                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0991
                             Filed August 31, 2016


ROBERTO RODRIGUEZ,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

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

Judge.



      Applicant appeals the district court decision denying his request for

postconviction relief. AFFIRMED.




      Thomas A. Hurd of Law Office of Thomas Hurd, P.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Roberto Rodriguez appeals the district court decision denying his request

for postconviction relief. We find the district court properly granted summary

disposition to the State because the claims of ineffective assistance of counsel

raised in this postconviction action were previously decided in Rodriguez’s direct

appeal. We affirm the district court.

       After an evening of drinking alcohol and using drugs, Rodriguez and some

friends decided to drive around and look for people to beat up. One of the

victims, Dean Davis, died as a result of a stab wound. Rodriguez presented

defenses of identification and intoxication at his criminal trial. He was convicted

of first-degree murder, first-degree robbery, first-degree burglary, and second-

degree robbery.

       In Rodriguez’s direct appeal we stated:

              Rodriguez claims “[i]n light of the testimony of the witnesses
       that defendant was intoxicated, it was error for counsel to fail to
       present expert testimony regarding the defendant’s intoxication.”
       However, Rodriguez does not set forth any argument concerning
       what evidence an expert would have offered or how such testimony
       would have made a difference at trial.
              We note from our review of the trial record defense counsel
       did present some testimony regarding defendant’s intoxication.
       Counsel also asked the medical examiner several questions
       regarding the effects of alcohol and marijuana.
              ....
              In addition, the court submitted an intoxication instruction to
       the jury. It is unclear what other evidence an expert could have
       offered in support of Rodriguez’s intoxication defense.
              There was also substantial evidence Rodriguez was not
       severely intoxicated at the time of the crimes. According to the
       testimony of several witnesses, Rodriguez admitted to stabbing
       Davis. Several admissions were made in the days following the
       incident.    This testimony reveals that Rodriguez clearly had
       memory of the incident and what happened. Had defense called an
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       expert on intoxication, Rodriguez fails to demonstrate it would have
       made a difference in the outcome of the trial.
               We also note Rodriguez’s main defense at trial was
       identification, not intoxication. In fact, an intoxication defense
       would have been at odds with his main defense of identity.
       Rodriguez presented testimony Holland actually stabbed Davis. He
       did not present evidence he stabbed Davis, but blacked out or did
       not understand what he was doing. An intoxication defense admits
       to the act, but negates whether the person acted with specific
       intent. Rodriguez’s defense at trial was he did not commit the
       offense.
               “[A]n attorney’s decision regarding strategy or tactics does
       not ordinarily provide an adequate basis for a claim of ineffective
       assistance of counsel.” When trial counsel acts reasonably in
       selecting and following through on a chosen strategy, the claim of
       ineffective assistance is without merit. Because we find defense
       counsel acted reasonably in selecting a defense strategy and
       Rodriguez failed to show he was prejudiced by counsel's failure to
       call an expert on intoxication, we deny this claim of ineffective
       assistance of counsel.

State v. Rodriguez, No. 10-0039, 2011 WL 1814707, at *6-7 (Iowa Ct. App.

May 11, 2011) (citations omitted).

       On September 7, 2011, Rodriguez filed an application for postconviction

relief, claiming he received ineffective assistance because defense counsel did

not present the testimony of an expert witness to support his intoxication

defense.   Rodriguez also stated he received ineffective assistance because

appellate counsel did not “provide the appellate court with any indication of what

information an expert witness would have provided or how this information would

have assisted the jury and affected the outcome of trial.” The State claimed the

issue had been fully addressed in the direct appeal and requested summary

disposition of the case.

       A postconviction hearing was held on March 25, 2015.            Rodriguez

presented the testimony of Dr. John Fell, an osteopathic physician, who made a
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calculation of Rodriguez’s blood-alcohol content at the time of the offenses and

stated Rodriguez’s critical judgment and sensory perception would have been

impaired. At the close of Rodriguez’s evidence, the State moved for summary

disposition of the case.

       The district court granted the motion for summary disposition.1 The court

found the issue raised by Rodriguez concerning his trial counsel was the same

as the issue decided in the direct appeal and could not be relitigated. The court

found Rodriguez failed to show he received ineffective assistance from appellate

counsel for the same reasons we previously found he failed to show he received

ineffective assistance of trial counsel.        Rodriguez now appeals, claiming he

received ineffective assistance of counsel.

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

v. State, 812 N.W.2d 696, 701 (Iowa 2012). 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).

       The issue of whether Rodriguez received ineffective assistance because

defense counsel did not present the testimony of an expert witness to support his

defense of intoxication was addressed in the direct appeal. See Rodriguez, 2011

WL 1814707, at *6-7. An applicant may not use postconviction proceedings to

relitigate issues decided in a direct appeal. Snyder v. State, 262 N.W.2d 574,


1
 The parties and the court referred to the State’s request as a motion for directed verdict
under Iowa Rule of Civil Procedure 1.945. We determine the motion is more properly
considered as a motion for summary disposition, as permitted by Iowa Code section
822.6 (2011).
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578 (Iowa 1978). “A postconviction proceeding is not intended as a vehicle for

relitigation, on the same factual basis, of issues previously adjudicated, and the

principal of res judicata bars additional litigation on this point.” Holmes v. State,

775 N.W.2d 733, 735 (Iowa Ct. App. 2009). We determine the district court

properly concluded Rodriguez’s claim of ineffective assistance of defense

counsel should be dismissed.

       Rodriguez also claims he received ineffective assistance because

appellate counsel raised the issue in the direct appeal, when he did not have

expert testimony to support his claims. In the direct appeal, we noted Rodriguez

did “not set forth any argument concerning what evidence an expert would have

offered or how such testimony would have made the difference at trial,” but this is

not the basis for our conclusion Rodriguez failed to show he received ineffective

assistance of counsel. Rodriguez, 2011 WL 1814707, at *7. We found, “Had

defense called an expert on intoxication, Rodriguez fails to demonstrate it would

have made a difference in the outcome of the trial.” Id. Once again, the main

thrust of Rodriguez’s defense was identification, which is quite different than an

intoxication defense.    Because we found Rodriguez was not prejudiced by

counsel’s performance, Rodriguez was also not prejudiced by appellate

counsel’s decision to raise the issue on direct appeal. We conclude the district

court properly found Rodriguez’s claim of ineffective assistance of appellate

counsel should be denied on the same grounds found in our earlier decision.

       We affirm the decision of the district court.

       AFFIRMED.
