                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0101
                               Filed May 13, 2020


SANTOS ROSALES MARTINEZ,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Buena Vista County, Nancy L.

Whittenburg, Judge.



      Santos Rosales Martinez appeals the district court’s summary dismissal of

his third application for postconviction relief. REVERSED AND REMANDED.




      Judy Freking of Judy L. Freking, P.C., Le Mars, for appellant.

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

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
                                           2


VAITHESWARAN, Presiding Judge.

         Santos Rosales Martinez appeals the district court’s summary dismissal of

his third application for postconviction relief (PCR) following his 2002 second-

degree sexual abuse conviction. See Rosales-Martinez v. State, No. 10-2078,

2011 WL 6740152, at *9 (Iowa Ct. App. Dec. 21, 2011); State v. Rosales-Martinez,

No. 02-0399, 2003 WL 21229134, at *1 (Iowa Ct. App. May 29, 2003).                   He

contends (1) his PCR counsel was ineffective in “not communicating with [him] at

any time,” (2) the court “erred in hearing the State’s pre-answer motion to dismiss

prior to [his] being notified that an attorney had been appointed to represent him,”

and (3) the failure of the department of corrections to admit [him] to the sex

offender treatment program was “a loss of the accrual of earned time” and “a

substantial deprivation of his liberty interest.” We find the first issue dispositive.

         Rosales Martinez filed his third PCR application on August 20, 2018. At the

same time, he filed an application for appointment of counsel. The court appointed

an attorney the next day. About two months later, the State moved to dismiss the

application on the ground that it was “time barred under [Iowa Code] section 822.3

[(2018)] and issue precluded under section 822.8.” The court scheduled a hearing

on the motion for November 5, 2018.

         On November 1, 2018, a letter from Rosales Martinez was filed with the

court.    Rosales Martinez inquired “on the status of [his] application and the

appointment of counsel in this matter.” No immediate response was provided. The

hearing took place as scheduled, with Rosales Martinez’s attorney in attendance.

A day after the hearing, the court filed an order stating:
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              On this date the court is presented with a letter from the
       Applicant inquiring on the status of his application for court appointed
       counsel. A review of the file shows that an order was entered by the
       court on August 28, 2018 appointing . . . counsel for the Applicant.
       [The attorney’s] telephone number is . . . .
              The clerk of court is requested to provide a copy of the court’s
       August 28, 2018 order to Applicant together with a copy of this
       calendar entry. The clerk is also requested to provide a copy of this
       calendar entry to counsel of record.

No mention was made of the hearing that took place a day earlier. The court

dismissed the PCR application two weeks later. Rosales Martinez filed a pro se

notice of appeal.

       Rosales Martinez contends he “did not receive any communication nor

any correspondence from his PCR Attorney prior to or following the dismissal of

his case,” rendering counsel’s performance substandard. The State responds that

the ineffective-assistance-of-counsel claim should be preserved for another

postconviction action. We find the record adequate to address the claim. See

Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011) (addressing a claim that PCR

counsel was ineffective in allowing a case to be dismissed for failure to prosecute

it).

       A PCR applicant has a statutory right to counsel. Id. at 250; cf. Allison v.

State, 914 N.W.2d 866, 871 (Iowa 2018) (citing constitutional principles implicating

the right to counsel but recognizing a PCR applicant has a statutory right to

counsel). The right necessarily implies “effective” assistance. Lado, 804 N.W.2d

at 250. To establish ineffective assistance the applicant must prove counsel

breached an essential duty. Id. at 251. “Permitting a client’s postconviction relief

application to be dismissed because of inaction is never an effective trial strategy”

and will amount to the breach of an essential duty. Id.         Where        it    is
                                           4


established that the applicant was effectively without counsel, no specific showing

of prejudice is required. Id. at 252. “This is the type of error that renders the entire

postconviction relief proceeding ‘presumptively unreliable’” and amounts to

structural error. Id. at 253.

       As noted, counsel was appointed a day after the PCR application was filed.

Counsel failed to inform his client about his appointment, failed to notify him of the

State’s motion to dismiss filed almost two months later, and failed to file a

resistance to the dismissal motion. While the State argues “[t]here is nothing in

the record to prove that PCR counsel did not communicate with [Rosales Martinez]

between the date on which he mailed th[e] letter . . . and the date of the hearing,”

our de novo review of the record establishes precisely that. Specifically, counsel

appeared at the PCR hearing but made no mention of speaking to his client and

limited his advocacy to an oral motion to amend the application on an issue that

was raised in a prior proceeding. The court declined to accept the motion and

advised counsel he would “have ample opportunity” to file a written application to

amend. Counsel did not pursue that option. Nor did counsel take any action after

learning of Rosales Martinez’s letter to the court.

       We conclude counsel breached an essential duty in failing to communicate

with or act on behalf of his client. The breach effectively deprived Rosales Martinez

of an attorney for the duration of the proceedings, which amounted to structural

error requiring reversal and remand. See Stechcon v. State, No. 17-1531, 2018

WL 3913126, at *3 (Iowa Ct. App. Aug. 15, 2018) (“Postconviction counsel

abdicated his acknowledged duty to file a timely postconviction-relief application,

effectively leaving Stechon without counsel.”); Dockery v. State, No. 13-2067, 2016
                                           5


WL 351251, at *5 (Iowa Ct. App. Jan. 27, 2016) (“Counsel failed to ensure [the

applicant’s] rights were protected by failing to procure his attendance at the

hearing, raise his pro se claims, or obtain a ruling on those claims.            These

deficiencies led to the dismissal of the PCR action, resulting in the sort of structural

error that renders the proceedings presumptively unreliable.”); cf. Harkless v.

State, No. 16-2082, 2017 WL 6513966, at *2 (Iowa Ct. App. Dec. 20, 2017) (stating

the applicant was not constructively without counsel).

       In reaching this conclusion, we recognize that the dismissal in this case was

not a dismissal for failure to prosecute the action pursuant to Iowa Rule of Civil

Procedure 1.944 but a summary dismissal based on the statute of limitations and

Rosales Martinez’s attempt to relitigate certain issues. See Villa Magana v. State,

908 N.W.2d 255, 259 (Iowa 2018) (concluding the applicant was “constructively

without counsel” where “PCR counsel failed to take necessary action to prevent

his client’s application from being dismissed under rule 1.944”). But the effect was

the same—the case was dismissed without any input from Rosales Martinez. See

Jackson v. State, No. 08-0838, 2009 WL 779332, at *3 (Iowa Ct. App. Mar. 26,

2009) (“Although [the applicant] was provided notice and adequate time to

respond, we find he was not afforded a meaningful opportunity to present his

position as to whether there were genuine issues of material fact presented in his

application or argue his interpretation of the law.”).

       Nor does precedent permitting the dismissal of a PCR application without

appointment of counsel alter our conclusion. See Wise v. State, 708 N.W.2d 66,

71–72 (Iowa 2006); Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988);
                                           6

Furgison v. State, 217 N.W.2d 613, 615, 618 (Iowa 1974). Those opinions do not

speak to the duties of counsel when counsel is appointed, as was the case here.

       Finally, our conclusion is not altered by the postconviction court’s ability to

resolve the summary dismissal motion without a hearing. See Brown v. State, 589

N.W.2d 273, 275 (Iowa Ct. App. 1998) (stating that “[w]here proper service has

been made and the nonmoving party is on notice of the motion to dismiss, and

where the nonmoving party is given adequate time to respond, the nonmoving

party is thereby afforded an opportunity to respond” and the court may dismiss the

application without a hearing); see also Weatherly v. State, No. 14-1890, 2016 WL

1130043, at *2 n.1 (Iowa Ct. App. Mar. 23, 2016) (noting court may grant a motion

to dismiss after nonmoving party has been granted an adequate time to respond

and fails to do so). The record affirmatively discloses that Rosales Martinez

received no notice of the hearing or the motion and was not afforded an opportunity

to respond, despite the appointment of counsel. See Jackson, 2009 WL 779332,

at *3 (noting the applicant “attempted to contact his attorney several times with

regard to the status of his case, wrote a letter to the judge, and also filed several

pro se motions” and the applicant had “very little contact with his counsel

throughout the litigation of his applications for postconviction relief,” raising doubts

as to whether he was afforded “sufficient opportunity to offer evidence to fulfill his

burden of showing the court that there was a genuine issue of material fact worthy

of a full postconviction hearing”). Because notice and an opportunity to respond

are predicates to dismissal, it matters little that the court theoretically could have

ruled on the State’s motion without scheduling the November 5 hearing.
                                 7


We reverse and remand the dismissal of the PCR application.

REVERSED AND REMANDED.

All judges concur except, May, J., who dissents.
                                          8


MAY, Judge. (dissenting)

       Eighteen years ago, in 2002, Rosales Martinez was convicted of sexual

abuse in the second degree. This case is his third unsuccessful postconviction-

relief (PCR) action. His application claims (1) a witness’s recantation shows he is

actually innocent and, moreover, (2) an additional witness—a doctor—should have

been called at his criminal trial. In a thoughtful six-page ruling, the district court

dismissed Rosales Martinez’s application because (1) his recantation claim had

been heard and decided in a prior case, see Iowa Code § 822.8 (2018); and (2)

his claims about the doctor were time-barred, see Iowa Code § 822.3. On appeal,

Rosales Martinez claims PCR counsel was ineffective in various ways.1

       I do not believe Rosales Martinez’s ineffective-assistance claims are

sufficiently developed for our review. For example, Rosales Martinez’s theory of

prejudice turns entirely on his lack of access to prison programming and parole.

But those issues are not mentioned in the record. And although a finding of

“structural error” could allow a presumption of prejudice, see Lado v. State, 804



1 Rosales Martinez’s ineffective-assistance claims appear in Division I of his brief.
In Divisions II and III, he contends the district court erred in various ways. But
those arguments were not raised or decided below. And we will not address a
“substantive or procedural issue for the first time on appeal.” DeVoss v. State, 648
N.W.2d 56, 63 (Iowa 2002); accord Hartson v. State, No. 07-1684, 2009 WL
779793, at *1 (Iowa Ct. App. Mar. 26, 2009); Montgomery v. State, No. 05-0819,
2007 WL 257674, at *1 (Iowa Ct. App. Jan. 31, 2007).
        It is true that, in Division II, Rosales Martinez makes a passing reference to
ineffectiveness of counsel as a possible exception to our error-preservation
requirements. But he does not provide any supporting argument or authority. So
the issue is waived. State v. Louwrens, 792 N.W.2d 649, 650 n.1 (Iowa 2010)
(“Moreover, passing reference to an issue, unsupported by authority or argument,
is insufficient to raise the issue on appeal.”); accord In re O.O., No. 19-1215, 2019
WL 4678251, at *1 n.1 (Iowa Ct. App. Sept. 25, 2019); State v. Scott, No. 10-1160,
2012 WL 664635, at *3 (Iowa Ct. App. Feb. 29, 2012).
                                           9


N.W.2d 248, 252 (Iowa 2011), the briefs do not mention “structural error.” So it

“cannot be considered” by this reviewing court. See Aluminum Co. of Am. v.

Musal, 622 N.W.2d 476, 479 (Iowa 2001); see also State v. Harris, 919 N.W.2d

753, 754 (Iowa 2018) (“If the development of the ineffective-assistance claim in the

appellate brief was insufficient to allow its consideration, the court of appeals

should not consider the claim . . . .”).

       Accordingly, I would affirm and preserve Rosales Martinez’s ineffective-

assistance claims for a future PCR.

       In his brief, Rosales Martinez acknowledges he cannot “prevail” on his

“claim of ineffective assistance of counsel” unless he shows both “ineffective

assistance and prejudice.” Rosales Martinez concedes he “bears the burden of

demonstrating both elements . . . by a preponderance of the evidence.” Rosales

Martinez never suggests he can prevail without proving both (1) counsel’s

ineffective assistance and (2) prejudice. See Ledezma v. State, 626 N.W.2d 134,

142 (Iowa 2001).

       As to the first element, Rosales Martinez claims PCR counsel was

ineffective in four ways: (1) failing to communicate with Rosales Martinez;

(2) failing to conduct a “reasonable investigation”; (3) failing to resist the State’s

motion to dismiss; and (4) failing to amend or supplement Rosales Martinez’s PCR

application.

       As to the prejudice element, Rosales Martinez does not argue that—if

counsel had been effective—Rosales Martinez could have overcome the State’s
                                          10


arguments for dismissal under Iowa Code sections 822.3 and 822.8. 2 Instead,

Rosales Martinez contends that, if PCR counsel had performed competently, the

PCR court would have taken steps to expedite Rosales Martinez’s parole. His

brief explains:

       A reasonable investigation would have shown counsel that [Rosales
       Martinez] has been incarcerated since he was found guilty on
       January 11, 2002. The Department of Corrections has not provided
       [Rosales Martinez] with the mandatory Sex Offender Treatment
       Program (SOTP) and accordingly, [Rosales Martinez] cannot be
       recommended for parole. [Rosales Martinez’s] mandatory minimum
       sentence expired on July 10, 2019. (App. 54)[3] [Rosales Martinez]
       is eligible for a reduction of sentence equal to one and two-tenths
       days for each day the inmate demonstrates good conduct. (903A.2)
       However Pursuant to Iowa Code 903A.2, “an inmate required to
       participate in a sex offender treatment program shall not be eligible
       for any reduction of sentence until the inmate participates in and
       completes a sex offender treatment program established by the
       director.” “Thus an inmate who fails to participate in sex offender
       treatment required by the IDOC risks losing his or her ability to obtain
       an earlier release from prison by accumulating earned time. State v.
       Iowa Dist. Ct., 888 N.W. 2d 655, 662 (Iowa 2016). [Rosales
       Martinez] will not be allowed to parole prior to the expiration of his 25
       year sentence if he does not attend the Sex Offender Treatment
       Program. [Rosales Martinez] has a tentative discharge date of
       January 4, 2024. (App. 54, 56).[4]
               The right to counsel “necessarily implies that counsel be
       effective.” Dunbar at 515 N.W.2d at 14 citing Patchette v. State, 374
       N.W.2d 397, 399 (Iowa 1985). Clearly PCR Counsel’s inactions fell
       outside a normal range of competency and [Rosales Martinez] was

2 In his reply brief, Rosales Martinez mentions his actual innocence theory for the
first time. But “[i]ssues may not be raised for the first time in a reply brief.” In re
Marriage of Widdison, No. 17-2034, 2018 WL 4361004, at *4 (Iowa Ct. App. Sept.
12, 2018); accord State v. Evans, No. 08-1616, 2010 WL 200053, at *4 (Iowa Ct.
App. Jan. 22, 2010).
3 Pages 54 through 57 of the appendix appear to have been printed from the

Department of Corrections webpage in September 2019, several months after this
appeal was filed. These documents are not part of the district court record. They
should not have been included in the appendix. See Iowa R. App. P. 6.905(2)(b)
(providing what content should be included in the appendix).
4 Rosales Martinez also brings his claim relating to the Sex Offender Treatment

Program for the first time on appeal. See DeVoss, 648 N.W.2d at 63 (declining to
address substantive or procedural claims for the first time on appeal).
                                        11


       prejudiced by PCR Counsel’s failures. Had [Rosales Martinez’s]
       PCR Counsel contacted IDOC and IBOP and called them as
       witnesses at trial, he would have learned that [Rosales Martinez] has
       been denied good time because he has not completed the SOTP;
       that only the Iowa Department of Corrections can provide SOTP to
       [Rosales Martinez]; that IDOC has failed to provide [Rosales
       Martinez] with the SOTP despite having custody of [Rosales
       Martinez] for 17 years and that [Rosales Martinez] will not be
       recommended for parole unless he completes SOTP. Because there
       is a system of parole in the State of Iowa and policies and procedures
       that allow for good time; the denials of admission into the Sex
       Offender Treatment Program result in a substantial deprivation of
       [Rosales Martinez’s] liberty interests. Belk v. State of Iowa, 905
       N.W.2d 185 (2017) (It is appropriate for Applicants to seek relief
       under Iowa code section 822.2(1)(e) when they assert that the
       “parole system in Iowa together with the IDOC’s actions,
       unconstitutionally interfered with a liberty interest that would allow
       . . . relief.”).
                 But for counsel’s errors, [Rosales Martinez] would likely be
       eligible for parole, admitted to the SOTP and or released on parole.

       As the State correctly points out, however, none of Rosales Martinez’s

ineffective-assistance claims were raised or decided by the district court. So,

under our “general rule,” we should not decide those claims now. See Goode v.

State, 920 N.W.2d 520, 526 (Iowa 2018). Nor should we “remand claims of

ineffective assistance of postconviction counsel raised for the first time on appeal

to the district court to hear and decide.” See id. at 527. “Instead,” Rosales

Martinez’s new claims “must be filed as a separate application”—a new case—“in

district court.” See id.

       There is an exception to our general rule: When the record is sufficient for

us to decide an ineffective-assistance claim on direct appeal—thereby “achiev[ing]

a prompt and fair resolution of the claim without the time and expense of a new

district court proceeding”—we can do so. Id. at 526.
                                         12


       But this exception cannot apply here. This record does not show any of the

facts needed to decide Rosales Martinez’s claims. The record does not show (1)

what communications occurred between counsel and Rosales Martinez or (2) what

investigation counsel conducted or could have. Nor does this record show (3) what

meritorious response, if any, counsel might have submitted to the State’s motion

to dismiss or (4) what meritorious claims, if any, counsel might have added through

an amendment to Rosales Martinez’s petition. So we cannot evaluate Rosales

Martinez’s claims of ineffective assistance.

       Nor can we evaluate his prejudice theory. As noted, Rosales Martinez’s

prejudice argument focuses on the Department of Corrections’s alleged failure to

admit him into the Sex Offender Treatment Program and the resulting impact on

his parole eligibility. Rosales Martinez claims effective counsel would have solved

those problems. He argues: “But for counsel’s errors, [Rosales Martinez] would

likely be eligible for parole, admitted to the SOTP [and/or] released on parole.” But

the record contains no evidence about these topics. For example, there is no

evidence as to (1) whether Rosales Martinez has been offered the Sex Offender

Treatment Program; or (2) if not, why. So we cannot determine whether Rosales

Martinez was prejudiced.

       Of course, Iowa law recognizes “structural error” as a possible exception to

the prejudice requirement. Structural error

       occurs when: (1) counsel is completely denied, actually or
       constructively, at a crucial stage of the proceeding; (2) where counsel
       does not place the prosecution’s case against meaningful
       adversarial testing; or (3) where surrounding circumstances justify a
       presumption of ineffectiveness, such as where counsel has an actual
       conflict of interest in jointly representing multiple defendants.
                                         13

Lado, 804 N.W.2d at 252. When structural error is demonstrated, “a showing of

prejudice is not required.” Krogmann v. State, 914 N.W.2d 293, 313 (Iowa 2018).

       But Rosales Martinez has not claimed structural error. It is not mentioned

in his briefs. Instead, he repeatedly confirms he must prove prejudice. And

because Rosales Martinez did not raise structural error, the State had no reason

to address it. So no party has briefed structural error.5 We should not consider it

on our own. See Aluminum Co. of Am., 622 N.W.2d at 479 (“Issues not raised in

the appellate briefs cannot be considered by the reviewing court.”); In re K.L., No.

20-0012, 2020 WL 1049874, at *1 n.1 (Iowa Ct. App. Mar. 4, 2020) (same);

Firestone v. TF 13, No. 13-0849, 2014 WL 1715054, at *4 n.3 (Iowa Ct. App. Apr.

30, 2014) (same); see also Harris, 919 N.W.2d at 754 (noting “the court of appeals

should not consider” an ineffective-assistance claim if it is insufficiently developed

“in the appellate brief”).

       In short, based on my review of the record and the briefing, I do not believe

we are in a position to decide Rosales Martinez’s ineffective-assistance claims.

We should affirm and preserve his claims for development in a future PCR. See

Goode, 920 N.W.2d at 526. I respectfully dissent.




5 This case differs from Villa Magana v. State, 908 N.W.2d 255, 260 (Iowa 2018).
There, our supreme court elected to consider a structural error claim “even though
it was not raised” by the applicant “until the reply brief” because, among other
things, the State had “anticipated” a structural error argument “and actually
responded to it” in its brief. Villa Magana, 908 N.W.2d at 260. Here, though,
structural error is never mentioned in any brief.
