                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1240
                               Filed April 22, 2015


RICHARD MILLER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.




      Richard Miller appeals from the district court’s denial of his application for

postconviction relief, asserting claims of ineffective assistance of counsel, among

others. AFFIRMED.




      Thomas P. Graves of Graves Law Firm, P.C., Clive, for appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, John P. Sarcone, County Attorney, and Jeffrey K. Noble, Assistant

County Attorney, for appellee State.




      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, J.

       Richard Miller appeals from the district court’s denial of his application for

postconviction relief, asserting claims of ineffective assistance of counsel, among

other things. Upon our review, we affirm.

       I. Background Facts and Proceedings.

       Following a jury trial, Richard Miller was found guilty of burglary in the first

degree, in violation of Iowa Code sections 713.1 and 713.3 (2009), and assault

causing serious injury as an habitual offender, in violation of sections 708.1,

708.2(4), and 902.8. We affirmed his conviction on his direct appeal. See State

v. Miller, No. 09-1708, 2011 WL 3115490 (Iowa Ct. App. July 27, 2011). There,

we set forth the following relevant facts.

       In January 2009, Miller’s daughter reported Miller had shown up at her

home intoxicated, forced his way into her home when she denied him entry,

fought with her, and during their argument, struck her child in the back of her

head with a knife. See id. at *1. Miller’s four-month-old granddaughter suffered

a skull fracture and a subdural hematoma, and Miller was subsequently charged.

Id.   Miller denied he had caused the child’s injury, asserting his daughter’s

paramour dropped the child when her paramour fled from the scene with the

child. See id. at *8.

       The matter proceeded to trial. Id. at *3. During the State’s case-in-chief,

the child’s mother and a police officer both made references in their testimony to

Miller’s violent history, in violation of Miller’s motion in limine. Id. Miller’s trial

counsel requested a mistrial based upon the cumulative effect of both violations,

and the mistrial was granted. Id.
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         A second jury trial began on August 12, 2009. Id. at *4. Ultimately, the

jury found Miller guilty of first-degree burglary and assault causing serious injury.

Id. at *5. A jury also found Miller was the same person previously convicted of

two felonies, for purposes of the habitual-offender-sentencing enhancement. Id.

         In 2011, Miller filed a pro se application for postconviction relief (PCR)

asserting seven claims, including ineffective assistance of trial counsel, double

jeopardy, and insufficient evidence to support his convictions. After PCR counsel

was appointed, Miller filed an amended PCR application through counsel again

claiming he received ineffective assistance of trial counsel and incorporating his

other claims asserted in his original pro se application.

         A PCR trial commenced on January 24, 2013, and Miller appeared that

day by phone. After several witnesses testified, including Miller’s trial counsel,

technical difficulties arose causing Miller to have a hard time hearing the trial. At

that point the court then continued the trial to allow Miller to be physically

present, and the PCR trial resumed on April 29, 2013. There, Miller’s PCR trial

counsel requested the PCR judge recuse himself because Miller believed the

judge, who had also served as the trial judge in Miller’s second trial, may have

had “some preconceived notions or biases.” The State resisted, and the judge

denied Miller’s request on the record, explaining he did not “recall much” about

Miller’s criminal trial, and he stated he believed he could be fair and unbiased

and had “no prejudice or bias whatsoever in regard to [Miller] or any issues in this

case.”

         Following trial, the PCR court entered its order denying Miller’s

application. The court found several of Miller’s PCR claims had been decided
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previously on direct appeal. The court also determined Miller failed to establish

his claims of ineffective assistance of counsel.

       Thereafter, Miller filed motions for a new PCR trial and to amend and

enlarge the PCR’s court’s ruling. Miller now appeals.

       II. Discussion.

       On appeal, Miller again asserts, pro se, several claims previously

addressed by this court on direct appeal. Additionally, he argues the PCR court

erred in finding Miller failed to establish his claims of ineffective assistance of

counsel because his trial counsel did not call the expert or lay witnesses he

wanted at trial. He also raises several claims for the first time in this appeal,

including: trial counsel was ineffective for seeking a mistrial in the first trial, and

PCR trial counsel was ineffective for not raising this issue in the PCR trial

proceedings; the district court judge in the PCR case was biased and should

have granted his recusal request; and the habitual offender enhancement should

not have been applied to his sentence. We address his arguments in turn.

       A. Claims Decided on Direct Appeal.

       Miller acknowledges that this court in his direct appeal ruled on issues he

reasserted in his PCR pro se application, but he maintains his appellate counsel

did not “bring[] up the correct principle[s]” in his direct appeal. He directs us to

his brief, but the claims set forth there are restatements of the same arguments

raised and already decided on direct appeal. For instance, he asserts the trial

court erred in not dismissing the charges against him on double jeopardy

grounds, maintaining the errors made by the State’s witnesses that led to the

mistrial were intentional.    However, we explicitly determined in our opinion
                                           5


affirming Miller’s conviction that, “[u]pon our review of the record, we do not find

the prosecution goaded the defendant to move for a mistrial,” nor did we find any

“reason to disagree with the district court’s finding the errors were unintentional

and inadvertent.” Miller, 2011 WL 3115490, at *6. We also found there was

substantial evidence in the record to support both of his convictions, the trial

court did not abuse its discretion in admitting the excerpts of recorded phone

conversations Miller had while in jail, and the trial court did not err in permitting

an officer to testify who was identified by the State in a motion of additional

witnesses. See id. at *8-10. We also rejected on direct appeal Miller’s pro se

claims that the State was required to call as a witness at trial an officer identified

in the minutes of testimony, as well as his claim “the district court erred by

holding his retrial more than ninety days after the indictment was filed” because

his retrial actually occurred eighty-five days after his mistrial. See id. at *9-10.

       PCR proceedings are “not intended as a vehicle for relitigation, on the

same factual basis, of issues previously adjudicated, and the principle of [r]es

judicata bars additional litigation” of previously adjudicated issues.        State v.

Wetzel, 192 N.W.2d 762, 764 (Iowa 1971). The issues identified above are, in

effect, direct attacks on this court’s holding on direct appeal. See Miller, 2011

WL 3115490, at *1-8. Under our rules of appellate procedure, Miller’s remedy

was to seek further review of our decision from our supreme court. See Iowa R.

App. P. 6.402. He did not do so. Our decision on direct appeal is thus final as to

all issues decided therein and is binding upon both the PCR court and this court

in subsequent appeals. See State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa

1987). Miller cannot now relitigate issues decided adversely to him on direct
                                          6

appeal. See Wycoff v. State, 382 N.W.2d 462, 465 (Iowa 1986) (“Issues that

have been raised, litigated, and adjudicated on direct appeal cannot be relitigated

in a postconviction proceeding.”); LeGrand v. State, 540 N.W.2d 667, 669 (Iowa

Ct. App. 1995) (declining to “readdress the propriety of our prior decision” in a

postconviction proceeding raising a claim previously decided on direct appeal).

Consequently, the PCR court did not err in finding these issues identified above

had previously been decided by this court and in failing to address these claims

any further. Accordingly, we affirm on these issues.

         B. Other Claims Raised in PCR Proceedings.

         1. Ineffective Assistance of Counsel.

         In addition to those claims previously decided on direct appeal, Miller also

asserted in his PCR application that his trial counsel was ineffective in not calling

witnesses he requested “to establish an alternative explanation for the child’s

injury.” Our review is de novo. See Rhoades v. State, 848 N.W.2d 22, 26 (Iowa

2014).

         Ineffective-assistance-of-counsel claims are analyzed under the two-prong

test set out in Strickland v. Washington, 466 U.S. 668, 687 (1984). See State v.

Ross, 845 N.W.2d 692, 697-98 (Iowa 2014). Specifically, to succeed on his

ineffective-assistance-of-counsel claims, Miller must prove both that (1) his

counsel failed to perform an essential duty, and (2) he suffered prejudice as a

result of his counsels’ failure. Dempsey v. State, ___ N.W.2d ___, 2015 WL

1086220, at *6 (Iowa 2015). Because reversal is only warranted if both prongs of

this test are proven by a preponderance of the evidence, see id., we can affirm
                                         7


the PCR court’s rejection of Miller’s claims if we determine either prong is absent.

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

      In determining whether Miller’s trial counsel failed to perform an essential

duty, our review begins with the presumption that his counsel performed

competently.    See id.    We then “proceed to an individualized fact-based

analysis,” measuring his counsel’s “performance against prevailing professional

norms” to determine whether Miller has shown his counsel performed below the

“reasonably competent attorney” standard.         See id. (internal citations and

quotation marks omitted). Our supreme court has explained:

      Ineffective assistance is more likely to be established when the
      alleged actions or inactions of counsel are attributed to a lack of
      diligence as opposed to the exercise of judgment. Improvident trial
      strategy, miscalculated tactics or mistakes in judgment do not
      necessarily amount to ineffective counsel. When counsel makes a
      reasonable tactical decision, [we] will not engage in second-
      guessing. Selection of the primary theory or theories of defense is
      a tactical matter.

Id. (internal alterations, citations, and quotation marks omitted). Consequently,

showing that counsel’s “trial strategy backfired or that another attorney would

have prepared and tried the case somewhat differently” is not enough to prove

counsel breached an essential duty. Ross, 845 N.W.2d at 698. Nor is it enough

to claim that counsel should have done a better job. See Dunbar v. State, 515

N.W.2d 12, 15 (Iowa 1994).

      Moreover, even if Miller “can show his counsel made a professionally

unreasonable error, the judgment shall not be set aside unless it can be shown

the error had an effect on the judgment.” Lamasters, 821 N.W.2d at 866. “This

requires showing that counsel’s errors were so serious as to deprive the
                                         8

defendant of a fair trial.” Ross, 845 N.W.2d at 698. It is not enough to show that

counsel’s error imaginably “could have influenced the outcome” of the

proceeding. Lamasters, 821 N.W.2d at 866. Instead, it must be affirmatively

proven “that there is a reasonable probability that, but for counsel’s

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

Id. Stated another way, Miller must show that “there is a reasonable probability

that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.” Id. Thus, Miller must both “state the specific ways in which

counsel’s   performance     was    inadequate    and   identify   how    competent

representation probably would have changed the outcome.”              Dunbar, 515

N.W.2d at 15 (emphasis added).

       a. Lay Witnesses.

       Miller argues his trial counsel failed to present evidence to corroborate his

story that it was not he who injured the child, but rather his daughter’s paramour

who fled from the fight that night with the child. Miller asserts that if his trial

counsel had called various persons Miller wished to have testify, the outcome of

his trial would have been different. Three of those persons, one Miller’s sister

and the other two Miller’s other children, were designated by Miller’s attorney as

potential trial witnesses, and they were deposed by the State prior to his trial for

discovery purposes.       The State elicited testimony from these witnesses

concerning Miller’s history of violence, including his abuse of his children’s

mother and other family members. Additionally, the State played audio clips

during their depositions of recorded jailhouse calls between the witnesses and

Miller, which could be interpreted as Miller trying to tell those witnesses how to
                                         9


testify, as well as asking them to contact the child’s mother to change her

testimony. The recorded calls also contained admissions by Miller that “he had

entered the scene where the burglary took place and took a knife away from [the

child’s mother].” Miller’s trial counsel testified he did not call these witnesses to

testify because there was no benefit, explaining that none of those witnesses

were present when the child was injured and their testimony would allow the

State to cross-examine them with even more jailhouse phone calls, which would

have been even more hurtful to Miller’s case.

       Upon our de novo review of the record, we agree with the PCR court that

Miller failed to establish his trial counsel breached his duty in not calling these

witnesses or that the outcome of his trial would have been any different had they

testified. Though Miller attempts to paint their potential testimony in a positive

light, it is clear upon our review of the record that the tactical decision made by

Miller’s trial counsel not to call these witnesses on Miller’s behalf was more than

reasonable. Based upon these witnesses’ discovery depositions, it is clear that

these witnesses’ trial testimony would have provided Miller little-to-no benefit and

likely would have caused far more harm to Miller’s case, rather than change the

outcome as Miller suggests. Miller has failed to prove his trial counsel rendered

ineffective assistance for not calling these witnesses to testify, and we affirm on

this issue.

       b. Expert Witness.

       Miller also argues pro se that his trial counsel should have presented

expert testimony to show whether the child’s injury was caused by a fall or by a

direct hit. We agree with the PCR court that Miller failed to establish his trial
                                         10


counsel breached his duty or that the trial’s outcome would have been any

different. At no time has Miller presented any independent evidence that an

expert could make this determination or that an expert opinion exists opining the

child’s injury was caused by a fall. See Dunbar, 515 N.W.2d at 15. Just as we

will not predicate error on speculation, see State v. Belt, 505 N.W.2d 182, 185

(Iowa 1993), we will not predicate a finding of ineffective assistance on

speculation. We affirm on this issue.

       2. Judicial Bias.

       Miller also challenges pro se the PCR judge’s denial of his request that the

judge recuse himself from the proceeding.        We review the “judge’s recusal

decision for an abuse of discretion,” and the burden lies with Miller to prove

grounds for recusal. See State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005).

       Iowa Code of Judicial Conduct rule 51:2.11(A)(1) provides: “A judge shall

disqualify himself or herself in any proceeding in which the judge’s impartiality

might reasonably be questioned . . . .” (Emphasis added). Mere speculation as

to judicial bias is not sufficient to prove the grounds necessary for recusal, see

State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994), nor is a judge’s perception or

attitude arising from the judge’s participation a disqualifying factor. See Millsap,

704 N.W.2d at 432. Rather, personal bias or actual prejudice stemming from an

extrajudicial source must be shown. See id.

       Here, the PCR judge informed Miller he did not recall his trial or have any

bias or prejudice against Miller, and Miller has not shown otherwise. Miller has

only voiced speculation, which is not enough. We conclude the court did not

abuse its discretion in denying Miller’s recusal request.
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       3. Motion for New PCR Trial.

       Miller next claims pro se the PCR court erred in not ruling upon his motion

for a new trial. Because he filed his notice of appeal prior to receiving rulings on

his posttrial motions, he removed the matter from the PCR court’s jurisdiction.

See IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 628 (Iowa 2000) (noting the filing of

a notice of appeal extinguishes the district court’s jurisdiction to rule on a posttrial

motion). Consequently, we find no error.

       C. Claims Raised for First Time on Appeal.

       1. Motion for Mistrial.

       Miller also claims his PCR trial counsel was ineffective because she did

not assert a claim that Miller’s trial counsel was ineffective for seeking a mistrial.

He points to his trial counsel’s testimony at the PCR trial that his “one regret was

asking for the mistrial in the first trial.” Miller’s trial counsel explained:

               [M]istrials are horrible for the defense because [the State]
       was able to identify . . . the weaknesses in [its] case, and, you
       know, [the defense] basically got obliterated at the second trial.
       [The State] introduced jail recordings of [Miller]. At this point [the
       State] knew, you know, where we were going with our defense.
       [Its] witnesses testified better at the second trial than they did the
       first.

Miller maintains that, “[l]ogically, if it is ineffective to not ask for mistrial when

appropriate to do so, then, it can also be ineffective to seek a mistrial when that

is not appropriate.” While the proposition may arguably be true, Miller has not

demonstrated it applies in his case.

       Here, there is no question that the State’s witnesses violated the court’s

ruling on Miller’s motion in limine and testified to Miller’s prior bad acts. Had

Miller’s trial counsel not sought a mistrial, Miller might have had a claim. See,
                                        12

e.g., State v. Reynolds, 765 N.W.2d 283, 295 (Iowa 2009) (“It was prejudicial

error to admit the prior bad acts, even though the evidence was relevant to [the

defendant’s] motive. We . . . remand the case for a new trial.”); State v. Graves,

668 N.W.2d 860, 882 (Iowa 2003) (“Thus, absent an objection or a request for a

mistrial, there was no way to address the prosecutor’s misconduct. Under these

circumstances, we do not think defense counsel’s failure . . . can be justified as a

trial strategy that fell within the range of reasonable professional assistance.”).

However, Miller cannot have it both ways. See State v. Duncan, 710 N.W.2d 34,

43 (Iowa 2006) (“It would be strange indeed for us to allow [the defendant] to use

what he now contends is irrelevant and prejudicial evidence to support this theory

of self-defense and following an unfavorable verdict allow him to urge reversal on

appeal based on the same evidence. He cannot have it both ways.”); State v.

Hutchison, 341 N.W.2d 33, 42 (Iowa 1983) (“The defendant is not entitled to

have it both ways . . . . [He] cannot knowingly and intelligently make an election

to proceed pro se and then, having lost his trial on the merits, seek a reversal on

appeal by claiming ineffective assistance of counsel.”). There was a proper basis

to seek a mistrial, and the district court’s colloquy with Miller after the mistrial

motion was made in the first trial confirmed Miller was in agreement with his trial

counsel’s request for a mistrial. Miller has not shown his trial counsel failed to

perform an essential duty. Consequently, his PCR counsel had no duty to raise

this meritless claim and was therefore not ineffective. See State v. Rodriguez,

804 N.W.2d 844, 849 (Iowa 2011); Holmes v. State, 775 N.W.2d 733, 737 (Iowa

Ct. App. 2009). Accordingly, we affirm on this issue.
                                        13


      2. Illegal Sentence.

      Miller also asserts the habitual offender enhancement should not have

been applied to his sentence and was therefore illegal.        Because an illegal

sentence may be corrected at any time, we address his argument. See Kurtz v.

State, 854 N.W.2d 474, 478 (Iowa Ct. App. 2014). Our review is for errors at law.

Id.

      Miller’s argument is not clearly articulated, but it appears he believes he

was convicted of assault with intent to inflict a serious injury, an aggravated

misdemeanor, to which the enhancement would not apply.              See Iowa Code

§§ 708.2(1), 902.8. However, he was found guilty of assault causing serious

injury, a different offense, which is a class “D” felony. See id. § 708.2(4). His

argument is therefore without merit, and we affirm on this issue.

      IV. Conclusion.

      We have carefully considered all of the claims raised by counsel and by

Miller pro se, and we find the claims addressed above lack merit. Moreover,

those not addressed specifically in this decision are either disposed of by our

resolution of other claims or are also without merit. Accordingly, we affirm the

PCR court’s ruling denying Miller’s PCR application.

      AFFIRMED.
