                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0083
                               Filed May 13, 2020


RICHARD CORTEZ,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Colleen Weiland,

Judge.



      Richard Cortez appeals the denial of his application for postconviction relief.

AFFIRMED.



      Jamie Hunter of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

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

General, for appellee State.



      Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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VAITHESWARAN, Presiding Judge.

       Several people were stabbed with a knife following an altercation at a bar

in Charles City, Iowa. One of the people died of his injuries. Another injured his

arm. The third, who identified himself as Cyrus Riley, sustained injuries to his

elbow and leg. The State charged Richard Cortez with several crimes arising from

the fracas. A jury found him guilty of second-degree murder and two counts of

willful injury causing serious injury.   This appeal from the denial of Cortez’s

application for postconviction relief centers on the true identity of Cyrus Riley.

I.     Background Proceedings

       After trial but before sentencing, the State notified Cortez that Cyrus Riley

was actually Barry Holden. Cortez moved for a new trial, asserting the evidence

was newly discovered.       The district court denied the motion, reasoning the

evidence likely would not have changed the result. See Jones v. State, 479

N.W.2d 265, 274 (Iowa 1991) (requiring proof of four elements on a newly-

discovered-evidence claim, including that “the evidence probably would have

changed the result of the trial”).

       Cortez filed a direct appeal. See State v. Cortez, No. 09-1362, 2010 WL

3894443 (Iowa Ct. App. Oct. 6, 2010). He argued “the trial court erred and

deprived him of due process when it failed to grant him a new trial” following the

discovery of Riley’s true identity. He raised the due process issue under an

ineffective-assistance-of-counsel rubric. Id. at *6. Like the trial court, we applied

the newly-discovered-evidence standard.         We reasoned that Cortez’s “due

process” claims of prosecutorial misconduct and suppression of evidence under

Brady v. Maryland, 373 U.S. 83, 86–87 (1963), were subsumed within the claim of
                                          3

newly discovered evidence. Id. at *7. We concluded there was no proof that “had

the jury received the additional evidence that Riley/Holden was using an assumed

name and had prior felony convictions, the jury would have ignored Riley/Holden’s

testimony of his observations, or the observations of other witnesses.” Id. at *9.1

We also concluded trial counsel did not breach an essential duty in failing to raise

a due process claim, given the absence of “clearly established state or federal law

on whether the unintentional use of perjured testimony violates due process.” Id.

at *7. We affirmed the jury’s findings of guilt on the second-degree murder charge

and one of the willful injury charges. Id. at *12. We reversed the other willful injury

count and remanded with instructions to amend the judgment of conviction to willful

injury causing bodily injury. Id.

       Cortez filed a postconviction-relief application. After several years, the

application was amended to allege claims relating to the belated discovery of

Riley’s true identity. Following a hearing, the postconviction court determined

“[t]he issue of whether the introduction of witness Holden’s perjured testimony

violated [Cortez’s] due process rights [was] already . . . decided against him by the

Iowa Court of Appeals on direct appeal” and “his claim of ineffective assistance of

trial counsel [was] decided against him by the same court.” In the court’s view,

Cortez sought “to revisit the issue by approaching it in a different way,” but “the

result [was] the same.” The court concluded, “The evidence [did] not support the

proposition that the State knew Holden’s identity or intentionally withheld it from



1 We noted, however, that the record failed to disclose “the type or number of
felonies of which Holden has been convicted.” Cortez, 2010 WL 3894443 at *6
n.3.
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defense counsel” and Cortez failed to show “a reasonable probability of a different

result had Holden’s identity been ascertained before trial.” The court denied the

postconviction-relief application.

II.    Analysis

       A.     Relitigation

       In this appeal, Cortez argues his “due process rights were violated by the

State’s failure to disclose exculpatory information regarding the identity of a key

witness and its introduction of perjured testimony.” As a preliminary matter, we

must decide whether the issue was decided on direct appeal because, if it was,

Cortez was foreclosed from relitigating it in the postconviction-relief proceeding.

See Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009) (“Holmes cannot

now relitigate issues decided adversely to him on direct appeal.”).

       The only due process issue we decided on direct appeal was whether the

State’s unintentional use of perjured testimony violated due process. Cortez’s

current appeal implicates the two questions we bypassed on direct appeal:

(1) whether the State suppressed evidence in violation of Brady, and (2) whether

the prosecutor committed misconduct, an issue that presupposes intentional rather

than unintentional conduct. See State v. Schlitter, 881 N.W.2d 380, 394 (Iowa

2016) (distinguishing between prosecutorial misconduct and prosecutorial error);

see also State v. Leedom, 938 N.W.2d 177, 192 n.3 (Iowa 2020) (same); State v.

Coleman, 907 N.W.2d 124, 139 (Iowa 2018) (same). Because we did not resolve

those issues, we conclude Cortez could litigate them at the postconviction-relief

hearing. We will proceed to the merits of both claims.
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         1.    Brady violation

         “[T]he suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,

373 U.S. at 87. “To show a Brady violation, [an applicant] must prove by a

preponderance of the evidence (1) the prosecution suppressed evidence; (2) the

evidence was favorable to the defendant; and (3) the evidence was material to the

issue of guilt.”   Moon v. State, 911 N.W.2d 137, 145 (Iowa 2018) (internal

quotations and citations omitted).

         Cortez asserts the “multiple [department of criminal investigation (DCI)]

agents working on this case possessed evidence favorable to [him]; specifically,

that a key witness was lying about his identity,” and they withheld that “favorable

evidence” from him until after trial. The State counters that Cortez failed to prove

“any investigators had actual knowledge that Riley/Holden had been lying about

his identity.” On our de novo review of this constitutional issue, we agree with the

State.

         “Nondisclosure of evidence is the touchstone of suppression,” and “[t]he

State has a duty to disclose exculpatory evidence regardless of whether the

accused requests it.” Aguilera v. State, 807 N.W.2d 249, 252 (Iowa 2011). But

the State could not disclose what it did not know, and Cortez’s attorney conceded

the State did not know of Riley’s true identity until after trial. Specifically, counsel

informed the sentencing court that “to our knowledge the defense, and I believe

the State, no one knew that [Riley] was falsifying his name at that point.”
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       Nor did the State have pretrial information to glean Riley’s true identity. See

Kyles v. Whitley, 514 U.S. 419, 437 (1995) (noting the “individual prosecutor has

a duty to learn of any favorable evidence known to the others acting on the

government’s behalf in the case, including the police”). Although two witnesses

referred to a man named “Barry,” neither identified him as “Barry Holden.” And

Holden identified himself as Cyrus Riley in hospital records documenting his

injuries and to law enforcement officers.

       The only official indication that the name might not be correct came in a

laboratory phone log prepared before trial. That log, documenting a call from a

DCI special agent to an analyst, stated, “Cyrus is not his real name.” The analyst

testified she was told it “was an assumed name or something like that.” But a

finger print analysis conducted by the DCI in the wake of the disclosure failed to

uncover Riley’s true identity. According to the fingerprint analyst, he “didn’t find

the fingers [he] was searching” for.

       Notably, Cortez’s attorney was given access to the DCI file. See Aguilera,

807 N.W.2d at 253 (“[A]ccess to police reports, as opposed to mere knowledge of

the reports, provides essential facts and a ‘range and detail of information

necessary to fully understand the implications of the police investigation’ that oral

disclosure of the reports cannot provide.” (citation omitted)). At the postconviction

hearing, counsel testified he was sure he read the DCI investigation report

“[p]robably a number of times.” He assumed Riley “was telling [him] the truth”

about his identity and “throughout the entire investigation as far as [he] understood

it and the police understood it and the county attorney understood it that that’s

what his name was.” He testified Riley “had all of us fooled.”
                                           7


       Because Riley’s true identity was not known by the State before or during

trial despite efforts to verify it, the information could not have been suppressed.

We conclude the Brady claim fails on this ground.

       2.     Prosecutorial Misconduct

       We turn to the prosecutorial misconduct claim. Although Cortez couches it

as a due process claim and there are certainly due process implications with the

introduction of perjured testimony, our review of a district court ruling on the subject

is for an abuse of discretion. See Leedom, 938 N.W.2d at 185.

       As mentioned, the supreme court has distinguished between prosecutorial

misconduct and prosecutorial error. See Schlitter, 881 N.W.2d at 394. “To prove

prosecutorial misconduct, the defendant must show the prosecutor acted with

reckless disregard . . . or intentionally made statements in violation of an obvious

obligation, legal standard, or applicable rule that went beyond an exercise of poor

judgment.” Leedom, 938 N.W.2d at 192 (alteration in original) (citation omitted).

Prosecutorial error, in contrast, “is based on human error or the exercise of poor

judgment.” Id. at n.3 (citation omitted). In his postconviction testimony, Cortez’s

attorney essentially conceded the prosecutor’s conduct as it related to

Riley/Holden was neither intentional nor reckless. Accordingly, Cortez failed to

establish prosecutorial misconduct. We discern no abuse of discretion in the

postconviction court’s denial of the claim.

       B.     Ineffective-Assistance-of-Counsel Claims

       Cortez contends his trial attorney was ineffective in failing to conduct a

“meaningful investigation into Cyrus Riley.” Our discussion above essentially

resolves the issue. We specifically highlight counsel’s review of the DCI file and
                                          8


his postconviction testimony that he found nothing to suggest Riley was not who

he said he was. And to the extent Cortez believes Holden’s felonies would have

provided valuable fodder for impeachment, his attorney testified, “I didn’t know

what they were. No one knew what they were. The [S]tate couldn’t even come up

with them, if I remember right.” But, even without his criminal record, counsel

effectively   impeached    Riley   by   vigorously    cross-examining     him   about

discrepancies between his trial and deposition testimony. On our de novo review

of the trial and postconviction records, we conclude counsel did not perform

deficiently in failing to investigate Riley/Holden further.       See Strickland v.

Washington, 466 U.S. 668, 687 (1984).

       In a related vein, Cortez contends direct appeal counsel was ineffective in

failing to supplement the record on the Riley/Holden issue. Cortez was given an

opportunity to do just that at the postconviction hearing. We have relied on the

expanded record in resolving the issues relating to Riley’s true identity.

Accordingly, the state of the record on direct appeal is essentially a moot issue.

       Cortez also contends his trial attorney was ineffective in failing to “introduce

expert testimony or otherwise challenge the DNA, knife, wound, and crime scene.”

Counsel effectively cross-examined the State’s witnesses on the issues of import.

For example, he asked the State medical examiner about the thickness of the

blade and elicited concessions that blades other than the type carried by Cortez

could have inflicted the wounds. As for his failure to delve into “touch DNA” on the

knife handle to determine whether people other than Cortez had used the knife, he

testified he did not do so “[f]or fear of what [he] might find out.”         He said,

“sometimes you don’t want an answer, and that would be a good one when I didn’t
                                          9


have an answer and I was satisfied with [Cortez’s] DNA not being on the knife.”

Turning to counsel’s investigation of the crime scene, he testified he went to the

bar “[s]o that [he] would have a better idea of the distance between the bathroom

and where the attack took place” and he reviewed the reports, interviews, and

photos that were provided. Finally, we are not persuaded by Cortez’s assertion

that his attorney should have challenged the chain of custody of the knife.

Although his postconviction expert testified “[t]hey should have been able to

establish this chain of custody issue,” he also acknowledged “[t]he knife was in the

defendant’s hand” and there was “no discrepancy” that the knife was the

defendant’s. On our de novo review, we conclude counsel did not breach an

essential duty in failing to call an expert witness or pursue the cited issues.

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

       AFFIRMED.
