                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0235
                               Filed April 5, 2017


GABRIEL VASQUEZ,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      An applicant appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.



      Mark C. Smith, State Appellant Defender, and Stephan J. Japuntich,

Assistant Appellant Defendant, for appellant.

      Gabriel Vasquez, Newton, pro se.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee State.



      Considered by Danilson, C.J., Vaitheswaran, J., and Scott, S.J.*

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

       Gabriel Vasquez was convicted, following a jury trial, of two counts of

sexual abuse in the second degree and one count of sexual abuse in the third

degree related to his abuse of his daughter. He was sentenced to two twenty-

five-year terms, to be served consecutively, and one ten-year term, to be served

concurrently with the first two counts. He appealed his conviction, which this

court affirmed. See State v. Vasquez, No. 10-0085, 2011 WL 2089778, at *5

(Iowa Ct. App. May 25, 2011). The facts of the case are adequately outlined in

our prior appellate decision and need not be repeated here. See id. at *1–2.

Following his appeal, Vasquez filed an application for postconviction relief (PCR),

which the district court denied after holding an evidentiary hearing. Vasquez now

appeals the district court’s denial of his PCR application.

       Through counsel, Vasquez challenges the district court’s determination he

failed to prove trial counsel was ineffective in failing to move to suppress the

video of his confession based on promissory leniency and trial counsel was

ineffective in not requesting a limiting instruction on the use of the video.

Counsel also claims the PCR court erred in not addressing all of Vasquez’s pro

se claims. Vasquez also filed a pro se appellate brief in this matter, asserting the

PCR court should have granted him relief because his trial counsel was

ineffective in not moving to suppress the video of his confession based on

promissory leniency and a lack of voluntariness, the PCR court erred in denying

his claim that his trial counsel was ineffective in not securing the complaining

witness’s mental health records, the PCR court erred in not considering his claim

of prosecutorial misconduct, and his PCR trial counsel was ineffective in the
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preparation and presentation of his PCR action resulting in structural error. We

will address each claim in turn.

I. Police Interview Video.

        During trial, the State played for the jurors a portion of the police interview

video wherein Vasquez admits to the conduct alleged by the complaining

witness. The parties disputed the admissibility of this video during the criminal

proceedings and in the prior appeal, and this court determined the district court

correctly denied Vasquez’s motion to suppress the video, which was based on

the police officer’s failure to give Vasquez Miranda warnings. Id. at *2–3. We

held:

        [W]e concur in the district court’s conclusion that a reasonable
        person in Vasquez’s position would not believe he was in custody.
        Vasquez was informed he was not under arrest, that he was free to
        leave, and that he would be able to return to work. He drove
        himself to the police station and drove back to work after the
        interview.   Because he was not in custody, there was no
        requirement that Miranda warnings be given.

Id. at *3. Vasquez also claimed in the prior appeal that the statements he made

in the video should have been suppressed because they were not voluntary but

were made “in exchange for a promise of custodial leniency.” Id. Because this

claim was not made in the motion to suppress and was not addressed by the

district court, we determined the claim was not preserved for our review. Id.

        In this appeal from the court’s denial of his PCR application, Vasquez

claims the court erred in concluding he failed to prove his claim that his trial

counsel was ineffective in not seeking to suppress his statements in the video

based on promissory leniency. He also claims his trial counsel should have

requested a jury instruction directing the jury that they could only consider
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Vasquez’s statements on the video, not the questions or statements by the

interviewing officer. Finally, in his pro se brief, Vasquez claims the video should

have been suppressed because he was in custody and he was not given the

Miranda warnings.

      A.    Limiting Instruction.     Vasquez first contends his attorney was

ineffective in not requesting a limiting instruction during trial that would have

advised the jury that the interviewing officer’s statements and questions should

not be considered for their truth. This claim was not presented to the PCR court,

and therefore, it is not preserved for our review. See Lamasters v. State, 821

N.W.2d 856, 862 (Iowa 2012) (“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.” (citation omitted)). Vasquez does not contend

PCR counsel was ineffective in failing to raise this claim during the PCR trial.

See State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006) (noting ineffective-

assistance claims “are an exception to normal error-preservation rules”).

      However, even if we were to find this claim preserved for our review, we

conclude trial counsel’s failure to request such a limiting instruction would not

have resulted in this case being remanded for a new trial. To be successful on

this ineffective-assistance claim, Vasquez must prove both that counsel failed to

perform an essential duty and that this failure resulted in prejudice. See id. The

prejudice element requires a finding of “a reasonable probability” that “but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. (citations omitted). Having reviewed the evidence in this case,

including the testimony of the complaining witness and the police interview video,
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we are not convinced that the result of the proceeding would have been different

if a limiting instruction had been given with regard to the interviewing officer’s

statements. Thus, even if PCR counsel had made a claim that trial counsel was

ineffective in failing to request a limited instruction, that claim would have been

unsuccessful.

       B.   Promissory Leniency.          Next, Vasquez contends counsel was

ineffective in failing to move to suppress the police interview video on the basis

that the interviewing officer used promissory leniency to elicit his confession.

       “[C]ourts and commentators have long recognized promises of
       leniency can induce false confessions leading to wrongful
       convictions of the innocent.” We reiterated that a “confession can
       never be received in evidence where the prisoner has been
       influenced by any threat or promise.” In State v. Mullin, we asked:
       “Were the statements made to the accused strong enough so that it
       could in reason be determined that the prisoner would lie and say
       he was guilty when he was not, so as to gain some special favor?”

State v. Howard, 825 N.W.2d 32, 40 (Iowa 2012) (internal citations omitted).

Vasquez asserts the interviewing officer induced his confession by telling him the

officer did not believe Vasquez was a child predator. Vasquez also claims the

interviewing officer induced his confession by implying the complaining witness

will not get the help she needs and may harm herself if he did not admit to what

happened.

       In addressing this claim in its PCR ruling, the district court stated “there is

no indication in the video of his interview that [the interviewing officer] in any way

offered leniency in exchange for Vasquez’s admissions.” Upon our review, we

conclude the statements Vasquez complains of in the video in no way

communicated that Vasquez would be given special or preferential treatment if
                                         6

he confessed to abusing the complaining witness. See id. (noting there must be

“some fairly specific assurance or promise of leniency” that “explain[s] just how it

will be better or wiser for the accused to speak” (citation omitted)). Nor did the

interviewing officer give any indication that the complaining witness would not

receive the help and counseling she required if Vasquez did not confess. See id.

at 41 (noting the detective’s “repeated references to getting help combined with

his overt suggestions that after such treatment [the defendant] could rejoin [his

girlfriend and the abused child] conveyed the false impression that if [the

defendant] admitted to sexually abusing [the child] he merely would be sent to a

treatment facility . . . in lieu of further punishment”). The interviewing officer

informed Vasquez that he had no power but to simply record what Vasquez said

in his report. We agree with the district court’s assessment that no promises of

leniency were made in exchange for Vasquez’s confession.

       C. Voluntariness. In his pro se brief, Vasquez also claims the police

interview video should have been suppressed because his confession was not

voluntary in light of the fact he was in custody and was not given the Miranda

warnings.   He asks us to adopt and apply a “ten-factor test” for determining

custody and voluntariness. See State v. Kittredge, 97 A.3d 106, 111 (Me. 2014)

(articulating ten factors the court considers in determining whether a person is in

custody for the purposes of the Miranda warnings). As indicated above, this

court on direct appeal determined Vasquez was not in custody at the time of the

police interview video confession. Vasquez, 2011 WL 2089778, at *2–3, *2 n.2

(concluding, after analyzing four factors as required under the controlling case

law, that “a reasonable person in Vasquez’s position would not believe he was in
                                          7


custody” and rejecting Vasquez’s request to consider a fifth factor in the

analysis). Because the issue of Vasquez’s custodial status at the time of police

interview has already been litigated and resolved in the direct appeal, we will not

consider it again as part Vasquez’s appeal from the denial of his PCR action.

See Iowa Code § 822.8 (2011) (“Any ground finally adjudicated . . . in the

proceeding that resulted in the conviction or sentence . . . may not be the basis

for a subsequent application . . . .”).

II. Mental Health Records.

       Also in Vasquez’s pro se brief, he asserts the district court should have

granted him a new trial based on trial counsel’s failure to assert the complaining

witness’s submission to a medical examination by the State’s expert waived any

privilege the complaining witness had to her mental health records. After losing

the battle to obtain the mental health records of the complaining witness at the

trial court, Vasquez asserts counsel should have “relitigated the motion in limine,”

claiming those records would have assisted him in proving the complaining

witness recently fabricated her allegations against him.

       Again the admissibility of the complaining witness’s mental health records

was litigated and resolved on direct appeal. Vasquez asserted there “he should

have been able to present evidence of statements [the complaining witness]

made to medical care providers that [were] inconsistent with later statements she

made to law enforcement officers.” Vasquez, 2011 WL 2089778, at *4. We

concluded the court did not abuse its discretion in ruling the records were not

admissible. Id. We also concluded that because the evidence was not relevant

to the charge, Vasquez was not deprived of his constitutional right to present a
                                        8

defense.   Id. We will not revisit this issue again on PCR.       See Iowa Code

§ 822.8.

III. PCR Court.

       Counsel for Vasquez on appeal claims the PCR court erred in not

addressing the pro se claims Vasquez made. However, counsel fails to inform

this court what pro se claims were not addressed by the PCR court. In addition,

we note if the district court failed to rule on an issue, the proper way to address

the court’s oversight is through a motion under Iowa Rule of Civil Procedure

1.904(2). No such motion was filed in this case; therefore, counsel’s assertion

that the PCR court failed to address all of the pro se claims is not preserved for

our review. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“When a

district court fails to rule on an issue properly raised by a party, the party who

raised the issue must file a motion requesting a ruling in order to preserve error

for appeal.”).

       In his pro se appellate brief, Vasquez claims the PCR court failed to

consider his claim of prosecutorial misconduct.       He asserts the prosecutor

“misrepresented her evidence to gain a favorable ruling, then played a DVD for

the jury on issues she moved to exclude” and “failed to turn over her report from

Dr. Harre until after she won the limine motion and when [counsel for the medical

provider] conceded the third-party waiver, [the prosecutor] stayed silent.” Again,

no posttrial motion under rule 1.904(2) was filed in this case.         Therefore,

Vasquez’s claim that the PCR court did not rule on his claim of prosecutorial

misconduct is not preserved for our review. See id. at 539 (“We recognize that

we have repeatedly said that a rule [1.904(2)] motion is necessary to preserve
                                          9

error ‘when the district court fails to resolve an issue, claim, or other legal theory

properly submitted for adjudication.’” (citation omitted)).

       Even if such a claim had been preserved for our review, we conclude

Vasquez failed to prove the result of the PCR proceeding would have been

different had counsel filed a posttrial motion seeking a ruling on the prosecutorial

misconduct claim. Vasquez has failed to prove that any of the alleged actions of

the prosecutor resulted in him receiving an unfair trial. See State v. Graves, 668

N.W.2d 860, 869 (Iowa 2003) (noting to prove prosecutorial misconduct a

defendant must show misconduct and that “the misconduct resulted in prejudice

to such an extent that the defendant was denied a fair trial”). Therefore, even if

PCR counsel had filed a posttrial motion to preserve the claim of prosecutorial

misconduct, it would not have been successful on appeal.

IV. PCR Counsel.

       Finally, Vasquez, in his pro se brief, asserts his PCR counsel provided

ineffective assistance when counsel did not retain experts on interrogation and

medical records, as he requested, and when PCR counsel did not file a posttrial

motion. Vasquez asserts counsel’s failures were “corrosive to the administration

of justice that it constituted structural error warranting reversal.” We disagree.

Retaining experts to address issues of Vasquez’s custodial status at the time of

the police interview and of the admissibility and relevance of the complaining

witness’s mental health records would not have resulted in a favorable PCR

ruling in light of the fact that both of these issues were barred by res judicata.

Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009) (“A postconviction

proceeding is not intended as a vehicle for relitigation, on the same factual basis,
                                            10


of issues previously adjudicated, and the principle of Res judicata bars additional

litigation on this point.” (citations omitted)).

       In addition, with respect to Vasquez’s claim of structural error:

       [S]tructural error occurs when: (1) counsel is completely denied,
       actually or constructively, at a crucial stage of the proceeding; (2)
       where counsel does not place the prosecution’s case against
       meaningful adversarial testing; or (3) where surrounding
       circumstances justify a presumption of ineffectiveness, such as
       where counsel has an actual conflict of interest in jointly
       representing multiple defendants.

Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011). A defendant does not have to

prove prejudice in these circumstances because “the criminal adversary process

itself is ‘presumptively unreliable.’” Id. (citation omitted).

       Our review of the record indicates PCR counsel’s representation was not

so grossly lacking as to result in Vasquez being “constructively without counsel

during his postconviction relief proceeding.”       See id. at 253.   Three different

attorneys represented Vasquez through his postconviction-relief proceeding.

The final attorney to represent Vasquez during PCR proceeding conducted

depositions of trial counsel and submitted those depositions as evidence at the

PCR trial. Vasquez made, and then withdrew, a request to represent himself at

the PCR hearing. Counsel was present for trial and actively engaged in the

presentation of evidence and argument to the court.              Counsel examined

witnesses and made sure to inquire of Vasquez whether any additional claims or

evidence needed to be presented to the court. In addition, counsel ensured the

court granted Vasquez additional time to present a posttrial brief regarding his

PCR claims. While Vasquez was continually unhappy with all the attorneys who

represented him during PCR, actively filing many pro se documents throughout
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the proceeding and failing to notify his own counsel of the filings, we cannot

conclude Vasquez was constructively without counsel during his PCR

proceeding. Thus, his structural-error claim is denied. In addition, we conclude

Vasquez has failed to establish he was otherwise prejudiced by PCR counsel’s

failures to preserve error as detailed herein. See Dunbar v. State, 515 N.W.2d

12, 14–15 (Iowa 1994) (recognizing a PCR applicant’s ability to assert a claim of

PCR counsel’s ineffectiveness but requiring the PCR applicant to prove both

counsel’s failure and the resulting prejudice).

       Because we agree with the district court’s assessment of the claims

Vasquez made in his application for postconviction relief and determine Vasquez

has failed to prove PCR counsel’s alleged failures resulted in his prejudice, we

affirm the district court’s decision.

       AFFIRMED.
