                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1125
                                Filed May 1, 2019


JOHN WINSTON LUSK,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Christopher Foy,

Judge.



      John Lusk appeals the denial of his application for postconviction relief.

AFFIRMED.




      Priscilla E. Forsyth, Sioux City, for appellant.

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

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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DOYLE, Judge.

       A jury found John Lusk guilty on two counts of second-degree sexual abuse.

This court affirmed his convictions on direct appeal. State v. Lusk, No. 15-1294,

2016 WL 4384672, at *1 (Iowa Ct. App. Aug. 17, 2016). Lusk then filed an

application for postconviction relief (PCR), which the district court denied. He

appeals that ruling, arguing he received ineffective assistance from his PCR

counsel.

       We review Lusk’s claims of ineffective assistance of PCR counsel de novo.

See Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018) (“[W]hen a PCR petitioner

claims ineffective assistance of PCR counsel, our review is de novo.”). Typically,

to succeed on an ineffective-assistance claim, a PCR applicant must establish that

counsel breached a duty and prejudice resulted, and the claim fails if either

element is lacking. See Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012).

However, if counsel’s representation is so deficient as to constitute a structural

error, no showing of prejudice is required. See Lado v. State, 804 N.W.2d 248,

252 (Iowa 2011). That is because a structural error—an error that affects the

framework of the legal proceeding—leads to a result that is “presumptively

unreliable.” Id. (citation omitted). In other words, when structural error occurs, the

prejudice showing is not required because “such an analysis ‘would be a

speculative inquiry into what might have occurred in an alternate universe.’” Id.

(citation omitted). Examples of structural error include counsel’s failure to file an

appeal against the defendant’s wishes or to respond to a motion to dismiss a PCR

application. See id. at 252-53.
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       Lusk asserts his PCR counsel committed structural error by failing to

engage in “meaningful adversarial testing” of his claims. Id. at 252. He alleges his

PCR counsel left him to present and explain his PCR claims on his own, “just asked

questions and at times appeared to be defending trial counsel,” and failed to

investigate, test the expert witness’s opinion, or obtain records to bolster his

argument that the children’s testimony was the product of undue influence.

       In support of his structural-error claim, Lusk cites to Williams v. State, No.

17-0431, 2018 WL 1629910, at *5 (Iowa Apr. 4, 2018) (application for further

review granted Oct. 10, 2018). There, we found PCR counsel committed structural

error by failing to present any of Williams’s claims and allowing them to be decided

without a record or adversarial testing. Williams, 2018 WL 1629910, at *5. Similar

to the allegations raised by Lusk, Williams’s “PCR counsel was less than a zealous

advocate in his examination of trial counsel” and “[h]is leading questions provided

trial counsel with an excuse for her lack of trial preparation.” Id. at *2. However,

in Williams, PCR counsel’s deficiencies extended far beyond the examination of

trial counsel. Id. at *2. Although the PCR court instructed counsel to submit a

written argument as to each of Williams’s claims and the prejudice that resulted,

his counsel “failed to argue how any of the alleged failures raised by Williams

prejudiced him” and instead “wrote the legal standard for determining prejudice

and then repeatedly informed the court to ‘see authority issue 1.’” Id. at *3.

Moreover, the record demonstrated that PCR counsel “did not investigate or even

inquire” about Williams’s claims, with PCR counsel writing in response to one

issue, “I really have no clue whatsoever what Troy was talking about or how any

of that was relevant or material to his criminal trial or this postconviction case.” Id.
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In response to another, PCR counsel “actually ma[de] the State’s argument” by

pointing out how the strategy Williams’s sought “could have seriously backfired.”

Id. PCR counsel also made “a number of incorrect, misleading statements” that

would have been discovered “[i]f PCR counsel had read the trial transcript.” Id. at

*4.

       In contrast to the concrete examples of PCR counsel’s failure to prosecute

claims presented in Williams, the examples Lusk provides of his PCR counsel

failing to advocate his position zealously are subject to interpretation. A close

reading of the transcript does not show counsel undermined Lusk’s claims.

Although counsel did not provide sufficient evidence for Lusks’s PCR claims to

succeed, we cannot say whether that was a result of deficient representation or

whether the evidence in question simply does not exist.          In such cases, we

ordinarily require further proceedings to allow development of the record. See

State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006) (noting that we ordinarily prefer

to reserve questions of ineffective assistance of counsel for PCR proceedings).

       Lusk argues that even if counsel’s representation did not rise to the level of

structural error, we can still find his PCR counsel was ineffective under a traditional

ineffective-assistance analysis. Claiming prejudice is apparent, he asks us to

reverse and remand to the PCR court to allow him to present his case. However,

the proper mechanism for resolving claims of ineffective assistance of PCR

counsel raised for the first time on appeal is for an applicant to file a separate PCR

application in the district court. See Goode v. State, 920 N.W.2d 520, 526-27 (Iowa

2018). Because his first PCR action was timely, a second application raising
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claims of ineffective assistance of PCR counsel will be timely if promptly filed

following this appeal. See id. at 526 (citing Allison, 914 N.W.2d at 891).

       We affirm the denial of Lusk’s PCR application.

       AFFIRMED.
