Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon, Judge.
The opinion of the court was delivered by: Danilson, J.
John R. Allard appeals denial of his application for post-conviction relief and alleges ineffective assistance of post-conviction counsel. AFFIRMED.
Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.
John R. Allard appeals the district court dismissal of his application for post-conviction relief. Allard contends his post-conviction counsel committed structural error, and thus rendered ineffective assistance. Because we conclude Allard fails to establish structural error, we affirm.
I. Background Facts and Proceedings.
A jury found Allard guilty of assault causing serious injury, domestic abuse assault, and harassment in the first degree. Allard appealed, alleging insufficient evidence for conviction and a habitual offender determination.*fn1 This court affirmed all convictions.
Allard subsequently filed a petition alleging ineffective assistance of trial and appellate counsel. Allard's application was denied after hearing. Counsel appointed for the instant appeal filed a motion to withdraw, alleging frivolous appeal, which was denied under the recent change to Iowa Rule of Appellate Procedure 6.1005(1).
In his application for post-conviction relief, Allard alleged his trial counsel was ineffective because he allowed the alleged victim to testify as to hearsay statements including prior bad acts, failed to introduce a psychiatric report regarding the witness's mental illness, and failed to object to opinion testimony that photographic evidence depicted blood. Allard also claimed his counsel on direct appeal was ineffective by failing to raise a speedy trial claim as a result of the 170-day delay between his jury trial and hearing on habitual offender status.
In the instant appeal, Allard alleges his post-conviction counsel was not only ineffective, but so substandard that structural error occurred; thus, he claims prejudice may be presumed. He seeks a new hearing on his application for post-conviction relief.
II. Scope and Standard of Review.
Generally, we review post-conviction proceedings for errors at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). Applications that raise an ineffective-assistance-of-counsel claim present a constitutional challenge, which we review de novo. Id. Allard has a statutory right to effective assistance of counsel on his application for post-conviction relief. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011) (citing Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa 1994) for the proposition that Iowa Code section 822.5 "provides a right to counsel in post-conviction relief proceedings which necessarily implies "effective assistance"). Although the right is statutory in origin, we still apply a de novo review. Id.
If post-conviction counsel is ineffective, the applicant may raise an ineffective-assistance claim in an appeal from the post-conviction court's denial of his application for relief. Dunbar, 515 N.W.2d at 16.
To establish a claim of ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence (1) the attorney failed to perform an essential duty and (2) prejudice resulted from the failure. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fountain, 786 N.W.2d 260, 265-- 66 (Iowa 2010). The claim fails if either element is lacking. Strickland, 466 U.S. at 697, 700; Fountain, 786 N.W.2d at 266. Accordingly, we need not ...