                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1715
                             Filed August 17, 2016


TYRONE DARNELL JONES,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.



      Tyrone Darnell Jones appeals from the district court’s denial of his

application for postconviction relief. AFFIRMED.




      Andrea K. Buffington of Ranes Law Firm, West Des Moines, for appellant.

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

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

      Tyrone Darnell Jones appeals from the district court’s denial of his

application for postconviction relief (PCR), alleging his postconviction counsel

was ineffective. We affirm.

      Jones was convicted by a jury of robbery in the second degree in 2012.

His conviction was affirmed on appeal by a panel of this court. See State v.

Jones, No. 12-1871, 2013 WL 6405379, at *4 (Iowa Ct. App. Dec. 5, 2013).

Jones filed a pro se PCR application in September 2014. In his PCR application,

Jones generally alleges his conviction violates the United States and Iowa

Constitutions or laws, he has evidence not previously presented that requires

vacation of his sentence, he is unlawfully in custody, and his conviction or

sentence is otherwise subject to collateral attack.   Specifically, Jones claims

certain witnesses who testified against him made up their statements about him

to lessen their own punishment.

      He was appointed counsel in January 2015. In February 2015, the State

filed a motion for summary judgment and dismissal. No response was filed. A

hearing was held on the motion in August 2015. At the hearing, Jones’s counsel

stated,

             Your Honor, as I mentioned before we went on the record, I
      have not filed a formal resistance in this matter on Mr. Jones’[s]
      behalf due to the fact that in my professional opinion doing so
      would be frivolous.
             I have explained that at length to Mr. Jones. I also have
      explained to Mr. Jones that he has the right, as a postconviction
      applicant, to raise any pro se arguments that he believes are
      necessary, and that you would probably give him the opportunity to
      do so.
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       The PCR court then addressed Jones, allowed Jones to present his case,

and explained to Jones what issue the court understood Jones’s arguments

raised.1 In September 2015, the PCR court issued its ruling granting the State’s

motion. Jones appealed.

       Postconviction proceedings are generally reviewed for errors at law. See

Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). When, as here, the appellant

raises an ineffective-assistance-of-postconviction-counsel claim, we apply a de

novo review. See Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).

       On appeal, Jones makes one claim, that his PCR counsel was ineffective.

An applicant may raise an ineffective-assistance claim in an appeal from the

PCR court’s denial of his PCR application. See Dunbar v. State, 515 N.W.2d 12,

16 (Iowa 1994).    In order to succeed on a claim of ineffective assistance of

counsel—whether attributable to trial counsel or PCR counsel—a defendant must

prove counsel breached a duty and prejudice resulted. See Ledezma v. State,

626 N.W.2d 134, 141 (Iowa 2001).          Both elements must be proven by a

preponderance of the evidence, and we reject the claim if it fails on either

ground. Id. at 142. A breach of duty is shown if counsel performed below the

standards of a “reasonably competent attorney” as measured against the

“prevailing professional norms.” Id. (citation omitted). To prove prejudice, Jones

must show “a reasonable probability that, but for counsel’s unprofessional errors,



1
   At the PCR hearing, Jones’s argument largely appeared to be—and the court
interpreted it to be—a challenge to the sufficiency of the evidence at trial. The PCR
court asked Jones if he had been represented by counsel and had challenged the
sufficiency of the evidence on appeal. Jones answered in the affirmative. However, it
does not appear the sufficiency of the evidence was raised on appeal. See Jones, 2013
WL 6405379, at *2.
                                          4

the result of the proceeding would have been different.” Lado, 804 N.W.2d at

251 (citation omitted).

       Jones argues his PCR counsel was so substandard a structural error

occurred, specifically that there was no meaningful adversarial testing of his

claims. See id. at 252 (identifying three recognized structural errors, including

“where counsel does not place the prosecution’s case against meaningful

adversarial testing”). Therefore, Jones argues prejudice should be presumed.

See id. (noting that, where a structural error has occurred, “‘[n]o specific showing

of prejudice [is] required’ as the criminal adversary process itself is

‘presumptively unreliable.’” (alterations in original) (citation omitted)). In support

of his claim, Jones relies upon the court’s findings in Lado and in Dockery v.

State, No. 13-2067, 2016 WL 351251 (Iowa Ct. App. Jan. 27, 2016).

       In Lado, the defendant filed a pro se PCR application and requested

counsel; approximately eighteen months later, counsel was appointed and

instructed that Lado’s application was under an Iowa Rule of Civil Procedure

1.944 dismissal notice for failure to prosecute. 804 N.W.2d at 250. The State

then filed for dismissal on several grounds including rule 1.944. Id. Counsel

failed to seek relief from the rule 1.944 time requirement and admitted he had not

reviewed the entire file or discussed the State’s motion with Lado. Id. The Court

instructed both parties to provide written materials at least two days before a

hearing on the State’s motion, which Lado’s counsel failed to do. Id. Following

the hearing, the State dismissed Lado’s application pursuant to rule 1.944

without considering the merits of Lado’s application.        Id.   In finding Lado’s

counsel had committed a structural error, the Iowa Supreme Court reasoned,
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“[p]ermitting a client’s postconviction relief application to be dismissed because of

inaction is never an effective trial strategy.       Counsel’s failure to seek a

continuance of the case, or to apply to have the case reinstated, resulted from

abdication, not exercise, of professional judgment.”      Id. at 251.   Because of

Lado’s counsel’s inaction, his PCR application was dismissed without any

consideration of its merits. Id. at 252-53.

       In Dockery, PCR counsel pursued only one ground for relief, a ground not

tenable in a PCR proceeding; PCR counsel failed to amend or supplement

Dockery’s pro se action, despite the State pursing dismissal based on the

application setting forth insufficient facts; PCR counsel failed to secure Dockery’s

presence at trial, and thus he was unable to present his own claims; and PCR

counsel failed to ensure the court addressed Dockery’s pro se claims. 2016 WL

351251, at *4.

       Here, the record indicates PCR counsel considered Jones’s potential

claims and discussed her evaluation with Jones. Under our rules, counsel can

only advance claims “well grounded in fact and . . . warranted by existing law or

[by] a good faith argument for the extension, modification, or reversal of existing

law.” Iowa R. Civ. P. 1.413(1); Gamble v. State, 723 N.W.2d 443, 446 (Iowa

2006). Counsel was not required to assess the validity of Jones’s pro se claims.

Gamble, 723 N.W.2d at 446. However, she did ensure Jones was telephonically

present to argue his pro se claims, reminded Jones of his right to raise pro se

claims, and reminded the court of its obligations to consider said claims, which

the court did. Jones’s claims were addressed by the PCR court in its ruling, not

dismissed procedurally for want of prosecution.
                                          6


       While we note defense counsel should not “criticize or diminish their own

client’s case” as “that role should be filled, if at all, by counsel for the resisting

party,” id., we cannot conclude Jones’s counsel’s statement that filing a

resistance “would be frivolous” constitutes ineffective assistance of counsel rising

to the level of a structural error.

       Finding no structural error, Jones must prove he was prejudiced by any

alleged ineffective assistance of his PCR counsel.         Yet Jones has failed to

identify or argue a single claim his PCR counsel should have pursued that would

have entitled him to relief. Compare Weatherly v. State, No. 14-1890, 2016 WL

1130043, at *2 (Iowa Ct. App. Mar. 23, 2016) (affirming the denial of the

defendant’s PCR application noting the defendant “fail[ed] to identify a single

ground of ineffective assistance of counsel that should have been raised by PCR

counsel”), and Allard v. State, No. 11-1641, 2013 WL 1227352, at *3 (Iowa Ct.

App. Mar. 27, 2013) (noting the applicant “identifies no meritorious claim that

postconviction counsel should have raised or raised more effectively”), with

Dockery, 2016 WL 351251, at *3 (noting defendant specified two claims his PCR

counsel should have raised had his PCR counsel done proper investigation:

“(1) trial counsel in the underlying criminal action allowed him to plead guilty to

third-degree theft without a factual basis being shown in the record, and (2)

counsel in the probation-revocation proceedings represented him in spite of a

conflict of interest”).

       As noted by the PCR court, the only fact Jones put forth in support of his

claims was that the witnesses who testified against him at trial had lied.

Ultimately, Jones has failed to prove how any action by his PCR counsel would
                                            7


have made the result of the proceeding different. Accordingly, we affirm the PCR

court’s dismissal of Jones’s application.

       AFFIRMED.
