                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0218
                               Filed March 4, 2020


MARTAVES DESHONE KEYS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Lekar, Judge.



      Martaves Keys appeals from the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Francis Hurley of Phil Watson PC, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.

        A jury found Martaves Keys guilty of two counts of first-degree murder in

connection with the shooting deaths of two individuals. This court affirmed his

judgment and sentence. State v. Keys, No. 09-0522, 2010 WL 5050557, at *1

(Iowa Ct. App. Dec. 8, 2010). Keys filed a timely postconviction-relief application,

which languished for several years. Following a hearing, the postconviction court

denied the application.

        On appeal, Keys contends the postconviction court erred in “failing to rule

on [his] effort to set [a] new and more stringent standard for postconviction relief

pursuant to the Iowa Constitution” and in “declining to reach the issue of cumulative

error.” Keys also contends the court should not have denied his claims that his

trial attorneys were ineffective in (a) making a brief opening statement, (2) failing

to file a motion for change of venue, and (3) failing to request a jury instruction on

officer credibility.

        We begin with the standard for evaluating ineffective-assistance-of-counsel

claims. The postconviction court applied the long-extant Strickland standard. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). Keys acknowledges the court

was “bound by precedent to apply the existing standard.” He asks this court to

“overturn” Iowa Supreme Court precedent and apply a more stringent standard.

We are not at liberty to do so. See State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa

2014) (“Generally, it is the role of the supreme court to decide if case precedent

should no longer be followed.”).

        We turn to the court’s handling of Keys’ allegation of cumulative error. The

district court found “that none of the allegations against [his] counsel demonstrate
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ineffectiveness and therefore the issue of whether errors can be viewed

cumulatively need not be reached.” Again, Keys acknowledges the postconviction

court “correctly applied the binding precedent” of State v. Clay, 824 N.W.2d 488,

500 (Iowa 2012) (“Under Iowa law, we should look to the cumulative effect of

counsel’s errors to determine whether the defendant satisfied the prejudice prong

of the Strickland test.”). He asks this court to “find broader protection under the

Iowa Constitution” and declare that “[e]ven if each individual instance of ineffective

assistance of counsel is not a failure of an essential duty, all ineffective acts and

omissions should be taken together to find a failure of an essential duty.”

       In Clay, the court held:

       If the defendant raises one or more claims of ineffective assistance
       of counsel, and the court analyzes the prejudice prong of Strickland
       without considering trial counsel’s failure to perform an essential
       duty, the court can only dismiss the postconviction claim if the
       alleged errors, cumulatively, do not amount to Strickland prejudice.

824 N.W.2d at 501–02. We are not at liberty to change the law.

       We are left with Keys’ challenges to the postconviction court’s resolution of

several ineffective-assistance-of-counsel claims.      On direct appeal, this court

observed, “Where the evidence of guilt is overwhelming, we will find no prejudice.”

Keys, 2010 WL 5050557, at *4 (citing Strickland, 466 U.S. at 696 (“[A] verdict or

conclusion only weakly supported by the record is more likely to have been affected

by errors than one with overwhelming record support.”)).           We resolved two

ineffective-assistance claims on this basis. We stated:

       [T]he evidence of Keys’s guilt was overwhelming. In addition to the
       properly admitted confession, an underwater search and recovery
       team located the gun used in the shooting at a point in the
       Wapsipinicon River where Keys said he threw it. A shell casing
       recovered from the vehicle in which the shootings took place was
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      positively identified as coming from the recovered gun. DNA profiles
      of blood taken from a home Keys went to after the shootings
      essentially matched the profiles of the two individuals who were shot
      and killed. Based on this evidence, we conclude Keys cannot
      establish Strickland prejudice and his ineffective-assistance-of-
      counsel claim necessarily fails.

Id. The postconviction claims suffer the same fate. Because the trial record

contains overwhelming evidence of guilt, Keys cannot establish Strickland

prejudice. That is the case even if the alleged errors are considered cumulatively.

See Clay, 824 N.W.2d at 501–02.

      In her opening statement, defense counsel did not dispute significant

portions of the State’s case. Nonetheless, she encouraged jurors to “keep an open

mind throughout the whole case” because they would “not hear the rest of the story

until almost toward the end.” At the postconviction hearing, counsel testified she

did not want to over-promise the jurors something; she simply wanted to

underscore that “there’s more evidence that’s coming.” Given Keys’ confession

and the evidence corroborating his confession, there is no reasonable probability

that the outcome would have changed had counsel delved more deeply into the

evidence during her opening statement.

      We turn to Keys’ claim that counsel should have filed a change-of-venue

motion. At the postconviction hearing, counsel testified,

      [B]ecause of the sensational nature of it, we asked for a jury
      questionnaire to get a feel for the current jury we had, if they would
      be—have preconceived ideas or opinions about the case. And at
      that point in time, if those questionnaires came back indicating they
      were tainted because of the pretrial publicity, I would have asked for
      a change of venue.

The questionnaires of the twelve seated jurors were admitted as an exhibit.

Although several saw a newspaper article the night before completing the
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questionnaire and some heard about the case on the news, all twelve denied they

had formed an opinion of the case. Because Keys could not establish actual

prejudice on the part of the jury, there is no reasonable probability counsel would

have succeeded in changing venue. See State v. Morgan, 559 N.W.2d 603, 611

(Iowa 1997) (requiring defendant to show “either actual prejudice or ‘that the

publicity attending the case was so pervasive and inflammatory that prejudice must

be presumed’” (citation omitted)); Borushaski v. State, No. 01-1683, 2003 WL

183284, at *2 (Iowa Ct. App. Jan. 29, 2003) (rejecting ineffective-assistance claim

based on failure to file a motion for change of venue where transcript of voir dire

showed no actual prejudice).

       We are left with Keys’ claim that the jury should have received an instruction

stating police officers were “no more credible tha[n] any other person.” One of

Keys’ attorneys testified she did not seek the instruction because it was an issue

she usually covered “in jury selection” and “it was not a stock instruction.” More

pertinently, the jury received a general credibility instruction stating jurors could

“believe all, part, or none of any witness’s testimony.” In light of that instruction, a

specific credibility instruction on law enforcement officers was unnecessary and

would have been cumulative, precluding a finding of Strickland prejudice.

       We conclude there is no reasonable probability of a different result had

counsel given a lengthier opening statement, filed a motion for change of venue,

and requested an instruction on officer credibility. Having found no cumulative

prejudice, we conclude the district court appropriately denied the postconviction-

relief application.

       AFFIRMED.
