                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0536
                                Filed July 6, 2017


JOHN ROGER SHEPHERD,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Ian K. Thornhill,

Judge.



      The applicant appeals the district court’s refusal to reinstate his application

for postconviction relief after it was dismissed for lack of prosecution.

AFFIRMED.



      Geneva L. Williams of Williams Law Office, P.L.L.C., Cedar Rapids, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., Bower, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.

          John Roger Shepherd’s postconviction-relief action was dismissed by

application of Iowa Rule of Civil Procedure 1.944(2).           Shepherd sought

reinstatement under rule 1.944(6), but reinstatement was denied by the trial

court. Shepherd appeals from the denial of his petition for reinstatement. We

affirm.

          I.    Background Facts and Proceedings

          On March 19, 2008, Shepherd filed for postconviction relief, challenging

his 2006 conviction for a third or subsequent offense of operating while

intoxicated.    By Shepherd’s own account, as stated in his brief, a series of

thirteen attorneys had been appointed to represent him, and all but the last one

had withdrawn, primarily at the request of Shepherd. Again by Shepherd’s own

account, thirteen motions to continue had been requested and granted. Relief

from the automatic dismissal under rule 1.944(2) had been regularly granted until

the August 10, 2015 dismissal notice was sent and the dismissal date arrived.

          At the time the notice was sent, the matter was set for trial on

September 24, 2015. Ryan Tang, Shepherd’s counsel at the time, requested the

September 24 trial date be continued.          Tang requested the continuance,

asserting he had made many attempts to contact Shepherd but Shepherd had

only recently responded        and, because of      new information,    Shepherd

communicated to Tang that additional time to prepare was necessary.           The

motion to continue did not request relief from rule 1.944(2). The court granted

the motion to continue but stated good cause warranting a continuance had not

been provided and further stated, “The court does not have the judicial resources
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on the date currently set for trial to try this case as scheduled and for that reason

alone the court grants petitioner’s motion to continue trial.” On October 8, 2015,

a trial scheduling order was filed setting the matter for trial on September 1,

2016. By operation of rule 1.944(2), the matter was dismissed on January 8,

2016.

        Tang filed a motion for reinstatement on January 20, 2016. The motion

did not allege or assert the matter was dismissed as the result of oversight,

mistake, or other reasonable cause. Tang appeared by telephone, but Shepherd

did not appear. Tang asserted that he had mailed a notice of the hearing to

Shepherd but it had come back. He further asserted he would have tried to call

Shepherd but believed he did not have either a valid address or current

telephone number. The court refused to reinstate Shepherd’s postconviction-

relief claim. Shepherd asserts that his postconviction counsel was ineffective

and also asserts that the court abused its discretion in denying the application for

reinstatement.

        II.    Error Preservation

        An exception to the traditional error preservation rule exists when a claim

of ineffective assistance of counsel is asserted. State v. Fountain, 786 N.W.2d

260, 263 (Iowa 2010).

        III.   Standard of Review

        When a constitutional issue, such as a claim of ineffective assistance of

counsel is invoked, the matter is reviewed de novo. Lamasters v. State, 821

N.W.2d 856, 862 (Iowa 2012). When a matter has been dismissed as a result of

oversight, mistake, or other reasonable cause, reinstatement is to be granted.
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Iowa R. Civ. P. 1.944(6). Otherwise, reinstatement is within the discretion of the

court. Id. An abuse of discretion exists only when the grounds or reasons are

clearly untenable or to an extent clearly unreasonable.           State v. Long, 814

N.W.2d 572, 576 (Iowa 2012).

       IV.    Discussion

       To prevail on a claim of ineffective assistance of counsel, the claimant

must prove by a preponderance of the evidence that: (1) counsel failed to

perform an essential duty and (2) prejudice resulted. Ledezma v. State, 626

N.W.2d 134, 142 (Iowa 2001). For prejudice to be present requiring relief, there

must be a determination that but for the ineffective assistance there is a

reasonable possibility that the result would have been different. Id. at 145.

       Counsel failed to request relief from the automatic dismissal contained in

rule 1.944(2). Such a failure has been held to not only constitute a breach of an

essential duty but to also constitute a structural error effecting the entire

proceeding. Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011). When there is a

structural error in the proceeding, there is no need to prove that there is a

reasonable probability the result would have been different absent ineffective

assistance of counsel. Id. at 253. A structural error occurs when the error is not

simply an error in a legal proceeding but an error that effects “the framework

within which the trial proceeds.” Id. at 252. Such an error takes place when

counsel is completely denied, actually or constructively, at a crucial stage of a

proceeding. Id. When counsel has been specifically advised by the court that

the case is subject to rule 1.944, no timely motion to obtain relief from the rule is

filed, and no motion to reinstate is filed, a structural error exists. Id. at 252-53.
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      In the Lado case, structural error was held to exist, but it presented a

factual situation which can be easily differentiated from the case under

consideration. In the case at hand, counsel did file a motion for reinstatement,

and it is the denial of that motion that has been appealed. Secondly, the court

considering the continuation of the September 24, 2015 trial date stated

succinctly that good cause did not exist to continue the trial date. The court did

not advise counsel relief from rule 1.944 must be obtained or the matter would be

dismissed, as in Lado, but to the contrary implied such relief would not be

granted. The State had objected to the continuance of the trial date and also

objected to the motion for reinstatement. There is no reason to think the trial

court would have once again granted relief from a rule 1.944 dismissal, even if a

request had been made. Generally, counsel is not considered ineffective for

failing to pursue what would be a fruitless endeavor. State v. Brubaker, 805

N.W.2d 164, 171 (Iowa 2011).

      Furthermore, Shepherd’s failure to advise counsel of his current location

or a method for counsel to contact him both before the September 24 trial date,

as well as before the motion to reinstate was to be heard, indicate a lack of

interest or cooperation with his counsel and at least suggested Shepherd had

abandoned his case. Finally, Shepherd’s suggestion of an additional or new

defense immediately prior to the September 24 trial date also indicates his lack of

interest or cooperation with counsel.       In assessing claims of ineffective

assistance of counsel, misconduct of the party is examined, as well as that of his

attorney. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996).
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       Rule 1.944(6) permits the court to reinstate a case in its discretion when

none of the specified exceptions have been established.               In exercising its

discretion, the court must consider whether the plaintiff or his counsel has shown

reasonable diligence in pursuing the case for trial. O’Brien v. Mullapudi, 405

N.W.2d 815, 819 (Iowa 1987).               The court’s reasons for not granting

reinstatement are within the court’s discretion and are not untenable or clearly

unreasonable.     When a case reflects a pattern of delaying, the denial of a

discretionary reinstatement is appropriate.         Id.      Considerable discretion is

accorded trial courts when considering reinstatement of a case dismissed under

rule 1.944(2). Werkmeister v. Kroneberger, 262 N.W.2d 295, 296 (Iowa 1978).

       Regardless of whether counsel was or was not ineffective, there is no

reasonable probability that in the absence of his failure the result would have

been different. In ruling on the motion to reinstate, the court stated,

              But it seems to me whether we call this an automatic
       dismissal for just want of prosecution because it’s been around for
       eight years and hasn’t gone or whether we call this a hearing on
       whether you should get relief from that—the dismissal as if you had
       timely filed beforehand, I don’t see any reason to keep this case
       around. It’s been drug out for this many years.

This statement, plus the order granting the continuance of the September 24,

2015 trial date, make it clear that an application to suspend the automatic

dismissal of rule 1.944(2) would have been denied even if timely made.

       The motion to reinstate Shepherd’s case was denied within the discretion

of the trial court and its action in doing so is affirmed.

       AFFIRMED.
