McKinley Dudley v. State of Iowa ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0354
Filed January 27, 2022
MCKINLEY DUDLEY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Coleen D.
Weiland, Judge.
Applicant appeals the dismissal of his application for postconviction relief.
AFFIRMED.
Richard Hollis, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee State.
Considered by Bower, C.J., and Greer and Badding, JJ.
2
GREER, Judge.
In a February 2020 pro se application, McKinley Dudley requested
postconviction relief (PCR) to reverse his “conviction and sentence.”1 Under a
heading labeled “[s]entence concerning which postconviction relief is demanded,”
Dudley referenced four specific criminal matters, but also listed separately
“Criminal Conviction: Two Felony Possession Convictions under 124.401 [2] of the
Code of Iowa.” In the pro se application, one stated ground for relief was that the
“felony convictions were enhanced by misdemeanors wherein the Applicant was
not represented by counsel.” No other reference to other convictions appeared in
the filed pleadings, and at the PCR hearing the district court requested clarification
over what proceedings were the target of Dudley’s request. Because Dudley
asserts his PCR counsel failed to clearly set the stage for the district court by
clarifying what convictions were implicated, leading to a dismissal of his PCR
application without full consideration of the 2012 conviction, he brings this appeal
asserting his PCR counsel provided ineffective assistance.
Facts and Proceedings.
Because it helps to understand the relevant convictions referenced in this
second PCR action, we provide the district court’s summary:
In OWOM000804, Applicant was convicted of possession of
marijuana, first offense, a serious misdemeanor, and was
sentenced—in accordance with the statute—to three days in jail.
Because it was a first offense, the state did not rely on any previous
conviction. Applicant was represented throughout the proceedings
1 As will become apparent in this opinion, a core question is to which “conviction
and sentence” Dudley is referring.
2 Section 124.401 addresses the unlawful manufacture, delivery, and possession
of various controlled-substances.
3
by attorney Kristy Arzberger. [Pled guilty—judgment and sentence
January 9, 1998].
In AGCR015377, Applicant was convicted of possession of
marijuana, second offense, a serious misdemeanor, and was
sentenced—in accordance with the statute—to ten days in jail and a
$315 fine. The predicate conviction for the second offense was
OWOM000804. Attorney Cynthia Foos represented Applicant
throughout these proceedings. [Pled guilty—judgment and sentence
October 25, 2006].
In AGCR016752, Applicant was convicted of possession of
marijuana, first offense, a serious misdemeanor, and was
sentenced—in accordance with the statute—to two days in jail.
Because it was a first offense, the state did not rely on any previous
conviction. Attorney John Sorensen represented Applicant
throughout the proceedings. [Pled guilty—judgment and sentence
April 10, 2008].
....
Chronologically, Cerro Gordo County case number
FECR019380 came next. Attorney Annette Boehlje represented
Applicant. He was convicted after jury trial of possession of
methamphetamine, third or subsequent offense, as an habitual
felony offender in count I and possession of marijuana, third or
subsequent offense, as an habitual felony offender in count II.[3] [Jury
trial—judgment and sentence initially entered March 7, 2011;
resentenced on remand in 2012]
The marijuana conviction in FECR019380 constituted one of
the predicate offenses for Cerro Gordo County case number
FECR028976, in which Applicant was convicted of possession of
methamphetamine, second offense. He was sentenced to an
indeterminate prison term not to exceed two years and a suspended
fine. Attorney Barbara Westphal represented Applicant throughout
these proceedings. [Pled guilty—judgment and sentence October 29,
2019].
(Footnotes omitted).
The State moved to dismiss the PCR action for failure to state any claim
that complied with Iowa Code section 822.4 (2020)4 and because the application
3 Dudley was also convicted of interference with official acts, a simple
misdemeanor, in SMSM014130.
4 Section 822.4 provides:
The application shall identify the proceedings in which the
applicant was convicted, give the date of the entry of the judgment
of conviction or sentence complained of, specifically set forth the
4
was time-barred as it related to his earlier convictions. And although Dudley did
not cite the specific case numbers in his applications, in its motion to dismiss, the
State acknowledged there was an earlier felony case generally mentioned by
Dudley in his application.5 Dudley’s 2012 conviction involving two felonies,
sometimes referred to as FECR019380 by the district court, resulted from a jury
finding Dudley guilty of possession of methamphetamine, third offense, and
possession of marijuana, third offense. The habitual-offender enhancement was
applied to both convictions based on Dudley’s stipulation to previous convictions.
With that backdrop, we turn to the current PCR action. At the hearing on
the application in December 2020, the district court took judicial notice of the files
and proceedings for the cases specifically referenced in Dudley’s PCR application:
cases OWOM000804, AGCR015377, AGCR016752, and FECR028976. And at
the hearing, Dudley agreed that he had the assistance of counsel in all of the four
proceedings. In its written ruling the district court found no “flaw as far as
grounds upon which the application is based, and clearly state the
relief desired. Facts within the personal knowledge of the applicant
shall be set forth separately from other allegations of facts and shall
be verified as provided in section 822.3. Affidavits, records, or other
evidence supporting its allegations shall be attached to the
application or the application shall recite why they are not attached.
The application shall identify all previous proceedings, together with
the grounds therein asserted, taken by the applicant to secure relief
from the conviction or sentence. Argument, citations, and discussion
of authorities are unnecessary.
5 The State argued:
Paragraph[s] 4 & 5 of the Amended Petition make allegations without
context or reference to which of the cases within the scope of this
[PCR] action; however, they appear to be more related to the
previous conviction, appeal, [PCR], and/or [PCR] appeal
proceedings arising from FECR019380, which has already been
thoroughly litigated, is outside the PCR statute of limitations and not
related to any of the underlying proceedings in this matter.
5
previous/predicate and/or uncounseled convictions.” As a result, the court
dismissed the PCR application as to any challenges over those convictions. 6
Dudley does not appeal that ruling.
But as to the FECR019380, the 2012 conviction, the district court held:
After reviewing his testimony and arguments, the court concludes
that Applicant’s real attack is on the convictions in FECR019380.
The convictions he complains about, the transcript he furthers, and
the motion for adjudicated law points he addresses are part of
FECR019380.
But FECR019380 is a case number that Applicant has not
raised in his original or amended application. A review of the state’s
motion to dismiss convinces the court that the state did not consider
FECR019380 to be part of the application. And at trial, even though
the court located FECR019380 as consistent with the procedural
facts Applicant was addressing at one point, I certainly never
understood that he was attacking the underlying merits of that case.
The court can only address what has been pled and what the
state has had a chance to address. None of the four cases Applicant
pled has any flaw as far as previous/predicate and/or uncounseled
convictions. No counsel in those cases were ineffective because
there was no challenge to be made on those issues. If Applicant
seeks [PCR] relief on FECR019380, then he must petition as to that
case.
Dudley narrows his appellate claim to one issue: PCR counsel was
ineffective for “failing to explicitly and clearly challenge the correct criminal cases.”7
6 Dudley does not appeal the dismissal as to the 2019 conviction (case
FECR028976) by the district court. Instead, his appeal focuses on the 2012
conviction (FECR019380) and its implications.
7 While Dudley does not ask us to reconsider these issues, we note his pro se
application alleged that: (1) Dudley’s felony convictions were enhanced by
uncounseled misdemeanor offenses, (2) the court considered an incorrect criminal
history to support an enhanced drug conviction, and (3) other nonspecific
ineffective-assistance-of-counsel claims.
Once appointed, Dudley’s counsel appeared and amended the PCR
petition to add: (4) Dudley’s third offense convictions related to marijuana and were
not on a drug track, so he should have been sentenced to an aggravated
misdemeanor, not a felony; (5) the paraphernalia was not in fact marijuana-related;
(6) a motion for adjudication of law points was never addressed by the district court;
6
Dudley requests a remand so that a different judge can review the correct cases
in a PCR context. Dudley characterizes this failure as his PCR counsel’s lack of
preparation for the hearing on his PCR application. On appeal, the State responds
that Dudley suffered no harm from the dismissal because the PCR action is time-
barred and any issues related to the 2012 convictions are precluded from
consideration because of an earlier PCR action from that specific case. See
Dudley v. State (Dudley II), No. 13-1754, 2014 WL 7343432 (Iowa Ct. App. Dec.
24, 2014).
Standard of Review.
“We generally review a district court’s denial of an application for [PCR] for
errors at law.” Doss v. State, 961 N.W.2d 701, 709 (Iowa 2021). Our review is de
novo “[w]hen the basis for relief implicates a violation of a constitutional
dimension.” Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018).
Analysis.
We agree with Dudley that he referenced his jury convictions for the two
2012 felonies and asked that it be considered in his PCR hearing. Much confusion
exists in the record, but based on Dudley’s reference to these felony convictions
generally in his pro se PCR application, the State’s discussion of those convictions
in its motion to dismiss, and the muddled record at the hearing, at least Dudley
understood what he wanted considered.8 But as we sit at this point of the appeal,
and (7) counsel should not have allowed the court to find him guilty of any
enhancements.
8 Dudley testified in response to questions in the PCR case that “I had a jury trial
on this case here why we’re here. I had a jury trial on that.” He confirmed his
lawyer was Annette Boehlje. Dudley’s jury trial led to the 2012 convictions.
7
Dudley has not told us in any meaningful way what arguments result in a
successful vacation of the 2012 convictions. Dudley’s arguments simply highlight
his PCR counsel’s failure to specifically name the FECR019380 case, but not what
relief naming that case file would have produced if argued below. See Iowa R.
App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be
deemed waiver of that issue.”); Hrbek v. State, 958 N.W.2d 779, 788 (Iowa 2021)
(noting that failure to state or argue an issue or cite authority in support of an issue
may be seen as waiver of that issue). At its core, Dudley argues he made an
uncounseled plea in an earlier misdemeanor case (SMSM014130) and so that
misdemeanor conviction should not have been considered for sentencing
enhancements for the 2012 felony methamphetamine conviction. Even so, with
the passage of time, consideration of his felony convictions from 2012 cannot
result in a successful PCR ruling. This is true based on the record available to us
for review, so we address his claims on the merits.
As we see it, Dudley’s first hurdle is the three-year statute of limitations that
defines the parameters for the filing of a PCR action. The State argued that the
“2012 conviction could not possibly be remedied in this [PCR] action—even by the
very best attorney—because any claim would be time barred and precluded by a
previous [PCR] case.” Iowa Code section 822.3 defines these parameters
applicable to Dudley’s PCR as follows:
[A]pplications must be filed within three years from the date the
conviction or decision is final or, in the event of an appeal, from the
date the writ of procedendo is issued. However, this limitation does
not apply to a ground of fact or law that could not have been raised
within the applicable time period.
An allegation of ineffective assistance of counsel in a prior
case under this chapter shall not toll or extend the limitation periods
8
in this section nor shall such claim relate back to a prior filing to avoid
the application of the limitation periods. . . .
Because a PCR action, on the same facts, cannot serve as a vehicle for re-litigation
of issues previously decided, “the principle of Res judicata bars additional litigation
on this point.” State v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971) (citation omitted);
see also Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009). With a
history of several filings over the 2012 conviction, we describe those proceedings
to highlight what has already been argued and decided.
On Dudley’s direct appeal, we vacated illegally ordered attorney fees, but
otherwise affirmed the convictions and sentences on the two 2012 felony
controlled-substance offenses. State v. Dudley (Dudley I), No. 11-0413, 2012 WL
170738, at *6 (Iowa Ct. App. Jan. 19, 2012). There Dudley raised issues over the
sentencing enhancements as here, and we said:
Dudley contends he was improperly convicted of felonies where he
possessed amounts of marijuana and methamphetamine that would
only sustain misdemeanor convictions. But Dudley’s convictions are
subject to enhanced sentences under both Iowa Code chapters 124
and 902.
....
. . . Dudley’s offenses were classified as class “D” felonies
pursuant to section 124.401(5) based on his prior drug-related
convictions, as well being a habitual offender under section 902.9(3).
Id. Next, Dudley applied for PCR and at first claimed the trial court was without
authority to impose sentencing enhancements in each count or impose the habitual
offender sentencing enhancement, contending his conviction for possession of
drug paraphernalia, a simple misdemeanor, should not be used to enhance the
charge. Dudley II, 2014 WL 7343432, at *1–3 (noting that Dudley stipulated just
before trial that he had prior drug and felony convictions impacting the
9
enhancement statute). Much like the arguments here, in the first PCR in case
FECR019380 we noted:
The trial information listed four prior controlled substance
convictions—January 1998, April 2002, October 2006, and April
2008. During the PCR proceedings, Dudley claimed the possession
of marijuana, third offense, was enhanced from an aggravated
misdemeanor based on an uncounseled simple misdemeanor
possession of drug paraphernalia prior offense. Dudley also claimed
the prior offenses for the possession of methamphetamine, third
offense, were “two possession of marijuana convictions and one
possession of drug paraphernalia conviction.”
The trial information listed seven prior felony convictions—
May 1984 (second-degree burglary), January 1992 (second-degree
burglary), August 1998 (forgery), August 1999 (second-degree theft),
July 17, 2002 (operating while intoxicated on 10/27/2001, third
offense), July 25, 2002 (operating while intoxicated on 2/4/2002, third
offense), and October 2009 (operating while intoxicated on 3/5/2009,
third or subsequent offense).
Id. at *1 n. 2. While Dudley approached his uncounseled misdemeanor’s effect on
the sentencing enhancement under a cruel-and-unusual-punishment theory, we
said “the gravity here is enhanced by Dudley's lengthy criminal record—four prior
drug crimes and seven prior felonies.” Id. at *9. We ultimately rejected the claim.
Id.
Finally, in 2015, Dudley challenged the sentences imposed in the felony
controlled-substances offense case in a motion to correct illegal sentences. The
district court denied the motion, and Dudley appealed. There we discussed
Dudley’s claim that “the sentences imposed upon the felony convictions were
illegal under [State v. Young, 863 N.W.2d 249 (Iowa 2015)][9] because the
9 In Young, our supreme court held:
[U]nder article I, section 10 of the Iowa Constitution, an accused in a
misdemeanor criminal prosecution who faces the possibility of
imprisonment under the applicable criminal statute has a right to
counsel. When a right to counsel has not been afforded, any
10
predicate convictions were improperly enhanced with an uncounseled
misdemeanor.” We decided that:
We need not decide whether Young would apply retroactively. For
each controlled-substance count with which Dudley was charged,
the trial information listed four predicate controlled-substance
convictions—January 1998, April 2002, October 2006, and April
2008. Dudley asserts the April 2002 conviction was an uncounseled
plea, which cannot be used to enhance punishment. But Dudley
does not challenge the other three predicate controlled-substance
convictions, which support an enhancement. Consequently, Young
is of no consequence, and we reject Dudley’s claim the sentences
are illegal.
State v. Dudley (Dudley III), No. 15-2180, 2017 WL 702362, at *1 (Iowa Ct. App.
Feb. 22, 2017) (footnote omitted). Now, in Dudley’s current PCR, the district court
declined to consider the arguments over the 2012 conviction and directed Dudley
to file a new application if he sought a PCR ruling on that case. But, unless Dudley
has some claim not addressed here on our review that extends the statute of
limitations, the sand has run out in the hourglass.
To the extent that Dudley seeks to set aside his 2012 conviction, the PCR
statute of limitations applies and would bar his claims. Procedendo issued in
Dudley’s direct appeal in 2012—more than seven years before he filed this PCR
action. See Iowa Code § 822.3 (requiring applications to be filed “within three
years . . . from the date the writ of procedendo is issued” “in the event of an
appeal”). Unless Dudley can show there was “a ground of fact or law that could
not have been raised within the applicable time period,” he cannot navigate around
that statutory limitation. See id.; see also Schmidt v. State, 909 N.W.2d 778, 798–
subsequent conviction cannot be used as a predicate to increase the
length of incarceration for a later crime.
863 N.W.2d at 281.
11
99 (Iowa 2018); Fischer v. State, No. 18-0450, 2019 WL 1473066, at *2 (Iowa Ct.
App. Apr. 3, 2019) (concluding that “all of [the applicant’s] arguments were
available to him within th[e] three-year period . . . and Schmidt [which allowed for
freestanding actual innocence claims] does not provide an additional exception
that is applicable to [the applicant]”). Because Dudley cannot overcome the time-
bar to challenge his 2012 convictions, his PCR counsel did not provide ineffective
assistance by failing to list FECR019380 on the amended PCR application. See
State v. Halverson, 857 N.W.2d 632, 635 (Iowa 2015) (“Counsel, of course, does
not provide ineffective assistance if the underlying claim is meritless.”).
Still, we are able to discern Dudley’s claims from the record even though he
could not name the specific case number. During the trial, Dudley mentioned the
implications of Young and argued his uncounseled misdemeanor conviction could
not enhance his sentences. Same argument, different day—Dudley’s claim that
new law might overcome the statute of limitations fails because he made those
arguments before and we decided that issue adverse to him. See Dudley II, 2014
WL 7343432, at *2–3; Dudley III, 2017 WL 702362, at *1. These claims are stale
as Dudley has made arguments over the uncounseled drug paraphernalia
conviction in earlier proceedings. And, in his first PCR appeal, we noted that claim
had been made but abandoned in his first PCR trial. Dudley II, 2014 WL 7343432,
at *2.
The other claim made by Dudley was described in this exchange with his
PCR counsel:
Q. And in that motion, [counsel in the 2012 conviction]
addressed the fact that upon closer examination of the minutes of
testimony, the prior convictions under Iowa Code Section 124 for
12
possession of marijuana—were possession of marijuana. As a result
of those conviction, your sentencing enhancement should remain on
the marijuana track, not the other drug tracks; is that correct?
A. Right.
And then, in a follow-up discussion between Dudley and his PCR counsel, this
contention was made:
Q. So they used the marijuana paraphernalia device for
enhancement, saying you had marijuana. But in order to enhance it
to a felony, a judge would have had to [find] that that paraphernalia
was not marijuana use related. A. Right.
Q. And did any judge find that? A. No.
Q. All right. Good. We’re doing good now. So, in addition to
the fact that these previous convictions you had were given without
assistance of counsel, the charges should have never been
enhanced to felonies. A. That’s correct.
Q. And that’s what we’re talking about here today. A. Yes.
Q. We’re not talking about a doggone other thing other than
that; right? A. Okay. Right.
On this record, we find the statute of limitations bars the PCR claim. Again, this
claim does not implicate new facts or law that could sidestep the application of the
statute of limitations. Likewise, similar arguments were made about the
enhancements in the earlier proceedings involving the 2012 conviction and these
arguments could have been made there as well. See Dudley I, 2012 WL 170738,
at *6; Dudley II, 2014 WL 7343432, at *1 n.1 & 2, *2–3, *6–8. As such, we noted
other predicate drug convictions supported the enhancement at sentencing. See
Dudley III, 2017 WL 702362, at *1.
Dudley’s ineffective-assistance-of-counsel claim requires that he prove both
“(1) . . . trial counsel failed to perform an essential duty, and (2) this failure resulted
in prejudice.” Sauser v. State, 928 N.W.2d 816, 818–19 (Iowa 2019) (citation
omitted); see also Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Dudley
asserts PCR counsel failed to clearly identify what specific case proceedings were
13
being challenged and so failed to perform an essential duty. But even so, under
the second prong, a defendant must show the results of the proceeding would have
been different but for counsel’s error. Sauser, 928 N.W.2d at 818–19. As Dudley
raised similar unsuccessful arguments in other proceedings related to the same
facts, we find the first PCR counsel had no duty to pursue meritless claims and no
prejudice resulted by his failure to do so. See Nguyen v. State, 878 N.W.2d 744,
754 (Iowa 2016).
Conclusion.
Even assuming Dudley’s PCR counsel had listed all of the case numbers,
Dudley’s arguments specifically related to the 2012 conviction are time-barred
along with many of his arguments previously tested under this procedural history.10
We affirm the dismissal of the second PCR over his 2012 conviction because no
challenge could succeed.
AFFIRMED.
10 Dudley advanced a general structural-error argument, but because we find he
did not prove a specific structural error, we reject this argument without further
analysis as we have addressed the 2012 conviction arguments in our de novo
review. See Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011) (setting forth three
potential types of errors of counsel that could constitute structural errors).