               IN THE SUPREME COURT OF IOWA
                              No. 09–0853

                        Filed September 2, 2011


DANIEL LADO,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      On review from the Iowa Court of Appeals.



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

Judge.



      Applicant seeks further review of court of appeals decision

affirming the dismissal of his petition for postconviction relief and

preserving   his    ineffective-assistance-of-postconviction-relief-counsel

claim for further postconviction relief action. DECISION OF COURT OF

APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED, AND

CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Thomas J. Gaul,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant

Attorney General, John P. Sarcone, County Attorney, John Judisch and

Celene Gogerty, Assistant County Attorneys, for appellee.
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ZAGER, Justice.

      Daniel Lado appeals the district court’s dismissal of his application

for postconviction relief for failure to prosecute under Iowa Rule of Civil

Procedure 1.944.      Lado claims his failure to advance his application

resulted from ineffective assistance of counsel.          The court of appeals

found Lado’s counsel was ineffective, but preserved his claim for

postconviction relief because it could not determine from the record

whether there was a reasonable probability that the proceeding would

have been different had counsel sought a continuance.                 On further

review,   we   find   Lado’s   counsel       committed   structural   error   that

constructively denied Lado the right to counsel and rendered the

postconviction relief proceeding inherently unreliable.         Accordingly, we

vacate the decision of the court of appeals, reverse the district court’s

dismissal, and remand the case for adjudication on the merits of Lado’s

postconviction relief application.

      I. Background Facts and Proceedings.

      Daniel Lado pleaded guilty to dependent adult abuse in July 2006.

The trial court imposed a ten-year prison term, suspended the sentence,

and placed Lado on probation.        In January 2007, after an evidentiary

hearing, Lado’s probation was revoked, and his prison sentence was

reinstated.    Lado filed several requests for his sentence to be

reconsidered, which the court denied.

      On May 9, 2007, Lado filed a pro se petition for postconviction

relief which contained a request for appointment of counsel.                  For

eighteen months, no action was taken on Lado’s application.              A clerk

finally brought Lado’s request for appointed counsel to the district

court’s attention.    On November 5, 2008, the district court appointed

Lado counsel. The court’s order instructed appointed counsel to confer
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with Lado within sixty days, investigate the basis of his application, and

amend the application if necessary. The order also specifically warned

appointed counsel Lado’s application was under a rule 1.944 dismissal

notice for failure to prosecute.

      Lado’s counsel filed an application to copy the file on December 10,

2008. On January 7, 2009, the court granted Lado’s application. On

January 29, the State filed an answer to Lado’s pro se petition, and the

State also filed a motion for summary judgment and dismissal of Lado’s

petition.   The State alleged summary judgment should be granted for

several reasons, including “the application is subject to dismissal

pursuant Iowa Rule of Civil Procedure 1.944.” On February 6, the State

filed an amended and substituted motion for summary judgment and

dismissal, again asking for dismissal pursuant to rule 1.944.

      In response, appointed counsel filed an application for extension

on February 19. Counsel admitted he had not reviewed the entire file or

discussed the State’s motion with Lado.           Counsel, however, made no

motion to extend or seek relief from the rule 1.944 time requirement.

      The court set a hearing for March 17, and ordered the parties to

provide written materials at least two days before the hearing. The State

filed a written argument in support of its motions for summary judgment

and dismissal.     Lado’s counsel filed nothing.         Lado’s counsel did

represent him at his hearing, which was not reported. The district court

entered its order of dismissal on May 6, 2009, finding that the case had

been dismissed on January 1, 2009, by operation of rule 1.944.          The

district court did not address any issue on the merits of Lado’s

postconviction relief application in its order.

      Lado filed a pro se notice of appeal alleging dismissal under rule

1.944 resulted from ineffective assistance of counsel.        The case was
                                       4

transferred to the court of appeals. The court of appeals affirmed the

dismissal. The court of appeals concluded Lado had proven his counsel

breached an essential duty.     However, the court of appeals preserved

Lado’s claim for postconviction relief because it found the record was

insufficient to determine whether the district court would have granted

Lado’s postconviction relief application if his counsel had acted

competently. Lado petitioned for further review, which we granted.

      II. Standard of Review.

      This court generally reviews an appeal from a denial of a

postconviction relief application for correction of errors at law. Everett v.

State, 789 N.W.2d 151, 155 (Iowa 2010). When the applicant’s claims

are of a constitutional nature, this court engages in a de novo review. Id.

Lado, however, has a statutory, not constitutional right to effective

assistance of counsel on postconviction relief. See Dunbar v. State, 515

N.W.2d 12, 14–15 (Iowa 1994) (finding Iowa Code section 633A.5 (1991),

now codified as Iowa Code section 822.5, provides a right to counsel in

postconviction relief proceedings which necessarily implies “effective

assistance”). In accord with Dunbar, we still apply a de novo review. See

id. (making factual and legal determinations without deference to the

district court).

      III. Ineffective Assistance of Counsel.

      In Dunbar, we used federal constitutional law to guide our analysis

of the postconviction relief applicant’s statutory right to effective

assistance of counsel.    See Dunbar, 515 N.W.2d at 15 (analyzing the

applicant’s   ineffective-assistance   claim   under   the   well-established

Strickland two-prong test). Since the parties do not advocate any other

framework, we will use constitutional ineffective-assistance-of-counsel

precedent to guide our analysis in this case.
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      To establish an ineffective-assistance-of-counsel claim, a claimant

must demonstrate “(1) his trial counsel failed to perform an essential

duty, and (2) this failure resulted in prejudice.”         State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006) (citing Strickland v. Washington, 466 U.S.

668, 687–88, 104 S. Ct. 2052, 2064–65, 80 L. Ed. 2d. 674, 693 (1984)).

The claimant must prove both elements by a preponderance of the

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

address each prong in order.

      A. Breach of Essential Duty. An attorney breaches an essential

duty when “counsel’s representation [falls] below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L.

Ed. 2d at 693.     “ ‘Miscalculated trial strategies and mere mistakes in

judgment normally do not rise to the level of ineffective assistance of

counsel.’ ” Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008) (quoting

Ledezma, 626 N.W.2d at 143). Ineffective assistance, however, is more

likely when counsel’s alleged actions or inactions result from a lack of

diligence, rather than use of judgment. Ledezma, 626 N.W.2d at 142–43.

“Clearly, there is a greater tendency for courts to find ineffective

assistance when there has been ‘an abdication—not exercise—of . . .

professional   [responsibility].’ ”   Id.   (alteration   in   original)   (quoting

McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir. 1974)).

      Lado’s counsel was apprised of the pending rule 1.944 dismissal

notice. The State moved for summary judgment and dismissal on rule

1.944 grounds.       The State’s amended and substituted motion for

summary judgment and dismissal again asked for dismissal pursuant to

rule 1.944. Lado’s counsel never sought a continuance of the case under

the rule, nor did counsel file an application for reinstatement as allowed

by the rule. Permitting a client’s postconviction relief application to be
                                        6

dismissed because of inaction is never an effective trial strategy.

Counsel’s failure to seek a continuance of the case, or to apply to have

the     case   reinstated,   resulted   from   abdication,   not    exercise,    of

professional judgment.       Counsel therefore breached an essential duty

resulting in the case being dismissed.

        B. Prejudice.     Ordinarily, a claimant must prove “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different” to establish prejudice. Strickland,

466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This is because

“the right to the effective assistance of counsel is recognized not for its

own sake, but because of the effect it has on the ability of the accused to

receive a fair trial.” United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct.

2039, 2046, 80 L. Ed. 2d 657, 667 (1984). In other words, a person’s

right to counsel is only implicated when attorney error undermines the

reliability and fairness of the criminal process.               Most ineffective-

assistance claims involve “trial error” which implicates counsel’s

performance during the course of a legal proceeding.               Roe v. Flores-

Ortega, 528 U.S. 470, 481–82, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985,

998 (2000). The actual-prejudice approach manifests that not all “trial

errors” undermine the reliability and fairness of the legal proceeding. Id.

        Defense counsel, however, may also commit “structural errors.”

Structural errors are not merely errors in a legal proceeding, but errors

“affecting the framework within which the trial proceeds.”             Arizona v.

Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d

302, 331 (1991).        We have recognized structural error occurs when:

(1) counsel is completely denied, actually or constructively, at a crucial

stage    of    the   proceeding;   (2) where   counsel   does    not   place    the

prosecution’s case against meaningful adversarial testing; or (3) where
                                          7

surrounding circumstances justify a presumption of ineffectiveness, such

as where counsel has an actual conflict of interest in jointly representing

multiple defendants.        State v. Feregrino, 756 N.W.2d 700, 707 (Iowa

2008) (citing Cronic, 466 U.S. at 659, 104 S. Ct. at 2047, 80 L. Ed. 2d at

668). 1

          Under these circumstances, “[n]o specific showing of prejudice [is]

required” as the criminal adversary process itself is “presumptively

unreliable.” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047, 80 L. Ed. 2d at

668; see also Penson v. Ohio, 488 U.S. 75, 77–78, 88, 109 S. Ct. 346,

348–49, 354, 102 L. Ed. 2d 300, 307, 314 (1988) (finding complete denial

of counsel where appellate counsel’s appeal was entitled “Certification of

Meritless Appeal and Motion” and contained no argument).                       Stated

another way, when counsel commits a structural error, the defendant

does not have to show he would have obtained a different outcome

absent the counsel’s structural error because such an analysis “would be

a speculative inquiry into what might have occurred in an alternate

universe.” United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.

Ct. 2557, 2565, 165 L. Ed. 2d 409, 420 (2006) (presuming prejudice

where trial court erroneously inhibited defendant from having his choice

of counsel). In cases where defense counsel fails to file an appeal against

the defendant’s wishes, the Court has determined the “serious denial of

the entire judicial proceeding itself . . . similarly demands a presumption

of prejudice.” Flores-Ortega, 528 U.S. at 483, 120 S. Ct. at 1038, 145 L.


          1TheIowa case law on “structural error” is minimal and primarily concerns a
defendant’s adherence to procedural requirements in waiving a jury trial. We originally
held failure to adhere to the waiver-of-jury-trial rule requirements was a structural
error, but, in a more thoroughly reasoned opinion, changed course. State v. Stallings,
658 N.W.2d 106, 111 (Iowa 2003), overruled by State v. Feregrino, 756 N.W.2d 700,
707–08 (Iowa 2008). Outside of these cases, our case law provides few applications of
structural error.
                                       8

Ed. 2d at 999. In sum, when a structural error occurs in a proceeding,

the underlying criminal proceeding is so unreliable the constitutional or

statutory right to counsel entitles the defendant to a new proceeding

without the need to show the error actually caused prejudice.

      The    court   specifically     warned   Lado’s   counsel   that   his

postconviction relief application was subject to rule 1.944 dismissal.

Counsel at no point sought a continuance to obtain relief from the rule’s

consequences. Additionally, after the court dismissed the case pursuant

to the rule, counsel never made application to the court to have the case

reinstated as allowed by the rule. When the State filed its motions for

summary judgment and dismissal alleging Lado’s application should be

dismissed pursuant to rule 1.944, Lado’s counsel sat silent and did not

respond.    Not surprisingly, the court dismissed Lado’s application for

failure to prosecute. Lado was constructively without counsel during his

postconviction relief proceeding as his application was dismissed without

any consideration of its merits or meaningful adversarial testing. This is

the type of error that renders the entire postconviction relief proceeding

“presumptively unreliable.”         Accordingly, Lado’s statutory right to

effective counsel entitles him to have his postconviction relief dismissal

reversed and to proceed with his postconviction relief proceeding.

      IV. Disposition.

      Lado has proven his counsel was ineffective in failing to seek a

continuance to prevent dismissal under Iowa Rule of Civil Procedure

1.944 or to make application to the court for the reinstatement of his

case after it was dismissed by operation of the rule. Counsel’s failure

was a structural error that allowed Lado’s application to be denied

without consideration of the merits or adversarial testing. This type of

structural error renders the entire postconviction relief proceeding
                                     9

unreliable and undermines Lado’s right to a fair trial.         Therefore,

prejudice is presumed. The decision of the court of appeals is vacated,

the district court’s dismissal is reversed, and the case is remanded to the

district court for adjudication on the merits.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED, AND CASE REMANDED.

      All justices concur except Mansfield, J., who takes no part.
