                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0136
                               Filed July 19, 2017


DEWANN MARQUISE STONE SR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      Appeal from the denial of application for postconviction relief filed pursuant

to Iowa Code chapter 822 (2009). AFFIRMED.




      Karmen Anderson of Karmen Anderson Law, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.

       Dewann Stone Sr. was convicted of murder in the first degree, in violation

of Iowa Code section 707.2 (2005), for the shooting of Anthony Galvan. This

court affirmed his conviction on direct appeal. See State v. Stone, No. 07-1009,

2008 WL 4724865, at *1 (Iowa Ct. App. Oct. 29, 2008).              The facts and

circumstances of the case are set forth in our prior opinion and need not be

repeated in full herein. In this appeal, Stone contends the district court erred in

denying his application for postconviction relief.

                                          I.

       Stone’s primary claim is the State suppressed certain evidence in violation

of Stone’s right to due process as set forth in Brady v. Maryland, 373 U.S. 83, 87

(1963). See Aguilera v. State, 807 N.W.2d 249, 252 (Iowa 2011) (discussing

Brady violations). “To establish a Brady violation has occurred, [the defendant]

must prove by a preponderance of the evidence (1) the prosecution suppressed

evidence; (2) the evidence was favorable to the defendant; and (3) the evidence

was material to the issue of guilt.” Id. (quoting DeSimone v. State, 803 N.W.2d

97, 103 (Iowa 2011)) (alteration in original). The district court denied the claim.

Our review is de novo. Id.

       The factual predicate for Stone’s primary claim arises out of and relates to

the statements of a jailhouse informant, Derek Thompson. The Galvan shooting

occurred in August of 2006. In early April 2007, Thompson sent a letter to the

county attorney stating he had information about the shooting.        At the time

Thompson sent the letter he was being held in the Polk County Jail awaiting

transfer to federal prison. The prosecutor did not provide Thompson’s letter to
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the defendant, but the prosecutor did notify the case agent, Detective David

Seybert, of the letter. Seybert made arrangements with federal authorities to

interview Thompson.    The interview occurred on April 17, 2007.      Thompson

stated he happened upon Kyron Moore, a long-time friend and former roommate

of Thompson’s, in the visitor area of the jail in September or October of 2006.

Thompson stated he and Moore spoke. During the conversation, according to

Thompson, Moore admitted he “popped [Galvan],” meaning he shot Galvan.

Seybert asked whether Moore provided any detail, and Thompson said no.

Thompson told Seybert he knew Moore to “wolf,” meaning Moore might make

something up or exaggerate something to impress others. Seybert prepared a

transcript and summary of his interview with Thompson. The prosecutor faxed a

copy of the transcript and summary to Stone’s trial attorneys the same day or the

next day, April 17 or 18. Trial was scheduled to and did commence on April 23,

2007.

        Stone contends the prosecutor suppressed the transcript and summary of

the interview with Thompson. Evidence is suppressed when it is known by the

prosecution, including all persons acting on behalf of the State, but unknown by

the defense. Harrington v. State, 659 N.W.2d 509, 522 (Iowa 2003). Stone’s

claim is directly contradicted by the record. The record reflects the documents

were faxed to Stone’s lawyers immediately after the interview. The transmission

of the information was acknowledged by the prosecutor and defense counsel on

the morning of Stone’s trial while making record on pending motions in limine. In

addition, Stone had personal knowledge of Moore’s purported confession long

before Thompson contacted the prosecutor. Stone was arrested in the fall of
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2006 and held at the Polk County Jail. Thompson and Stone were being held on

the same floor of the jail. Thompson and Stone knew each other prior to being

jailed—Thompson was friends with Stone’s younger brother—and they spoke

with each other while in the jail. In his deposition for the postconviction trial,

Thompson testified he told Stone what Moore said immediately after Moore said

it. Stone admitted during the postconviction trial that Thompson told him what

Moore said at some point before his trial.         Stone testified he never told his

attorneys this information prior to trial. It is well settled “‘[i]f the defendant either

knew or should have known of the essential facts permitting him to take

advantage of the evidence,’ the evidence is not considered ‘suppressed.’” Id.

(quoting Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988)).

       Stone contends the information should nonetheless be considered

suppressed, within the meaning of our case law, because the information was

disclosed only on the eve of trial. As a general rule, if the prosecution delays the

disclosure of Brady material so significantly it prejudices the defendant’s ability to

use the information, then the material may be considered suppressed. See State

v. Clark, 814 N.W.2d 551, 563 (Iowa 2012). Here, the prosecutor did not delay

the disclosure of the information.      Thompson notified the prosecutor he had

information in early April of 2007.      Detective Seybert made arrangements to

interview Thompson expeditiously.          Upon completion of the interview, the

prosecutor immediately provided the information to defense counsel. In addition,

as discussed above, according to Thompson, Stone knew this information in

September or October of 2006.
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      The timing of the disclosure did not prejudice the defendant’s ability to use

the information. See id. The interview and report were short and did not require

significant investigation. Even if did require some investigation, Moore could not

confirm the purported confession. He had been murdered by the time Thompson

disclosed the information.     In addition, getting Thompson’s testimony into

evidence was difficult because of hearsay issues. Thompson’s testimony lacked

credibility. Jailhouse records showed Thompson and Moore were not ever held

in the jail together. It seems improbable that Thompson would by happenstance

bump into Moore in the visitor’s area of the jail, Moore would confess to the

murder, Thompson would immediately tell Stone, and Stone would do nothing

with the information. Nonetheless, despite the evidentiary concerns, defense

counsel tried to get the testimony into evidence, not to establish the truth of the

matter asserted, but to establish the police failed to investigate a potential

suspect. The district court would not allow the evidence for that purpose. There

was no prejudice here.

      Finally, Stone claims the prosecution’s failure to disclose Thompson’s

letter to the defense independently constitutes a Brady violation because it

triggered a duty to investigate and communicate. The letter was addressed to

the county attorney.

      To: John P. Sarcone

      Or to whom it may concern[,] my name is Derek Thompson and I’m
      located at the Polk County Jail. I’m writing in regards to a homicide
      that took place in Des Moines August of 2006. I am currently in
      U.S. Marshal custody awaiting transport to federal prison. I’ve
      been cooperating with the government since [m]y arrest. I’ve been
      considered a reliable witness. If you can, I have some valuable
      information for you, send someone to speak with me in regards to
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       that issue. Thank you very much. The homicide that took place
       was at Southport Night Club.

       We cannot conclude the failure to disclose this letter prior to trial

constituted a Brady violation. On its face, the letter was not favorable to the

defendant.    The letter only notifies the prosecutor that Thompson possessed

“valuable information” regarding the shooting.         The letter does not indicate

whether the valuable information was inculpatory or exculpatory. The letter also

was not material to an issue of guilt. “Evidence is material when ‘there is a

reasonable probability that, had the evidence been disclosed, the result of the

proceeding would have been different.’” Harrington, 659 N.W.2d at 523 (quoting

Cornell, 430 N.W.2d at 386). Thompson’s letter was immaterial. It contained no

substantive information regarding the offense. At best, disclosure of the letter

would have alerted Stone’s lawyers to the existence of a potential witness two

weeks prior to the time they received the transcript and summary of the interview.

Stone’s counsel testified she would not have altered the defense strategy or

theory had she received a copy of this letter prior to trial.

                                           II.

       In his application for postconviction relief, Stone claimed his trial counsel

were ineffective in responding to and using the information Thompson provided.

The district court denied the claim. While postconviction rulings are generally

reviewed for errors at law, we review claims of ineffective assistance of counsel

de novo because of their basis in the Sixth Amendment. See State v. Maxwell,

743 N.W.2d 185, 195 (Iowa 2008).
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      To show he received ineffective assistance of counsel, Stone “must prove:

(1) counsel failed to perform an essential duty and (2) prejudice resulted.” State

v. Wills, 696 N.W.2d 20, 22 (Iowa 2006) (citing State v. Artzer, 609 N.W.2d 526,

531 (Iowa 2000)).     To prove the first element, Stone must show counsel’s

performance fell below the standard of a reasonably competent attorney.

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).           When we begin our

review, we assume Stone’s counsel performed competently.           Id.   If the first

element is proved, then Stone must show “that there was a reasonable

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

proceeding would have been different.”        Id. at 143 (quoting Strickland v.

Washington, 466 U.S. 668, 694 (1984)).

      On de novo review of Stone’s claims, we conclude Stone failed to

establish an entitlement to postconviction relief due to constitutionally deficient

counsel. First, Stone’s claims are predicated on factual assertions contrary to or

unsupported by the record. For example, contrary to Stone’s position, it is clear

from the trial record that both of his attorneys knew Detective Seybert

interviewed Thompson and knew the substance of the interview. The matter was

discussed on the morning of trial while making record on motions in limine. By

way of another example, the defendant contends his lawyers never told him

about Seybert’s summary of the interview, preventing him from making a

decision about how to proceed with the information. It is clear, however, that

Stone had actual knowledge of Thompson’s statements months before his trial

counsel and simply chose not to inform them of this information. In addition,

Stone was present on the morning of trial when the prosecutor and defense
                                         8


counsel made a record regarding whether the defendant would be able to use

the Thompson information at trial.

       Second, Stone’s trial counsel was aware of the information and made a

strategic decision to not investigate the matter further.       “Miscalculated trial

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

ineffective assistance of counsel.” Lado v. State, 804 N.W.2d 248, 251 (Iowa

2011) (quoting Millam v. State, 745 N.W.2d 719, 721 (Iowa 2008)).            Stone’s

counsel testified the use of Thompson as a witness was riddled with problems.

There were, in her judgment, insurmountable hearsay problems. There were, in

her judgment, significant credibility problems. Moore was deceased and could

not confirm the purported confession.        Thompson had independent credibility

problems. He was in federal custody awaiting transfer to federal prison. He was

also good friends with Stone’s brother. Nonetheless, Stone’s lawyers tried to get

the statements into evidence, not for the truth of the matter asserted, but to

establish the police’s investigation of the case was not thorough. The district

court disallowed the evidence. We thus need not address the issue of whether

Thompson’s statements would have in fact been admissible.             Because trial

counsel based her strategy on a “thorough investigation of law and facts relevant

to plausible options,” her strategy is “virtually unchallengeable.” Ledezma, 626

N.W.2d at 143.

       Finally, Stone has not established prejudice. Stone’s claims of ineffective

assistance of counsel lack specificity, are conclusory, and fail to identify how

counsel’s performance made a difference in the outcome of the proceeding. In

the absence of some specific claim that leads to identifiable prejudice, the district
                                           9


court did not err in denying the claim. Further, and independently, there was

strong evidence of Stone’s guilt. See State v. Bumpus, 459 N.W.2d 619, 627

(Iowa 1990) (determining prejudice did not result given overwhelming evidence of

guilt). Multiple eyewitnesses identified him at the scene of the crime. Stone,

2008 WL 472865, at *1. An eyewitness identified Stone as the shooter. Id.

Stone confessed to the murder to one of his friends and requested the friend’s

assistance in disposing of evidence and getting out of town. Id. The friend’s

report to the police was credible because the friend knew non-public information

regarding the murder. In particular, the friend reported the caliber of the murder

weapon, which was non-public information at the time. Id. at *6.

                                          III.

       Stone did raise an ineffective-assistance-of-counsel claim related to

another confession; this confession purportedly made by Brian Miller. The record

reflects a drug task force officer named Townes learned from his confidential

informant that a woman named Jennifer Moore told the confidential informant

that Brian Miller confessed involvement in killing Galvan. Stone contends his

counsel failed to investigate the claim. As with his other arguments, this claim is

belied by the record. Stone’s trial counsel tried to use this information at trial to

show the police did not conduct a thorough investigation because the police

failed to follow this lead. Stone’s counsel made an offer of proof, but the district

court excluded the evidence. Stone has failed to establish a breach of duty. See

State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (“A defendant’s inability to

prove either element [of ineffective assistance] is fatal.”).
                                        10


                                        IV.

      Stone    contends    his   postconviction      counsel   provided   ineffective

assistance. The constitutional right to counsel applies to the assistance of trial

counsel and appellate counsel; there is no constitutional right to postconviction

relief, postconviction counsel, or the effective assistance of postconviction

counsel. See Williams v. Pennsylvania, 136 S. Ct. 1899, 1921 (2016) (Thomas,

J., dissenting); Montgomery v. Louisiana, 136 S. Ct. 718, 746 (2016) (Thomas,

J., dissenting) (“Because the Constitution does not require postconviction

remedies, it certainly does not require postconviction courts to revisit every

potential type of error.”). The Iowa Supreme Court has recognized a statutory

right to counsel in chapter 822 proceedings and a corresponding statutory right to

the effective assistance of postconviction counsel. See Dunbar v. State, 515

N.W.2d 12, 15 (Iowa 1994).       Claims of ineffective assistance of counsel are

reviewed de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). This

is true whether the claim of ineffective assistance of counsel arises under

constitution or statute. See Killings v. State, No. 15-1061, 2017 WL 1735614, at

*1 (Iowa Ct. App. May 3, 2017) (“Our review of ineffective-assistance claims—

whether constitutional or statutory—is de novo.”).

      Stone makes several claims against his PCR counsel. The claims are not

supported by the record. To the extent the claims are supported by the record,

Stone has not demonstrated counsel breached a duty or he suffered prejudice.

First, Stone argues his postconviction lawyers (there were two over the life of the

case) took little action and did not communicate with Stone. This is contradicted

by the numerous filings in the case, the depositions in the record, the trial
                                          11


transcript, and Stone’s testimony he had extensive contact with his lawyer in

preparation for the postconviction trial.      Second, Stone claims his counsel

advocated against him when counsel conceded that certain subpoenas should

be quashed. Stone does not contend his counsel’s concession was erroneous.

He also does not allege how this would have made a difference in the

postconviction-relief proceeding. Third, Stone claims his postconviction counsel

was ineffective in failing to establish exactly when Stone’s trial counsel received

the documents regarding Thompson. As set forth above, the record is clear on

the issue. Postconviction counsel did not fail to perform an essential duty in

failing to bring up a resolved issue.     Further, there is no prejudice from the

alleged breach. Fourth, Stone claims his postconviction counsel should have

brought up the “Thompson information” at postconviction trial. It is not clear

exactly what Stone means; however, it is clear the Thompson issue was fully

litigated and resolved.

       Stone next contends his postconviction counsel was ineffective in failing to

obtain a ruling on another purported Brady violation.          Specifically, Stone

contends his counsel should have argued the State failed to produce the report

regarding the confidential informant’s statement concerning Brian Miller’s

purported involvement in the Galvan shooting. Even if counsel failed to preserve

error on the issue, there is no prejudice. The testimony establishes there was no

written report regarding the statement.

                                          V.

       In addition to the claims considered above, we have also considered

Stone’s pro se claims.     They are merely permutations of the same claims
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resolved above. He has not established an entitlement to postconviction relief.

For the foregoing reasons, we affirm the judgment of the district court.

       AFFIRMED.
