                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1348
                             Filed August 27, 2014

KYLE LARSON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer,

Judge.



      Kyle Larson appeals from the district court’s order dismissing his

application for postconviction relief. AFFIRMED.



      James T. Peters, Independence, for appellant.

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

General, Thomas J. Ferguson, County Attorney, and Linda Fangman, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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MCDONALD, J.

       Kyle Larson appeals from the district court’s order dismissing his

application for postconviction relief. Finding no error, we affirm the judgment of

the district court.

       On August 4, 2011, Larson was convicted of sexual abuse in the second

degree, in violation of Iowa Code section 709.3 (2007). In his application for

postconviction relief, as relevant here, Larson claimed his trial counsel rendered

constitutionally deficient performance by failing to seek the mental health records

of the victim. To establish a claim for ineffective assistance of counsel, Larson

was required to show “(1) his trial counsel failed to perform an essential duty, and

(2) this failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006). Regarding the first element, Larson was required to establish his trial

counsel’s     representation   dropped     below    an    objective   standard    of

reasonableness.       See Strickland v. Washington, 466 U.S. 668, 688 (1984).

Regarding the second element, Larson was required to establish trial counsel's

allegedly deficient performance caused a complete “breakdown in the adversary

process” such that his conviction is unreliable. See id. at 687. This required

Larson to establish “there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.”

Id. at 694. Failure to prove either element is fatal to his claim. See State v.

Graves, 668 N.W.2d 860, 869 (Iowa 2003).

       The district court found Larson failed to establish his trial counsel was

ineffective. As the district court correctly explained, in a criminal proceeding, the

victim’s mental health records are not available for inspection as a matter of right
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but instead are available only upon a threshold showing of discoverability. See

State v. Cashen, 789 N.W.2d 400, 407-10 (Iowa 2010) (articulating required

threshold showing and protocol to be followed with respect to victim medical

records); see also Iowa Code § 622.10(4) (2011) (superseding Cashen and

setting forth standard and protocol relating to discovery of privileged records in

criminal proceedings); State v. Neiderbach, 837 N.W.2d 180, 195 (Iowa 2013)

(recognizing section 622.10(4) supersedes Cashen). The district court found

Larson failed to establish any facts indicating the victim’s medical records would

have been subject to discovery in the criminal proceeding.          Therefore, the

postconviction court held, trial counsel was not ineffective for failing to seek

them.

        To the extent Larson argues the postconviction court erred in this

determination, we reject his argument.       Larson failed to show “a reasonable

probability that the information sought is likely to contain exculpatory information

that is not available from any other source . . . .” Iowa Code § 622.10(4)(a)(2)(a).

His counsel thus had no duty. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa

2009) (“[C]ounsel has no duty to raise an issue that has no merit.”).

        To the extent Larson argues the postconviction court erred in dismissing

his claim without conducting an in camera inspection of the victim’s mental health

records pursuant to Iowa Code section 622.10(4), that argument is also without

merit. Larson appears to conflate two separate issues: his claim of ineffective

assistance of counsel presented in this postconviction relief proceeding and his

right to access medical records in the underlying criminal proceeding. In this

case, the only issue presented to the district court was whether trial counsel was
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ineffective in failing to seek the victim’s medical records. There was no section

622.10(4) motion presented to the postconviction court to seek the victim’s

medical records. Nor could there have been such a motion. Section 622.10(4)

applies only to the disclosure of privileged medical records in a “criminal action.”

See Iowa Code § 622.10(4)(a). This is a civil postconviction relief proceeding

filed pursuant to chapter 822 and not a “criminal action.” See Webb v. State, 555

N.W.2d 824, 825 (Iowa 1996) (per curiam) (“Postconviction proceedings are civil

actions.”).   Larson had no right to the records and no right to have the

postconviction court conduct an in camera inspection of the same.

       For the foregoing reasons, the judgment of the district court is affirmed.

       AFFIRMED.
