                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-0696
                               Filed February 6, 2019


MUHAMMAD Y. HAMEED,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      Muhammad Hameed appeals from the denial of his application for

postconviction relief. AFFIRMED.




      Nathan Legue of Legue Law, P.C., Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.



      Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.*

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


GAMBLE, Senior Judge.

       Muhammad Hameed appeals from the denial of his application for

postconviction relief (PCR), contending his criminal trial counsel was ineffective in

a number of respects. The PCR court considered the record, heard testimony from

a number of witnesses and received additional evidence, and carefully considered

each of Hameed’s claims, finding them be without merit or non-prejudicial. On our

de novo review, we conclude Hameed’s counsel was not ineffective in his

representation, and we affirm.

       We have previously set out the underlying facts resulting in Hameed’s

conviction for third-degree sexual abuse, and we need not repeat them here. See

State v. Hameed, No. 12-1630, 2013 WL 3458095, at *1-2 (Iowa Ct. App. July 10,

2013). This court noted Hameed admitted having sexual intercourse with the

complaining witness, and we found substantial evidence existed to support the

jury’s finding the sex act was committed by force or against the will of the

complainant. Id. at *4-6. Our supreme court denied further review.

       Hameed filed a PCR application. The facts of the PCR proceeding revealed

Hameed was the manager of an adult club in Davenport, Iowa, known as the

Chorus Line. The complaining witness and a friend came to the club in March

2011 to attend a Mardi Gras party. An employee refused to serve alcohol to the

complaining witness because she was under the legal drinking age.             As an

employee was escorting her out of the club, Hameed invited the complaining

witness and her friend to the back room. At the criminal trial, the complaining

witness and her friend testified that Hameed gave them each a shot of an unknown

substance and they blacked out shortly thereafter.          The State alleged the
                                           3


complaining witness became incapacitated and Hameed had sex with her in the

back room by force and against her will.

       During the investigation, the police seized the club’s computer tower

containing surveillance video. The police copied four hours of the surveillance

video from several camera angles onto a thumb drive and returned the computer

to Hameed. The copied video captured the complaining witness entering the club

apparently unimpaired and stumbling out of the club with the assistance of a man

an hour and seventeen minutes later.

       The police produced an edited version of the surveillance video on a DVD

for use at trial. The edited version included clips of the complaining witness

entering and leaving the club. The State produced a copy of the DVD for Hameed’s

first attorney. Hameed dismissed his first attorney, and new counsel appeared.1

Hameed’s new trial counsel reviewed the DVD. Trial counsel was satisfied and

did not seek production of the entire surveillance video. The PCR court found that

counsel breached a duty in not attempting to view the entire surveillance video.

However, the court concluded Hameed had not established prejudice.

       Hameed claimed the complaining witness was not intoxicated and came on

to him in the back room. He claimed the sex was consensual. His trial counsel

believed the clips of the surveillance video on the DVD supported Hameed’s

version of events. Hameed’s trial counsel was an experienced criminal defense




1
 Trial was originally set for November 7, 2011, but was rescheduled for December 19.
On December 12, the State sought a continuance. Trial was rescheduled for February 6,
2012. On February 6, 2012, Hameed asked that his first attorney withdraw, and trial was
continued. New counsel appeared for Hameed on February 17, and trial was rescheduled
and eventually held on July 9, 2012.
                                                 4


attorney. He settled on a trial strategy based on the theory that the complaining

witness was not intoxicated when she entered the club and the back room, she

was capable of consent, she consented to sex with Hameed, and she became

intoxicated after the sex act and before she left the club. Trial counsel chose not

to pursue other avenues and did not call witnesses that did not support this theory

of the case.

        Hameed claims that upon the return of the computer tower all the

surveillance video was deleted.              He asserts the police destroyed the full

surveillance video. However, Hameed did not have a forensic expert examine the

hard drive. He put it back into service and recorded over it. Hameed does not

know what was on the surveillance video and cannot say how it would have helped

his defense. The police deny destroying the surveillance video. The evidence

presented on this issue at the PCR trial would not support a spoliation instruction.2

        With respect to Hameed’s claims that counsel did not call defense

witnesses, one of the potential witnesses, Jillian Caves, testified at the PCR trial.

Trial counsel testified he chose not to call her at the criminal trial because he did

not believe her testimony would assist the defense.

        Hameed wanted expert testimony about possible alcohol blackouts and the

effects of the prescription drug Adderall. There was nothing presented that would

show the complainant had taken Adderall.




2
  “A spoliation instruction is ‘a direction to the jury that it [may] infer from the State’s failure
to preserve [evidence] that the evidence would have been adverse to the State.’” State v.
Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004) (quoting State v. Vincik, 398 N.W.2d 788,
795 (Iowa 1987)).
                                          5


       Hameed was a manager of the Chorus Line. He was not the owner. The

Chorus Line was involved with litigation against the city over its permit to have an

adult business at its location. Hameed argues the police pursued his criminal

conviction in retaliation for the ongoing civil litigation. Hameed called two attorney

witnesses about that litigation, but the PCR court found there was no credible

evidence the criminal action was related.

       At the criminal trial, the complaining witness testified she never returned to

the club because she had been sexually assaulted there by Hameed. Hameed’s

counsel called photographer Robert Griffin as a witness. Griffin took photographs

of the complaining witness’s fresh tattoo at the Mardi Gras party in March 2011.

He also took a picture showing she attended a Halloween party at the club in

October 2011—the same tattoo can be seen on the complainant’s shoulder. Trial

counsel introduced the photos into evidence but did not pursue further

impeachment or argument on this point. The court found trial counsel could have

been more aggressive in impeaching the testimony of the complaining witness

concerning her appearance at the club in October. However, the court concluded

trial counsel was otherwise effective and any shortcomings did not prejudice

Hameed. The court denied Hameed’s PCR application.

       On appeal, Hameed asserts the court erred in concluding his trial counsel

was not ineffective in (1) failing to pursue missing surveillance video from the club,

(2) failing to call several defense witnesses who were available, (3) failing to

develop expert testimony regarding the complaining witness’s intoxication, (4)

failing to explore Hameed’s claims of wrongful and retaliatory prosecution, and (5)
                                         6


failing to properly emphasize evidence controverting the complaining witness’s

testimony that she did not return to the club after the sex act in March 2011.

       We conduct a de novo review of claims of ineffective assistance of counsel.

Goode v. State, 920 N.W.2d 520, 525 (Iowa 2018). We give weight to the trial

court’s findings, especially as they pertain to the credibility of witnesses, but are

not bound by them. Iowa R. App. P. 6.904(3)(g).

       To prevail on a claim of ineffective assistance of counsel, the applicant must

demonstrate both (1) counsel’s deficient performance and (2) prejudice. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001). On the first prong, “the applicant must demonstrate the attorney

performed below the standard demanded of a reasonably competent attorney.”

Ledezma, 626 N.W.2d at 142. We “begin with the presumption that the attorney

performed competently” and “avoid second-guessing and hindsight.” Id. Strategic

decisions made after a reasonable investigation are rarely assailable. Id. at 142-

43. If a breach of duty is established, the applicant must also “demonstrate ‘that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’” Id. at 143 (quoting Strickland,

466 U.S. at 693).

       Upon our de novo review, we agree with the PCR court’s findings, which

are supported by the record, and its reasonable conclusions. The court found

Hameed and his trial counsel had arrived at a trial strategy that the complainant

was able to consent to sex but then became intoxicated after the sex act. The

court specifically found the testimony of trial counsel—with respect to the

information shared with Hameed and the strategic decisions made—was more
                                         7


credible than Hameed’s.     We agree that counsel’s strategic decisions were

reasonable. Hameed has failed to establish his claim of ineffective assistance of

counsel.

      The PCR court found that trial counsel breached an essential duty in failing

to watch the entire surveillance video covering the entire time the complaining

witness was in the club. However, we agree with the PCR court’s conclusion that

Hameed’s assertion that the entire video would have aided his defense was

speculative. The edited video introduced into evidence by the State supported

defense counsel’s theory that the complaining witness was sober when she

entered the club and was capable of consent when the sex act occurred. The

video also supported the contention that the complaining witness required

assistance when she left the club indicating she became intoxicated after the sex

act. Hameed failed to prove prejudice.

      Hameed failed to prove his trial counsel breached an essential duty in other

ways alleged by Hameed. The witnesses Hameed claims his trial counsel should

have called would have undermined the defense theory that the complaining

witness was not intoxicated when the sex act occurred. Further, trial counsel

exercised reasonable judgment in making the strategic decision that an expert on

intoxication was not necessary as the issue of whether the complaining witness

was intoxicated at the time of the sex act was within the common knowledge of

jurors, and there was no evidence that she used Adderall.

      Hameed’s trial counsel introduced photographic evidence showing the

complaining witness returned to the club in October 2011. This contradicted her

testimony that she did not return to the club after the assault. The jury could
                                        8


reasonably have considered this evidence in evaluating the credibility of the

complaining witness. It was not necessary for trial counsel to hammer further on

this point.

       The evidence did not support the theory that the State’s prosecution of

Hameed for sexual abuse was in retaliation for the City of Davenport’s zoning

dispute with the owner of the club Hameed managed. Trial counsel made a

reasonable strategic decision that pursuing an unsupported claim of retaliatory

prosecution would have distracted the jury from the central defense theory—that

the complaining witness was not intoxicated and consented to the sex act.

       Finally, after our de novo review, we cannot conclude there is a reasonable

probability that, but for the alleged unprofessional errors of trial counsel, the

outcome of the trial would have been different.     We have confidence in the

outcome. Hameed failed to prove prejudice. See Ledezma, 626 N.W.2d at 142.

       AFFIRMED.
