                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1557
                               Filed April 19, 2017


JORGE PEREZ-CASTILLO,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.



      Jorge Perez-Castillo appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Kate Strickler, Des Moines, for appellant.

      Jorge Perez-Castillo, Anamosa, appellant pro se.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee State.




      Considered by Mullins, P.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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MULLINS, Presiding Judge.

         Jorge Perez-Castillo appeals the district court’s denial of his application for

postconviction relief (PCR), following his conviction for two counts of murder in

the first degree and two counts of attempted murder. He raises numerous claims

of ineffective assistance of counsel, as well as various constitutional claims. We

generally review PCR proceedings for correction of errors at law. Nguyen v.

State, 878 N.W.2d 744, 750 (Iowa 2016). However, when an applicant raises

constitutional claims, such as claims of ineffective assistance of counsel, we

apply a de novo review. See id.; Bonilla v. State, 791 N.W.2d 697, 699 (Iowa

2010).

         Our court affirmed Perez-Castillo’s convictions on direct appeal,

concluding statements made by the prosecutor during the course of the trial did

not constitute misconduct and were not prejudicial to him, and preserving two

additional claims for PCR.        State v. Perez-Castillo, No. 05-0362, 2006 WL

2419143, at *5–6 (Iowa Ct. App. Aug. 23, 2006).               The specific facts and

circumstances surrounding the murders and attempted murders are set forth in

our prior opinion and need not be repeated herein. See id. at *1–2.

         On June 5, 2007, Perez-Castillo filed a pro se application for PCR alleging

his trial counsel rendered ineffective assistance of counsel. Counsel for Perez-

Castillo later filed an addendum to the PCR application.           Perez-Castillo also

made additional claims at the PCR hearing. On September 23, 2013, the district

court denied Perez-Castillo’s PCR application.

         On appeal, Perez-Castillo claims trial counsel rendered ineffective

assistance in failing to (1) object to prosecutorial misconduct; (2) adequately
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prepare and present certain evidence in his defense, including investigating and

calling two witnesses on his behalf; (3) file a motion to sever the charges of first-

degree murder and attempted murder; (4) file a motion to sever his trial from that

of his codefendant; (5) file a motion to suppress Perez-Castillo’s involuntary

waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (6) advise

him of his due process right to contact the Guatemalan Consulate under Article

36 of the Vienna Convention; and (7) object to incomplete jury instructions on

aiding and abetting.

       Perez-Castillo also filed a pro se brief in which he argues: (1) his PCR

counsel provided ineffective assistance in being unprepared and in failing to

investigate his claims, including locating two witnesses, hiring a private

investigator, and hiring experts to review physical evidence in the case; (2) his

trial counsel provided ineffective assistance in failing to (a) challenge the

sufficiency of the evidence with regard to the first-degree murder charge as

premeditated murder, (b) object to the first-degree murder charge on the basis of

State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), (c) object to the jury instruction

on aiding and abetting, (d) contact the Guatemalan Consulate until after his trial,

and (e) file a motion to sever the trials of him and his codefendant; (3) the State

committed a violation under Brady v. Maryland, 373 U.S. 83 (1963), by failing to

present exculpatory evidence, including two witnesses and the tape containing

his confession to police; (4) his PCR and trial counsel both failed to object to

(a) the use at trial of statements he made during a police interview and (b) the

State’s failure to produce the tape containing his confession to police; (5) he was

not properly advised of his Miranda rights and his waiver of those rights was
                                         4


involuntary because he was intoxicated and high on drugs, was unable to speak

English, lacked sleep, had been shot, and had not eaten or slept for several

hours leading up to the police interview; and (6) his appellate and PCR counsel

failed to investigate newly discovered evidence.

       Upon our review of the record, the parties’ briefs, and the district court’s

thorough and well-reasoned ruling, we affirm the district court’s order as to

Perez-Castillo’s claims his trial counsel provided ineffective assistance by failing

to (1) object to prosecutorial misconduct; (2) investigate and locate two witnesses

identified by Perez-Castillo and call them to testify at his trial; (3) move to sever

the charges and the trials; (4) move to suppress his involuntary Miranda waiver;

(5) advise him of his right to contact the Guatemalan Consulate; (6) object to the

aiding and abetting jury instructions; and (7) argue the applicability and

retroactivity of Heemstra. See Iowa Ct. R. 21.26(1)(d), (e).

       Further, we find Perez-Castillo has failed to preserve error with respect to

the following claims because they were not raised before the district court and

the court did not rule on them: (1) his trial counsel provided ineffective assistance

by failing to challenge the sufficiency of the evidence of the charge of first-degree

murder; (2) the State committed a Brady violation; (3) his confession was

involuntary and his Miranda warnings were improper because they were given

orally rather than written; and (4) his appellate counsel rendered ineffective

assistance in failing to investigate new evidence. See Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review

that issues must ordinarily be both raised and decided by the district court before

we will decide them on appeal.”); see also State v. Derby, 800 N.W.2d 52, 60
                                          5


(Iowa 2011) (“Issues not raised before the district court, including constitutional

issues, cannot be raised for the first time on appeal.” (citation omitted)).

       Finally, we consider Perez-Castillo’s pro se claims his PCR counsel

provided ineffective assistance by failing to (1) locate two witnesses and hire

experts; (2) object to the use of statements he made during his police interview

and the State’s failure to produce the tape recording of the interview; and

(3) investigate newly discovered evidence.

       “Ineffective-assistance-of-counsel     claims   are   an   exception    to   the

traditional error-preservation rules.”   State v. Fountain, 786 N.W.2d 260, 263

(Iowa 2010). To succeed on a claim of ineffective assistance of counsel, Perez-

Castillo must show “by a preponderance of the evidence: ‘(1) his trial counsel

failed to perform an essential duty, and (2) this failure resulted in prejudice.’”

State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams,

810 N.W.2d 365, 372 (Iowa 2012)); accord Strickland v. Washington, 466 U.S.

668, 687 (1984).

       Based on the record before us, we conclude Perez-Castillo has failed to

prove a reasonable probability that, without any alleged errors by PCR counsel,

“the result of the [PCR] proceeding would have been different.” Strickland, 466

U.S. at 694. Thus, he cannot show he was prejudiced by any alleged failure of

PCR counsel. See id.; see also State v. Shanahan, 712 N.W.2d 121, 142 (Iowa

2006) (acknowledging failure to prove either prong is fatal to the claim).

Furthermore, we find the record contains overwhelming evidence of Perez-

Castillo’s guilt. See Boose v. State, No. 13–1130, 2014 WL 7343218, at *3 (Iowa

Ct. App. Dec. 24, 2014) (applying the “overwhelming evidence” standard cited in
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State v. Maxwell, 743 N.W.2d 185, 197 (Iowa 2008), to the applicant’s

ineffective-assistance-of-trial-counsel claim in a PCR action).

       Accordingly, we affirm without further opinion, pursuant to Iowa Court Rule

21.26(1)(d) and (e).

       AFFIRMED.
