                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-1796
                               Filed February 6, 2019


MAURICE WALKER,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      Maurice Walker appeals from the dismissal of his application for

postconviction relief. AFFIRMED.




      Jack E. Dusthimer, Davenport, for appellant.

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

General, for appellee State.



      Considered by Vogel, C.J., Vaitheswaran, J., and Gamble, S.J.* Tabor, J.,

takes no part.

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                          2


GAMBLE, Senior Judge.

       Maurice Walker appeals from the dismissal of his application for

postconviction relief (PCR). We affirm.

       On June 5, 2005, the county attorney filed a trial information charging

Walker with two counts of murder in the first degree, in violation of Iowa Code

sections 707.1, 707.2(1) or (2) (2005), for the killing of his ex-wife and her live-in

boyfriend.   Each count charged Walker with killing the victim “with malice

aforethought either express or implied and willfully, deliberately, and with

premeditation or while participating in a forcible felony, namely a burglary.” By

general verdicts, the jury convicted Walker of both counts of murder in the first

degree following a 2006 trial.

       On direct appeal, Walker alleged that there was insufficient evidence to

support his convictions. Specifically, Walker argued the State had failed to rebut

his alibi defense. This court upheld his conviction and affirmed the denial of his

motion for judgment of acquittal. State v. Walker, No. 06-1005, 2007 WL 2120229,

at *3 (Iowa Ct. App. July 25, 2007). The supreme court denied further review and

procedendo issued on September 21, 2007.

       Walker timely filed a PCR application, which was amended numerous times

and finally tried in 2016. At the trial, Walker asserted twenty-one separate grounds

of ineffective assistance of counsel. The district court denied the application and

Walker appeals.

       To establish a claim of ineffective assistance of counsel, Walker must

establish by a preponderance of evidence (1) trial counsel failed in an essential

duty and (2) that constitutionally-deficient performance resulted in prejudice, i.e.,
                                           3

that the result of the trial probably would have been different. See State v. Harris,

891 N.W.2d 182, 185-86 (Iowa 2017). We conduct a de novo review of claims of

ineffective assistance of counsel. Goode v. State, 920 N.W.2d 520, 525 (Iowa

2018).

         On appeal, Walker contends his trial counsel breached an essential duty in

failing to object to the court’s felony-murder instruction. Walker argues State v.

Heemstra should apply and he should be granted a new criminal trial. See 721

N.W.2d 549, 558 (Iowa 2006) (“We now hold that, if the act causing willful injury is

the same act that causes the victim’s death, the former is merged into the murder

and therefore cannot serve as the predicate felony for felony-murder purposes. In

reaching this conclusion, we agree that we should not attribute to the legislature

an intent to ‘create[ ] an ever-expanding felony murder rule’ by characterizing every

willful injury as a forcible felony for felony-murder purposes.” (citation omitted)).

         In Iowa, the legislature has specified which felonies are classified as a

“forcible felony” under the felony-murder rule in Iowa Code section 702.11(1). A

forcible felony includes burglary in the first degree. Iowa Code § 702.11(1); see

State v. Harrison, 914 N.W.2d 178, 191-93 (Iowa 2018) (discussing continuing

viability of felony-murder rule). Heemstra is inapplicable because the predicate

felony in Walker’s case was burglary in the first degree, not willful injury.

Defendants have been unsuccessful in extending the reasoning of Heemstra

where the predicate felony was not the same act that caused the victim’s death.

See Harrison, 914 N.W.2d at 192; Goosman v. State, 764 N.W.2d 539, 545 (Iowa

2009).
                                          4

        In any event, Heemstra is not applicable here because the issue was not

raised during Walker’s criminal trial. See 721 N.W.2d at 558 (concluding “[t]he rule

of law announced in this case regarding the use of willful injury as a predicate

felony for felony-murder purposes shall be applicable only to the present case and

those cases not finally resolved on direct appeal in which the issue has been raised

in the district court” (emphasis added)). The fact that Walker’s trial counsel was

an experienced criminal defense attorney and Heemstra was pending on appeal

at the time of Walker’s trial is unavailing given the fact that the Iowa Supreme Court

had not yet changed the law. Prior to Heemstra, Iowa courts adhered to the

precedent of State v. Beeman, 315 N.W.2d 770, 776-77 (Iowa 1982) (stating willful

injury could serve as the predicate felony for felony murder because willful injury

is a forcible felony). Beeman was the controlling authority at the time of trial.

Walker’s counsel was not ineffective in failing to object to the felony-murder

instruction. See State v. Snethen, 308 N.W.2d 11, 16 (Iowa 1981) (“Counsel need

not be a crystal gazer; it is not necessary to know what the law will become in the

future to provide effective assistance of counsel.”).

        We also reject the contentions of Walker’s pro se supplemental appellate

brief. See Gamble v. State, 723 N.W.2d 443, 445 (Iowa 2006). Walker asserts

the PCR court erred in finding his trial counsel was not ineffective in a number of

ways.    Walker claims for the first time on appeal that his trial counsel was

ineffective for failing to object to a jury instruction on first-degree burglary where

there was no charge of burglary in the trial information. Walker did not raise this

issue in the district court. He has failed to preserve error. See Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review
                                        5


that issues must ordinarily be both raised and decided by the district court before

we will decide them on appeal.”). Further, while there was no separate charge of

burglary, the trial court properly submitted burglary in the first degree as the

predicate felony of felony murder.

       On our de novo review of the remaining issues, we agree with the district

court’s thorough and well-reasoned findings and conclusions, as modified by its

ruling on Walker’s motion for a new PCR trial. Finding no merit to Walker’s

contentions, we affirm without further opinion. See Iowa Ct. R. 21.26(a), (b), (d),

(e).

       AFFIRMED.
