                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2058
                             Filed August 16, 2017


JAMES EDWARD WINESBERRY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.



      James Edward Winesberry appeals from the dismissal of his application

for postconviction relief. AFFIRMED.




      Jeremy L. Merrill of Lubinus Law Firm, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, Chief Judge.

       James Edward Winesberry appeals from the dismissal of his application

for postconviction relief (PCR). He contends the court erred by granting the

State’s motion for summary judgment before the completion of the discovery

process. He further contends his counsel was ineffective for failing to timely file

an amended application in the proceedings, thus prejudicing him. The court did

not err in granting summary judgment, and Winesberry’s ineffectiveness claim

fails. We affirm.

I. Background Facts and Proceedings

       In December 2013, Winesberry pled guilty to possession of a controlled

substance (Benzylpiperazine) with intent to deliver as a second or subsequent

offender, possession of controlled substance (marijuana) with intent to deliver,

failure to affix a tax stamp (marijuana), and felon in possession of a firearm. The

court sentenced him to consecutive terms of imprisonment not to exceed thirty-

five years.

       In February 2014, Winesberry appealed, arguing his trial counsel was

ineffective in failing to challenge the factual basis for his pleas.       State v.

Winesberry, No 14–0128, 2014 WL 5862040, at *1 (Iowa Ct. App. Nov. 13,

2014). This court affirmed his convictions, finding his trial counsel had no duty to

raise a meritless issue. Id. at *2. The supreme court denied further review and

procedendo was issued.

       In February 2015, Winesberry filed a pro se application for PCR,

reasserting his pleas lacked a factual basis and counsel was ineffective in

permitting him to plead guilty.
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      On April 24, 2015, the district court entered an order appointing counsel

for Winesberry and instructed PCR counsel to meet with Winesberry to

investigate his claims, and if necessary, file an amended application within sixty

days. The court’s subsequent scheduling order set trial for January 20, 2016,

and required pleadings and dispositive motions be filed sixty days before trial and

discovery be completed thirty days before trial.

      On August 27, 2015, the State filed a motion for summary judgment,

asserting no genuine issue of material fact remained for trial because the claims

raised had already been addressed on direct appeal.           On September 30,

Winesberry’s counsel filed a late resistance to the motion for summary judgment.

Counsel agreed the facts discussed in the motion for summary judgment were

substantially undisputed and did not contest them but claimed summary

judgment was premature because discovery was not complete.                Counsel

indicated he anticipated an amendment of the original pleading to include

additional claims. Finding no genuine issues of material fact remained on any of

Winesberry’s claims, the court granted the motion for summary judgment on

November 6, 2015.

      Winesberry now appeals, claiming the district court erred in granting the

State summary judgment because discovery was not yet complete.            He also

claims he received ineffective assistance of PCR counsel.

II. Standard of Review

      We typically review postconviction proceedings, including summary

adjudications, for errors at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa
                                          4


2011). However, PCR applications that allege ineffective assistance of counsel

present a constitutional challenge, which we review de novo. Id.

III. Analysis

   A. Summary Judgment

       The rules for summary judgment apply to a motion for summary

dismissals of PCR proceedings. See Iowa Code § 822.6 (2015); Manning v.

State, 654 N.W.2d 555, 560 (Iowa 2002). Summary judgment is proper when

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Id.

       Winesberry’s PCR claims were raised and rejected during his direct

appeal. Winesberry, 2014 WL 5862040, at *1-2. “A post-conviction proceeding

is not intended as a vehicle for relitigation, on the same factual basis, of issues

previously adjudicated, and the principle of [r]es judicata bars additional litigation

on this point.” Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009)

(citation omitted). Winesberry cannot relitigate these issues as presented in his

pro se PCR application.

       Winesberry maintains the district court should not have granted summary

judgment because discovery was not yet complete.             However, the time for

amendment of the PCR application had passed, and Winesberry had not filed a

motion for extension of time.

       As noted by the State, a party may “at any time, move with or without

supporting affidavits for a summary judgment in that party’s favor.” Iowa R. Civ.
                                             5


P. 1.981(2) (emphasis added).1 There is no requirement that summary judgment

cannot be entered until after the completion of discovery. Bitner v. Ottumwa

Cmty. Sch. Dist., 549 N.W.2d 295, 302 (Iowa 1996).

         If the nonmoving party believes a summary judgment motion is premature

because additional discovery is needed to fully respond to the motion, it must

comply with the requirements of Iowa Rule of Civil Procedure 1.981(6). See id.

at 301 (referring to rule 237(f), now numbered rule 1.981(6)). The rule requires

an affiant to state what specific facts are sought and how those facts would

preclude summary judgment. Id. at 301-02. “The failure to file a [rule 1.981(6)]

affidavit is sufficient grounds to reject the claim that the opportunity for discovery

was inadequate.” Id. at 302; see also Good v. Tyson Foods, Inc., 756 N.W.2d

42, 46 (Iowa Ct. App. 2008) (stating the failure to file an affidavit under rule

1.981(6) “presents sufficient grounds to reject a claim that the opportunity for

discovery was inadequate”). If Winesberry believed additional discovery was

necessary in order to resist the State’s motion for summary judgment, he could

have filed a motion for additional time to amend and complete discovery and he

also had the opportunity to seek additional time under rule 1.981(6). His failure

to comply with the rule was sufficient by itself for the court to deny the opportunity

for further discovery and grant summary judgment.




1
    Iowa Code section 822.6 also provides for summary disposition at any time:
         The court may grant a motion by either party for summary disposition of
         the application, when it appears from the pleadings, depositions, answers
         to interrogatories, and admissions and agreements of fact, together with
         any affidavits submitted, that there is no genuine issue of material fact
         and the moving party is entitled to judgment as a matter of law.
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         Even if we overlook his failure to do so, however, we cannot find the court

erred.     Winesberry argues he planned to amend his pleading upon the

completion of discovery. He had ample opportunity to conduct discovery and

amend his pleading prior to the State filing its motion for summary judgment. He

did not articulate in his resistance what additional claims he may have brought or

how additional discovery would have precluded summary judgment. He simply

asserted summary judgment was premature because discovery was not

complete.2     The district court did not err in granting the State’s motion for

summary judgment.

    B. Ineffective Assistance of Counsel

         Winesberry seeks to avoid summary judgment by claiming PCR counsel

was ineffective. “[O]nce counsel was appointed to represent him, [Winesberry]

had a right to the effective assistance of this counsel.” Dunbar v. State, 515

N.W.2d 12, 15 (Iowa 1994).

         To prevail on an ineffectiveness claim, an applicant must prove by a

preponderance of the evidence: (1) counsel breached an essential duty, and (2)

prejudice resulted from the breach.      See id.   To satisfy the prejudice prong,

Winesberry must show “there is a reasonable probability that, but for counsel’s

unprofessional errors, the results of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). “However, both elements

do not always need to be addressed. If the claim lacks prejudice, it can be



2
 We note that had the State waited until the discovery deadline, it would have been
barred from filing a motion for summary judgment; pleadings were to be closed sixty
days before trial, while discovery was to be completed thirty days before.
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decided on that ground alone without deciding whether the attorney performed

deficiently.” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

       Winesberry argues his PCR attorney did not amend his application in the

timeframe required by the court. He claims his counsel’s failure prejudiced him

because it resulted in the dismissal of his PCR case, thus causing him to lose

twenty-seven days on the statute of limitations for a habeas corpus claim.

       Winesberry does not specify what claims he believes his PCR counsel

should have added to the original application, nor does he argue he would have

prevailed on those claims. He simply asserts his attorney should have amended

it by the court’s deadline. But he cannot prove he was prejudiced by asserting

unspecified, hypothetical claims.

       Furthermore, his prejudice argument concerning his habeas corpus

statute of limitations is without merit. Even if Winesberry is correct that he lost

twenty-seven days to file a habeas corpus petition, he does not claim the statute

of limitations has run, or that he is unable to timely file such a petition. Thus, any

prejudice regarding these “lost” twenty-seven days is speculative and irrelevant.

To satisfy the prejudice prong, Winesberry must show that there was a

reasonable probability of a different result in this case.       See id. at 144-45

(defining “result” as decision rendered).      Because Winesberry has failed to

establish prejudice, his ineffectiveness claim fails; we need not address whether

his counsel breached an essential duty. See id. at 142.

       AFFIRMED.
