                    IN THE COURT OF APPEALS OF IOWA

                                      No. 19-0447
                               Filed November 27, 2019


JAMES EARL SHEPARD,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Mark D. Cleve,

Judge.



      James Shepard appeals following the denial of his second application for

postconviction relief. AFFIRMED.




      Lauren M. Phelps, Hudson, Florida, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.




      Considered by Bower, C.J., and May and Greer, JJ.
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BOWER, Chief Judge.

       James Shepard appeals following the denial of his second application for

postconviction relief (PCR). Shepard argues the postconviction court erred in

finding he was not prejudiced by trial counsel’s and first postconviction counsel’s

ineffective assistance.1

       “Our review of postconviction-relief proceedings is typically for correction of

errors at law. But when we are reviewing an ineffective-assistance-of-counsel

claim, we do so de novo because such claims are constitutional in nature.” Ruiz

v. State, 912 N.W.2d 435, 439 (Iowa 2018) (internal citations omitted).

              To succeed on [an] ineffective-assistance-of-counsel claim,
       [Shepard] must prove (1) counsel failed to perform an essential duty
       and (2) prejudice resulted. To establish the first prong, [Shepard]
       must show [his] counsel “made errors so serious that counsel was
       not functioning as the ‘counsel’ guaranteed the defendant by the
       Sixth Amendment.”           We approach the first prong with the
       presumption counsel performed [their] duties competently; “we
       measure counsel’s performance against the standard of a
       reasonably competent practitioner.” Although not required to predict
       changes in the law, “counsel must ‘exercise reasonable diligence in
       deciding whether an issue is “worth raising.”’” Counsel is not
       burdened with the duty to raise an issue that has no merit. The
       second prong—prejudice—results when “there is a reasonable
       probability that, but for the counsel’s unprofessional errors, the result
       of the proceeding would have been different.”




1
  Shepard also claims his second postconviction counsel was ineffective in failing to raise
an equal protection challenge to Strickland’s prejudice standard. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). We do not address this second claim as it was
not raised below. See Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 322 (Iowa 2013) (“Even
issues implicating constitutional rights must be presented to and ruled upon by the district
court in order to preserve error for appeal.”). In any event, our supreme court has stated
in another context that “the distinction between direct review and collateral review
applications does not violate the equal protection clause.” Cf. Nguyen v. State, 878
N.W.2d 744, 758 (Iowa 2016) (concerning non-retroactivity of State v. Heemstra, 721
N.W.2d 549 (Iowa 2006)) (discussing Everett v. Brewer, 215 N.W.2d 244, 247 (Iowa
1974)).
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State v. Brown, 930 N.W.2d 840, 855 (Iowa 2019) (internal citations omitted). An

applicant’s failure to prove either element by a preponderance of the evidence is

fatal to a claim of ineffective assistance. State v. Polly, 657 N.W.2d 462, 465 (Iowa

2003).

         Shepard’s conviction stems from the following events. In the early morning

hours of May 24, 2006, an African-American man clad in all black clothing, a

du rag,2 and “something black over his mouth,” robbed a Kwik Star convenience

store in Clinton, Iowa. He took a bank bag and approximately $1400 in cash in the

form of rolled coins and bills. Later that day, Shepard asked Hollie Abbott to give

him a ride to a motel in Clinton and register the motel room in her name. He paid

her in cash and carried a maroon backpack. Shepard told Abbott he was leaving

Clinton and Jami Kinney, the mother of his children, would be picking him up so

he could return to Michigan.

         Later that morning, the maintenance supervisor for Shepard’s apartment

complex discovered the Kwik Star’s bank deposit bag containing three U.S. Bank

money wraps in the dumpster outside Shepard’s apartment. He turned the bag

over to police. Police searched the dumpster and found black clothing and a black

du rag inside.

         The next day, Jami Kinney was stopped in her vehicle while driving in

Michigan. A consent search of the vehicle led to the discovery of a maroon

backpack, which contained three bundles of one-dollar bills (totaling $301)

separately bound in plastic rings cut from a beverage carrier.


2
  The term du rag is a derivation of “Hairdoo rag,” and it is a “silk-like material worn around
the head . . . wrap[ped] around the skull, with a small flap hanging down in the rear, over
the neck.” Du rag, Urban Dictionary, http://urbandictionary.com/define.php?term=Du%20rag.
                                          4


       As police investigated the crime, Shepard was identified by Kinney’s family

and his neighbor as the perpetrator depicted in surveillance footage from the

robbery. A search of Shepard’s apartment yielded multiple black du rags, black

pants, and torn coin wrappings similar to those used at Kwik Star. Shepard’s

fingerprints were identified on the money bands within the bank deposit bag and

his DNA was identified on the du rag found in the dumpster. Shepard was charged

with first-degree robbery.

       At trial, four individuals who knew or were familiar with Shepard identified

Shepard as the individual from still photographs taken from the videotape. Two of

the witnesses, Lisa Klass-Kinney and Brittany Hull, had shared a residence with

Shepard.    Klass-Kinney—Jami Kinney’s mother—had seen the picture of the

robbery suspect on television, recognized Shepard, and contacted law

enforcement. Also admitted into evidence were statements made by Shepard to

Michigan law enforcement admitting to the robbery. Shepard was convicted as

charged.

       Shepard’s direct appeal was dismissed as frivolous and procedendo issued

on June 9, 2008.

       Shepard filed his first PCR action in 2009, and the district court denied relief

in January 2014. During the appeal of his first PCR, Shepard’s appointed counsel

sought a remand after obtaining the audio recording of the statements made by

Shepard to Michigan law enforcement, which counsel concluded were induced by

promises of leniency and threats. When the supreme court denied the remand,

counsel voluntarily dismissed the appeal from Shepard’s first PCR action and filed

this second PCR application, asserting trial and appellate counsel provided
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constitutionally-defective assistance in failing to challenge the admissibility of

Shepard’s statements to Michigan law enforcement.

       The State filed for summary dismissal in October 2017, arguing Shepard’s

second application was untimely under Iowa Code section 822.3 (2017).3 The

State withdrew its motion to dismiss, however, conceding the application was

timely pursuant to Allison v. State, 914 N.W.2d 866, 891 (Iowa 2018).

       After trial, the PCR court found trial counsel and the initial PCR counsel had

breached a duty in not challenging the voluntariness of Shepard’s confession, but

concluded Shepard did not prove the error was prejudicial. We agree with PCR

court that “there is very strong, and in fact compelling evidence of” Shepard’s guilt,4

negating a conclusion that but for counsel’s error the result of the proceeding would

have been different. See State v. Hopkins, 576 N.W.2d 374, 380 (Iowa 1998). We

therefore affirm.

       AFFIRMED.




3
  We are aware Iowa Code section 822.3 was amended, effective July 1, 2019, to provide,
“[a]n allegation of ineffective assistance of counsel in a prior case under this chapter shall
not toll or extend the limitation periods in this section nor shall such claim relate back to a
prior filing to avoid the application of the limitation periods.” Yet, the State waived a
statute-of-limitations defense by withdrawing its motion to dismiss and has not raised the
issue on appeal.
4
  Shepard’s criminal trial counsel testified:
          I recall that the confession didn’t seem to make a lot of difference, given
          the weight of the evidence. I think there were several eyewitnesses who
          identified Mr. Shepard from still photographs; apparently his mask slipped
          off during the commission of the robbery. There was some forensic
          evidence found either in his home or in a dumpster that would be
          associated with his apartment, which I think was fairly near the crime
          scene. . . . He did not testify in that case, but my overall impression was
          there was an overwhelming amount of evidence in that case against Mr.
          Shepard.
