                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1275
                               Filed July 22, 2015


ALVIN LEE COOPER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Paul L. Macek,

Judge.



      An applicant appeals the district court’s denial of his postconviction-relief

application. AFFIRMED.



      Thomas J. OʼFlaherty of OʼFlaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant

County Attorney, for appellee State.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, P.J.

       Alvin Cooper appeals the district court’s denial of his application for

postconviction relief (PCR). In the PCR proceeding, one of the claims Cooper

asserted was that his trial attorney was ineffective in not calling all of the alibi

witnesses identified in the pretrial witness list—only two of the eight alibi

witnesses testified at the criminal trial.   In presenting this claim at the PCR

hearing, Cooper’s PCR attorney did not develop the record as to what these

other six alibi witnesses would have been able to testify to at the criminal trial.

Cooper asserts this failure amounts to ineffective assistance of postconviction

counsel and asks that we reverse the district court’s decision and remand this

matter for a new PCR hearing. Because we conclude Cooper’s trial attorney’s

decision to not call all eight alibi witnesses—after consulting with Cooper—was a

reasonable strategic decision, Cooper has failed to establish his trial attorney

breached an essential duty.         Therefore, postconviction counsel was not

ineffective in failing to develop the PCR record with the testimony of the other six

alibi witnesses as that testimony only affected the prejudice element of the

ineffective-assistance test.

       In order to establish a claim of ineffective assistance of counsel, Cooper

must prove by a preponderance of the evidence “(1) his trial counsel failed to

perform an essential duty, and (2) this failure resulted in prejudice.”        See

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).                Because of the

constitutional nature of the claim, our review is de novo. Id.

       Cooper was convicted of two drug offenses along with harassment and

interference with official acts after a bench trial. See State v. Cooper, No. 05-
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0934, 2006 WL 3436132, at *1 (Iowa Ct. App. Nov. 30, 2006). His defense at

trial was that the person who was discarding the drugs while fleeing from police

was, in fact, Cooper’s brother, Irvin.          Id.   At trial, the police officers who

apprehended Cooper testified they recognized it was Cooper who they have

chasing, not Cooper’s brother, who was several inches shorter.              Id. at *1–2.

Introduced into the trial record were photographs of both Cooper and his brother,

who bare remarkably similar facial features. Also introduced was each brother’s

height and weight. The two alibi witnesses who testified at trial asserted Cooper

was at a recording studio with them when the police chase occurred. The court

did not find the testimony of these alibi witnesses credible and entered judgment

against Cooper.1 Id. at *2.

       In preparing for the PCR hearing, Cooper’s trial counsel was deposed. 2

He testified that while he did not have a specific recollection of this case, he

normally did not call every witness he subpoenaed during a trial to testify—

             Sometimes I talk to them when they show up, and there is
       something about their testimony that would not be helpful or there
       is something about them, their criminal background, that would not
       be helpful. . . .


1
  Our court, on direct appeal, articulated the evidence establishing Cooper’s identity as
follows:
        Cooper is five feet eight inches tall. His brother, on the other hand, is five
        feet four inches tall. One of the officers, who is five feet eight inches tall,
        testified that he was eye-to-eye with the individual he encountered on
        November 6. Further, officers found a cap in the car in which Cooper was
        sitting embroidered with the name of Cooper’s company on the front and
        “King Blue” on the back.
Cooper, 2006 WL 3436132, at *2. Cooper was known to one of the officers by the
nickname “King Blue.” Id. at *1.
2
  Cooper’s trial counsel was ill and was not expected to be able to give live testimony at
the time of the PCR trial, so an evidentiary deposition was taken. His illness, along with
the medication he had to take, affected his ability to remember the details of his
representation of Cooper.
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              So it could have been that they were there or that some of
       them were there, and we decided that none of them were going to
       offer anything better than what our two testifying witnesses had
       already done.

Counsel went on to testify that in his experience, calling multiple witnesses who

all provide the same alibi testimony does not strengthen the case—

               There is not anything to be gained if—if you have witnesses
       that establish what your client tells you his alibi is. If I have a client
       that says, I was at such and such a place from this time to that
       time, and I put up a couple of witnesses that can verify that, adding
       a third, fourth, or fifth witness typically isn’t going to strengthen that
       alibi, not unless there was something really remarkable about the
       other witnesses like, yes I was there, I was holding his hand the
       entire time. Something that—that really makes them remarkable.
               But if it’s just another person, who was at the scene and saw
       my client from a distance, and thinks he was there most of the time,
       they aren’t really helpful at that point.

       As it was Cooper’s position that he was at the recording studio at the time

of the police chase, and the two defense witnesses who testified verified that

alibi, it can be reasonably assumed the other six alibi witnesses on the list would

have also testified to seeing Cooper at the studio on the night in question.3 Any

testimony to the contrary would have harmed, rather than helped, the defense’s

case. As defense counsel testified at his deposition, it is his assessment that

more alibi witnesses who simply say the same thing do not strengthen the case.

It is clear that the decision regarding which, and how many, witnesses were

going to be called to give alibi testimony was a question of trial strategy.

       The trial transcript also established that counsel consulted with Cooper

after the second alibi witness testified, but before resting the defense’s case—

3
 During their trial testimony, the two alibi witnesses who did testify identified one of the
other six individuals, who was not called, as being at the recording studio on the night in
question. It is thus reasonable to assume that this person, if called, would have simply
corroborated the testimony of the two alibi witnesses that testified.
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             [Defense Counsel]: If the Court could just give me a
       moment, Your Honor.
             The Court: All right.
             [Defense Counsel]: Your Honor, at this time we have
       decided that we aren’t going to call any more witnesses.

(Emphasis added.) Based on the plain reading of the transcript, counsel and

Cooper discussed whether any additional alibi witnesses should be called, and

they made the decision not to call any more witnesses.

       We agree with the PCR court’s conclusion that it was a reasonable

strategic decision to not have all eight witnesses testify as to Cooper’s alibi.

State v. Fountain, 786 N.W.2d 260, 266 (Iowa 2010) (noting “strategic decisions

made after [a] ‘thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable’” (citations omitted)). Counsel consulted

with Cooper in making this strategic decision. We therefore conclude Cooper

failed to establish his trial counsel breached an essential duty in not calling the

other six alibi witnesses at trial. Because Cooper failed to prove the first element

of the ineffective-assistance test, the claim fails.    Id. (“The claim fails if the

defendant is unable to prove either element of this test.”).

       In light of our affirmation of the PCR court’s conclusion that Cooper’s claim

of ineffective assistance against his trial counsel fails on the first element,

Cooper’s claim on appeal that his PCR attorney was ineffective in failing to

establish a record as to what evidence these six other alibi witnesses could have

offered at trial also fails.   As the PCR court noted, information about what

evidence these six individuals could have offered only goes to whether or not

Cooper was prejudiced by trial counsel’s omission—Cooper had to prove a

reasonable probability that the result of the trial would have been different if
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these six people testified. See Dempsey, 860 N.W.2d at 868 (“Prejudice exists

where a claimant proves a reasonable probability that, but for the counsel’s

unprofessional errors, the result of the proceeding would have been different.”

(internal quotation marks omitted)).    Because the ineffective-assistance claim

against trial counsel failed on the breach element, PCR counsel’s failure to

support the prejudice element would have made no difference at the PCR

hearing. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (noting “counsel

has no duty to raise issues that have no merit”).

      AFFIRMED.
