                   IN THE COURT OF APPEALS OF IOWA

                              No. 4-024 / 13-0302
                            Filed February 19, 2014


NAZARETH HOWARD,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Hamilton County, Michael J. Moon,

Judge.



      Nazareth Howard appeals from the district court’s denial of his application

for postconviction relief. AFFIRMED.




      Chad R. Frese of Kaplan, Frese & Nine, LLP, Marshalltown, for appellant.

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

General, and Patrick B. Chambers, County Attorney, for appellee State.




      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
                                           2


DOYLE, J.

         The following facts were set forth in our opinion on direct appeal:

         Nazareth Howard and Mindy Boldon had lived together and are the
         parents of two children. On February 1, 2007, a no-contact order
         between Howard and Boldon was issued and was in effect at all
         relevant times. Fearing Howard might attempt to enter her home,
         Boldon changed the locks on the doors. On the evening of March
         8, Boldon barricaded one door with a piece of wood and also
         arranged for a friend to stay awake listening for signs of a break-in
         on a baby monitor while Boldon slept. Early in the morning of
         March 9, 2007, Howard broke through two doors and entered
         Boldon’s home. Boldon and her friend heard Howard breaking in
         and both immediately called the police while hiding from Howard.
         Both women heard Howard angrily yelling for Boldon in a hateful
         voice, asking where she was. Soon, police officers arrived and
         found Howard hiding in a closet. Howard was uncooperative and
         the police had to use a [T]azer to take him into custody. After
         Howard was removed Boldon discovered the money envelope in
         her purse had been disturbed and her cash was hanging out, but
         nothing was missing.

State v. Howard, No. 07-1400, 2008 WL 2906553, at *1 (Iowa Ct. App. July 30,

2008).

         Howard was charged with second-degree burglary and convicted thereof

following a jury trial. Id. He appealed his conviction, asserting his trial counsel

was ineffective and challenging the sufficiency of the evidence to support his

conviction. See id. We preserved his ineffective-assistance-of-counsel claims

for possible postconviction relief (PCR) proceedings, concluding the record was

inadequate to resolve those claims at that time.         Id. at *2-3.   However, we

concluded substantial evidence supported the jury’s second-degree-burglary

verdict because a rational trier of fact could have found Howard intended to

commit an assault or theft at the time he violently entered Bolton’s home. Id. We

therefore affirmed his conviction. Id. at *3.
                                             3


       In June 2009, Howard filed his pro se application for PCR asserting

numerous claims, including that his trial counsel was ineffective.               The case

languished in the court system until a PCR hearing was held in January 2013.1

However, by that time, Howard’s trial counsel had passed away.

       At the PCR hearing, Howard testified he believed a card he received while

he was in jail awaiting trial on his burglary charge should have been introduced

into evidence at his trial. Although the card bore the name of Boldon’s friend,

Howard testified the card was actually from Boldon; Boldon had just “put her

friend’s name on [the card] like her friend sent [him] one.” He testified Boldon

wrote on the card, “I am sure everything will turn out okay,” and she included

money in the card for his jail account.

       Additionally, Howard testified he believed an audio recording of him

speaking to Boldon on the phone while he was in jail should have been admitted

into evidence at his trial. He testified he called Boldon’s sister-in-law, and he was

told Boldon wanted to speak to him, but he refused. He stated Boldon then got

on the phone, and, knowing the call was being recorded, asked him “why are you

threatening me, why are you trying to get in touch with me?”

       Howard admitted there had been a no-contact order between him and

Boldon that prohibited him from going to Boldon’s residence at the time of his

burglary charge. However, he testified he believed that, had his trial counsel

done as he asked and introduced this evidence, the jury would have known

Boldon “wasn’t scared like she [testified she] was” and that “she was misleading

       1
          We do note that from the time Howard filed his PCR application to the time of
the hearing, Howard had, as the district court put it, “retained and subsequently ‘let go’ at
least six different attorneys.”
                                            4


the jury.” He believed that had the evidence been introduced, the jury would not

have found Boldon credible, and at best, he would have been found guilty of

violating a no-contact order, not burglary.

       Howard’s trial counsel’s deposition, taken in 2010, was admitted into

evidence at the PCR hearing.           Howard’s trial counsel testified he did not

introduce the evidence, explaining Howard was facing other charges involving

phone calls and that he thought he’d be “going down a slippery slope.” He

testified, “if I get in that [Boldon] made phone calls to [Howard], I think I may have

opened a door for the State to bring in all these [other] phone calls involving

extortion, harassment. And to me that was . . . quite a danger.”

       Thereafter, the district court entered its ruling denying Howard’s

application for PCR. Howard now appeals, asserting the district court erred in

finding he failed to establish his trial counsel was ineffective.

       We first address a serious error preservation issue. On appeal, Howard

contends had certain “evidence been proffered that Howard had provided to his

trial counsel clearly the outcome would have been different in that he would only

have been convicted of criminal mischief and violation of a no-contact order

[rather than the class C felony for which he was found guilty].” Howard did not

contend his trial counsel was ineffective for failing to present the card from

Boldon and the jail telephone conversation recording in his application for PCR.

Although the claim was discussed at the PCR hearing, it was not addressed in

the district court’s ruling.2 Howard failed to file a Rule 1.904(2) motion requesting


       2
         The district court ruled on Howard’s claims of ineffective assistance of trial and
appellate counsel for failing to argue insufficiency of evidence and of trial counsel for
                                          5

the court to enlarge its findings and conclusions. See Iowa R. Civ. P. 1.904(2).

“When a district court fails to rule on an issue properly raised by a party, the party

who raised the issue must file a motion requesting a ruling in order to preserve

error for appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). In an

effort to stave off another PCR proceeding, we choose to pass on Howard’s

serious preservation-of-error problems and elect to decide the merits of the issue

he raises on appeal. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012).            To prevail on his ineffective-

assistance-of-counsel claims, Howard must show (1) counsel failed to perform an

essential duty and (2) prejudice resulted. See id. The first prong requires proof

that counsel did not act as a “reasonably competent practitioner” would have

acted. State v. Simmons, 714 N.W.2d 264, 276 (Iowa 2006). We presume the

attorney performed competently and avoid second-guessing and hindsight. State

v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). “Miscalculated trial strategies

and mere mistakes in judgment normally do not rise to the level of ineffective

assistance of counsel.” Id. Additionally, “[c]ounsel has no duty to raise an issue

that has no merit.” State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). To

show prejudice under the second prong, a defendant must show a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.          Ennenga, 812 N.W.2d at 701.           A

reasonable probability is one “sufficient to undermine confidence in the outcome.”



failing to object to the admission of prejudicial evidence. These claims were abandoned
on appeal.
                                          6

See Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). A reviewing court need

not engage in both prongs of the analysis if one is lacking. Id. at 159.

       Upon our de novo review of the record we find that Howard failed to

establish his trial counsel was ineffective. First, it is clear Howard’s trial counsel

did not introduce the evidence based upon a reasonable trial strategy.

Nevertheless, even assuming arguendo he breached his duty in not utilizing the

evidence as suggested by Howard, Howard failed to show the result of his trial

would have been different but for this alleged error.          Howard makes bald

assertions that had his counsel used the evidence “in a pretrial deposition” and

“had [he] had the opportunity to depose the State’s witnesses the outcome would

have changed likely and the case may never [have] proceeded to trial or trial

counsel would have been better prepared.” None of these assertions explain

how this evidence would have changed the outcome of the trial. We conclude

that even if the evidence had been introduced at trial, it is unlikely the outcome of

the proceeding would have been different.

       Boldon’s testimony was supported by other evidence at trial. Boldon’s

friend who stayed with Boldon that night testified Howard kicked Boldon’s door in,

and she heard him yelling, “Where is [Boldon]?          Where is [Boldon]?”      The

responding police officer testified that when he arrived at Boldon’s home, the

main door to her house “was hanging from the hinges and the screen door was

broke and the glass . . . was broken out.” The officer testified he found Howard

hiding in a closet in Boldon’s home, and Howard refused to come out, at one

point stating they “would have to shoot him or kill him to get him out of there.”

The officer stated they ultimately had to use a Taser to get him out of the closet.
                                        7


He testified Boldon’s purse was found with its contents disturbed and rummaged

through. The phone call described by Howard and the card, even if admitted into

evidence at trial, would not have changed the outcome of the trial.

      Because Howard’s claims of ineffective assistance of trial counsel fail, the

district court properly denied his application for PCR. Consequently, we affirm

the district court’s ruling denying Howard’s PCR application.

      AFFIRMED.
