                   IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1212
                                  Filed June 7, 2017


DAVID ROY RICKEY SR.,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



      David Rickey Sr. appeals the district court’s dismissal of his application for

postconviction relief. AFFIRMED.




      Courtney T. Wilson of Hopkins & Huebner, P.C., Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, Judge.

       David Rickey Sr. appeals the district court’s dismissal of his application for

postconviction relief (PCR), following his conviction for sexual abuse in the

second degree. He argues his PCR counsel rendered ineffective assistance in

failing to file a statement of disputed facts and a memorandum of authorities

supporting his resistance to the State’s motion to dismiss his PCR application.

We affirm.

       I.     Background Facts and Proceedings

       The specific facts and circumstances surrounding the abuse are set forth

in our prior opinion on direct appeal and need not be restated herein. See State

v. Rickey, No. 14-1206, 2015 WL 9450471, at *1–2 (Iowa Ct. App. Dec. 23,

2015). Our court affirmed Rickey’s conviction, concluding trial counsel did not

have a duty to object to the admission of evidence of prior bad acts and the

district court did not abuse its discretion in denying Rickey’s motion for a new trial

or in sustaining the State’s objection to replaying a recorded police interview of

the victim on cross-examination of the victim. Id. at *4–6. Our court further

determined the record was inadequate to review Rickey’s claim that his trial

counsel was ineffective in failing to object to the replaying of a controlled call

during jury deliberations and preserved the issue for PCR. Id. at *4.

       On April 11, 2016, Rickey filed a pro se application for PCR. On April 26,

Rickey’s appointed PCR counsel filed an amended petition, asserting numerous

claims of ineffective assistance of counsel as well as other various claims.

       On May 3, the State sent interrogatories to Rickey. Rickey responded by

filing a pro se motion to dismiss the State’s propounded interrogatories, arguing
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they were unduly broad and burdensome, and claiming he and his PCR counsel

had had insufficient time to review the interrogatories and respond to them. PCR

counsel filed a motion for extension of time, which the district court granted.

       On July 8, the State filed a motion for summary disposition of the matter

pursuant to Iowa Code section 822.6 (2016). PCR counsel resisted the motion

“in its entirety” and “request[ed] a trial on all of the merits of [Rickey’s] claims and

claims preserved by the appellate court.” On July 18, the district court entered

an order summarily dismissing Rickey’s PCR application. Rickey appeals.

       II.     Standard of Review

       We generally review PCR proceedings for correction of errors at law.

Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016).                  However, when an

applicant raises constitutional claims, such as claims of ineffective assistance of

counsel, we apply a de novo review. See id.; Bonilla v. State, 791 N.W.2d 697,

699 (Iowa 2010).

       III.    Analysis

       On appeal, Rickey complains his PCR counsel rendered ineffective

assistance in failing to file a statement of disputed facts and a memorandum of

authorities in support of his resistance to the State’s motion for summary

disposition.

       “Ineffective-assistance-of-counsel      claims   are   an   exception    to   the

traditional error-preservation rules.”   State v. Fountain, 786 N.W.2d 260, 263

(Iowa 2010). To succeed on a claim of ineffective assistance of counsel, Rickey

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

perform an essential duty, and (2) this failure resulted in prejudice.’” State v.
                                          4

Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams, 810

N.W.2d 365, 372 (Iowa 2012)); accord Strickland v. Washington, 466 U.S. 668,

687 (1984). Failure to prove either prong is fatal to the claim. See Everett v.

State, 789 N.W.2d 151, 159 (Iowa 2010). In examining Rickey’s claims, we

presume PCR counsel performed his or her duties competently. See Thorndike,

860 N.W.2d at 320.

       Iowa Code section 822.6 provides:

               The court may grant a motion by either party for summary
       disposition of the application [for PCR], when it appears from the
       pleadings, depositions, answers to interrogatories, and admissions
       and agreements of fact, together with any affidavits submitted, that
       there is no genuine issue of material fact and the moving party is
       entitled to judgment as a matter of law.

       Summary disposition of a PCR action under section 822.6 is analogous to

summary judgment pursuant to Iowa Rule of Civil Procedure 1.981.                  See

Manning v. State, 654 N.W.2d 555, 559 (Iowa 2002). “Therefore, the principles

underlying summary judgment procedure apply to motions of either party for

disposition of an application for postconviction relief without a trial on the merits.”

Id. at 560. Summary disposition “is only proper when there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law.”

Id. “The moving party has the burden of showing the nonexistence of a material

fact and the court is to consider all materials available to it in the light most

favorable to the party opposing summary judgment.” Id. “A genuine issue of

material fact exists if reasonable minds could draw different inferences and reach

different conclusions from the undisputed facts.” Id.
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       Rickey contends his PCR counsel was so substandard a structural error

occurred; thus, prejudice should be presumed. See Lado v. State, 804 N.W.2d

248, 252 (Iowa 2011) (“[W]hen a structural error occurs in a proceeding, the

underlying criminal proceeding is so unreliable the constitutional or statutory right

to counsel entitles the defendant to a new proceeding without the need to show

the error actually caused prejudice.”).         Specifically, he claims he was

constructively denied counsel when counsel failed to include a statement of

disputed facts and memorandum of authorities in support of his resistance to the

State’s motion for summary disposition. See Iowa R. Civ. P. 1.981(3) (providing

a resistance to a motion for summary judgment “shall include a statement of

disputed facts, if any, and a memorandum of authorities supporting the

resistance”).

       Our supreme court addressed structural error in Lado:

       Structural errors are not merely errors in a legal proceeding, but
       errors “affecting the framework within which the trial proceeds.” We
       have recognized structural error occurs when: (1) counsel is
       completely denied, actually or constructively, at a crucial stage of
       the proceeding; (2) where counsel does not place the prosecution’s
       case against meaningful adversarial testing; or (3) where
       surrounding circumstances justify a presumption of ineffectiveness,
       such as where counsel has an actual conflict of interest in jointly
       representing multiple defendants.
              Under these circumstances, “[n]o specific showing of
       prejudice [is] required” as the criminal adversary process itself is
       “presumptively unreliable.”

804 N.W.2d at 252 (alterations in original) (citations and footnote omitted)

(finding a presumption of prejudice appropriate when a PCR applicant was

constructively without counsel by virtue of his attorney’s failure to seek a

continuance to prevent dismissal of a PCR action).
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       Unlike Lado, in which counsel took no action at all, Rickey was not

completely denied counsel, actually or constructively, at any point in the

proceeding.   Rickey’s PCR counsel filed an amended application for PCR,

assisted Rickey in responding to the State’s interrogatories, and requested

additional time to respond to the State’s discovery request. After the State filed a

motion to dismiss, Rickey’s PCR counsel filed a resistance.

       Rickey has not alleged any facts in dispute nor has he identified any legal

authority his PCR counsel should have included in support of his resistance.

“When complaining about the adequacy of an attorney’s representation, it is not

enough to simply claim that counsel should have done a better job.             The

applicant must state the specific ways in which counsel’s performance was

inadequate and identify how competent representation probably would have

changed the outcome.” Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citation

omitted). We conclude Rickey’s PCR counsel did not commit structural error in

failing to submit a statement of disputed facts and a memorandum of authorities

in support of his resistance to the State’s motion for summary disposition.

Furthermore, Rickey has not asserted he was prejudiced by the alleged error of

his PCR counsel. See Strickland, 466 U.S. at 694; see also Everett, 789 N.W.2d

at 159.

       Accordingly, we affirm the district court’s grant of the State’s motion for

summary disposition and dismissal of Rickey’s PCR application.

       AFFIRMED.
