                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0220
                                  Filed July 27, 2016


RANDY ALAN ZAABEL,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Kurt J. Stoebe,

Judge.



      A postconviction-relief applicant appeals the order denying his application.

AFFIRMED.




      Clemens A. Erdahl of Nidey, Erdahl, Tindal & Fisher, P.L.C., Cedar

Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Heard by Potterfield, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

       Randy Zaabel was convicted of murder in the second degree and

nonconsensual termination of a human pregnancy. We have twice affirmed his

convictions, once on direct appeal and once on appeal from postconviction relief

proceedings. See Zaabel v. State (Zaabel II), No. 03-2056, 2004 WL 1899837,

at *3 (Iowa Ct. App. Aug. 26, 2004); State v. Zaabel (Zaabel I), No. 99-0770,

2001 WL 1130855, at *8 (Iowa Ct. App. Sept. 26, 2001). This case arises out of

Zaabel’s second application for postconviction relief. In this proceeding, Zaabel

contends that his trial counsel was ineffective in failing to present certain

evidence at trial and that the confession of another suspect constitutes newly

discovered evidence entitling him to a new trial. Following trial, the district court

denied Zaabel’s second application for postconviction relief.

                                         I.

              Zaabel was charged with murder following Michelle Gibson’s
       death on March 29, 1998. He was charged with nonconsensual
       termination of her pregnancy because Gibson’s unborn child also
       died as the result of her injuries.

              Gibson’s body was discovered along Mining Boulevard, a
       rural Webster County road, by law enforcement officers responding
       to Zaabel’s call for emergency assistance. Zaabel reported that he
       and Gibson were attacked there by one or more people he
       assumed were stranded motorists. According to Zaabel he was
       knocked unconscious during this encounter and awoke to find
       Gibson gravely injured, prompting his call for assistance. He
       speculated that Gibson might have known their assailants from her
       prior experience in the local drug culture.

              The state medical examiner subsequently determined that
       Gibson died of massive head injuries inflicted by multiple blows
       from a wooden object, a portion of which was found in Gibson’s
       hair. The medical examiner also determined that portions of
       Gibson’s skull and brain were missing. Investigators did not find a
       murder weapon at the Mining Boulevard location, nor did the
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       physical evidence gathered there account for all of Gibson’s
       missing skull fragments and brain tissue. Investigators, however,
       found blood and tissue on the muffler and rear tire wells of Zaabel’s
       truck, suggesting Gibson may have been attacked elsewhere and
       moved to the location where her body was found.

              On March 31, 1998, investigators asked Zaabel if they could
       examine any of Gibson’s personal belongings remaining at his
       residence. Zaabel signed a written “permission for search and
       seizure” form authorizing the search of his residence, surrounding
       real estate, and motor vehicles located at his farmstead. During the
       course of this warrantless search, investigators found a
       bloodstained 2” x 2” piece of lumber protruding from a drainage tile
       on Zaabel’s property and blood under or near a manure spreader
       parked on the property. As a result of these discoveries,
       investigators sought and obtained a search warrant authorizing an
       extended search of Zaabel’s farmstead. The resulting search
       yielded additional skull fragments, brain tissue, wood, and wood
       splinters. Subsequent laboratory analysis and a second autopsy
       matched these items with those discovered at the Mining Boulevard
       scene and during Gibson’s first autopsy.

Zaabel I, 2001 WL 1130855, at *1.

                                             II.

       Zaabel first argues his trial counsel was ineffective in failing to present

certain evidence at trial.   Zaabel has continued to correspond with his trial

lawyers, Kevin Fors and Leonard Holland, post-conviction. Zaabel claims he has

learned, since his first application for postconviction relief, Fors found additional

blood and brain tissue left at the Mining Boulevard site after the police

investigated the site but prior to Zaabel’s trial. Fors took pictures of the blood

and brain tissue and collected some of the brain tissue and kept it in his freezer.

Zaabel claims Holland told Zaabel that Holland was unaware of Fors taking

photographs of the tissue and was unaware of Fors collecting the tissue.

According to Zaabel, the tissue is exculpatory because it shows the missing

tissue, discussed at the first trial as evidence of movement of Gibson’s body from
                                           4


one site to another, was not actually missing. Zaabel claims his counsel was

ineffective in failing to present this evidence to the jury.

       We review claims of ineffective assistance of counsel de novo. State v.

Ondayog, 722 N.W.2d 778, 783 (Iowa 2006).              The Sixth Amendment to the

United States Constitution provides: “In all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S.

Const. amend. VI.       The Supreme Court has made the Sixth Amendment

applicable to the states via incorporation through the Fourteenth Amendment. To

prevail on his claim, Zaabel must show (1) that 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). Failure to prove either element is fatal to the

claim. See State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).

       To determine whether counsel failed to perform an essential duty, we first

decide if the representation dropped below an objective standard of

reasonableness under prevailing professional norms. See Hinton v. Alabama,

134 S. Ct. 1081, 1088 (2014).           The defendant must overcome a strong

presumption of counsel’s competence. See Strickland v. Washington, 466 U.S.

668, 689 (1984). “In evaluating the objective reasonableness of trial counsel’s

conduct, we examine ‘whether, in light of all the circumstances, the identified acts

or omissions were outside the wide range of professionally competent

assistance.’”   State v. Madsen, 813 N.W.2d 714, 724 (Iowa 2012) (citation

omitted). “Miscalculated trial strategies and mere mistakes in judgment normally

do not rise to the level of ineffective assistance of counsel.” Lado v. State, 804

N.W.2d 248, 251 (Iowa 2011).
                                        5


       The ultimate inquiry on prejudice is whether trial counsel’s allegedly

deficient performance caused a complete “breakdown in the adversary process”

such that the conviction is unreliable. Strickland, 466 U.S. at 687. This requires

the defendant to establish “there is a reasonable probability that, but for

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

different.”   Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012) (quoting

Strickland, 466 U.S. at 694).

       Zaabel’s ineffective-assistance claim is time-barred.     See Iowa Code

§ 822.3 (2013) (providing a three-year limitations period to assert postconviction

claims). Zaabel contends his claim can proceed because it is “a ground of fact or

law that could not have been raised within the applicable time period.” Id. To

meet the test for this exception, the asserted ground of fact must be one that

could not have been presented at trial, that is relevant to the challenged

conviction, and that has a nexus with the conviction. See Harrington v. State,

659 N.W.2d 509, 521 (Iowa 2003). Zaabel’s claim does not meet the “ground of

fact” exception. First, the district court found, and we agree, “the most credible

evidence” is Fors, Holland, and Zaabel all knew of the tissue at the time of trial.

The additional tissue, and Fors’ photograph of the same, was discussed in

depositions at which Zaabel was present. We give weight to the district court’s

determination of witness credibility at the postconviction hearing. See Cox v.

State, 554 N.W.2d 712, 714 (Iowa Ct. App. 1996). Second, even if Zaabel did

not have actual knowledge of the evidence, he “is charged with knowledge of

matters known to [his] attorney, which matters the attorney learns through the

course of representing [him]. In short, knowledge of an attorney is knowledge of
                                         6

the client.” Carroll v. Martir, 610 N.W.2d 850, 859 (Iowa 2000). Third, Zaabel, by

his own admission, knew of this claim by 2008 but failed to bring this

postconviction action within three years of that date. See Blackwell v. State, No.

10-0681, 2012 WL 836766, at *4 (Iowa Ct. App. Mar. 14, 2012) (“[P]ostconviction

relief applications based on ‘a ground of fact’ that could not have been raised

within the three-year limitation period, must also be filed within three years of the

discovery of the new ground of fact or be barred.”).

       Even if the claim were not time-barred, the claim does not warrant relief on

the merits. Zaabel must establish his counsel breached an essential duty and

prejudice resulted.    Strickland, 466 U.S. at 687.    Zaabel never contends his

counsel breached an essential duty, which ends the inquiry. See Iowa R. App. P.

6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed

waiver of that issue.”); Graves, 668 N.W.2d at 869 (stating inability to prove

either element is fatal).

       Zaabel also failed to establish Strickland prejudice.      First, there is no

newly discovered evidence to admit were this matter to be retried. The tissue

was never tested or analyzed. Fors no longer has the tissue. Second, even

assuming the material collected was blood and brain tissue, testimony regarding

what was collected would be merely cumulative of other evidence admitted at

trial. See State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct. App. 1999) (“When

evidence is merely cumulative, it cannot be said to injuriously affect the

complaining party’s rights.”). A police officer, Carl Bessman, testified there was

tissue left on the ground at the Mining Boulevard site. A doctor testified the brain

matter could have fallen out along Mining Boulevard even if Gibson received
                                         7


blows to the head at Zaabel’s property. Similarly, to the extent Zaabel claims the

additional blood and brain tissue are evidence of a sloppy police investigation,

that theory and evidence regarding the same were introduced at Zaabel’s trial.

Finally, there was overwhelming evidence of Zaabel’s guilt. See Whitsel v. State,

439 N.W.2d 871, 875 (Iowa 1989) (“Regardless of the appellant’s many claims

as to ineffective assistance of counsel, we find no prejudice to the appellant

because the evidence presented at his trial was overwhelming concerning his

guilt.”); see also State v. Carey, 709 N.W.2d 547, 559 (Iowa 2006) (“The most

important factor under the test for prejudice is the strength of the State’s case.”).

The litany of evidence has been recited in Zaabel’s previous appeals:

          He had a pecuniary interest (as beneficiary of victim’s life insurance
           policy) to commit this crime;
          He had a romantic interest (desire to reunite with a past love interest)
           to commit this crime;
          Bone fragments from the victim’s skull and blood spatter from the
           victim, as well as a bloody 2” by 2” piece of lumber, were found on his
           property;
          A splinter matching the lumber was found matted in the victim’s hair;
          Blood found on Zaabel’s jacket was consistent with splatter commonly
           found on blunt trauma assailants;
          Gibson’s body showed evidence it had been moved to the place where
           it was finally discovered (the Mining Boulevard site);
          Gibson’s blood was found all over Zaabel’s truck;
          Zaabel’s claim he had been unconscious for several hours was opined
           to be medically inconsistent with his subsequent physical symptoms;
           and
          His explanation of his and Gibson’s activities on the night of the murder
           was inconsistent with the pathologist’s estimation of the time of her
           death.

Zaabel II, 2004 WL 1899837, at *3; Zaabel I, 2001 WL 1130855, at *7.
                                        8


                                       III.

      We turn next to Zaabel’s newly discovered evidence claim. To prevail on

a postconviction-relief claim on the basis of newly discovered evidence, Zaabel

must show: (1) the evidence was not discovered until after judgment; (2) the

evidence could not have been discovered earlier through the course of due

diligence; (3) the evidence is material to the issue, not merely cumulative or

impeaching; and (4) it would probably change the result if a new trial is granted.

See Iowa Code § 822.2(1)(d); Summage v. State, 579 N.W.2d 821, 822 (Iowa

1998) (citing Jones v. Scurr, 316 N.W.2d 905, 907 (Iowa 1982)).

      Zaabel has contended from the outset that three men attacked Gibson

and him on the side of the road.     In response, the police investigated three

individuals now known to be Jason Rosales, Craig Hood, and John Hood.

Ultimately, the police concluded the three men were not involved in the incident

and that Zaabel concocted the story.          In Zaabel’s first postconviction-relief

proceeding, Zaabel presented the affidavit of Spencer Fitzpatrick stating Rosales

admitted his involvement in the crime to Fitzpatrick.       Our court wrote, “[T]he

affidavit does nothing more than establish the possibility that [Zaabel] had an

accomplice, not that Rosale[s] was the sole perpetrator of the crimes.” Zaabel II,

2004 WL 1899837, at *3.

      In this case, Zaabel has produced another affidavit documenting another

purported confession to Gibson’s murder. Zaabel supported his application in

this case with an affidavit from John Hays, dated February 6, 2010:

      I have known John Hood since we [were] children in Otho. I had
      not seen John Hood in several years until I ran into him outside my
      cousin’s place in 2006. During my conversation with John Hood,
                                         9


       he told me that he knew information about Michelle Zaabel’s [sic]
       murder. John Hood told me that Randy Zaabel did not die, and that
       was a good thing because if he had there would have been three
       people doing life instead of one. John Hood then told me that he
       remembered how Michelle [lay], and that she owed some people a
       lot of money for drugs and got what she deserved. John Hood said
       nothing about Randy Zaabel being involved in the murder.

Hays testified at the postconviction trial. Hays testified Hood told him it was

fortunate “Randy had got away or there would have been probably three killings

instead of two.” Hays testified Hood told him there was Hood “and one other

person” at the scene of the murder. Hays testified Hood did not say Zaabel was

not involved in the murder; Hood just said “it’s a good thing he got away.”

       The district court denied Zaabel’s claim. We agree that Zaabel’s claim

does not entitle him to any relief. The claim is time-barred. Even a claim of

newly discovered evidence within the meaning of section 822.2(1)(d) must be

presented within the three-year limitations period set forth in section 822.3. If the

claim is presented outside the limitations period, as a threshold to consideration

on the merits, the applicant must establish the claim relies on a ground of fact

that could not have been raised within the limitations period within the meaning of

section 822.3 as interpreted in Harrington, 659 N.W.2d at 521. Only after the

Harrington standard has been met can the postconviction court consider whether

the evidence is newly discovered within the meaning of Summage. See 579

N.W.2d at 822.     While newly discovered evidence will frequently satisfy the

ground-of-fact exception to the limitations period, that is not necessarily true in

every case. Here, Zaabel does not overcome the limitations period because he

knew of the purported confession by at least February 2010, when he received
                                         10


the Hays affidavit. He did not file his application within three years of that date.

His claim is thus time-barred. See Blackwell, 2012 WL 836766, at *4.

       Even if we considered his claim on the merits, Zaabel failed to satisfy the

Summage test. Hays’s testimony is more likely than not inadmissible hearsay.

The district court concluded Hays lacked any credibility or reliability.      Hays

admitted he has bipolar disorder and had stopped taking his medication. He

could not really recall his conversations with Hood or Zaabel. To the extent Hays

could recall the conversations, his postconviction trial testimony was not

consistent with his affidavit.     In addition, Hays’s testimony would not have

changed the result of the trial.     Hays’s testimony does not exonerate Zaabel.

Just as in Zaabel’s previous postconviction-relief case, the purported confession

“does nothing more than establish the possibility that [Zaabel] had an

accomplice.” Zaabel II, 2004 WL 1899837, at *3. Finally, as set forth above, the

State’s case against Zaabel was very strong. Zaabel’s theory is contradicted by

overwhelming physical evidence.

                                         IV.

       For the foregoing reasons, we affirm the judgment of the district court.

       AFFIRMED.
