                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0875
                               Filed May 2, 2018


ROBERT LEE PATE JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David N. May, Judge.



      Robert Pate Jr. appeals the denial of his postconviction relief application.

AFFIRMED.




      Nathan A. Olson and Christine E. Branstad of Branstad Law, P.L.L.C., Des

Moines, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee State.




      Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

       Robert Pate Jr. appeals the denial of his postconviction relief application.

I.     Background Proceedings

       Des Moines police officers obtained a search warrant based on information

provided by a confidential informant. They executed the warrant on an apartment

and found Pate and a woman inside with eighty-one grams of crack cocaine, as

well as cocaine salt, marijuana, and a large amount of cash.

        The State filed criminal complaints against Pate but dismissed them without

prejudice based on the United States government’s expected pursuit of charges.

The United States filed a federal indictment against Pate for possessing at least

fifty grams of cocaine with intent to deliver. The government later dismissed the

indictment after a federal magistrate judge ordered the government to produce to

the court materials relating to the confidential informant.

       The State refiled the criminal complaints following the federal dismissal.

Pate moved to have the identity of the confidential informant disclosed. He also

filed a motion to suppress evidence, asserting a Des Moines police officer “made

false statements in the application for a search warrant.” Specifically, he alleged

the confidential informant identified in the application “either did not exist or did not

make purchases from the apartment” in which Pate was found.

       The district court denied the motion to have the informant disclosed. Pate

withdrew his motion to suppress and agreed to a stipulated trial on the minutes of

evidence. The district court adjudged Pate guilty of possession of a controlled

substance with intent to deliver as a second or subsequent offender.
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       The court of appeals affirmed Pate’s conviction. See State v. Pate, No. 11-

0971, 2012 WL 3860450, at *1 (Iowa Ct. App. Sept. 6, 2012). We rejected a

challenge to the lengthy delay between the dismissal of original charges against

Pate and the refiling of charges. Id. at *3-4. We also concluded the district court

did not err in denying Pate’s request to disclose the identity of the confidential

informant. Id. at *5-6.1

       Pate filed a postconviction relief application raising several claims.

Following an evidentiary hearing, the district court denied the claims and dismissed

the application. On appeal, Pate argues the district court erred in (1) denying his

ineffective-assistance-of-counsel     claims,    (2)   limiting   discovery    in   the

postconviction relief proceedings, and (3) concluding he did not establish pre-

accusatorial delay.

II.    Ineffective Assistance Claims

       To prove ineffective assistance of counsel, Pate had to show (1) deficient

performance (2) and prejudice. See Strickland v. Washington, 466 U.S. 668, 687

(1984). The first element requires a “showing that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. The second element requires a “showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable.” Id. On the second prong, “[t]he defendant must show that there is a




1
  See also State v. Pate, No. 13-0482, 2014 WL 3747698, at *1 (Iowa Ct. App. July 30,
2014) (addressing the denial of Pate’s request for credit for presentence time served on
his fifty-year sentence).
                                         4


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

the proceeding would have been different.” Id. at 694.

       A.     Dismissal

       Iowa Rule of Criminal Procedure 2.33(1) authorizes the dismissal of

pending charges “in the furtherance of justice.” See Iowa R. Crim. P. 2.33(1). The

dismissal “is not a bar if the offense charged” is “a felony or an aggravated

misdemeanor.” Id. “[I]n order to obtain a valid dismissal in the interests of justice

(and the resulting benefit of a dismissal without prejudice), the State must provide

appropriate and sufficient reasons for the dismissal.” State v. Abrahamson, 746

N.W.2d 270, 273 (Iowa 2008).

       Pate contends his trial and appellate attorneys were ineffective in failing to

“research or recognize that [he] deserved a hearing on the motion to dismiss” and

in failing to argue “that dismissal should have been with prejudice.”

       As noted, we addressed the State’s dismissal of the charges in our prior

opinion and we specifically addressed the State’s proffered reason for dismissal

and whether it was “in the furtherance of justice.” See Pate, 2012 WL 3860450, at

*3-5. We concluded the “federal government’s intent to prosecute Pate for the

same conduct” was an adequate reason “in the furtherance of justice.” Id. at *4-5.

In light of our conclusion, we agree with the postconviction court that there was no

probability of a different outcome even if a hearing had been fixed on the dismissal

motion and counsel had argued for dismissal with prejudice.

       B.     Confidential Informant

       Pate asserts his trial attorney was ineffective in failing to advocate more

forcefully for disclosure of the confidential informant. He contends (1) his attorney
                                          5


should have made “an offer of proof to the court to support the request to disclose

the confidential informant or to support the request to excise false information from

the search warrant application” and (2) his attorney should have cited the correct

“legal standard on” his “burden of proof to force disclosure of the confidential

informant.”

         The background for the contention that an offer of proof should have been

made is as follows. At a hearing on the motion for disclosure of the confidential

informant, Pate’s attorney advised the court Pate did not believe there was a

confidential informant. The attorney did not put Pate on the stand to elaborate on

this belief. The question is whether she should have done so.

         The burden is on a defendant “to demonstrate the necessity of disclosure

of the identity of an informant.” State v. Hoskins, 711 N.W.2d 720, 730 (Iowa

2006).

         [I]n the context of a motion to suppress evidence found in a search
         conducted pursuant to a warrant, there is a much greater burden on
         the defendant to compel disclosure after the magistrate has passed
         on the veracity of the informant than a suppression hearing based on
         a warrantless search and seizure.

Id. “When the question of an informant’s credibility arises in a motion to suppress

evidence obtained from a search pursuant to a warrant, and a judicial officer has

passed on veracity and probable cause, the defendant’s interests in disclosure are

less compelling.” State v. Robertson, 494 N.W.2d 718, 723 (Iowa 1993).

         At the postconviction relief hearing, Pate testified police fabricated the

existence of a confidential informant to cover up the fact they barged into the wrong

apartment. On realizing their error, Pate asserted, police doctored the search-
                                           6


warrant application to specify that a confidential informant made drug buys at the

apartment they raided rather than the one originally identified in the application.

       An offer of proof along the lines of Pate’s postconviction relief testimony

may have been helpful at the hearing on the motion to disclose the identity of the

confidential informant.      An    offer   would   have   supplemented     counsel’s

representation that there was no confidential informant. But even if Pate’s attorney

had put Pate on the stand, there is no reasonable probability his testimony would

have resulted in disclosure of the confidential informant.

       First, the district court judge who issued the search warrant found the

confidential informant reliable. See id. at 724. Second, the information given by

the confidential informant was corroborated by police officers and “was consistent

with the evidence actually seized pursuant to the warrant.” See id. Finally, Pate’s

assertion that the apartment number in the search warrant application was

intentionally altered lacked direct evidentiary support. See id. at 725; see also

Pate, 2012 WL 3860450, at *6 n.7 (“Pate notes that after the magistrate signed the

warrant, officers realized they listed the subject apartment as apartment 4 rather

than apartment 3, and made the change to the warrant. The inaccuracy appears

to have been an insubstantial oversight or typographical error. Claims of innocent

or negligent mistakes are insufficient to mandate an evidentiary hearing.”); cf. State

v. Partington, No. 01-0164, 2002 WL 1331864, at *5 (Iowa Ct. App. June 19, 2002)

(noting the defendant presented the sworn testimony of two individuals and

deposition testimony of law enforcement officers together with counsel’s

professional statement to support the defendant’s assertion that there was no

confidential informant). We conclude counsel was not ineffective in failing to make
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an offer of proof of Pate’s testimony on the claimed falsity of the search warrant

application.

       Pate also suggests his attorney should have offered the federal public

defender’s testimony, to explain how he succeeded in obtaining dismissal of the

federal proceeding. We do not necessarily agree she needed to call a federal

witness to testify about the federal proceeding. But she may have helped her case

by introducing the materials from the federal investigation that were offered at the

postconviction relief hearing, including emails between Pate’s federal public

defender and his investigator detailing possible weaknesses in the warrant

application and materials documenting the federal defense theory, which was

premised on Pate’s belief that a person identified as O.C. was the confidential

informant. However, even if she had done so, there is no reasonable probability

of a different outcome because the State prosecutor advised the court that O.C.

was not the confidential informant.

       Finally, Pate contends his attorney misstated the burden of proof. In his

view, he simply needed to present “some quantum of evidence” to support his

claim of falsity in the search warrant application, whereas his attorney stated she

would have to present proof by “a preponderance of the evidence.”

       Counsel correctly articulated the established standard for voiding a search

warrant application, which requires proof by “a preponderance of the evidence.”

Robertson, 494 N.W.2d at 724 (quoting Franks. v. Delaware, 438 U.S. 154, 155-

56 (1978)). True, Robertson also states “some quantum of evidence of possible

police perjury must be shown before disclosure can be required.” Id. But the

federal standard to obtain a hearing on the falsity of a search-warrant application
                                           8


is “a substantial preliminary showing that a false statement knowingly and

intentionally, or with reckless disregard for the truth, was included by the affiant in

the warrant affidavit” and “the allegedly false statement is necessary to the finding

of probable cause.”       Id. (quoting Franks, 438 U.S. at 155-56).            Whether

characterized as “some quantum” of evidence or otherwise, this is a high bar. We

conclude Pate’s attorney was not remiss in failing to advise the court she only

needed to present some quantum of evidence to obtain a hearing.

       We affirm the district court’s denial of Pate’s ineffective-assistance-of-

counsel claim premised on disclosure of the confidential informant.

       C.     Favorable Information in Officer’s Personnel File

       Pate contends his trial attorney was ineffective in failing to obtain favorable

information from an officer’s personnel file. See Brady v. Maryland, 373 U.S. 83,

87 (1963) (“[S]uppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”);

Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the reliability of a given

witness may well be determinative of guilt or innocence, nondisclosure of evidence

affecting credibility falls within [the Brady] rule.” (internal quotation omitted)). This

claim fails because counsel obtained the identical information from another source

and cited it in support of the motion to suppress. We conclude counsel breached

no essential duty in her conduct with respect to information in the personnel file.

       D.     Ineffective Assistance – Postconviction Counsel

       Pate contends his postconviction attorney was ineffective in (1) “failing to

assert or investigate [postconviction relief] claims regarding prosecutorial
                                           9

misconduct for failure to disclose Brady and Giglio information,” (2) “failing to use

the civil discovery rules to pursue information from [the Des Moines police officer’s]

file,” and (3) “failing to ensure that the district court provided a ruling on all post-

conviction claims asserted by Pate.” He argues these instances of ineffective

assistance “warrant[] a limited remand pursuant to Iowa Rule of Appellate

Procedure 6.1004.”

       Having found trial counsel performed effectively with respect to the first two

issues, we conclude postconviction counsel could not have been ineffective in

failing to raise those claims. As for the third issue, Pate argues his postconviction

attorney failed to ensure the postconviction court ruled on a sentencing claim he

raised during the hearing.       Specifically, he asserted his trial attorney was

ineffective in representing he could not receive a sentence of less than fifty years.

He faults her “failure to know the minimum sentence” and her “error in incorrectly

instructing the court on the minimum sentence” and seeks a limited remand to

allow the court to rule on this issue.

       “[I]neffective-assistance-of-counsel claims based on failure to preserve

error are not to be reviewed on the basis of whether the claimed error would have

required reversal if it had been preserved at trial. Rather, a defendant must

demonstrate a breach of an essential duty and prejudice.” State v. Maxwell, 743

N.W.2d 185, 196 (Iowa 2008) (internal citation omitted).

       The sentencing transcript contains the following statements bearing on the

issue. The prosecutor stated, “The minimum sentence for this level of offense

would be the 50-year sentence and the possibility of a suspended sentence and

probation or a deferred judgment if he were eligible.” In light of Pate’s stipulation
                                          10


to being a second or subsequent offender, the prosecutor informed the court the

sentence could be tripled “to 150 years.” See Iowa Code § 124.411 (2011)

(permitting a term of imprisonment for “a second or subsequent offense” of up to

three times the term otherwise authorized). Pate’s attorney did not disagree with

the prosecutor’s summary of the minimum sentence. She requested “a 50-year

suspended sentence with probation” on behalf of Pate. The district court imposed

a prison term “for a period not to exceed 50 years” for a “Class ‘B’ Felony subject

to enhancement as a second or subsequent offender.”

       The basis for arriving at the prison sentence was clear in the record.

Accordingly, trial counsel breached no essential duty in articulating the sentence

and postconviction counsel breached no essential duty in failing to address the

matter.

III.   Limitation of Discovery

       After Pate filed his postconviction relief application, the State moved to limit

discovery. The State alleged Pate wished to depose police officers “who were

involved with the underlying criminal charges” and “these individuals possess[ed]

no information related to the performance of underlying criminal counsel.” The

State also pointed out that certain claims were resolved on direct appeal and

discovery as to those claims would be unnecessary.

       Pate responded by filing a notice of depositions, which listed six Des Moines

police officers. He also asked to depose an assistant county attorney and the State

public defender. The district court granted the State’s motion to limit discovery,

reasoning “the proposed depositions of the police officers and Assistant Polk

County [Attorney] are not calculated to lead to admissible evidence.”
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       On appeal, Pate argues (1) his “PCR claims included claims of ineffective

assistance of trial counsel,” (2) “[s]howing that trial counsel failed to effectively

address any of the underlying issues may be part of that claim,” and, (3)

accordingly, “previously decided issues are open to additional discovery.”

       As discussed, we are unpersuaded by Pate’s ineffective assistance claims

that Pate now claims were the reason for seeking additional discovery. But, giving

Pate the benefit of the doubt, we have asked ourselves whether additional

discovery would have advanced any of his claims. The only conceivable benefit

we can glean from allowing depositions to go forward is the possible extraction of

an admission from the officers that they altered the search-warrant application. If

this was Pate’s goal, we have no trouble concluding his wide-ranging deposition

notice would have amounted to a “fishing expedition.” See Robertson, 494 N.W.2d

at 724. We conclude the district court did not abuse its discretion in limiting

discovery.

IV.    Preaccusatorial Delay

       The State waited 501 days after the dismissal of Pate’s federal charges to

refile the State criminal complaints. Pate argues his “due process rights under the

Iowa and U.S. Constitutions were violated by [the] delay in prosecuting” him.

       Although “[t]here is no constitutional right to be arrested and charged
       at the precise moment probable cause comes into existence,” the
       government cannot delay “filing charges to intentionally ‘gain [a]
       tactical advantage over the accused’” without implicating the Due
       Process Clause. To prevail on a claim that such a delay violated due
       process, a defendant has a heavy burden of proving both (1) the
       defendant’s defense suffered actual prejudice due to a delay in
       prosecution and (2) the delay causing such prejudice was
       unreasonable. “To establish actual prejudice a defendant must show
       loss of evidence or testimony has meaningfully impaired his ability to
       present a defense.” Generalized claims of prejudice, such as “loss
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       of memory, loss of witnesses, or loss of evidence” do not constitute
       actual prejudice.

State v. Brown, 656 N.W.2d 355, 363 (Iowa 2003) (internal citations omitted).

       As a preliminary matter, the State argues we addressed the delay on direct

appeal and Pate is foreclosed from re-litigating the issue. See Pate, 2012 WL

3860450, at *3-5. Because Pate formulated the issue slightly differently in his

postconviction relief application, we will address the claim.

       Pate asserts he suffered prejudice by virtue of the delay in prosecution

because the “actual search warrant” presented to him at the time of the search

was lost and, without the search warrant, he “was unable to show that the entry

into his apartment was illegal.” But, if there was another search warrant and if it

was lost, the loss had nothing to do with the State’s delay in refiling the criminal

complaints.

       Pate raised the identical claim in 2008, long before the State refiled its

charges. The federal public defender investigated the assertion and obtained

clarification from the State clerk of court of the procedure with respect to search

warrants, including the warrants in this case. In short, the existence or non-

existence of another warrant was thoroughly vetted in the federal proceeding and

could not form the basis for a finding of actual prejudice from the State’s delay of

the State criminal prosecution.



       We affirm the district court’s denial of Pate’s postconviction relief

application.

       AFFIRMED.
