               IN THE SUPREME COURT OF IOWA
                           No. 140 / 05–1970

                         Filed February 29, 2008


THOMAS S. MILLAM,

      Appellee,

vs.

STATE OF IOWA,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, David H.

Sivright, Judge.



      Postconviction applicant challenges the court of appeals’ reversal of

the district court’s order granting a new trial on charges of sexual abuse.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF

DISTRICT COURT AFFIRMED; CASE REMANDED.


      Thomas J. Miller, Attorney General, and Darrel L. Mullins,

Assistant Attorney General, for appellant.



      Kent A. Simmons, Davenport, for appellee.
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LARSON, Justice.

      Thomas Millam was convicted of two counts of second-degree

sexual abuse under Iowa Code section 709.3(2) (1999) and sentenced to

two concurrent twenty-five-year terms of imprisonment. We dismissed

Millam’s appeal pursuant to Iowa Rule of Appellate Procedure 6.104.

Millam filed an application for postconviction relief under Iowa Code

chapter 822, which was granted by the district court.         The court of

appeals reversed, and we granted Millam’s application for further review.

We vacate the decision of the court of appeals, affirm the judgment of the

district court, and remand for a new trial.

      I. Facts and Prior Proceedings.

      Counts I and II of the sexual-abuse charges against Millam

pertained to Millam’s girlfriend’s seven-year-old daughter, J.S. Count III

pertained to Millam’s daughter. A jury convicted Millam on counts I and

II, but acquitted him on count III. In his application for postconviction

relief, Millam raised several claims of ineffective assistance of counsel,

including counsel’s failure to move to sever counts I and II from count III,

counsel’s failure to offer evidence of J.S.’s prior false claims of sexual

abuse, counsel’s failure to conduct a reasonable investigation, and

counsel’s failure to investigate and rebut the State’s suggestion of flight,

as well as counsel’s failure to assert a claim of prosecutorial misconduct.
The district court granted Millam’s application for postconviction relief,

concluding Millam’s trial counsel was ineffective for failing to move to

sever counts I and II from count III.     The court of appeals reversed.

Because we conclude Millam’s counsel was ineffective for failing to offer

evidence of J.S.’s prior false claims of sexual abuse, we do not reach

Millam’s other arguments.
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      II. Standard of Review.

      Postconviction      relief    proceedings   are    generally   reviewed   for

correction of errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa

2001).         However,      ineffective-assistance-of-counsel       claims     are

constitutional in nature, and as such, our review is de novo. Id. We give

weight to the lower court’s determination of witness credibility. Id.

      III. Applicable Law.

      Iowa law regarding ineffective assistance of counsel is well

established.    In order to prevail on such a claim, the applicant must

prove, by a preponderance of the evidence, that trial counsel failed to

perform an essential duty and the applicant was prejudiced thereby.

State v. Williams, 695 N.W.2d 23, 28–29 (Iowa 2005); Ledezma, 626

N.W.2d at 142.

      An attorney fails to perform an essential duty when the attorney

“perform[s] below the standard demanded of a reasonably competent

attorney.”     Ledezma, 626 N.W.2d at 142.           We presume the attorney

performed competently, and the applicant must present “an affirmative

factual basis establishing inadequate representation.” State v. Oetken,

613 N.W.2d 679, 683 (Iowa 2000).             “Miscalculated trial strategies and

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

assistance of counsel.”            Ledezma, 626 N.W.2d at 143.          However,
“strategic decisions made after a ‘less than complete investigation’ must

be based on reasonable professional judgments which support the

particular level of investigation conducted.”           Id. (quoting Strickland v.

Washington, 466 U.S. 668, 690–91, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d

674, 695 (1984)). “Trial counsel has no duty to raise an issue that has

no merit.” State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003). We do not

expect counsel to anticipate changes in the law, and counsel will not be
                                    4

found ineffective for a lack of “clairvoyance.” See Williams, 695 N.W.2d

at 30. However, “[i]n situations where the merit of a particular issue is

not clear from Iowa law, the test ‘is whether a normally competent

attorney would have concluded that the question . . . was not worth

raising.’ ” Graves, 668 N.W.2d at 881 (quoting State v. Schoelerman, 315

N.W.2d 67, 72 (Iowa 1982)); see also State v. Westeen, 591 N.W.2d 203,

210 (Iowa 1999).

      An applicant is prejudiced by counsel’s failure to perform an

essential duty when “ ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have

been different.’ ” Ledezma, 626 N.W.2d at 143 (quoting Strickland, 466

U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). “A reasonable

probability is one that is ‘sufficient to undermine confidence in the

outcome.’ ” State v. Bayles, 551 N.W.2d 600, 610 (Iowa 1996) (citations

omitted).

      IV. Discussion.

      During the course of investigating J.S.’s claims that she was

sexually abused by Millam, investigators were informed by J.S.’s mother

that J.S. had made similar accusations against one of her mother’s

previous boyfriends. J.S. later recanted those accusations. Millam’s trial

counsel did not offer this information into evidence, believing it was
excluded by Iowa’s rape-shield law⎯Iowa Rule of Evidence 5.412.

Millam contends his trial counsel breached an essential duty by failing to

offer this information into evidence, and Millam was prejudiced thereby.

Both the district court and court of appeals disagreed, concluding the

law regarding whether a victim’s prior false claims of sexual abuse were

protected by the rape-shield law was unsettled at the time, and counsel
                                      5

was under no duty to anticipate changes in the law. Therefore, counsel

had no duty to raise the issue.

      Iowa’s rape-shield law provides, in pertinent part:

            Notwithstanding any other provision of law, in a
      criminal case in which a person is accused of sexual abuse,
      evidence of a victim’s past sexual behavior other than
      reputation or opinion evidence is also not admissible . . . .

Iowa R. Evid. 5.412(b).     At the time of Millam’s trial, we had not yet

determined whether a victim’s prior false claims of sexual abuse were

“evidence of a victim’s past sexual behavior” and, therefore, inadmissible

pursuant to rule 5.412(b). However, in State v. Alvey, 458 N.W.2d 850,

852 (Iowa 1990), we excluded such evidence, concluding that, even if it

was outside the rape-shield law, it was inadmissible under general

relevancy considerations.

      In 2004 we decided the case of State v. Baker, 679 N.W.2d 7 (Iowa

2004), in which we held that a victim’s prior false claims of sexual abuse

do not constitute “sexual behavior” and, thus, are not protected by our

rape-shield law. Today, in order for evidence of the victim’s prior false

claims of sexual abuse to be admitted into evidence, the defendant must

first make a threshold showing to the court that “(1) the complaining

witness made the statements and (2) the statements are false, based on a

preponderance of the evidence.” State v. Alberts, 722 N.W.2d 402, 409

(Iowa 2006).   If the prior claims are determined to be false, the rape-

shield law is inapplicable, and the claims are admissible if they meet

“ ‘all other applicable evidentiary requirements and considerations.’ ” Id.

at 410 (quoting State v. Quinn, 490 S.E.2d 34, 40 (W. Va. 1997)).

      It is clear that, at the time of trial in the present case, Iowa law was

unsettled on the question of whether prior false claims of sexual abuse

were protected by the rape-shield law. In Alvey we specifically declined
                                      6

to address whether such claims fall outside the rape-shield law and,

thus, are admissible if relevant.    Though some of our prior case law

indicates that counsel has no duty to raise an issue if the law is merely

unsettled, see, e.g., Bayles, 551 N.W.2d at 610, we have since made it

clear that the test to determine whether counsel is required to raise an

issue “ ‘is whether a normally competent attorney would have concluded

that the question . . . was not worth raising.’ ” Graves, 668 N.W.2d at

881 (quoting Schoelerman, 315 N.W.2d at 72); see also Westeen, 591

N.W.2d at 210. This test does not require an attorney to be clairvoyant,

but rather to research the relevant legal issues and determine whether,

given the circumstances of the particular case, the issue is “worth

raising.”

      The State’s case against Millam was based almost exclusively on

J.S.’s testimony. There was no physical evidence of the sexual abuse,

nor were there any witnesses. This was a case of “he said, she said.” As

a result, J.S.’s credibility was pivotal to the State’s case. Any evidence

undermining that credibility could only work in Millam’s favor,

particularly evidence that J.S. had made, and later recanted, similar

claims of sexual abuse. Millam’s trial counsel testified that he did not

research whether the evidence would be admissible despite the rape-

shield law. In fact, research of the law in other jurisdictions would have
revealed that many jurisdictions had concluded that prior false claims of

sexual abuse were not protected by their rape-shield laws. See Baker,

679 N.W.2d at 10 (“Virtually all cases considering the issue have found

that false claims of prior sexual conduct do not fall within the coverage of

rape-shield   laws.”);   see   generally   Nancy   M.   King,   Annotation,

Impeachment or Cross-Examination of Prosecuting Witness in Sexual

Offense Trial by Showing That Similar Charges Were Made Against Other
                                      7

Persons, 71 A.L.R.4th 469 (1989). In this case, the wording of the rape-

shield law itself is quite clear:   it refers to sexual behavior, and quite

simply, claims of sexual abuse are not sexual behavior. It seems that,

even before Baker, defense attorneys would seize on the plain language of

the law and offer evidence of a victim’s prior false claims. We conclude

Millam’s counsel failed in an essential duty by not offering evidence of

J.S.’s prior false claims of sexual abuse.

      Next, we must determine whether Millam was prejudiced by

counsel’s failure.    We think so.    “When the performance of counsel

relates to the failure to present evidence, we must consider what bearing

the evidence may have had on the outcome of the case.” Ledezma, 626

N.W.2d at 148.       Evidence of J.S.’s prior false claims of sexual abuse

could have greatly impugned her credibility, thus lending credence to

Millam’s contention that he did not sexually abuse her. In fact, J.S.’s

own mother doubted her claims against Millam due to her prior false

claims. Because of the State’s reliance on J.S.’s claims and the lack of

supporting physical evidence, this evidence would have “challenged the

very core of the State’s case.” Id. at 149. In a case in which the evidence

against the defendant is not overwhelming, such evidence is imperative

to an effective defense. Id. at 148; see also State v. Carey, 709 N.W.2d

547, 559 (Iowa 2006) (the strength of the State’s case is important when
determining prejudice).     “It becomes easier to doubt the fundamental

fairness of a trial, and to question the reliability of the verdict, when the

evidence by the State is not overwhelming and the errors by counsel are

significant.” Ledezma, 626 N.W.2d at 148–49. In a case also involving

sexual misconduct (though not in the context of ineffective assistance of

counsel), we analyzed the prejudice suffered by a defendant as a result of
                                        8

the court’s refusal to allow him to prove the victim made prior false

claims of sexual misconduct:

             The verdict was primarily ground[ed] on the conflicting
      testimony of R.M. and Alberts.        R.M. testified Alberts
      sexually assaulted her. Alberts admits having sex with her,
      but claims the sex was consensual. There was no physical
      evidence of an assault. No other witnesses testified Alberts
      sexually assaulted the victim. The jury’s assessment of the
      relative credibility of R.M. and Alberts was the key to the
      conviction, thereby enhancing the relevance of the allegedly
      false prior allegation. By denying Alberts the opportunity to
      prove to the court R.M. made a prior false claim of sexual
      misconduct, the court hampered Alberts’ ability to argue
      R.M. accused another man of improper conduct to disguise
      her own questionable behavior. This error may have unduly
      prejudiced Alberts’ defense and therefore requires us to
      remand the case so the trial court may determine whether
      R.M. made false statements to Josh.

Alberts, 722 N.W.2d at 412.         Our reasoning in Alberts is equally

applicable to the present case. We conclude that the possibility that this

evidence would have impugned J.S.’s credibility is “ ‘sufficient to

undermine confidence in the outcome.’ ”       Bayles, 551 N.W.2d at 610

(quoting Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984)). As a result,

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

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

Ledezma, 626 N.W.2d at 143 (quoting Strickland, 466 U.S. at 694, 104

S. Ct. at 2068, 80 L. Ed. 2d at 698).

      V. Conclusion.

      Millam was denied his constitutional right to effective assistance of

counsel when his counsel failed to offer evidence of J.S.’s prior false

claims of sexual abuse, and Millam was prejudiced thereby.                An

attorney’s duty to raise unsettled legal issues is not, of course, unlimited.

However, in the present case, the legal issue was in flux.        That fact,

coupled with the wording of the rule itself, should have alerted Millam’s
                                     9

attorney to the possibility that such evidence may not be protected by the

rape-shield law. Considering that this evidence was central to Millam’s

defense, the issue was certainly worth raising, and counsel should have

taken some action to present this evidence to the fact finder.

      DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF

DISTRICT COURT AFFIRMED; CASE REMANDED.
