                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0763
                                Filed June 11, 2014


BEAU JACKSON MORRIS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



       A defendant appeals from the trial court’s denial of his second application

for postconviction relief. AFFIRMED.



       Nicholas Einwalter, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, John Sarcone, County Attorney, and Nan Horvat, Assistant County

Attorney, for appellee State.




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

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                         2


GOODHUE, S.J.

       Beau Jackson Morris appeals from the trial court’s denial of his second

application for postconviction relief.

   I. Background Facts and Proceedings

       On August 4, 2003, Morris was charged by trial information with robbery in

the first degree and sexual abuse in the second degree. After a trial by jury he

was found guilty of both charges. He appealed the convictions and both were

affirmed, but the claim counsel was ineffective in failing to object to testimony

commenting on the exercise of his right to remain silent was preserved for a

postconviction-relief proceeding. See State v. Morris, No. 04-0201, 2005 WL

839469, at *5 (Iowa Ct. App. Apr. 5, 2005) (hereinafter Morris I). Subsequently,

Morris filed a postconviction-relief action, which was unsuccessful. The adverse

decision was appealed but was once again affirmed. See Morris v. State, No.

07-0171, 2007 WL 3377890, at *3 (Iowa Ct. App. Nov. 15, 2007) (hereinafter

Morris II).   Morris then made an unsuccessful effort to attack his conviction

through a federal habeas corpus proceeding. The federal habeas corpus action

was dismissed for Morris’s failure to raise a federal issue in the state proceedings

or to have exhausted his state remedies. On May 26, 2010, Morris filed the

current application for postconviction relief. It was again denied, and he has

appealed.

       The factual background on which the criminal charges and convictions

were based is set out in the cases cited above. There is no need to reiterate the

factual background in detail. It is adequate to note that the prosecution’s case in

the underlying trial was primarily built on the victim’s testimony, supported by
                                        3


limited but convincing corroborating evidence. There was an allegation at the

time of the underlying trial that the victim of the offense suffered from a mental

condition that could have affected the reliability of her testimony. The State’s

motion in limine to exclude any testimony or medical records about the victim’s

psychological problems was granted and was not reviewed on appeal since no

offer of proof was made at the trial level. Morris contends that his initial trial

counsel was ineffective in failing to make a record of the content of the excluded

testimony and materials. In his pro se brief, applicant contends that because of

the exclusion he was denied his constitutional right to confront the witnesses who

testified against him and his right to due process. He further contends that the

trial court in the instant proceeding erred in not finding previous counsel

ineffective for inadequately arguing the prejudice Morris suffered because of the

excluded evidence and in failing to, what Morris terms, “federalize” the existing

issues.

   II. Standard of Review

      Postconviction-relief proceedings are generally reviewed for errors of law,

but applications for postconviction relief that allege ineffective assistance of

counsel raise a constitutional issue and are reviewed de novo. Castro v. State,

795 N.W.2d 789, 792 (Iowa 2011).

   III. Error Preservation

      Error preservation is generally considered present when the issues to be

reviewed have been raised and ruled on by the district court. Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002). The claims raised by Morris in this appeal

were considered by the trial court and considered barred.
                                          4


   IV. Discussion

       Morris’s claim centers around two issues. The first is the inability to have

evidence before the jury concerning the victim’s psychological issues; the second

is the failure of counsel to, what Morris refers to as, “federalize” the issues.

       The first issue raised is a claim the district court that tried the underlying

case erred in sustaining the State’s motion in limine barring the victim’s

psychological records without at least making an in camera review of the

evidence. In the direct appeal of the conviction, this court held that the trial

court’s ruling on the motion in limine could not be challenged because no offer of

proof was made. Morris I, 2005 WL 839469, at *5. In the appeal of Morris’s first

postconviction-relief application, this court did not address or need to address

counsel’s alleged breach of duty in failing to make an offer of proof. Morris II,

2007 WL 3377890, at *1.        To prevail on an ineffective-assistance-of-counsel

claim the claimant must prove by a preponderance of the evidence that

(1) counsel failed to perform an essential duty and (2) prejudice resulted.

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). A claim of ineffective

assistance of counsel can be disposed of if it fails to meet either prong. State v.

Cook, 565 N.W.2d 611, 614 (Iowa 1997). The court hearing the appeal of the

first postconviction-relief proceeding found the evidence supporting Morris’s

convictions to be overwhelming.          Morris II, 2007 WL 3377890, at *2-3.

Therefore, it concluded the exclusion of any evidence relating to the victim’s

mental issues was harmless. Id. at *1.

       The issue of ineffective assistance of trial counsel has already been raised

and disposed of in previous proceedings. To the extent that any claim was not
                                         5


previously raised, it has been waived. Claims that were or could have been

made in earlier proceedings cannot be raised for the first time in a subsequent

postconviction relief proceeding. Iowa Code § 822.8 (2011); Earnest v. State,

508 N.W.2d 630, 632 (Iowa 1993). Section 822.8 provides an exception if “the

court finds a ground for relief asserted which for sufficient reason was not

asserted or was inadequately raised in the original, supplemented, or amended

application.” Morris contends that his case falls within the exception and is not

subject to waiver because appellate counsel in his first postconviction-relief

action was ineffective in arguing that his trial counsel was ineffective. Morris

acknowledges that counsel in the first postconviction-relief action raised the issue

of ineffective assistance of trial counsel in the underlying case but asserts that

counsel was ineffective in adequately arguing the existence of prejudice. The

court, addressing the appeal from the initial postconviction relief proceeding,

devoted a majority of the written opinion to recounting the overwhelming

evidence of Morris’s guilt produced at his trial. Morris II, 2007 WL 3377890, at

*2. The issue of prejudice was thoroughly considered. No amount of argument

can change the facts.

      The second issue raised by Morris once again fails because of the lack of

any showing of prejudice. There is no showing of any federal right that would

have given relief to Morris if the case had been properly “federalized.” It is true

the issues in the habeas corpus action were dismissed and denied by the federal

court because of a failure to adequately raise federal issues or to exhaust state

court remedies. Counsel could have “federalized” Morris’s claims, but he has

failed to cite any constitutional provision, federal statute, federal case, or any
                                       6


other federal authority that would have granted him any relief if those issues

could have been addressed in the federal habeas corpus action. For prejudice to

exist there must be a reasonable probability that but for the errors, the result

would have been different. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).

Morris has not shown any basis or authority upon which the federal courts would

have granted him relief or changed the outcome of the habeas corpus action.

      AFFIRMED.
