                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0611
                               Filed June 20, 2018


BRIAN J. LUCHTENBURG,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David F. Staudt,

Judge.



      Brian Luchtenburg appeals the denial of his postconviction-relief

application. AFFIRMED.




      Brian S. Munnelly, Omaha, Nebraska, for appellant.

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

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

         A jury found Brian Luchtenburg guilty of possession of marijuana,

possession of methamphetamine, and a drug tax stamp violation as a repeat and

habitual offender. On direct appeal, this court affirmed his convictions. State v.

Luchtenburg, No. 15-0924, 2016 WL 3273869, at *1 (Iowa Ct. App. June 15, 2016).

Luchtenburg subsequently filed a postconviction-relief application, which the

district court denied following an evidentiary hearing. In this appeal, Luchtenberg

argues his trial attorneys were ineffective in (1) “failing to call [a witness] at the

suppression hearing” and “failing to effectively cross-examine [the same witness]

at trial,” (2) “failing to obtain a video from [a] police car,” and (3) failing to raise

claimed conflicts of interest of the attorney and judge.

         To prevail, Luchtenberg must show (1) deficient performance and (2)

prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Our review

is de novo. Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017).

         1) Witness

         Luchtenberg’s first claim relates to a woman with a package of marijuana

who was stopped by law enforcement officers and who told them she was

delivering the package to Luchtenberg and another person at a specified address.

See Luchtenberg, 2016 WL 3273869, at *1.1 Luchtenberg’s attorney did not call

the woman to testify at the suppression hearing. In Luchtenberg’s view, “[T]rial

counsel could have severely discredited [her] had he independently and thoroughly

investigated matters.” (emphasis added). Had she been called, he argues, “The



1
    Our prior opinion contains a more detailed summary of the facts.
                                            3


information obtained from a thorough cross-examin[ation] . . . would have been

useful to corroborate [his] side of the story.”

       Luchtenberg elaborated on his claim at the postconviction-relief hearing.

He testified the woman implicated him to get herself off the hook and to curry favor

with the police, who never arrested or charged her. When asked by the court why

he wanted her to testify at the suppression hearing, he stated, “[W]e could have

proved at that point how unreliable of a witness she is.” In response to a follow-up

question, he stated,

              Well this entire case is based on her receiving a package of
       drugs through the mail and she threw it in my yard. So the entire
       case stems from her. I wanted to be able to put her on the witness
       stand to be able to show that she’s the one to receive the package.
       It was sent to her mother’s address, it was sent in the name of her
       alias, she’s got a criminal history, and she was never arrested or
       charged with any crime. So I wanted to be able to put her on the
       witness stand to bring all that to the light of day.

Counsel’s failure to put the woman on the stand at the suppression hearing does

not require reversal because Luchtenberg’s attorney elicited the same testimony

he could have elicited from the woman through cross-examination of the State’s

witnesses.

       Counsel asked one of the police officers who stopped the woman, “Did you

entertain the possibility that she, with this package now in her car, stopped by the

police, wants to dump it off, literally and figuratively, onto someone else at

someone else’s house rather than [i]t being hers, did you consider that?” The

officer responded, “That’s always a possibility.” Defense counsel continued, “So

as far as we know, at that point she could just be saving herself in a fashion by

saying I’ll deliver it, I’ll tell these officers that I’m supposed to deliver it somewhere
                                           4


else?” The officer testified it was “more probable that she was actually supposed

to deliver the package” but conceded the possibility that she was protecting her

own interests.

       Counsel asked a second officer similar questions. The officer agreed he

had no idea if the woman who was stopped was telling the truth or lying “about

where [the package] was to be delivered.” Later, counsel asked the same officer,

“[I]n order to help herself or whatever[,] she said that’s not for me, that’s going

elsewhere?” The officer responded, “Correct.”

       Defense counsel established the woman’s ulterior motive for implicating

Luchtenberg and, hence, her unreliability. We conclude Luchtenberg was not

prejudiced by counsel’s failure to call the woman as a witness at the suppression

hearing.   See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (noting

cumulative evidence is not prejudicial).

       At trial, the defense did call the woman to the stand. While Luchtenberg

faults his trial attorney for failing to ask her certain questions, he does not identify

those questions. Instead, he broadly suggests his attorney should have impugned

the woman’s credibility.

       Counsel did so. He established the woman entered into an agreement to

cooperate with police. As prior counsel had done at the suppression hearing, he

suggested the woman had an incentive to foist the package of “high-grade”

marijuana onto someone else.        Specifically, he established the package was

addressed to the woman’s mother and retrieved by her from her mother’s home.

He also established she was the person who connected the package to

Luchtenberg. And, in closing argument, he stated, the woman “knew she was in
                                         5


a lot of trouble and she better come up with something to save her tail. What better

way to do that than to give them the names of two people that had used to be

friends with her, she had had a falling-out with, she didn’t much care for anymore.”

We conclude Luchtenberg’s trial attorney challenged the woman’s reliability,

rendering his failure to accept Luchtenberg’s assistance non-prejudicial. See

McCoy v. Louisiana, 138 S. Ct. 1500, ___ (2018) (“Trial management is the

lawyer’s province.”).

       2) Video

       Luchtenburg next asserts his trial attorney was ineffective in “failing to

obtain a video from the police car.” He contends, “[H]ad his attorney obtained or

looked for a dash cam video from the cruiser who was at the scene that day, it

would have shown that the package actually was not delivered to his house.” At

the postconviction-relief hearing, he also claimed the videos would show a second

person in the vehicle with the woman who had the package. However, he did not

explain how he would benefit from the presence of the other person and he

admitted he lacked firsthand knowledge of whether videos even existed. We

conclude counsel did not breach an essential duty in failing to request videos.

       3) Alleged Conflicts

       Luchtenburg contends his first attorney was a friend of a friend of the

woman who implicated him, which generated a conflict of interest. “A conflict does

not exist just because one party asserts it does.” State v. McKinley, 860 N.W.2d

874, 880 (Iowa 2015).         “[W]e must independently evaluate whether the

circumstances show an actual conflict or serious potential for conflict.” Id.
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       In McKinley, the court rejected a contention that far more significant

contacts than Luchtenburg alleges warranted disqualification of attorneys. Id. at

885-86; see also State v. Mulatillo, 907 N.W.2d 511, 519-20 (Iowa 2018) (stating

that, in determining whether a conflict exists, we consider the “speculative nature

of the conflict”). Luchtenberg’s assertion of a conflict is entirely speculative. He

did not explain how his attorney’s friendship with an unnamed person who

happened to know the woman with the package engendered “divided loyalties,”

“adversely affected” his performance, or had the potential to do either.             See

McKinley, 860 N.W.2d at 881. There was no suggestion the attorney knew or

represented the woman with the package or gained evidence from the mutual

friend that affected his representation of Luchtenberg. We conclude counsel did

not breach an essential duty in failing to raise a conflict-of-interest claim.

       Luchtenburg next asserts the trial judge also had a conflict because he

presided over his codefendant’s trial. The general rules regarding judicial conflict

and recusal are as follows:

       [A] judge should disqualify himself or herself in a proceeding in which
       the judge’s impartiality might reasonably be questioned. This test for
       disqualification is an objective one. The burden of showing grounds
       for recusal is on the party seeking recusal. . . . [A] judge’s impartiality
       might be questioned where the judge has a personal bias or
       prejudice concerning a party. Only personal bias or prejudice
       stemming from an extrajudicial source constitutes a disqualifying
       factor. Judicial predilection or an attitude of mind resulting from the
       facts learned by the judge from the judge’s participation in the case
       is not a disqualifying factor. In addition, actual prejudice must be
       shown before recusal is necessary.

State v. Milsap, 704 N.W.2d 426, 432 (Iowa 2005) (internal quotations and citations

omitted).
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       The courts considering the issue have uniformly held that a trial judge
       is not disqualified per se merely by the fact of having presided over
       the separate or concurrent disposition of the case of the alleged
       coparticipant of the instant defendant in the activities with which the
       current defendant is charged.

Anne Christine Haberle, Annotation, Disqualification from Criminal Proceeding of

Trial Judge Who Earlier Presided over Disposition of Case of Coparticipant, 72

A.L.R. 4th 651 (1989). Luchtenburg argues for a per se exclusion of the trial judge.

As the postconviction court stated, “That is not a conflict.” Again, we conclude

counsel did not breach an essential duty in failing to raise the claimed conflict of

the trial judge.

       We affirm the denial of Luchtenburg’s postconviction-relief application.

       AFFIRMED.
