                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1702
                            Filed December 19, 2018


JASON KENSETT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Henry County, Lucy J. Gamon,

Judge.



      A petitioner appeals the dismissal of his application for postconviction relief.

AFFIRMED.




      William Monroe of Law Office of William Monroe, Burlington, for appellant.

      Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant

Attorney General, for appellee State.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.

       Jason Kensett was convicted of “manufacturing more than five grams of

methamphetamine, a class B felony, in violation of Iowa Code section

124.401(1)(b)(7) (2009), and possessing anhydrous ammonia and lithium with the

intent that the products be used to manufacture methamphetamine, both class D

felonies, in violation of Iowa Code section 124.401(4)(b).” State v. Kensett, No.

11-0621, 2012 WL 3026528, at *1 (Iowa Ct. App. July 25, 2012). This court

affirmed his convictions on direct appeal. See id.

       In this appeal, Kensett contends the district court erred in denying his

application for postconviction relief. The only claim at issue on appeal is Kensett’s

claim that his trial counsel operated under a conflict of interest because the

magistrate who signed the search warrant, which resulted in evidence obtained

and used in the underlying criminal proceeding, was Kensett’s trial counsel’s law

partner.   Kensett contends his trial counsel thus had divided loyalties.       The

postconviction court denied Kensett’s claim, and Kensett timely filed this appeal.

       Because Kensett’s claim implicates the constitutional right to the assistance

of counsel, our review is de novo. See State v. Vaughan, 859 N.W.2d 492, 497

(Iowa 2015) (“We review conflict-of-interest allegations de novo.”). With respect

to conflict-of-interest claims,

       automatic reversal is required under the Sixth Amendment only when
       the trial court refuses to inquire into a conflict of interest over
       defendant’s or counsel’s objection. When neither the defendant nor
       his or her attorney raises the conflict of interest, the defendant is
       required to show an adverse effect on counsel’s performance to
       warrant reversal, even if the trial court should have known about the
       conflict and failed to inquire.
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Id. at 500 (citation omitted). “[A]n adverse effect occurs when counsel fails to

pursue a plausible strategy or tactic due to the existence of a conflict of interest.”

Id. at 501.

       Kensett contends he need not establish the potential conflict of interest

adversely affected counsel’s performance. He contends automatic reversal is

required. We respectfully disagree. Neither Kensett nor his trial counsel raised

the potential conflict of interest in the underlying criminal proceeding. Kensett’s

contention is thus contrary to Vaughan. See id. at 500.

       Further, on de novo review of the record, there is no evidence the potential

conflict of interest had an adverse effect on counsel’s performance. The record

shows Kensett’s privately-retained trial counsel filed a motion to suppress

evidence and vigorously challenged the validity of the search warrant.           Trial

counsel attacked the credibility of the confidential informant and argued the

warrant itself was predicated on unlawfully obtained information. The district court

in the underlying criminal proceeding denied the motion to suppress evidence. The

validity of the warrant was again challenged on direct appeal, and this court

rejected that challenge. See Kensett, 2012 WL 3026528, at *5 (affirming denial of

motion to suppress evidence). There is no showing of what, if anything, counsel

should have done differently in challenging the motion. There is no showing trial

counsel failed to pursue a plausible argument, strategy, or tactic. In the absence

of evidence showing the potential conflict of interest had an adverse effect on trial

counsel’s decision with respect to the suppression motion, we are “left with sheer

speculation, and that is not enough.” Mediina v. United States, CR No. 04-043-
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ML, 2008 WL 4974597, at *9 (D.R.I. Nov. 21, 2008) (denying application for

postconviction relief where offender asserted a claim that potential conflict of

interest had an adverse effect on trial counsel’s decision to forego a motion to

suppress evidence) (quoting Reyes-Vejerano v. United States, 276 F.3d 94, 100

(1st Cir. 2002)).

       For these reasons, the district court did not err in denying Kensett’s

application for postconviction relief.

       AFFIRMED.
