                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0818
                               Filed July 22, 2015


CODY L. THOMAS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



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

postconviction relief. AFFIRMED.



      Darrell G. Meyer, Marshalltown, for appellant.

      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, Linda Fangman, County Attorney, and Kimberly Griffith, Assistant

County Attorney, for appellee State.




      Considered by Vogel, P.J., Potterfield, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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VOGEL, P.J.

       Cody Thomas appeals from the court’s denial of his application for

postconviction relief (PCR), asserting the court erred in concluding his

ineffective-assistance-of-counsel claim is precluded by our court’s opinion on

direct appeal. On direct appeal, our court held that the trial court correctly denied

Thomas’s request for a compulsion jury instruction because the evidence failed

to establish a prima facie case to support the submission of the jury instruction.

See State v. Thomas, No. 10-0081, 2010 WL 4105618, at *4–5 (Iowa Ct. App.

Oct. 20, 2010). In his PCR petition, Thomas asserted, “Trial attorney . . . failed to

properly consult with me in order to establish a defense.” At the PCR hearing, it

became clear the “defense” Thomas was referencing was the compulsion

defense.

       The PCR court denied this claim, finding “the compulsion defense issue

was already determined adversely to Thomas” and Thomas cannot relitigate it in

the postconviction action. The court concluded further litigation on the issue was

barred.    To the extent Thomas’s PCR claim can be construed as attacking

whether substantial evidence existed to justify giving the jury the compulsion

instruction, the district court was correct that this issue was barred by our court’s

decision on direct appeal. Wycoff v. State, 382 N.W.2d 462, 465 (Iowa 1986)

(“Issues that have been raised, litigated, and adjudicated on direct appeal cannot

be relitigated in a postconviction proceeding.”).

       Thomas claims on appeal that his PCR claim is focused on trial counsel’s

failure to adequately prepare Thomas to testify and make a prima facie case for

the compulsion defense. This claim, Thomas asserts, is not barred because it
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was not litigated in the direct appeal.        We agree; however, this ineffective-

assistance claim fails on other grounds.

      At the PCR hearing, Thomas presented no evidence or testimony as to

what trial counsel should have done to prepare him to testify or what other

evidence was available to trial counsel to establish a prima facie case for the

compulsion defense.    See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994)

(“When complaining about the adequacy of an attorney’s representation, it is not

enough to simply claim that counsel should have done a better job.             The

applicant must state the specific ways in which counsel’s performance was

inadequate and identify how competent representation probably would have

changed the outcome.”).

      Thomas testified he met with trial counsel at least six times prior to trial.

Counsel discussed the compulsion defense with him and helped Thomas

prepare his testimony.     In addition to presenting Thomas’s testimony, trial

counsel presented the testimony of Thomas’s treating physician, who spoke of

Thomas’s mental health diagnoses, medication, and the fact Thomas was easily

intimidated and manipulated. At the PCR hearing, Thomas said he was happy

with his doctor’s trial testimony and there was nothing left out of the doctor’s

testimony that Thomas believed should have been presented.              No further

evidence or discussion was offered at the PCR hearing detailing what counsel

should have done to “consult with [Thomas] in order to establish [the compulsion]

defense.”

      In order to sustain his ineffective-assistance claim, Thomas must prove by

a preponderance of the evidence that counsel breached an essential duty and he
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was prejudiced by the breach. See State v. Hopkins, 860 N.W.2d 550, 556 (Iowa

2015).     “Failure to prove either element is fatal to an ineffective-assistance

claim.” State v. Robinson, 841 N.W.2d 615, 617 (Iowa Ct. App. 2013). Here,

Thomas failed to prove both elements. He failed to articulate what counsel failed

to do that breached an essential duty and he failed to demonstrate that trial

counsel’s failure to perform any such duty caused him prejudice. See State v.

Myers, 653 N.W.2d 574, 579 (Iowa 2002) (stating conclusory statements of

prejudice are insufficient to support an ineffective-assistance claim).

         Because the evidence presented at the PCR hearing was insufficient to

support his ineffective-assistance claim, as he now articulates it on appeal, we

affirm the district court’s denial.

         AFFIRMED.
