                   IN THE COURT OF APPEALS OF IOWA

                                     No. 16-1456
                                  Filed July 6, 2017


ANTHONY DARNELL ROBINSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      Applicant   appeals   the     denial   of   his   second   postconviction-relief

application. AFFIRMED.



      Les M. Blair III of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
                                                2


POTTERFIELD, Judge.

          Anthony Robinson appeals the denial of his second postconviction-relief

application. He argues his first postconviction counsel was ineffective for failing

to file a motion to enlarge or expand the postconviction court’s ruling that

appellate counsel should have raised the issue that an impeachment instruction

based on inconsistent testimony was warranted at trial. We affirm.

I. Background Facts and Proceedings.

          Anthony Robinson’s posticonviction appeal arises from a 2005 conviction

for first-degree robbery and willful injury. At trial, Sinh Tran testified about his

account of the events.1 He stated the day of the robbery he was on the way

home from a friend’s house when he stopped at the store to buy some cigarettes,

and Robinson approached him for a ride. Tran stated that Robinson got into the

car and asked him for money. When Tran said that he did not have any money,

Robinson took out a knife, hit Tran multiple times, stabbed him, and took his

wallet, which had fourteen or fifteen dollars in it. The police arrived, and Tran

was later treated for his injuries.

          Officer Scott Crow testified at trial about his conversations with Tran

regarding the events. According to Crow, Tran told him he was coming from

home when he stopped to buy cigarettes. He also testified that Tran stated he

wanted to leave the scene of the crime, and Robinson took seventeen dollars.

          At the close of trial, Robinson’s counsel objected to the court’s deletion of

a proposed instruction for “impeachment of prior under-oath statements” based



1
    Tran testified with the assistance of an interpreter.
                                         3


on the inconsistencies between Tran’s and Crow’s testimony about what Tran

told Crow after the attack. The court overruled the objection, explaining:

      The court’s recollection of the testimony is that no formal
      impeachment by prior sworn statement occurred in the testimony of
      Sinh Tran. I do know that counsel for the defendant did make
      reference to the deposition, however I don’t believe that there was
      formal impeachment of Mr. Tran’s testimony by his previous
      deposition testimony, and that’s the reason why the court did not
      submit that instruction.

      Following the trial, Robinson was convicted of first-degree robbery and

willful injury. Robinson appealed his conviction raising multiple arguments that

are not at issue in this appeal.     A panel of our court affirmed Robinson’s

conviction. See State v. Robinson, No. 06-0050, 2007 WL 257623, at *1 (Iowa

Ct. App. Jan. 31, 2007).

      In 2007, Robinson filed a pro se application for postconviction relief

arguing, in part, appellate counsel was ineffective for failing to argue the trial

court should have issued an impeachment instruction based on the inconsistent

statements to law enforcement. Robinson then secured court-appointed counsel

and filed an amended postconviction-relief application. The postconviction court

denied Robinson’s claims. Robinson appealed, arguing postconviction counsel

was ineffective for failing to have the postconviction court rule on his claim that

appellate counsel was ineffective for failing to argue an impeachment instruction

was required at the trial level. A panel of our court preserved the argument for

possible postconviction relief because the original trial testimony was not part of

the record. See Robinson v. State, No. 10-1834, 2012 WL 2819336, at *2 (Iowa

Ct. App. July 11, 2012).
                                          4


        In 2012, Robinson filed his second application for postconviction relief. In

it, he argued that his first postconviction counsel was ineffective for not filing a

motion to enlarge or expand the postconviction court’s ruling regarding the

impeachment-instruction claim.      The postconviction court denied his claims.

Robinson appealed.

II. Standard of Review.

        Generally, we review postconviction proceedings for correction of errors at

law. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011). However, when the

issues raised are of a constitutional nature, such as claims of ineffective

assistance of counsel, our review is de novo. Id.

III. Discussion.

        Robinson claims multiple levels of ineffective assistance of counsel. He

argues his first postconviction counsel was ineffective for failing to raise the claim

that appellate counsel was ineffective for failing to argue the trial court erred in

denying Robinson’s request for an impeachment instruction.

        To establish a claim of ineffective assistance of counsel, an applicant must

show (1) the attorney failed to perform an essential duty, and (2) prejudice

resulted to the extent it denied the applicant a fair trial. State v. Carroll, 767

N.W.2d 638, 641 (Iowa 2009).         An applicant has the burden to show by a

preponderance of the evidence counsel was ineffective. See State v. McKettrick,

480 N.W.2d 52, 55 (Iowa 1992).         Robinson must prove both elements by a

preponderance of the evidence. See State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006)
                                         5


       To prove the first prong of this claim, Robinson must show counsel’s

performance fell outside the normal range of competency. See id. Starting “with

the presumption that the attorney performed his duties in a competent manner,”

“we measure counsel’s performance against the standard of a reasonably

competent practitioner.” State v. Maxwell, 743 N.W.2d 185, 195-96 (Iowa 2008).

In accord with these principles, we have held that counsel has no duty to raise an

issue that has no merit. State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008).

       We begin with the original claim of error—whether an impeachment

instruction was required at the trial level. Robinson argues Sinh Tran made

multiple inconsistent statements, which required an impeachment instruction

from the trial court. Specifically, Robinson points to the following testiomny by

Tran that was contradicted by Officer Scott Crow’s testimony about what Tran

told him after the attack: (1) Robinson took seventeen dollars from Tran; (2) Tran

was at a friend’s house and stopped to buy cigarettes on the way home; (3) Tran

did not want to leave the scene of the crime; and (4) Tran jumped out of the car

on his own.    Crow, on the other hand, testified Tran told him at the scene

Robinson took fourteen dollars, Tran was coming from his home, Tran wanted to

leave the scene, and Robinson removed Tran from the car.

       A trial court must submit an instruction to the jury “[a]s long as a requested

instruction correctly states the law, has application to the case, and is not stated

elsewhere in the instructions.” State v. Kellogg, 542 N.W.2d 514, 516 (Iowa

1996). At trial, Robinson’s counsel requested a jury instruction on impeachment
                                            6


of prior under-oath statements.2 However, the inconsistent statements Robinson

claims support the issuance of a jury instruction were not made under oath; they

were made to a police officer.        As the trial court stated when it addressed

Robinson’s objection to removing the jury instruction, “[N]o formal impeachment

by prior sworn statement occurred in the testimony of Sinh Tran.” We agree the

requested instruction had no application to Robinson’s case. Appellate counsel

and postconviction counsel were not ineffective for failing to raise a meritless

claim. See Schaer, 757 N.W.2d at 637.

       AFFIRMED.




2
  Iowa Criminal Jury Instructions 200.43, for example, states as follows:
               You have heard evidence claiming [name of witness] made
       statements before this trial while under oath which were inconsistent with
       what [name of witness] said in this trial. If you find these statements were
       made and were inconsistent, then you may consider them as part of the
       evidence, just as if they had been made at this trial.
               You may also use these statements to help you decide if you
       believe [name of non-party witness]. You may disregard all or any part of
       the testimony if you find the statements were made and were inconsistent
       with the testimony given at trial, but you are not required to do so. Do not
       disregard the trial testimony if other evidence you believe supports it or
       you believe it for any other reason.
(emphasis added).
