                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1588
                            Filed November 26, 2014

DANNY EUGENE JACOBS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Marion County, Gregory A. Hulse,

Judge.



      A postconviction-relief applicant appeals from denial of his application and

the district court’s determination of his restitution obligation. AFFIRMED.



      Unes J. Booth of Booth Law Firm, Osceola, for appellant.

      Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney

General, and Ed Bull, County Attorney, for appellee.



      Heard by Mullins, P.J., and Bower and McDonald, JJ.
                                           2



MULLINS, J.

       Danny Eugene Jacobs appeals from the denial of his application for

postconviction relief (PCR). He asserts ineffective-assistance-of-counsel claims

and a due process claim, and he challenges the district court’s conclusion that

the restitution he must pay for his legal costs does not exceed the statutory

guidelines. The State contends as a threshold matter that Danny’s1 failure to

timely file a notice of appeal renders this court without jurisdiction.

       We find Danny’s notice of appeal was timely, thus, this court has

jurisdiction to hear the appeal. On the merits, we find Danny fails to establish his

trial counsel was ineffective and fails to establish a due process violation. We

further conclude the district court correctly ordered Danny to repay his attorney

fees based on his ability to pay, not limited by State v. Dudley, 766 N.W.2d 606

(Iowa 2009). Accordingly, we affirm.

I.     JURISDICTION.

       Danny’s application for postconviction relief proceeded to trial before the

PCR court on April 8, 2013. On June 26, 2013, the court entered its findings of

fact, conclusions of law, and order.        The court denied Danny’s ineffective-

assistance-of-counsel and due process claims. It found the following with regard

to his obligation to reimburse the State for the cost of his legal representation:

              In this case Danny filed a postconviction-relief action and
       filed a financial affidavit seeking appointment of counsel. The
       application was granted. Appointment of counsel for indigency is
       governed by Iowa Code Chapter 815 and the Iowa Administrative
       Code. A person represented by court-appointed counsel, “. . . has


1
  The PCR trial court referenced Jacobs by his first name. We find it expeditious to do
the same.
                                         3



      a continuing duty to update information provided in the affidavit of
      financial status to reflect changes in the information previously
      provided.” Iowa Admin. Code r. 493-10.4(9) (2013). On February
      6, 2013, Danny filed an updated financial affidavit which was dated
      February 4, 2013, showing assets which would indicate Danny is
      capable of paying his own legal fees. This Court determined at that
      time, because of the close proximity to the trial, that court-
      appointed counsel should continue to represent Danny and a
      determination as to Danny’s reasonable ability to pay should be
      deferred until the time of the trial. The Court entered an order
      which confirmed that U.J. Booth would continue to represent Danny
      on a court-appointed basis, that changes in Danny’s financial status
      would be reviewed and taken into consideration by the Court in
      determining Danny’s reasonable ability to repay his court-appointed
      attorney fees and costs, and that Danny would have the opportunity
      to present evidence concerning his reasonable ability to pay court-
      appointed attorney fees and costs at the time of the hearing.
      Danny did not offer any evidence on his ability to pay at the time of
      trial. Thus the Court has reviewed the information available to it
      and concludes that Danny has the reasonable ability to pay
      attorney fees and expenses in the amount provided by the state
      public defender.        In the event that Danny objects to this
      determination and wishes to present further evidence with regard to
      his reasonable ability to pay his court-appointed attorney fees and
      costs, he should apply to the Court for further hearing within ten
      days after this ruling is filed with the Clerk of the District Court.
              ....
              [T]he Applicant shall pay restitution for the fees and
      expenses incurred by his attorney in the total amount approved by
      the State Public Defender. In the event that the Applicant objects
      to this determination and wishes to present further evidence with
      regard to his reasonable ability to pay his court-appointed attorney
      fees and costs, he should apply to the Court for further hearing
      within ten days after this ruling is filed with the Clerk of Court.

Eleven days later, on July 5, Danny filed with the clerk of court “APPLICANT’S

MOTION TO ENLARGE OR AMEND JUDGMENT (LEGAL ASSISTANCE).” A

footnote in Danny’s motion asserted:

      A motion pursuant to Rule 1.904.(2) (formerly Rule 179(b))
      requesting only reconsideration of issues of law and facts
      pertaining to attorney fees tolls the 30 day period for filing notice of
      appeal. Peoples Trust & Sav. Bank v. Baird, 346 N.W.2d 1, 2 (Iowa
      1984); see also Ginter v. State, 12-0908, 2013 WL 3274739 (Iowa
                                         4



      App. 2013) (issue regarding assessment of costs not preserved
      where the postconviction applicant failed to raise the specific issue
      pursuant to a Rule 1.904 motion or any other means).

In his July 5 motion, Danny cited the court’s statement requiring an application

for further hearing on the fees ruling.      He argued the court ordered him to

reimburse the State court-appointed attorney fees in excess of the statutory

guidelines.   He cited State v. Dudley, 766 N.W.2d 606 (Iowa 2009), for the

proposition that convicted criminal defendants represented by court-appointed

attorneys are subject to the same statutory restitution limitations as those

represented by public defenders.        See Dudley, 766 N.W.2d at 622.            He

acknowledged there were statutory amendments to the governing code sections

after Dudley, but asserted because counsel was appointed prior to the

amendments, Dudley controlled and his obligation to pay restitution was

therefore limited to the statutory maximum of $1800.

      Danny then asserted, if the court did not agree his obligation was thus

limited, that his reasonable ability to pay could not be determined until the total

financial obligation was certified by the office of the State Public Defender. He

asked the court to

      preserve [his] right to a hearing to determine [his] ability to pay until
      such time that the State Public Defender has certified the total cost
      of legal assistance to the Clerk and that [Danny] be given an
      opportunity to request such hearing after receiving notice of the
      total cost of legal assistance.

The court set the July 5 “motion” for a hearing, which took place August 15,

2013, at which the court reopened the record on the fee issue. Danny gave new

testimony about the fees and his financial resources.         Danny’s counsel also
                                          5



represented that the State Public Defender had estimated the total fees and

expenses in the case would exceed $80,000. In its ruling, the court granted

Danny’s motion “to the extent of the clarification” it set forth about Danny’s

obligations, and reiterated its conclusion that Danny was required to reimburse

the State for his legal fees, or the sum of “$30,000, whichever is less.” The court

issued this ruling on September 11, 2013. Danny filed his notice of appeal on

October 4, 2013. Notice of appeal must be filed within thirty days of the final

order or judgment. See Iowa R. App. P. 6.101(1)(b). Normally, the filing of a rule

1.904(2) motion tolls the period for filing a notice of appeal. Id.

       The State contends this court does not have jurisdiction because Danny’s

motion was not a proper rule 1.904(2) motion. The State asserts a rule 1.904(2)

motion is for expanding or modifying findings based on evidence already in the

record—a party may not retry an issue by presenting new or more evidence as

Danny did in litigating the fee issue. Danny responds this was a proper rule

1.904(2) motion that tolled the thirty-day deadline for filing notice of appeal. He

cites Baird, wherein the supreme court found a motion captioned “motion for

rehearing” was actually a rule 179(b) (now 1.904(2)) motion to enlarge and

amend, based on its substance. See Baird, 346 N.W.2d at 2 (citing to Kagin’s

Numismatic Auctions Inc. v. Criswell, 284 N.W.2d 224, 226 (Iowa 1979)). The

“motion for rehearing” asked the court to reconsider issues of law pertaining to

the reasonableness of an award of attorney fees. Id. The Baird court found the

motion was properly pled and tolled the period for filing a notice of appeal.

Danny also cites Ginter v. State, No. 12-0908, 2013 WL 3274739, at *1 (Iowa Ct.
                                           6



App. June 26, 2013), wherein the PCR applicant failed to raise a rule 1.904(2)

challenge when the court assessed her court costs in her unsuccessful action.

This court found the issue was not preserved because of her failure to raise it

below and the issue was waived. Id. at *1. Neither case involved a court hearing

new evidence on a 1.904(2) motion as occurred here.

       Our reading of the court’s June 26 order is that the court offered to keep

the record open or reopen the record to give Danny an opportunity to present

further evidence on his reasonable ability to pay restitution. The June 26 order

was not, therefore, the final judgment on the PCR application. Danny availed

himself of the offered opportunity,2 and the court issued what would be its final

judgment on September 11. Although captioned as a rule 1.904(2) motion, the

substance of Danny’s motion and subsequent hearing was acceptance of the

court’s offer to present additional record evidence and obtain a ruling based on

that record. Thus, the thirty days ran from September 11, and his notice of

appeal filed October 4, 2013, was timely.        See Iowa R. App. P. 6.101(1)(b).

Accordingly, we have jurisdiction to hear the appeal.

II.    BACKGROUND FACTS & PROCEEDINGS.

       A.     Criminal Trial.

       Danny was tried by a jury and convicted of burglary in the first degree, in

violation of Iowa Code sections 713.1 and 713.3(1)(c) (1999). At the trial his

estranged wife, Stacia, testified that at approximately 9:41 a.m. on December 3,


2
  We note that although the court ordered Danny to inform it of his desire to reopen the
record within ten days, Danny’s filing was on the eleventh day thereafter. Nonetheless,
the court set the hearing and proceeded. We deem the issue waived as the State has
never raised it.
                                         7



1999, Danny entered her home and attacked her. She and Danny have three

children together who, at that time, were at school. Stacia testified she was

doing laundry in the basement of her home in Pella when Danny sneaked in,

grabbed her from behind, and placed a rope around her neck, pulling backwards

to choke her. Danny told her he was going to kill her. When she struggled

against the rope and screamed, Danny placed a hand over her mouth. Stacia bit

Danny’s hand twice.

       Danny stopped choking Stacia with the rope and spoke with her as she

sat on the floor of the basement. He inquired what color panties Stacia was

wearing.   He unzipped her pants and placed his finger over her rectum and

vagina. Stacia asked Danny to stop and informed him she was on her period.

He then inserted his fingers into her vagina, searching for a tampon string.

       At that time, Stacia remembered a friend of hers, Kerry Reed, was

supposed to come over around that time. She informed Danny someone else

would be coming soon, hoping he would stop. Danny told Stacia he just wanted

to talk. She agreed and promised she would not run. Danny allowed her to

stand up, tie her shoes, and zip her pants. When Danny turned away, Stacia ran

up the stairs and out of the house. She ran to a neighbor’s house and called

911. Danny was later arrested in Iowa City.

       Stacia later testified Danny was upset because he believed she had been

having an intimate relationship with another man, Charles Cowen (Charlie).

Danny and Stacia were going through divorce proceedings and fighting over

custody of their three children.
                                          8



       The investigation turned up several pieces of physical evidence.          The

jeans Stacia was wearing had a blood stain near the top button. The blood

matched Danny’s DNA profile. Stacia was treated by a doctor who testified she

had a “through-and-through” laceration on her lip, and abrasions on both sides of

her neck. The doctor testified that the neck abrasions were consistent in his

experience with rope burns. A police officer testified that he observed Danny had

an injury on his hand that looked like a bite mark.

       Danny testified to a different version of events. It was his belief that Stacia

and her paramour, Charles Cowen, lured him to the house in Pella to frame him

for a crime so they could move to Arizona and carry on their relationship. Danny

testified that when he and Stacia separated in August of 1999, he left six pairs of

dirty work jeans in the family home in Pella. He testified he often came home

from work with blood on his jeans. He testified that on December 1 he had a

visitation with the children at a park in Pella. While at the park, the children

picked up a cat they believed had escaped from their home some months earlier.

Danny testified that while he was holding the cat, it scratched his left hand.

When he dropped the children off with Stacia again, as he was handing Stacia

the cat, his left hand touched her pants. He testified Stacia then said, “Great.

You got blood on me. Thanks.”

       Danny testified that the next day, December 2, as he was working in Iowa

City, Stacia called him around 5:00 p.m. and said, “I need to inform you that there

has been a bad accident. All three kids have been involved in a bad accident

and you better come to Pella quick.” He testified it took him about an hour and
                                         9



forty-five minutes to get to Pella. Once he arrived, Stacia and her paramour,

Charlie, attacked him. Charlie kicked Danny repeatedly. He escaped, using

Stacia as a shield, as Charlie attempted to punch him. He testified Stacia was

wearing the same jeans as she had worn on December 1. Danny got in his car

and drove back to where he lived in Iowa City. He did not notify police of the

attack.

          Danny testified that on December 3, he drove to Des Moines and visited

with a friend at his apartment. The friend, Robert Bunner, testified Danny was in

his apartment on December 3 from around 9:25 a.m. to 1:00 p.m. Bunner is also

Danny’s cousin. On cross-examination, the State attempted to impeach Brunner

by disclosing that he had lied in depositions about his forgery convictions and

had weak recall of the exact time of Danny’s visit, admitting that Danny visited

often and had done so shortly before the alleged December 3 visit.                An

administrative assistant at Danny’s employer in Des Moines testified Danny

picked up his paycheck that day.       A login record shows Danny was on the

premises from 1:34 to 1:40 p.m.3

          Danny was arrested in Iowa City and charged with burglary in the first

degree, attempt to commit murder, sexual abuse in the third degree, stalking,

kidnapping in the first degree via serious injury, kidnapping in the first degree via

torture, kidnapping in the first degree via sexual abuse, and kidnapping in the first

degree via interference with government function. By the time the case came on




3
 Danny called other alibi witnesses, and the State impeached each of them on various
grounds.
                                             10



for trial, the State had dismissed all but the burglary charge.4 The jury found

Danny guilty, and the court sentenced him to an indeterminate term of twenty-five

years. This court affirmed the conviction on direct appeal. State v. Jacobs, No.

01-0826, 2002 WL 1428785 (Iowa Ct. App. July 3, 2002). We preserved Danny’s

ineffective-assistance-of-counsel claims for postconviction-relief proceedings.

       B.     Postconviction-Relief Proceedings.

              1.     John Cayton.

       Danny filed his application for postconviction relief asserting numerous

ineffective-assistance and due process claims. At the PCR trial, Danny called

John Cayton, a forensic firearm and tool mark examiner. Cayton had worked in a

police department for about thirty years in Missouri. Cayton testified that he

reviewed the trial transcripts, evidence reports, and photographs, and examined

the physical evidence prior to testifying.

       He opined that if Stacia’s testimony was true, there should have been

blood on Stacia’s shoes and shoestrings and there was none. He also tested

Stacia’s jeans and determined there was sperm on the fabric. Genetic testing


4
 Danny was convicted of burglary in the first degree, in violation of Iowa Code sections
713.1 and 713.3(1)(c). Section 713.1 provides:
       Any person, having the intent to commit a felony, assault or theft therein,
       who, having no right, license or privilege to do so, enters an occupied
       structure, such occupied structure not being open to the public, or who
       remains therein after it is closed to the public or after the person’s right,
       license or privilege to be there has expired, or any person having such
       intent who breaks an occupied structure, commits burglary.
Section 713.3(1)(c) provides:
       1. A person commits burglary in the first degree if, while perpetrating a
       burglary in or upon an occupied structure in which one or more persons
       are present, any of the following circumstances apply:
               ....
               c. The person intentionally or recklessly inflicts bodily injury on any
               person.
                                        11



disclosed this came from someone other than Danny. Cayton pointed out that

Stacia’s panties at the time of the attack were not collected, nor was the tampon

Stacia testified she was using. He examined the photos of Stacia's injuries and

attested he did some tests, using his wife as a model, of the effect of a half-inch

nylon rope on her neck, by rubbing the rope “against her neck pretty hard” for five

minutes and looking at the resulting marks. He also attempted the test placing a

necklace around the neck at the same time. He concluded the placement and

severity of the marks on Stacia’s neck were not consistent with her testimony that

she was choked from behind. He did not observe human bite marks on Danny’s

hand, but opined they were scratch marks consistent with being scratched by a

cat claw.

      The PCR court made the following findings regarding Cayton’s testimony:

      Mr. Cayton’s expertise with regard to the alleged bite marks and
      bloodstain analysis is marginal. He has no medical training except
      observing autopsies and listening to lectures. According to him, his
      expertise in bite marks comes from working with teams of people
      doing investigations. Assuming that his opinions on those subjects
      would even be admissible, the weight to give to his opinions would
      be questionable. That weight could certainly be influenced by his
      past employment record, which raises substantial questions
      concerning his competency. His answers to questions regarding
      termination of his employment in the past by two different agencies
      were evasive and not credible. Overall he offered no expertise
      other than opinions based on his review of the evidence and the
      results of tests that he conducted. In particular, his testimony that a
      one-half inch nylon rope rubbed on a person’s neck for five minutes
      would not leave marks is not credible. Otherwise, he did no more
      than try to connect the dots between evidentiary items, which was
      the same evidence considered by the jury.
                                        12



             2.     Clayton Jacobs.

      Danny next called Clayton, his son with Stacia. Clayton had been twelve

years old at the time of the incident and was twenty-five at the PCR trial. Clayton

is legally blind: he is able to observe light, shadows, and colors but does not

have detailed vision.   Clayton testified that on December 1, 1999, two days

before the attack, he and his two siblings had a scheduled visitation with Danny

at a park in Pella. Clayton testified they found a cat they initially believed had

gone missing from their home the previous July.           However, upon further

examination, they determined it was not their missing cat. Clayton testified that

during the visitation, Danny stated the cat scratched him and that he was

bleeding. Clayton stated he knew it was Danny’s right hand that was scratched

because his sibling asked Danny to move his right hand off the cat so she could

pet it. He also stated he knew the cat had scratched Danny with its back paws,

because Danny told him the cat did not have front claws. Clayton admitted he

was not able to see the blood. When the visitation was over, Danny brought the

cat to Stacia. Clayton testified that, as Danny handed her the cat, Stacia stated,

“God damn it, you’re dripping blood all over my pants.” On the day of the attack,

Stacia picked Clayton up after school with two of her friends and stated,

“gleeful[ly]” that “she was glad that she hadn’t washed her clothes for three days

because of the fact that the clothes contained [Danny’s] blood from when he was

scratched by the cat and the DNA from when [Danny] was scratched by the cat.”

      Clayton also testified about a meeting he asserted he had with the

prosecutor, Jane Orlanes.     He testified Orlanes approached him at his high
                                        13



school in Tiffin, Iowa, told him she was a member of the Iowa House of

Representatives, and asked him for his help in winning her case against Danny.

She told him she needed to win the case so that she would receive an increase

in federal funding to support victims of domestic abuse. He described Orlane’s

vehicle as a dark-colored four-door car. He testified Orlanes asked him whether

Danny had been scratched by a cat on December 1, and Clayton told her yes.

That was the only question Orlanes asked him. Orlanes then drove Clayton to

meet Stacia and told Stacia she would not make any report or notes about the

conversation she had just had with Clayton because if she did she would be

required to turn the information over to Danny and defense counsel.

      The PCR court made the following findings regarding Clayton’s testimony:

      Clayton was reminded by applicant’s counsel that there were
      inconsistencies between a statement that he gave in 2009 and
      what he had testified to at the PCR trial. For example, he stated
      earlier that it was Stacia that had been scratched by the cat and not
      his dad. His explanation for the inconsistencies was that when he
      was being asked questions earlier, he had no time to think about
      his answers. He testified that since that time he has had time to
      reconstruct in his mind what actually happened. He further testified
      that he has a volatile relationship with his mother and that he is
      upset with her because she subjected him and his siblings to
      abuse. After reviewing the inconsistent statements of Clayton and
      Jane[ ] Orlanes concerning this alleged meeting prior to trial, the
      Court finds Clayton’s testimony is not credible.

Further, with regard to the meeting with Orlanes, the court found:

             Clayton’s testimony at this stage [during the PCR trial] is not
      believable as he testified his memory is better after he has pieced
      together what had happened. The Court cannot be sure his
      testimony is based on his own recollection or influence of others.
             ....
             The Court concludes that Clayton Jacobs’ testimony in
      regard to being interviewed by Jane Orlanes prior to trial is not
      credible.
                                        14



              3.     Trial counsel Roger Hudson.

       The State called Danny’s trial counsel, Roger Hudson, to testify.

Hudson’s defense strategies were asserting an alibi and attacking issues with the

chain of custody. Hudson’s primary theory was that Stacia had fabricated the

entire attack. He had two theories for how Danny’s blood got on Stacia’s jeans.

First, that Danny had left a dirty pair of his own jeans in Stacia’s home and Stacia

wore them to frame Danny for the crime. He had Danny try the jeans on at the

police department to see if they fit; he recalled the jeans were fairly tight. The

second theory arose later in the defense and was that the cat in the park had

scratched Danny and the blood got on Stacia’s jeans when Danny was handing

her the cat. However, Hudson thought the cat theory did not “mesh” well with the

main defense that Stacia had fabricated the story and considered it only a

“backup” theory.

       He also pursued a strategy of attacking the chain of custody on several

items of physical evidence because he was concerned at the time that the

division of criminal investigation (DCI) had mishandled the evidence and that

there may have been cross-contamination. Hudson consulted with and deposed

a forensics specialist, Dick Warrington, but did not call Warrington to testify at

trial. Warrington indicated in a letter to Hudson that he recommended he not

testify because he did not discover any serious irregularities with the

investigation and, on cross-examination, he would have to concede that the DCI

did a good job on some investigation procedures. Instead, Hudson attempted to
                                       15



impeach the chain of custody in his cross-examination of every State witness

who handled the physical evidence.

      Hudson also testified he did not interview the three children in the family

because Danny did not want him to involve them. Each child had a number of

special health needs.    Hudson also was concerned, because there was an

ongoing custody case between Stacia and Danny and the children had been in

Stacia’s custody for some time, that the children would say something unhelpful

to Danny.

      Hudson recalled investigating theories Danny had that Stacia and Charlie

had planned to frame him. He described Danny’s theories as “myriad.” He

recalled speaking to an expert about assessing the marks on Stacia’s neck and

whether they could have been caused by a necklace instead of a rope. He

admitted that he did not ask many questions directly attacking Stacia’s testimony,

but explained he had experience deposing her, he had a good idea what her

testimony would be, and his questioning at the time would have used that

knowledge. Hudson also testified that the theory that Charlie and Stacia lured

Danny to Stacia’s home to assault him was brought up to him late in the trial

preparation process.

             4.     Prosecutor Jane Orlanes.

      Jane Orlanes also testified at the PCR trial. Orlanes testified that she only

spoke with Danny’s children “in passing” because Stacia would bring them to the

office when she met with the prosecutors. She denied questioning Clayton about

the allegations, meeting with him at his school, representing to him that she was
                                          16



a member of the House of Representatives, asking him if a cat had scratched

Danny, or stating that she would not give information regarding the interview to

Danny and his attorney. Orlanes was an assistant Marion County prosecutor.

She denied ever travelling to Johnson County to meet with Stacia. She testified

she had no assistant in the county attorney’s office helping her on this case;

however, there was an area prosecutor from the office of the attorney general

assisting.   Orlanes acknowledged she drove a navy blue or black four-door

vehicle. The court found Orlanes credible.

       The district court denied Danny’s application for postconviction relief. On

appeal, Danny contends Hudson was ineffective in (1) pursuing an unreasonable

defense strategy, (2) failing to call expert witnesses, (3) failing to interview the

children, (4) failing to present evidence that Stacia had motive to fabricate the

attack, (5) failing to present evidence that corroborated Danny’s testimony, and

(6) failing to discover and present evidence of collusion between Charlie, Stacia,

and her parents. He further contends the State violated his right to due process

by withholding exculpatory information about the interview with Clayton in

violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). He also appeals the

court’s determination of his restitution obligation.

III.   STANDARD OF REVIEW.

       We generally review an appeal from a denial of a postconviction-relief

application for correction of errors at law. Lado v. State, 804 N.W.2d 248, 250

(Iowa 2011). When the applicant’s claims are constitutional in nature, we engage

in de novo review. Id. We give weight to the PCR court’s findings concerning
                                        17



witness credibility. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). The

claims must be evaluated in the totality of the circumstances. Everett v. State,

789 N.W.2d 151, 155 (Iowa 2010).

IV.    ANALYSIS.

       A.     Ineffective-Assistance-of-Counsel Claims.

       We analyze ineffective-assistance-of-counsel claims under the two-prong

test set out in Strickland v. Washington, 466 U.S. 668, 687 (1984). State v.

Ross, 845 N.W.2d 692, 697-98 (Iowa 2014). We may affirm the PCR court’s

rejection of the claim if either element is lacking. Lamasters v. State, 821 N.W.2d

856, 866 (Iowa 2012). The first prong requires the applicant to show a deficiency

in counsel’s performance. Strickland, 466 U.S. at 687. There is a presumption

that the attorney performed competently.       Ross, 845 N.W.2d at 698.        The

applicant bears the burden to show by a preponderance of the evidence that

counsel failed to perform an essential duty. Id. Trial counsel has no duty to raise

an issue that lacks merit. Id.

       The second prong requires a showing that the deficient performance of

counsel deprived the applicant of a fair trial. Ross, 845 N.W.2d at 698. The

applicant must demonstrate that there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have been different.

Ledzema, 626 N.W.2d at 143.

       “Improvident trial strategy, miscalculated tactics or mistakes in judgment

do not necessarily amount to ineffective counsel.” Lamasters, 821 N.W.2d at

866 (quoting Hinkle v. State, 290 N.W.2d 28, 34 (Iowa 1980)). The applicant
                                        18



must show more than that trial strategy backfired or another attorney would have

prepared and tried the case differently. Ross, 845 N.W.2d at 698. “[C]laims of

ineffective assistance involving tactical or strategic decisions of counsel must be

examined in light of all the circumstances to ascertain whether the actions were a

product of tactics or inattention to the responsibilities of an attorney guaranteed

under the Sixth Amendment.” Ledzema, 626 N.W.2d at 143. “When counsel

makes a reasonable tactical decision, this court will not engage in second-

guessing.” Lamasters, 821 N.W.2d at 866 (quoting Fryer v. State, 325 N.W.2d

400, 413 (Iowa 1982)). “Selection of the primary theory or theories of defense is

a tactical matter.”   Id. (quoting Schrier v. State, 347 N.W.2d 657, 663 (Iowa

1984)). It is not enough to claim that counsel should have done a better job.

Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). The applicant must state the

specific ways in which counsel’s performance was inadequate and identify how

competent representation would have changed the outcome. Id.

              1.      Counsel’s strategy was not reasonable.

       Danny contends Hudson was ineffective in pursuing a defense strategy

that was not reasonable.      Specifically, he asserts the following:     First, he

contends the chain of custody strategy was tantamount to no defense at all

because although Warrington was deposed, counsel did not call him as a witness

to discredit the chain of custody. Second, he contends counsel did not pursue a

strategy of discrediting Stacia’s version of events to aid his alibi defense. Third,

he contends counsel’s theory that the blood-stained jeans were left behind at

Stacia’s house by Danny, the “dirty jeans theory,” was not credible or plausible,
                                         19



and counsel should have pursued the “cat scratch theory” to explain how

Danny’s blood got on Stacia’s jeans.

      Counsel explained that he did not call Warrington to testify about the chain

of custody because he was concerned Warrington’s testimony could actually

acknowledge and emphasize that the police officers carried out the investigation

competently. Therefore, he attempted to pursue the strategy of attacking the

chain of custody by impeaching the investigators who testified individually.

Under the circumstances, it appears the strategy did not work, but it was a

reasonable    tactical   decision,   particularly   because   Warrington   himself

recommended against having him testify. Danny does not explain what evidence

of Stacia’s fabrication of the incident was available to enhance his alibi. The

district court found Cayton’s testimony contradicting the State’s construction of

the evidence at trial was not credible because of his lack of expertise and his

own evasiveness as to his credentials. On our examination of the PCR trial

records, we agree with the PCR court’s conclusions as to Cayton. Hudson also

explained that he considered the “dirty jeans theory” the primary explanation for

the blood on the jeans because it was more consistent with the overall theory

that Stacia fabricated the attack. If Danny had left a pair of his own jeans at

Stacia’s home, that she knew had a drop of his blood on them, she could

fabricate the story and explain that Danny got blood on the jeans when he

attacked her, even if Danny had no physical contact with the jeans on December

1st or 3rd. It was a reasonable tactical decision to prioritize the first theory as

more plausible than the second. Under the circumstances of the case and in the
                                         20



face of Stacia’s own, apparently credible, testimony about the events of that

morning, Hudson’s strategy going into trial was a reasonable one and we do not

find he was constitutionally inadequate in pursuing it, even if it was not ultimately

successful.

              2.     Counsel failed to call expert witnesses.

       The PCR court concluded Hudson had failed in an essential duty by failing

to call an expert to refute the State’s evidence about the injuries to Stacia and on

Danny’s hand. Danny contends if Hudson had put on evidence that Stacia’s

injuries could not have been inflicted the way she claimed or that the injury on

Danny’s hand was not a bite mark, it would have discredited Stacia’s testimony

enough to result in a different outcome. He argues it was not sufficient for the

jurors to be able to examine photographs of the injuries and draw conclusions

themselves. Hudson explained he did not attempt to impeach Stacia in cross-

examination because he had deposed her and thought she would lie, but he also

did not seek out an expert to discuss the source of Stacia’s injuries or provide

evidence contradicting Stacia’s testimony.      Reasonable counsel would have

pursued such evidence because the primary defense theory was Danny was not

there on December 3 assaulting Stacia as she described. Reasonable counsel

would have at least attempted to account for the source of Stacia’s documented

injuries given that the defense theory implied they were either self-inflicted or the

result of the alleged December 2 assault on Danny. Accordingly, we agree with

the district court that Hudson failed in an essential duty to contradict the State’s

evidence.
                                         21



       However, the district court found Danny failed to show he was prejudiced

by this error.     Danny contends there is a reasonable probability that if such

opinions had been presented to the jury, “at least one juror would have voted to

acquit.”   However, the testimony Danny adduced at the PCR trial was not

persuasive that such evidence would have been discovered had Hudson sought

it out because Danny’s witness lacked credibility in making those determinations.

This would have impacted the weight the jury would apply to his testimony. In

addition, the jury heard Danny testify in support of his theory, however, it also

heard Stacia testify and it apparently simply did not believe Danny’s version of

the events. Although he did not recall doing so, various papers from Hudson’s

trial preparation disclosed he contacted a forensic dentist.       He consulted

Warrington but made a specific strategic decision not to call him.      Hudson’s

failure to call an expert at trial does not undermine confidence in the outcome of

the trial. Thus, Danny cannot show he was prejudiced.

              3.       Counsel failed to interview the children.

       Danny now contends Hudson erred in not interviewing his children,

because if Hudson had interviewed Clayton, he could have had Clayton

corroborate much of Danny’s own testimony about the cat scratch, recount

Stacia’s statements that she was glad she had not washed Danny’s old jeans,

and describe Orlane’s attempt to conceal evidence from the defense. Hudson

explained that Danny himself did not want the children involved in the criminal

case. The children had various special needs. Hudson too was concerned that

they had been in Stacia’s custody at the time of the incident and for long enough
                                         22



that they might say something that would be damaging to Danny’s defense. We

find nothing unreasonable in counsel’s conduct. He did not fail in an essential

duty.

               4.    Counsel    failed   to   present   evidence   of   Stacia’s

                     motivation to fabricate.

        Danny contends Hudson was ineffective in failing to present evidence of

Stacia’s motivation to fabricate the attack. He argues counsel did not ask any

questions on his cross-examination of Stacia to demonstrate her motivations to

fabricate.   Counsel had, prior to trial, filed a motion in limine to exclude

references to past allegations Stacia had made against Danny, including assaults

and violation of a no-contact order. However, none of the former accusations

resulted in convictions. Despite the motion in limine, Hudson questioned Danny

on these prior incidents. The PCR court acknowledged it was surprised that

Hudson would introduce those allegations. Hudson explained he did not attempt

to impeach Stacia or demonstrate her motives on cross-examination because he

had experience cross-examining her from the deposition and knew what her

answers would be.     Instead, counsel presented evidence of unsubstantiated

accusations made in the past by Stacia through Danny’s testimony to

demonstrate a motivation to lie. At the PCR trial, he told the court he wanted to

question Danny on these incidents because he believed if he had questioned

Stacia, she would have lied.        This is a tactical decision that was not

unreasonable under the circumstances and in light of counsel’s experience with

the witness.    Danny also argues Hudson failed to offer evidence of Stacia’s
                                        23



pattern of conduct demonstrating a motive to fabricate. This evidence included

Stacia’s prior unsubstantiated accusations, which counsel did question Danny

on.

        Danny also adduced a letter from Stacia to her paramour, Charlie, stating,

“I believe that we are right for each other and hope we can get rid of Dan Or hire

someone!!!! God babe, I am so scared.” Even if counsel’s failure to introduce

this letter was a failure in an essential duty, Danny fails to assert any way in

which the failure to present the letter undermines confidence in the outcome of

the trial.

                5.   Counsel failed to present evidence to corroborate

                     Danny’s story.

        Danny asserts again that counsel should have interviewed the children to

present corroborating evidence for the “cat-scratch theory.” We have already

determined counsel did not fail to perform an essential duty in not interviewing

the children.

        Danny also asserts counsel should have called Kerry Reed, Stacia’s friend

who was supposed to visit her the morning of the attack. In an interview in 2008,

Reed told a private investigator that Stacia told her the cat was vicious and had

scratched someone.       At the PCR trial, Reed could not recall making this

statement or the conversation it came from, but the court admitted the transcript

of the interview without objection. Danny argues Reed’s statement would have

corroborated his own testimony that the cat scratched him and there is a

“reasonable probability that at least one juror would have voted to acquit if” Kerry
                                             24



and Clayton had been called. Evidence supporting the proposition that the cat

had a tendency to scratch people does not, in our view, undermine confidence in

the outcome of the case. It would have provided only minor corroboration to a

minor element of Danny’s testimony. Given that the victim provided eye witness

testimony as to what occurred, we cannot fault Hudson for not calling Reed to

provide this corroboration. It certainly was not a failure in an essential duty.

         Danny also asserts counsel failed in an essential duty by failing to present

evidence to corroborate Danny’s testimony that Charlie and Stacia assaulted him

on December 2. He asserts counsel could have done a number of things to turn

up additional evidence in the case that would have supported his testimony in

various indirect ways.        Danny neglected entirely to argue how the failure to

uncover and present any of this evidence undermines confidence in the outcome

of the case.          Danny failed to demonstrate he was prejudiced by counsel’s

conduct.

                 6.       Counsel failed to discover and present evidence of

                          collusion between Charlie, Stacia, and her parents.

         Danny contends counsel was ineffective for failing to discover and present

numerous pieces of information about communications between Charlie, Stacia,

and her parents that he contends supports his testimony that Charlie and Stacia

lured him to Pella to assault him so they could carry on their relationship. 5 He



5
    Danny asserts:
        Counsel failed to consider, discover and present evidence of collusion: (1)
        that Stacia, Charlie and her parents were working together to “get rid” of
        Dan; (2) that they conspired to have Charlie take Stacia and the children
        to Arizona on July 4th; (3) that they conspired to have Charlie move to
                                           25



does not argue how he was prejudiced by the failure to discover these items. His

tying together of the various items of information (some which are demonstrable

facts, and some of which are merely speculative assertions) is not the primary

defense theory counsel pursued at trial.         Counsel in fact described Danny’s

various theories about what happened as “conspiracies” and recalled that

Danny’s theories were numerous.           Counsel testified he spent a lot of time

investigating many similar ideas and that there was extensive discovery but he

did not recall the possibility of Charlie’s collusion in an attack to be an issue at

the time. From his testimony it appears Hudson spent some time investigating

various avenues and determined a strategy that involved weaving together the

aspects of an alleged conspiracy was not appropriate.             We cannot conclude

counsel’s decision was unreasonable, and Danny neglects to argue how he was

prejudiced.




       Iowa on Thanksgiving to provide twenty-four-hour protection for Stacia;
       (4) that Charlie “protected” Stacia by following Dan; (5) that the
       opportunity to frame Dan arose when Dan was scratched by a cat and got
       his blood on her jeans on December 1; (6) that Stacia called her parents’
       home and spoke for forty minutes immediately following the cat incident;
       (7) that there was a four-minute call from Charlie to Stacia on December
       2 at the time Dan said he was lured to Stacia’s house and attacked; (8)
       that Stacia knew Dan was not scheduled to work on December 3; (9) that
       Stacia called her parents’ home at 3:56 a.m. on December 3; (10) that
       Stacia attempted to hide the true nature of her relationship with Charlie by
       erasing her computer, flushing her tampon, hiding her underwear and
       telling the doctor she had not been penetrated to avoid a rape exam and
       collection of specimens; (11) that Stacia’s car was not in the driveway the
       morning of December 3; (12) that Charlie had driven Stacia’s car to her
       parents’ home; and, (13) that Stacia’s father was following Dan on
       December 3 and reported his location to the Iowa City police for the
       arrest.
                                          26



              7.     Cumulative prejudice.

       Because there are multiple ineffective-assistance-of-counsel claims, we

look to the cumulative effect of counsel’s errors to determine whether the

applicant satisfied the prejudice prong of the test. See State v. Clay, 824 N.W.2d

488, 501-03 (Iowa 2012). Taken together within the totality of the circumstances

and in light of the strength of the testimony of the victim, Stacia, we conclude

counsel’s actions did not cause prejudice to Danny.

       B.     Due Process Claims.

       Danny contends the prosecutor violated his right to due process by

withholding exculpatory evidence that Clayton knew the cat scratched Danny’s

hand. The State violates a criminal defendant’s rights under the Due Process

Clause of the Fourteenth Amendment when it fails to disclose evidence that may

be favorable to the defendant. Harrington v. State, 659 N.W.2d 509, 516 (Iowa

2003) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)).              To establish a

violation, the defendant has the burden to prove (1) the prosecution suppressed

the evidence, (2) the evidence was favorable to the defendant, and (3) the

evidence was material to the issue of guilt. Harrington, 659 N.W.2d at 516. As a

preliminary matter, Danny cannot establish that the conversation took place. The

PCR court found Clayton was not credible and Orlanes was credible. We see no

need to depart from the PCR court’s credibility determinations.6               On our



6
  Danny asserts, “A lower court’s credibility findings are binding only if the reviewing
court finds, after independent consideration of extrinsic contradictory evidence and
internal inconsistencies, that there is substantial evidence to establish that no
reasonable juror would have found the evidence or testimony to be credible.” Danny
cites State v. Taylor, 830 N.W.2d 288, 296-97 (Iowa 2013), however, where the
                                            27



examination of the PCR transcript, we too conclude Clayton was not credible

both because of his age at the time of the incident and the length of the

intervening years. Danny has not established a due process violation.

       C.      Restitution Limitation.

       The court ordered Danny to pay restitution to the state for his legal fees in

the amount certified by the State Public Defender or the sum of $30,000,

whichever is less.      Danny contends this was in excess of the statutory fee

guideline. He does not contest the court’s determination of his ability to pay. We

review claims requiring statutory construction for correction of errors at law.

Dudley, 766 N.W.2d at 612.

       The Office of the State Public Defender establishes fee limitations for

various types of cases. See Iowa Code § 12B.4(4)(a). Persons who are granted

court-appointed attorneys are required to reimburse the state for the cost of legal

assistance.    See Iowa Code § 815.9(3).          In 2004, when the court appointed

Danny’s PCR counsel, the fee limitation for a “B” felony would have been $1800.

In 2009, in State v. Dudley, our supreme court determined that defendants

represented     by   court-appointed     attorneys     should    have    the   same     fee

reimbursement limitations as those represented by public defenders.                    766

N.W.2d at 622. In response, our legislature amended section 815.4 in 2012 to




appellate court chose to depart from the district court’s credibility findings. The court
explained that when it makes its own credibility determinations, it considers the extrinsic
evidence for contradictions and internal inconsistencies. Id. It does not base its
deference to the PCR court’s determination on a lack of contradictory evidence or
internal inconsistencies. Deference to the trial court’s credibility determinations is based
instead on the court having a “firsthand opportunity to hear the evidence and view the
witnesses.” In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007).
                                          28



provide, “The expense of the public defender may exceed the fee limitations

established in section 13B.4.”         Danny argues Dudley should be applied

retroactively to his case so that he receives the benefit of the limitation.

However, he does not explain why in his case Dudley should be applied

retroactively, but the statute should not.

          Generally, a statute is presumed to be prospective in its operation unless

expressly made retrospective. Schuler v. Rodberg, 516 N.W.2d 902, 904 (Iowa

1994).      However, statutes that are remedial or procedural in nature are

exceptions to the general rule and may be applied retroactively.        Id. This is

because retrospectivity is relevant only when statutes create or take away vested

rights.    See id.   Here, the amendment provides the amount of restitution an

indigent person may be required to pay can exceed the fee limitations set out in

section 13B.4. The substantive right guaranteed by the constitution to indigent

defendants is the right to the appointment of counsel. There is no vested right to

have counsel at nominal cost.         Therefore, the statute in question here is

procedural only and consequently retroactive in application. The applicable law

at the time the court assessed Danny’s fees was the 2012 amendment to section

815.4, which provided no limitation to the fees. Therefore, the court did not err in

ordering Danny to pay the lesser of the full costs or $30,000.

V.        CONCLUSION.

          We conclude the PCR court did not issue its final ruling in the case until

September 11, 2013, so Danny’s October 4, 2013 notice of appeal was timely,

and this court has jurisdiction. We further find Danny failed to show his trial
                                        29



counsel was ineffective and failed to establish a due process violation contrary to

the requirements of Brady v. Maryland.         With respect to the reimbursement

requirement, we find the district court correctly found the existing statute, at the

time of the assessment, applied to require Danny to reimburse the state for his

attorney fees beyond the statutory limitations provided in State v. Dudley.

Accordingly, we affirm the PCR court ruling.

      AFFIRMED.
