                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0973
                               Filed July 22, 2020


DERRICK DEONDRE DANIELS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,

Judge.



      Derrick Daniels appeals the district court order dismissing his second

postconviction-relief application. AFFIRMED.




      Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines, for

appellant.

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

General, for appellee State.



      Considered by Bower, C.J., and Greer and Ahlers, JJ.
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AHLERS, Judge.

      Derrick Daniels appeals the district court order dismissing his second

postconviction-relief (PCR) application on the State’s motion to dismiss. The

district court concluded Daniels’s illegal-sentence claim was without merit, and the

other grounds raised in the second application had already been adjudicated in

Daniels’s first PCR application and were thus barred under Iowa Code section

822.8 (2019).

      I.        Factual Background

      The facts of this case were summarized by the panel of our court that

decided Daniels’s direct appeal:

             On January 6, 2013, the Waterloo Police Department was
      conducting surveillance of certain individuals and a vehicle believed
      to be involved in a cocaine trafficking operation. Officer Nicholas
      Barry was watching the Waterloo bus station when he saw an
      individual, later determined to be Derrick Daniels, get off of a Trail
      Ways bus arriving from Chicago. He was carrying a black duffle bag
      and walked toward a silver SUV. The silver SUV, driven by Latosha
      Daniels, had also been under surveillance by the police department.
      Daniels was observed getting into the vehicle carrying the black
      duffle bag. The vehicle was later stopped, and the duffle bag was
      found on the passenger side of the vehicle between Daniel’s [sic]
      feet. The bag contained what was later determined to be almost
      seventy grams of cocaine base or crack cocaine. There was no drug
      stamp affixed to the duffle bag or the crack cocaine.
             The silver vehicle driven by Latosha had been stopped earlier
      in the day and had been searched. It contained no black duffle bag
      at that time and had continued to be under surveillance until it was
      stopped after departing from the bus station. Immediately thereafter,
      Latosha’s residence was searched. Plastic baggies, two razors, and
      an electronic scale were found, all items frequently used by drug
      dealers. A pill box bearing Derrick Daniels name was also found at
      the residence.
             Daniels was arrested and charged with possession of cocaine
      base with the intent to deliver of less than fifty grams, which was later
      amended to more than fifty grams, and with possession of a
      controlled substance with no drug stamp affixed. While in jail,
      Daniels initiated a conversation with Deputy Sheriff Wayne Sidles in
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      which Daniels stated he brought the “stuff” back for “Big Wil” and
      indicated he wanted to cut a deal but terminated the conversation by
      indicating he wanted to talk to an attorney.
             Daniels waived his right to a jury and stood trial before the
      court.     Officer Joshua Zubak, a Waterloo police officer
      knowledgeable about the drug scene in Waterloo, testified that
      seventy grams of crack cocaine was not consistent with the amount
      ordinarily possessed by a user. He further testified that seventy
      grams of crack in Waterloo would sell for about $100 per gram or
      $7000.
             Daniels was found guilty of possession of more than fifty
      grams of cocaine with intent to distribute and also of possession of a
      controlled substance without a tax stamp affixed. Daniels was
      sentenced to fifty years in prison with a mandatory one-third
      minimum sentence on the possession-with-intent-to-distribute
      charge and five years in prison on the charge of failure to affix a drug
      stamp. The sentences were ordered to run concurrently.

State v. Daniels, No. 14-1442, 2016 WL 5408279, at *1 (Iowa Ct. App. Sept. 28,

2016). Our court affirmed Daniels’s conviction. Id. at *5.

      In his first PCR appeal, Daniels alleged his PCR counsel was ineffective for

failing to argue his trial counsel should not have withdrawn a motion to suppress

inculpatory statements he made to Deputy Sidles while in custody, which were

captured on video. Daniels v. State, No. 17-0755, 2018 WL 3301826, at *1 (Iowa

Ct. App. July 5, 2018) (Daniels II). Daniels argued that, had his PCR counsel

presented evidence related to Daniels’s statements, his motion to suppress the

statements would have been granted because “Daniels was not adequately

informed of his Miranda rights, did not understand them, and did not knowingly and

intelligently waive them, and consequently, his motion to suppress would have

been granted.” Id. at *2 (footnote omitted); see Miranda v. Arizona, 384 U.S. 436,

479 (1966) (holding that a person in police custody “must be warned prior to any

questioning that he has the right to remain silent, that anything he says can be

used against him in a court of law, that he has the right to the presence of an
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attorney, and that if he cannot afford an attorney one will be appointed for him prior

to any questioning if he so desires”). Rejecting Daniels’s argument, a panel of our

court concluded there was no reasonable probability Daniels could prevail at trial

even if his statements were suppressed. Id.; see State v. Harris, 891 N.W.2d 182,

185–86 (Iowa 2017) (“Prejudice is established if ‘there is a reasonable probability

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

have been different.’” (quoting State v. Reynolds, 746 N.W.2d 837, 845 (Iowa

2008))).

       Daniels filed this second PCR application in May 2018.            In the PCR

application, Daniels argued the district court abused its discretion by allowing his

statements to Deputy Sidles to be admitted because the State had not provided

the videotape to defense counsel before trial. Daniels further argued his trial

counsel was ineffective for failing to move for a mistrial once the district court

admitted his statements, and appellate and first PCR counsel were also ineffective

for failing to argue trial counsel had been ineffective for that omission. He also

argued his due-process rights were violated by admission of the video.

       The State moved to dismiss, arguing the claims raised in the second PCR

application had been raised in his previous appeals. After an unreported hearing,

the district court granted the State’s motion, holding Daniels’s illegal-sentence

claim was without merit and that Daniels’s other claims had either already been

raised or should have been raised either on direct appeal or in the first PCR

application.1 Daniels appeals.


1On March, 5, 2019, the day after the unreported hearing, Daniels filed a pro se
document entitled “Notice to dismiss Pro se Supplemental Attachment To original
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         II.    Standard of Review

         We review the district court’s grant of the State’s motion to dismiss for

correction of errors at law. Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018).

“However, when an applicant claims ineffective assistance of postconviction

counsel, our review is de novo.” Goode v. State, 920 N.W.2d 520, 523 (Iowa

2018).

         III.   Discussion

         The only issue Daniels raises on appeal is his claim prior appellate and first

PCR counsel were ineffective in failing to raise a due-process challenge related to

the admission of the video recording in which Daniels made incriminating

statements. The district court concluded this claim in Daniels’s second PCR

application had already been finally adjudicated on direct appeal or in his first PCR

proceeding. Alternatively, the district court concluded that, even if this claim had

not been previously raised, there was not a sufficient reason for not raising it on

direct appeal or in the prior PCR proceeding as addressed in Iowa Code section

822.8 (2019).2 That provision states:



Application.” In that document, Daniels referenced claims that his sentence was
illegal and his statements to the investigating officer were involuntary. The district
court referenced this filing in its ruling, finding the illegal-sentence claim to lack
merit and finding the other grounds were either finally adjudicated or were not
raised on direct appeal or in Daniels’s first PCR proceeding. None of the issues
raised in Daniels’s March 5 filing are raised on appeal.
2 Daniels also raised a number of other claims in his PCR application, including (1)

the district court abused her discretion by admitting Daniels’s statements; (2) the
sentence was illegal and violated the Double Jeopardy Clauses of the United
States and Iowa Constitutions; and (3) his statements were involuntary. The
district court concluded Daniels’s illegal-sentence claim was without merit and the
other additional claims were barred under section 822.8. Daniels’s appellate briefs
do not address any of these claims or cite authority supporting them. As such, we
conclude Daniels waived these claims. See Iowa R. App. P. 6.903(2)(g)(3)
                                           6


       All grounds for relief available to an applicant under this chapter must
       be raised in the applicant’s original, supplemental or amended
       application. Any ground finally adjudicated or not raised, or
       knowingly, voluntarily, and intelligently waived in the proceeding that
       resulted in the conviction or sentence, or in any other proceeding the
       applicant has taken to secure relief, may not be the basis for a
       subsequent application, unless the court finds a ground for relief
       asserted which for sufficient reason was not asserted or was
       inadequately raised in the original, supplemental, or amended
       application.

Iowa Code § 822.8. “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 Res judicata bars additional litigation on this point.” Holmes v. State,

775 N.W.2d. 733, 735 (Iowa Ct. App. 2009) (quoting State v. Wetzel, 192 N.W.2d

762, 764 (Iowa 1971)). But a second PCR application may be filed if counsel in

the first PCR application “ineffectively fails to raise a ground for reversal.” Allison,

914 N.W.2d at 890.

       The issue raised in this appeal was finally adjudicated on appeal in

Daniels’s first PCR application. On appeal in the first PCR action, our court clearly

ruled Daniels could not prevail on his claim of ineffective assistance of counsel

related to admission of the video recording containing Daniels’s incriminating

statements because Daniels could not meet the prejudice prong of an ineffective-

assistance-of-counsel claim.      Daniels II, 2018 WL 3301826, at *2 (“[E]ven

assuming Daniels’s inculpatory statements were suppressed, there is no

reasonable probability that he could prevail with the extensive evidence of

Daniels’s guilt properly admitted into the evidence.”). Here, Daniels presents an




(“Failure to cite authority in support of an issue may be deemed waiver of that
issue.”).
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alternative theory for why the video recording should not have been admitted into

evidence, namely that admitting the video violated his due-process rights as a

result of the State’s late disclosure of the video. However, coming up with a new

theory of why the video evidence should have been excluded does not help

Daniels. His claim is still brought based on a claim of ineffective assistance of

counsel, which requires him to prove (1) counsel failed to perform an essential

duty, and (2) he was prejudiced as a result. See Strickland v. Washington, 466

U.S. 668, 687–88 (1984). As noted, our court has already determined Daniels

cannot prevail on a PCR action based on ineffective assistance of counsel related

to admission of the video recording because Daniels cannot show prejudice from

the video’s admission. Daniels II, 2018 WL 3301826, at *2. Therefore, his claim

of ineffective assistance of counsel in this action based on admission of the video

recording fails because that issue has already been resolved on the merits. See

Iowa Code § 822.8 (precluding raising issues already finally adjudicated). In other

words, even if Daniels could establish prior counsel breached counsel’s duty by

failing to raise a due-process claim related to admission of the video, doing so

would not do Daniels any good because it has already been determined that

admission of the video did not result in prejudice to Daniels. The district court

correctly dismissed Daniels’s PCR application for this reason.

      AFFIRMED.
