                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0555
                               Filed August 31, 2016


SAMUEL CLARKE TOOSON JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.



      Samuel Tooson appeals the trial court’s denial of his application for

postconviction relief, while asserting claims that his trial, postconviction relief,

and appellate counsel were constitutionally ineffective, and that the district court

abused its discretion. AFFIRMED.



      Jeffrey M. Lipman of Lipman Law Firm, P.C., West Des Moines, for

appellant.

      Samuel Clarke Tooson, Fort Madison, pro se.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
                                         2


POTTERFIELD, Presiding Judge.

         Samuel Tooson appeals from the district court’s ruling denying his

application for postconviction relief (PCR). He argues that the district court erred

by not sufficiently ruling on every claim he presented in his PCR application and

further contends that his PCR counsel was constitutionally ineffective for failing to

argue and present evidence at his PCR trial as to all the issues he wished to

raise.    He further claims ineffective assistance of his trial counsel, appellate

counsel, and PCR counsel. Additionally, he asserts that the district court abused

its discretion.

I. Background Facts and Proceedings

         In 2006, a jury convicted Samuel Tooson of sexual abuse in the second

degree, assault while participating in a felony, and simple assault.        He was

sentenced to a term not to exceed twenty-five years, a term not to exceed five

years, and a term not to exceed thirty days, respectively, all to run concurrently.

         Following an unsuccessful direct appeal, Tooson filed an application for

PCR alleging multiple grounds for relief.        In 2013, Tooson amended his

application alleging additional grounds for relief, bringing the total to thirty-four

grounds. At the PCR proceeding, the court granted one of Tooson’s claims of

ineffective assistance of counsel as to the assault-while-participating-in-a-felony

count and vacated that sentence. The court denied all the remaining claims.

         Tooson appeals.

II. Standards of Review

         PCR proceedings are generally reviewed on error, but “when the applicant

asserts claims of a constitutional nature, our review is de novo.” Ledezma v.
                                           3

State, 626 N.W.2d 134, 141 (Iowa 2001) (quoting Osborn v. State, 573 N.W.2d

917, 920 (Iowa 1998)).       Hence, ineffective-assistance-of-counsel claims are

reviewed de novo. Id. at 141. Claims alleging illegal sentences based upon

“lack of merger are reviewed for corrections of errors at law.” State v. Love, 858

N.W.2d 721, 723 (Iowa 2015).

III. Discussion

       A. Claims and Issues Presented to the PCR Court

       Tooson alleges the district court erred in failing to rule on each of his

grounds for PCR by not making specific findings of fact and conclusions of law as

to each ground.

       Iowa Code section 822.7, in pertinent part, provides, “The Court shall

make specific findings of fact, and state expressly its conclusions of law, relating

to each issue presented.” Iowa Code § 822.7 (2013). The Iowa Supreme Court

has held “[d]espite the requirement of section 822.7 that the district court make

specific findings of fact and conclusions of law as to each issue . . . substantial

compliance is sufficient.” Gamble v. State, 723 N.W.2d 443, 446 (Iowa 2006).

Further, “[e]ven if the court does not respond to all of the applicant’s allegations,

the ruling is sufficient if it responds to all the issues raised.” Id. (quoting State v.

Allen, 402 N.W.2d 438, 441 (Iowa 1987)); see also Rheuport v. State, 238

N.W.2d 770, 777 (Iowa 1976).

       Tooson enumerates the fourteen grounds for relief he asserts the trial

court did not rule on in the PCR order. The alleged grounds include a violation of

the attorney-client privilege; a failure to raise grounds of ineffective assistance of

counsel, abuse of the trial court’s discretion in submitting an incorrect jury
                                             4


instruction; the abuse of the trial court’s discretion in failing to completely

investigate possible jury misconduct; the abuse of the trial court’s discretion in

not properly applying the “balancing test”; the abuse of discretion for the judge

failing to recuse herself from the new trial motion; juror misconduct by Franklin,

Loftus, and another unknown juror; a Brady1 violation for the prosecution’s failure

to comply with total discovery; a Batson2 violation; the State presenting evidence

obtained in violation of Miranda;3 the State submitting false evidence; and the

abuse of the trial court’s discretion in failing to find jury misconduct. He alleges

the court’s order summarily dismissed these particular grounds and, as such,

failed to comply with section 822.7. However, our review of this case shows that

the district court “substantially complied” with section 822.7.

              1. Violation of the Attorney-Client Privilege (Issue 1)

       Tooson argued to the PCR court that he is entitled to relief based upon a

violation of the attorney-client privilege whereby his former attorney, Metcalf,

testified at Tooson’s hearing on his motion for new trial. Tooson contends that

the PCR court did not make a specific ruling on this claim.

       On page three of the PCR order, the court denies the claim and explains

that an objection to the testimony on the ground of privilege was sustained and

that no violation of the privilege occurred during Metcalf’s testimony.




1
  Brady v. Maryland, 373 U.S. 83 (1963).
2
  Batson v. Kentucky, 476 U.S. 79 (1986).
3
  Miranda v. Arizona, 384 U.S. 436 (1966).
                                          5


              2. Failure to Raise Grounds of Ineffective Assistance of

                 Counsel (Issue 2)

       Tooson averred that the PCR court did not rule on his claim counsel failed

to raise grounds of ineffective assistance of counsel.        Tooson made many

arguments as to different claims all involving alleged ineffective assistance of

counsel. The PCR court addressed each issue on pages four through nine of the

PCR order.      Moreover, on page nine, the court reiterates its findings by

recapping that all of Tooson’s ineffective-assistance claims were denied except

as to the claim regarding the jury instruction.

              3. Jury Instruction (Issue 3)

       Tooson argued to the PCR court that jury instruction number thirty-three

was an improper statement of the law and his trial counsel’s failure to object to it

amounted to ineffective assistance. The PCR court agreed with Tooson and

found that his counsel were ineffective for failing to object to the instruction. The

court then vacated the conviction (assault while participating in a felony). Tooson

asserts that the PCR court did not make a specific ruling this claim.

       On page six in paragraph “f” of the PCR order, the court explained the

contents of jury instruction thirty-three and further explained why Tooson

correctly asserted that it was an incorrect statement of law. Furthermore, the

court ruled favorably for Tooson stating “prior counsel were ineffective for failing

to raise this issue before the trial court and the appellate court” and his

“conviction for assault while participating in a felony must be vacated.”

Moreover, on page nine of the order, that court states, “[p]etitioner’s claim of

ineffective assistance of counsel based upon the submission of Count II charging
                                          6


the defendant [with] Assault While Participating in a Felony is hereby granted.

Defendant’s conviction and sentence upon said count is hereby vacated.”

               4. Trial Judge Abused Discretion by Not Applying the

                  “Balancing Test” (Issue 5)

       Tooson argued that the trial judge abused discretion by not applying the

balancing test. On page three of the PCR order, the court stated “any claims for

postconviction relief based upon abuse of discretion by the trial judge . . . should

be denied except as to a failure of either trial counsel or appellate counsel to

raise these issues before the trial or appellate court.”       Moreover, Tooson’s

allegations are too general in nature to allow us to address them or preserve

them for a second postconviction proceeding. See Dunbar v. State, 515 N.W.2d

12, 15 (Iowa 1994) (citation omitted); Schertz v. State, 380 N.W.2d 404, 412

(Iowa 1985).

               5. Trial Judge Abused Discretion by Refusing to Recuse

                  Herself (Issue 6)

       Tooson claimed that the trial judge abused discretion by not recusing

herself based on allegations that she relied upon past observations of the trial to

dispute Tooson’s new trial issues. On page three of the PCR order, the court

stated “any claims for postconviction relief based upon abuse of discretion by the

trial judge . . . should be denied except as to a failure of either trial counsel or

appellate counsel to raise these issues before the trial or appellate court.”

               6. Jury Misconduct (Issues 4, 7, 8, 9, & 14)

       Tooson next argued several points relating to potential jury misconduct.

He first argued that the court abused its discretion in failing to completely
                                         7


investigate the alleged juror misconduct and in failing to find that jury misconduct

had in fact occurred.      He also contended that Juror Franklin violated court

admonishments and failed to reveal that he had prior knowledge of the case,

Tooson, the victim, and both of their families. Further, he maintained that Juror

Loftus failed to reveal that he had a relationship with counsel despite being

asked. Finally, he asserted that an unknown juror never came forward after

discussing and breaking the court’s admonishments to reveal possible bias.

Tooson argued that for these reasons, he was entitled to a new trial.

          On page three of the PCR order, the court stated “any claims for

postconviction relief based upon . . . jury misconduct . . . should be denied except

as to a failure of either trial counsel or appellate counsel to raise these issues

before the trial or appellate court.” In discussing the ineffective-assistance issues

the court explained on page six in paragraph “e” of the PCR order that

information relating to a juror having prior knowledge of Tooson came to the

attention of the trial judge. The court spoke with this juror outside the presence

of other jurors and the court determined that this particular juror could be fair and

impartial. Moreover, the court noted that there was “no evidence in this record to

show that any counsel representing the petitioner was ineffective regarding this

issue.”

                7. Prosecutorial Misconduct (Issues 10, 11, 12, & 13)

          Tooson further contended that he is entitled to PCR based upon several

allegations of prosecutorial misconduct.     He argued that prosecutors violated

Brady by failing to comply with total discovery and asserted that prosecutors

committed a Batson challenge by providing a racially-charged reason for
                                         8


dismissing a potential juror. He also claimed that prosecutors “subjected him to

evidence and attempted to elicit information from the Defendant without counsel

present and introduce that information at trial” and that the prosecution

introduced false evidence by offering Exhibit L (phone records) at trial.

         On page three of the PCR order, the court stated, “any claims for

postconviction relief based upon . . . prosecutorial misconduct . . . should be

denied except as to a failure of either trial counsel or appellate counsel to raise

these issues before the trial or appellate court.” The PCR court also gave a

lengthy explanation as to the issue concerning “Exhibit L” on pages four through

six.

         As to all fourteen issues discussed above, we are satisfied that the PCR

court substantially complied with section 822.7 and adequately addressed every

one of Tooson’s claims. While it is true that the district court did not describe

each ground exactly as Tooson did in his PCR application and amendment, the

Gamble4 decision and section 822.7 do not require a particular form or format be

used by the court discussing its findings of fact and conclusions of law. All that is

required is substantial compliance with section 822.7 and a ruling that sufficiently

responds to all of the issues raised.

         B. Ineffective-Assistance Claim against PCR Counsel

         Tooson argues he received ineffective assistance from his PCR counsel.

He contends PCR counsel failed to adequately argue all thirty-four of his claims

to the court, to argue the merger doctrine, to amend Tooson’s PCR application to

include additional claims of ineffective assistance, and to inform Tooson of the

4
    Gamble, 723 N.W.2d at 446.
                                         9


consequences of failing to amend his PCR application.          Additionally, Tooson

contends that his PCR counsel was ineffective in his presentation of evidence at

the PCR hearing, leading the district court to conclude that many of Tooson’s

claims lacked evidentiary support.

       To prevail on this claim, Tooson “must show that counsel’s performance

was deficient” and “that the deficient performance prejudiced the defense.” See

Strickland v. Washington, 466 U.S. 668, 687 (1984). In doing so, Tooson “must

ultimately show that his attorney’s performance fell outside a normal range of

competency and that the deficient performance so prejudiced him as to give rise

to the reasonable probability, but for counsel’s errors, the result of the proceeding

would have been different.” See Dunbar, 515 N.W.2d at 15 (quoting State v.

McKettrick, 480 N.W.2d 52, 55 (Iowa 1992)).            “Improvident trial strategy,

miscalculated tactics, mistakes, carelessness or inexperience do not necessarily

amount to ineffective counsel.” Aldape v. State, 307 N.W.2d 32, 42 (Iowa 1981).

       The crux of Tooson’s claim is his dissatisfaction with his PCR counsel’s

performance.     Tooson’s frustration seemingly comes from his PCR counsel’s

failure to argue certain claims and present evidence at the hearing in a manner

acceptable to Tooson.       However, his contention is not grounded in legal

authority.

       It is well-established that an attorney cannot ethically file and argue claims

that are frivolous or lacking in legal or factual support regardless of a client’s

urging.      See Gamble, 723 N.W.2d at 446.         Moreover, Iowa Rule of Civil

Procedure 1.413(1) requires attorneys to certify that any claim made must be

“well grounded in fact and is warranted by existing law or a good faith argument
                                           10


for the extension, modification, or reversal of existing law.” There is no duty of an

attorney to advance claims for a client that the lawyer does not believe are well-

grounded in fact and warranted by existing law.

        Tooson had the opportunity to advance his claims. See Jones v. State,

731 N.W.2d 388, 391 (Iowa 2007). “A PCR applicant who is dissatisfied with his

attorney’s representation is permitted to raise issues pro se and file papers and

pleadings pro se.” Id. at 391 (citation omitted).

        Because Tooson’s PCR counsel had no duty to advance every claim

urged by Tooson, Tooson cannot satisfy the elements for a showing of ineffective

assistance. See Strickland, 466 U.S. at 687 (stating that there is no reason for a

court considering an ineffective-assistance claim to consider both elements if the

defendant cannot sufficiently show one element).

       C. Tooson’s Pro-Se Claims

       In his pro se brief, Tooson raises a number of issues predicated on a

finding of ineffective assistance of counsel or the district court abusing its

discretion.

               1. Illegality of Sentence

       Tooson alleges that his sentence is illegal as it is not authorized by law

and as such is beyond the power of the court to impose. “An illegal sentence is

one that is not permitted by statute [and] [b]ecause an illegal sentence is void, it

can be corrected at any time.” State v. Kress, 636 N.W.2d 12, 17 (Iowa 2001)

(citations omitted).

       Tooson’s assertion that his sentence is illegal is void of any factual or legal

support.      Iowa Rule of Appellate Procedure 6.903(2)(g)(3) requires that
                                        11


appellant’s contentions and the reasons for those contentions be supported with

citation to the legal authority relied on and reference to relevant sections of the

record. “Failure to cite authority in support of an issue may be deemed waiver of

that issue.” Iowa R. App. P. 6.903(2)(g)(3).      As a general rule, “we will not

speculate on the arguments [appellant] might have made and then search for

legal authority and comb the record for facts to support such arguments.” Hyler

v. Garner, 548 N.W.2d 864, 876 (Iowa 1996). In most cases the appellant’s

“random mention of an issue, without analysis, argument or supporting authority

is insufficient to prompt an appellate court’s consideration.” State v. Mann, 602

N.W.2d 785, 788 n.1 (Iowa 1999). Therefore, we decline to consider this issue.

             2. Admission of Statements Allegedly Obtained in Violation of

                 Miranda

      Tooson avers that his previous counsel was ineffective for failing to raise a

Miranda violation in the admission of statements made by him to an investigator

with the police department during the State’s case-in-chief.

      While statements obtained in violation of Miranda are “inadmissible for

proving guilt . . . they may be used to attack a defendant’s credibility if he

testifies.” State v. Schaffer, 524 N.W.2d 453, 457 (Iowa Ct. App. 1994) (citing

State v. Tryon, 431 N.W.2d 11, 17 (Iowa Ct. App 1988)). In this case, Tooson

chose to testify on his own behalf and expressed his decision to do so before the

court admitted these particular statements as rebuttal evidence.

      Tooson has not presented to us any evidence of how he was prejudiced

by the admission of the statements and, therefore, cannot sustain his claim of
                                        12


ineffective assistance of counsel as to any of his counsel (trial, appellate, or

PCR). See Strickland, 466 U.S. at 669.

              3. Failure to Grant New Trial

       In his next argument, Tooson presents to us the jury instruction offered to

the PCR court with the attendant explanation as to why the instruction itself was

improper.   He further contends his counsel performed deficiently in failing to

object to the instruction at trial. The PCR court agreed with this contention and

vacated the conviction and sentence to which that instruction applied. Tooson

now argues for further relief, namely a new trial. Because Tooson has already

received a vacated conviction, we decline to consider this issue further.

              4. Merging of Offenses

       Next, Tooson argues that his conviction for simple assault should merge

with the conviction for second-degree sexual abuse.         Assault was charged

separately in the trial information, and the jury found Tooson guilty of both sexual

abuse and assault. Tooson has not argued the facts or the law of this issue. We

do not address it.

              5. Inconsistent Verdicts

       Tooson further argues that his previous counsel was ineffective for failing

to raise an issue of inconsistent verdicts.     This argument is premised upon

Tooson being convicted of second-degree sexual abuse5 in count I, simple

assault6 on count III, but being acquitted of carrying weapons7 in count IV.



5
  Iowa Code § 709.3.
6
  Iowa Code §§ 708.1, 708.2.
7
  Iowa Code § 708.3.
                                           13


         Second-degree sexual abuse has no requirement that the defendant use a

weapon during the commission of the sexual assault; the applicable subsection

only requires “the person displays in a threatening manner a dangerous weapon,

or uses or threatens to use force creating a substantial risk of death or serious

injury to any person.”       Iowa Code § 709.3        (emphasis added).      Tooson’s

conviction of second-degree sexual abuse was not dependent upon a conviction

of a weapons charge. Therefore, even if Tooson’s counsel had raised the issue

of inconsistent verdicts, the argument would have failed. We decline to find

ineffective assistance of counsel as it pertains to this issue.

                6. Violation of Due Process Rights and Insufficiency of the

                   Evidence

         Tooson alleges violations of his due process rights and insufficient

evidence to support his convictions. However, he does not provide any legal or

factual support to these contentions. 8 Accordingly, we decline to consider these

issues.

                7. Alleged Juror Biases

         Tooson next argues the district court abused its discretion by failing to rule

counsel was ineffective for failing to adequately raise the issue of jury bias.

However, Tooson has not presented any evidence as to how he was prejudiced

by counsel’s failure to adequately raise the issue or that there was a reasonable

probability of a different outcome but for counsel’s deficient performance. See

Strickland, 466 U.S. at 669; State v. Reynolds, 746 N.W.2d 837, 845 (Iowa



8
    See Mann, 602 N.W.2d at 788 n.1.
                                           14


2008).     Because Tooson has not met his burden here, we decline to find

ineffective assistance of counsel as to this issue.

                8. Failing to Rule on Each of Tooson’s Grounds for PCR

         As explained at length in section A above, we hold that the PCR court did

rule on each and every one of Tooson’s issues and claims by substantially

complying with section 822.7 and Gamble.9

                9. Judgment Notwithstanding the Verdict and Motion for New

                   Trial

         Tooson argues that his counsel was ineffective for failing to file motions for

judgment notwithstanding the verdict and for new trial. He further contends that

the district court failed to rule specifically on the issue concerning the judgment

notwithstanding the verdict. Again, Tooson has not presented any evidence as

to how he was prejudiced by counsel’s failure to adequately raise the issue nor

that there was a reasonable probability of a different outcome but for counsel’s

deficient performance. See Strickland, 466 U.S. at 669; Reynolds, 746 N.W.2d

at 845.     Because Tooson has not met his burden here, we decline to find

ineffective assistance of counsel as to this issue. We additionally find that the

PCR court did substantially comply in addressing and ruling on this issue on

pages three, six, seven, and nine of the PCR order.




9
    Gamble, 723 N.W.2d at 446.
                                        15


             10. Ineffectiveness of PCR Counsel for Failing to Amend or

                 Advise Tooson to Amend Claims for PCR and To Add

                 Claims Regarding Confrontation Clause and Watson issues

      Tooson also argues that his PCR counsel was ineffective for failing to

amend or advise him to amend his claims for PCR. He contends that many

issues he wished to raise at different phases of his case were impeded by

ineffective assistance. He also alleges that the PCR court’s failure to rule on the

alleged fourteen grounds discussed herein was a consequence of the ineffective

assistance he received from his trial counsel and appellate counsel. He further

contends his PCR counsel was ineffective for failing to amend his PCR

application to include a “prior-bad-acts” issue stemming from his direct appeal.10

Finally, Tooson alleges his PCR counsel was ineffective when he questioned

Tooson’s trial counsel about a Confrontation Clause violation and misapplication

of the Watson11 standard yet did not amend Tooson’s PCR application to include

those allegations. He claims “the record clearly shows the ineffectiveness of

postconviction counsel by his advancing these issues without properly presenting

them under the appropriate preservation and supporting exhibits.”

      When a defendant is unsatisfied with his attorney’s representation, “it is

not enough to simply claim that counsel should have done a better job.” Dunbar,

515 N.W.2d at 15 (citation omitted). The defendant “must state the specific ways

in which counsel’s performance was inadequate and identify how competent

representation probably would have changed the outcome.” Id.

10
   State v. Tooson, No. 06-1567, 2007 WL 4197305, at *1, *3 (Iowa Ct. App Nov. 29,
2007).
11
   State v. Watson, 620 N.W.2d 233, 237-38 (Iowa 2000).
                                      16


       Here, Tooson has made many allegations that certain claims were not

raised at all, that some claims were raised too late, and that counsel failed to

advise him to amend or to have counsel amend court filings.            Tooson’s

allegations are too general in nature to allow us to address them or preserve

them for a second postconviction proceeding. See Id.; Schertz, 380 N.W.2d at

412. Moreover, even if Tooson’s allegations had been sufficiently specific, he

failed to provide us with any evidence of how it would have affected the outcome

of his case.

       AFFIRMED.
