                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-0007
                               Filed January 10, 2018


CATHRYN ANN LINN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Muscatine County, Nancy S. Tabor,

Judge.



       Cathryn Linn appeals the district court’s order granting summary judgment

on her application for postconviction relief following her 2007 conviction for first-

degree murder. AFFIRMED.




       Darrell G. Meyer, Marshalltown, for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.




       Considered by Potterfield, P.J., Mullins, J., and Carr, S.J.* Tabor, J., takes

no part.

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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CARR, Senior Judge.

       Cathryn Linn appeals the district court’s order granting summary judgment

on her application for postconviction relief (PCR) following her 2007 conviction for

first-degree murder, claiming evidence of battered women’s syndrome should

have been introduced by trial counsel and admitted by the district court to bolster

her justification defense. Linn also raises a claim of ineffective assistance of PCR

counsel. Upon our review, we affirm the court’s order denying Linn’s application

for postconviction relief.

I.     Background Facts and Proceedings

       In its opinion affirming Linn’s conviction on direct appeal, this court set forth

the following facts surrounding the incident leading to Linn’s charge:

               Muscatine police officers were dispatched to Linn’s residence
       in the early morning hours of February 7, 2007, after Linn called 911
       to report she had shot someone. Several officers arrived at the
       residence brandishing weapons. Linn appeared at the door, yelling
       and screaming, and was told to show her hands. Upon determining
       Linn was unarmed, the officers entered the residence and
       discovered the body of Barry Blanchard in the bedroom. An M-1
       carbine rifle and gun case were on the bed.
               While the officers were investigating inside of the house,
       Officer Jason Williams stayed on the porch with Linn. She was only
       wearing a nightgown, so another officer located a pair of boots and
       coat inside the home for Linn. While Linn was sitting on the steps,
       an officer yelled out of the house and asked, “Is she saying she shot
       him?” In turn, Williams asked her, “Did you shoot him?” to which Linn
       replied, “Yes.” Linn also stated, “I only had one gun and one bullet,
       and I shot him because he was not being nice to me.”
               Linn was informed she needed to go to the Public Safety
       Building and speak with a detective. Officer Williams transported
       Linn in the backseat of his squad car. Linn was informed she was
       not under arrest. She was not handcuffed and Officer Williams did
       not attempt to question her. Linn asked Officer Williams if Blanchard
       had died, and Williams replied that he did not know. Linn also stated,
       “My life has ended up as [a] murder.”
               Detective Mark Lawrence was asked to interview Linn upon
       her arrival at the station. Detective Lawrence was told Linn was not
                                   3

under arrest. However, he decided to advise her of her Miranda
rights because she was confined to an investigation room, believing
it to be the prudent thing to do. Linn asked, “Did I kill him?” and “Did
he die?” Detective Lawrence told Linn that before he could answer
her questions, he had to read the Miranda form to her. He also told
her he did not know if Blanchard was dead. Linn signed the waiver.
An analysis of Linn’s urine shows her blood alcohol concentration at
the time was .181.
        During the police interview, Linn admitted to threatening
Blanchard with the rifle. She also stated that she told Blanchard no
one was going to tell her what to do in her house and that the
shooting occurred after Blanchard dared her to shoot him.
        On February 14, 2007, Linn was charged with first-degree
murder. She filed a motion to suppress the statements “made . . . to
Muscatine Police Officers after she was in custody of the officers”
because “the waiver of her right to counsel was not made knowingly,
voluntarily and intelligently.” Following a hearing on the motion, the
court concluded Linn’s waiver of her Miranda rights was valid and
overruled the motion to suppress.
        A jury trial was held in September 2007. Linn testified and
relied on a defense of intoxication and justification. The evidence
presented shows Linn and Blanchard had been involved in a
romantic relationship and were living together. Before the shooting,
the couple agreed their relationship was not working and Blanchard
planned to move out of the house. However, he was unable to find
a place to stay and Linn agreed to allow him to sleep on her couch.
Both Blanchard and Linn consumed alcohol on the night of the
shooting.
        According to Linn’s trial testimony the following occurred: at
some point in the evening, Blanchard slapped her and asked her,
“How many marks do you want in the morning, bitch?” Linn told
Blanchard he was not going to tell her what to do in her house.
Blanchard followed Linn into the bedroom and told her he would “fuck
[her] dead or alive” and undressed. Blanchard choked her and she
was frightened he was going to rape her. The rifle was retrieved from
the closet and both Linn and Blanchard handled the weapon while
screaming at each other. The gun discharged and “[t]he next thing I
knew, he was on the floor, and I had then realized that he had been
the victim of the discharge of the weapon.” She denied having any
intention of killing Blanchard.
        Contrasting statements by Linn to the 911 operator and the
police officers were presented to the jury. She told the 911 operator
she shot Blanchard and they were fighting and drinking. The officers
testified to the statements she made on the steps when they arrived
and how in the squad car on the way to the police station she stated,
“My life has to end up as [a] murder.” Linn also told officers
                                          4


       Blanchard had dared her to shoot him and she shot him because she
       was angry.
             On September 14, 2007, the jury returned a verdict finding
       Linn guilty of first-degree murder. On October 24, 2007, Linn was
       sentenced to life in prison. She appealed on November 13, 2007.

State v. Linn, No. 07-1984, 2009 WL 605968, at *1-2 (Iowa Ct. App. Mar. 11, 2009)

(footnote omitted).

       On appeal, Linn challenged the district court’s ruling on her motion to

suppress and the sufficiency of the evidence to support her conviction. Id. at *2-

5. She also raised several claims of ineffective assistance of counsel. Id. at *5-7.

This court rejected her claims and affirmed her conviction. See id. at *2-7.

       Linn filed a application for PCR, contending in part her trial counsel was

ineffective in failing to introduce evidence regarding battered women’s syndrome

(BWS) to strengthen her justification defense. Linn also filed an application to

retain an expert on BWS at State expense. The State filed a motion for summary

disposition, which the district court granted. The court’s ruling also denied Linn’s

request for a BWS expert.

       Linn appeals. Facts specific to her claims on appeal will be set forth below.



II.    Standards of Review

       “Generally, an appeal from a denial of an application for postconviction relief

is reviewed for correction of errors at law.” Nguyen v. State, 878 N.W.2d 744, 750

(Iowa 2016) (citation omitted). However, “ineffective-assistance-of-counsel claims

are reviewed de novo.” Id. Insofar as Linn challenges the denial of her application

for the appointment of an expert witness to assist in developing her PCR claims,
                                            5

that ruling is reviewed for an abuse of discretion. See Penwell v. State, No. 09-

1820, 2011 WL 238196, at *5 (Iowa Ct. App. Jan. 20, 2011).

III.   Discussion

       Summary judgment in a postconviction proceeding may be granted “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.” Iowa Code § 822.6 (2009). “The moving party has

the burden of showing the nonexistence of a material fact and the court is to

consider all materials available to it in the light most favorable to the party opposing

summary judgment.” Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002). Here,

the PCR court summarily denied Linn’s BWS claim, stating:

               Linn’s claim that trial counsel was ineffective for failing to raise
       Battered Women’s Syndrome fails. She provides no information as
       to what facts were available to her trial counsel to support such a
       claim. She provides no expert witness testimony by affidavit to
       explain how a jury might have been told that the syndrome was
       relevant. And, more importantly, the State of Iowa correctly notes
       that such syndrome evidence would have been inconsistent with her
       trial testimony about the nature of the shooting. Linn cannot
       demonstrate that her trial counsel’s performance was deficient and
       there is no evidence of resulting prejudice.

       On appeal, Linn contends summary judgment was erroneous because

“Iowa courts have recognized evidence of BWS as proof in support of a justification

defense” and “there is substantial record evidence clearly demonstrating counsel’s

awareness of facts sufficient to support a BWS defense” in her case. Linn also

challenges the court’s denial of her application to retain a BWS expert at State

expense.
                                            6


       This court has “previously acknowledged that BWS is not a defense unto

itself, but instead offers jurors a window through which a justification claim of self-

defense may be understood in a particular case.” Shelburn v. State, No. 12-0830,

2013 WL 3457097, at *2 (Iowa Ct. App. July 10, 2013) (citing State v. Price, No.

07-1659, 2008 WL 5234351, at *2, *6 (Iowa Ct. App. Dec. 17, 2008) (holding the

BWS expert’s testimony “would have given the jury information that it needed to

understand the significance and meaning of the victim’s conduct and to understand

the defendant’s reaction to that conduct,” where the defendant “testified that just

prior to the stabbing, [the victim] stated he was going to kill her, . . . [the victim]

came at her to punch her in the head, and [the defendant], fearing for her life, then

picked up a knife lying on the floor and stabbed [the victim]”)).

       Here, evidence to support a BWS component of Linn’s justification defense

was presented at trial, and the jury had the opportunity to consider it in reaching

its verdict.   As Linn acknowledges, trial counsel told the jury during opening

statement “the defense was one of justification and that the evidence would show

‘things in [Linn’s] life that related to her relationship with [her abuser] and the events

of February 6 and February 7.’” Linn recites specific pieces of information trial

counsel elicited from her during direct examination, including evidence relating to

her history of abuse by Blanchard, her fear of Blanchard, her unsuccessful

attempts to end her relationship with Blanchard, Blanchard’s threats and

controlling behavior toward her, Blanchard’s reputation for being tough and

intimidating, and the fact that her sister had been killed by an abusive partner. Trial

counsel further elicited testimony from Linn that Blanchard “promised he would cut

her from her pussy to her throat and fuck her in the throat while she is bleeding,”
                                          7


and that he would “fuck her dead or alive.” Linn testified she was unemployed, an

alcoholic, and medicated for mental health issues, and Blanchard pressured her

to buy drugs and controlled her by taking her money, food stamps, and medication.

Cf. State v. Rodriquez, 636 N.W.2d 234, 246 (Iowa 2001) (describing evidence

reflecting a “cycle of violence”).

       But the jury also heard evidence that would disprove a BWS-supported

claim of self defense. When a claim of self defense is supported or explained by

evidence of BWS, the State may disprove it by establishing any one of the

following: (1) the defendant initiated or continued the fatal incident, (2) the

defendant did not believe there was an imminent danger requiring deadly force,

(3) the defendant did not have a reasonable grounds for believing deadly force

was necessary, or (4) the force actually employed was not reasonable. See State

v. Nunn, 356 N.W.2d 601, 604 (Iowa Ct. App. 1984), overruled on other grounds

by State v. Reeves, 636 N.W.2d 22, 25-26 (Iowa 2001).

       Specifically, the jury received evidence of Linn’s statements to police, “I only

had one gun and one bullet, and I shot him because he was not being nice to me,”

and, “My life has ended up as [a] murder.” See id. (noting a BWS-supported claim

of self defense can be disproved by establishing the defendant initiated or

continued the fatal incident). The jury also received evidence that Linn admitted

to threatening Blanchard with the rifle, that she told Blanchard no one was going

to tell her what to do in her house, and that the shooting occurred when she was

angry after Blanchard dared her to shoot him. See id. Because this evidence

would rebut a BWS justification defense, Linn’s claim is unpersuasive. Linn cannot

show she was prejudiced by counsel’s failure, and she has not created a material
                                             8

issue of fact on this issue.1 See Shelburn, 2013 WL 3457097, at *3 (“Counsel

concluded, based upon admissions made by Shelburn to law enforcement, that

the BWS[-supported] justification defense would have been very difficult to

pursue.”); see also State v. Sallie, 693 N.E.2d 267, 270 (Ohio 1998) (“[T]rial

counsel could have reasonably concluded expert testimony about battered woman

syndrome was unnecessary and irrelevant. Sallie consistently maintained the

shooting was accidental—that she did not intentionally pull the trigger. Testimony

by the State’s witnesses supported this position. Because Sallie did not claim she

shot Brown in self-defense, evidence that she may have suffered from battered

woman syndrome was immaterial.”). And for these reasons,2 even if a BWS expert

was procured and had offered testimony to explain BWS to the jury, it would not

have changed the result of trial. This conclusion also resolves any claimed error

in the PCR court’s refusal to appoint such an expert in this case. Summary

disposition was proper.




1
  To prevail on a claim of ineffective assistance of counsel, Linn must show “(1) counsel
failed to perform an essential duty; and (2) prejudice resulted.” State v. Maxwell, 743
N.W.2d 185, 195 (Iowa 2008) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A claim of ineffective assistance of counsel fails if either element is lacking. See State v.
Clay, 824 N.W.2d 488, 495 (Iowa 2012).
2
  Including, for example, Linn’s testimony of accidental discharge and her many contrary
admissions to the police after the shooting. But see Price, 2008 WL 5234351, at *6
(concluding prejudice was shown from the court’s exclusion of expert testimony on BWS
where the defendant, “fearing for her life,” stabbed the victim as he “came at her to punch
her in the head,” because “the expert’s testimony would have been relevant in aiding the
jury’s determination of whether Price did have a reasonable belief that she was in imminent
danger of injury or death or whether Price had an alternative course of action”). Price is
not on point here. The question in Price was whether the court erred in refusing to admit
expert testimony from a BWS expert. Here, the question is whether material facts are in
dispute that trial counsel was ineffective for failing to procure and offer expert testimony
about BWS and whether prejudice resulted.
                                         9


       Linn also contends PCR counsel was ineffective “for failing to comply with

Iowa Rule of Civil Procedure 1.981 in resisting the State’s motion for summary

judgment.” Specifically, Linn claims PCR counsel failed to “set forth affidavits or

transcripts to refute the State’s alleged facts” and failed to “secure an[] expert on

BWS.” Aside from challenging counsel’s failure to retain a BWS expert, Linn does

not identify any facts PCR counsel could have used to give her claim a chance of

surviving the State’s motion for summary judgment. “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.” Dunbar v. State, 515

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

       Here, PCR counsel filed an amended application, a resistance to the State’s

motion for summary judgment, and answers to interrogatories. See Rickey v.

State, No. 16-1212, 2017 WL 2461560, at *3 (Iowa Ct. App. June 7, 2017) (“Unlike

Lado [v. State, 804 N.W.2d 248, 252 (Iowa 2001)], in which counsel took no action

at all, Rickey was not completely denied counsel, actually or constructively, at any

point in the proceeding. Rickey’s PCR counsel filed an amended application for

PCR, assisted Rickey in responding to the State’s interrogatories, and requested

additional time to respond to the State’s discovery request. After the State filed a

motion to dismiss, Rickey’s PCR counsel filed a resistance.”). And Linn has not

alleged any facts in dispute or identified any legal authority PCR counsel should

have included in her resistance. See id. (rejecting claim of ineffective assistance

of PCR counsel for failure to file a statement of disputed facts and a memorandum
                                         10


of authorities in support of the applicant’s resistance to the State’s motion for

summary disposition). Furthermore, Linn has not asserted she was prejudiced by

PCR counsel’s alleged errors. See Strickland, 466 U.S. at 694; Dunbar, 515

N.W.2d at 15-16 (“Because Dunbar cannot show prejudice, this alleged error by

postconviction counsel affords no basis for an ineffective assistance of counsel

claim.”). Linn’s claim of ineffective assistance of counsel thus fails.

       Upon consideration of the issues raised on appeal, we affirm the district

court’s order granting summary judgment on Linn’s PCR application.

       AFFIRMED.
