Having thoroughly reviewed the record in this case, I find Tournier failed to make
the requisite “substantial showing” with respect to his § 2254 petition. See 28 U.S.C. §
2253(c)(2); Fed. R. App. P. 22(b). Because he does not present a question of substance
for appellate review, a certificate of appealability will not issue. If Tournier desires
further review of his § 2254 petition, he may request the issuance of the certificate of
appealability by a circuit judge of the United States Court of Appeals for the Eighth
Circuit in accordance with Tiedeman v. Benson, 122 F.3d 518, 521 (8th Cir. 1997).
VI.

CONCLUSION

As explained herein, each ground asserted in Tournier’s petition (Doc. 1) under
28 U.S.C. § 2254 fails to state a claim upon which relief can be granted. As such, the
respondent’s motion (Doc. 10) to dismiss is granted. The petition (Doc. 1) is denied
and this action is dismissed with prejudice. A certificate of appealability shall not issue.
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IT IS SO ORDERED this 30th day of August, 2024.

__________________________
Leonard T. Strand
United States District Judge

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