                    IN THE COURT OF APPEALS OF IOWA

                                    No. 12-0826
                                Filed April 30, 2014

ERIC C. MILLER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.



       Applicant appeals from the district court’s ruling denying his application for

postconviction relief. AFFIRMED.



       Erin Carr, of Carr & Wright, P.C., Des Moines, for appellant.

       Eric Miller, Fort Madison, pro se appellant.

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

General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.

       Eric Miller appeals from the district court’s denial of his application for

postconviction relief. For the reasons set forth below, we affirm the district court.

                                          I.

       On November 15, 2007, following a jury trial, Miller was convicted of

murder in the first degree and sentenced to imprisonment for a term of life. The

facts and circumstances surrounding the murder are set forth in great detail in

State v. Miller, No. 07-2051, 2009 WL 249646, at *1 (Iowa Ct. App. Feb. 4,

2009), and need not be repeated here.          Prior to his trial, Miller successfully

sought to suppress admissions made to the police following improperly

administered Miranda warnings. The trial court, however, denied Miller’s motion

to suppress similar admissions made after Miller was properly Mirandized two

separate times by police officers during further interrogation.

       On direct appeal, Miller’s appellate counsel elected not to appeal issues

related to the suppression motion, concluding that the issues lacked merit.

Specifically, appellate counsel correctly concluded controlling legal authority held

that in the absence of coercion subsequent statements made after proper

Miranda warnings were given were admissible. See Oregon v. Elstad, 470 U.S.

298, 318 (1985) (“We hold today that a suspect who has once responded to

unwarned yet uncoercive questioning is not thereby disabled from waiving his

rights and confessing after he has been given the requisite Miranda warnings.”);

Irving v. State, 533 N.W.2d 538, 542 (Iowa 1995) (recognizing Elstad as

controlling authority on this issue).   Instead, appellate counsel focused on a
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single issue: whether Miller’s trial counsel rendered ineffective assistance by

failing to object to testimony regarding prior bad acts. This court denied the

appeal. See Miller, 2009 WL 249646, at *1.

          In November 2010, Miller filed a pro se application for postconviction

relief.       Subsequently,   Miller   was      appointed   postconviction    counsel.

Postconviction counsel filed an amended application for postconviction relief.

The district court summarized Miller’s and postconviction counsel’s grounds for

relief as follows: (1) Miller’s appellate counsel was ineffective for failing to appeal

the denial of portions of Miller’s motion to suppress his admissions and for

focusing appellate argument on a single issue, (2) the prosecutor engaged in

prejudicial misconduct, (3) Miller’s conviction was against the weight of the

evidence, and (4) the State failed to prove the malice element of murder in the

first degree beyond a reasonable doubt. After summarizing each of Miller’s and

postconviction counsel’s arguments, the district court rejected the same and

denied Miller’s application for postconviction relief.

                                          II.

          Miller first contends that his direct appeal counsel was ineffective for

failing to appeal the trial court’s ruling on his motion to suppress the admissions

made after receiving proper Miranda warnings. Claims of ineffective assistance

of appellate counsel are judged using the same two-pronged test used to review

claims of ineffective assistance of trial counsel.       See Ledezma v. State, 626

N.W.2d 134, 141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 922 (Iowa

1998).     To establish deficient performance, the applicant must establish that
                                        4



appellate counsel failed to raise an issue that reasonably competent counsel

would have raised. However, “[s]electing assignments to assert as grounds for

reversal is a professional judgment call [courts] are reluctant to second-guess.”

Osborn, 573 N.W.2d at 922. “Hindsight may show the judgment call was wrong.

But this is a far cry from qualifying as ineffective representation.” Id. at 922-23

(alteration and citation omitted).     To prove appellate counsel’s deficient

performance resulted in prejudice, the applicant must show the underlying claim

would have prevailed if it had been raised on direct appeal. See Ledezma, 626

N.W.2d at 141. Thus, we must review the merits of the underlying claim to

determine whether appellate counsel was ineffective, see id. at 141-42, while

recognizing that counsel has no duty to raise an issue that has no merit. See

State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009).          We review ineffective-

assistance-of-counsel claims de novo. See Ledezma, 626 N.W.2d at 141.

      In his motion to suppress filed prior to trial, Miller claimed he received an

incomplete Miranda warning from his arresting officer—the officer forgot to give

notice that an attorney would be appointed if Miller could not afford one—and

claimed the improper Miranda warning necessarily tainted any subsequent

statements made after proper Miranda warnings were given. Miller concedes

this claim fails under the Federal Constitution. See Elstad, 470 U.S. at 318. He

asks this court to evaluate the claim under article I, section 9, of the Iowa

Constitution. This argument was not presented to the postconviction court and

cannot be raised for the first time on appeal. See State v. Rutledge, 600 N.W.2d

324, 325 (Iowa 1999) (“Nothing is more basic in the law of appeal and error than
                                             5



the axiom that a party cannot sing a song to us that was not first sung in trial

court.”).   Even if error had been preserved on the issue, we conclude that

appellate counsel did not breach an essential duty in failing to raise the Iowa

constitutional claim on direct appeal due to the Irving court’s approval of Elstad.

See, e.g., State v. Gomez, No. 11-0350, 2012 WL 2122266, at *12 (Iowa Ct.

App. June 13, 2012) (holding that counsel did not breach an essential duty in

failing to argue for suppression of statements under the Iowa Constitution given

the approval of Elstad in Irving).

       Miller filed a separate pro se brief on appeal. He appears to claim he

received    ineffective   assistance    of       postconviction   counsel   insofar   as

postconviction counsel failed to raise several claims: (1) arguments relating to

improper instructions, (2) the court’s combined jury instructions served to operate

as an ex post facto law, (3) Miller’s trial information was not a true trial

information and was therefore void, (4) the individual who signed the trial

information claiming to be “Attorney for Defendant” was an imposter or a thief,

and (5) the trial court lacked subject matter jurisdiction over his proceedings.1

After review of the postconviction relief record and Miller’s claims on appeal, we

reject Miller’s claims. The claims were not presented to the district court. See

Rutledge, 600 N.W.2d at 325. Even assuming the claims have been properly

presented for our review, they fail on the merits.




1
  The State does not attempt to distinguish or otherwise contest the ongoing vitality of
the conclusion in Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994), that there is a
statutory right to the effective assistance of postconviction counsel.
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                                         III.

       For the foregoing reasons, we affirm the district court’s denial of Miller’s

application for postconviction relief.

       AFFIRMED.
