January 11, 2017
DAN DORRIS, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Pottawattamie County, James
S. Heckerman, Judge.
appeals the district court decision denying his request for
postconviction relief from his conviction for first-degree
D. Nerenstone, Council Bluffs, for appellant.
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Bower,
Dorris appeals the district court decision denying his
request for postconviction relief from his conviction for
first-degree murder. We find the district court did not act
improperly by failing to record a postconviction hearing, by
not having sufficiently specific findings of fact and
conclusions of law in its decision, or by denying
Dorris's request to file a pro se supplemental brief.
Dorris has not shown he received ineffective assistance of
counsel. The district court properly determined the rule
announced in State v. Heemstra, 721 N.W.2d 549, 588
(Iowa 2006), should not be retroactively applied to
Dorris's criminal conviction. We affirm the decision of
the district court.
Background Facts & Proceedings
was convicted of first-degree murder and willful injury for
the shooting death of Timothy Osbourn in Council Bluffs on
May 12, 1998. Mike Shada testified he heard the shots
and saw a gun in Dorris's hand immediately after the
shooting. Dorris told Carrie Schiesow, "I just shot
somebody today, " and Schiesow saw Dorris throw a gun
into the river. When Dorris was arrested in Arizona, he told
officers he was wanted for questioning about a murder in
Iowa. Dorris's conviction was affirmed on appeal.
State v. Dorris, No. 98-1904, 2000 WL 1005436, at *4
(Iowa Ct. App. June 28, 2000).
filed an application for postconviction relief on October 10,
2003, claiming he received ineffective assistance of counsel
during his criminal trial. On July 13, 2015,  the parties
agreed the matter would be submitted through written argument
and a stipulated record consisting of the trial court file,
the decision of the Court of Appeals, and depositions and
exhibits created for the postconviction proceeding.
district court denied the application for postconviction
relief. The court divided Dorris's claims into two
categories-strategy and lack of diligence. The court
considered Dorris's contentions within each of these
categories. The court determined Dorris did not show defense
counsel breached an essential duty or that Dorris was
prejudiced as a result of his counsel's actions. Dorris
filed a pro se motion pursuant to Iowa Rule of Civil
Procedure 1.904(2), which was denied by the court. Dorris now
claims the district court erred by not having the
postconviction proceedings recorded. He relies on Iowa Code
section 822.7 (2003), which addresses postconviction hearings
and provides, "A record of the proceedings shall be made
and preserved." He asks to have the case remanded for a
recorded evidentiary hearing. "Generally, postconviction
relief proceedings are reviewed for correction of errors at
law." Johnson v. State, 860 N.W.2d 913, 918
(Iowa Ct. App. 2014).
postconviction claims were scheduled for an evidentiary
hearing on July 13, 2015. The parties' stipulation
states, "At the evidentiary hearing scheduled for July
13, 2015, the parties agreed to submit this matter to the
court by and through written argument and a stipulated
record." The district court's ruling states,
"This matter was submitted to the court upon written
briefs and the stipulated record."
822.7 applies to evidentiary hearings. Arnold v.
State, 540 N.W.2d 243, 246 (Iowa 1995). The record does
not show an evidentiary hearing was held. If arguments or
testimony were given on July 13, 2015, it does not appear the
district court relied on them, because the parties agreed to
submit the case solely on the stipulated record, and the
district court's ruling reflects this. The parties agreed
to submit the case through written briefs, the record of the
criminal trial, depositions, and exhibits. We conclude Dorris
has not shown an error due to a failure to record the
claims the district court erred by failing to make
sufficiently specific findings of fact and conclusions of law
in the ruling on his postconviction application. Section
822.7 provides, "The court shall make specific findings
of fact, and state expressly its conclusions of law, relating
to each issue presented." Dorris listed several issues
he felt the court had failed to address in his pro se rule
1.904(2) motion, which the court summarily denied. Our review
on this issue is for the correction of errors at law. See
Johnson, 860 N.W.2d at 918.
the requirement of section 822.7 that the district court make
specific findings of fact and conclusions of law as to each
issue, we have said that substantial compliance is
sufficient." Gamble v. State, 723 N.W.2d 443,
446 (Iowa 2006). "Even if the court does not respond to
all of the applicant's allegations, the ruling
is sufficient if it responds to all the issues
determine the district court substantially complied with the
requirement of section 822.7. The court divided Dorris's
claims into two categories, listed the claims within each
category, and then reached a conclusion as to each category.
The court's ruling responded to all of the issues raised
by Dorris, although it did not separately address each
allegation, and this is sufficient to comply with section
822.7. See id.
claims the district court erred by denying him the
opportunity to file a pro se brief. As noted above, the
parties agreed to submit the case to the district court
through written arguments and a stipulated record.
Dorris's postconviction counsel submitted a brief on
October 18, 2015. Dorris filed a pro se motion on November 2,
2015, and sought a continuance to permit him to file a
supplemental brief. The court stated, "[Dorris] is given
an opportunity to confer with counsel and make a
determination whether a supplemental brief or modified
proposed order should be filed by counsel, and same should be
submitted . . . by November 30, 2015." Dorris filed a
"reply" asking to be permitted to file a pro se
supplemental brief if he was not able to have the matter
resolved with counsel by November 30, 2015. No action was
taken by the court in regard to this "reply." On
November 23, 2015, postconviction counsel filed a motion for
leave to file a replacement brief, which the district court
conclude Dorris had an adequate opportunity to submit his pro
se issues to the court. The replacement brief filed by
postconviction counsel on November 23, 2015, includes several
issues under the caption, "Applicant's (Pro-Se)
Additions to Brief Containing Additional Claims of
Ineffective Assistance of Counsel, " and contains
several pages of discussion about those issues. Dorris did
not make any further requests to submit a supplemental pro se
brief after the replacement brief was filed. We conclude the
replacement brief filed by postconviction counsel adequately
included all of the pro se issues Dorris sought to raise in
this postconviction proceeding. We conclude Dorris was not
precluded from raising his pro se issues before the district
review claims of ineffective assistance of counsel de novo.
State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015).
"To prevail on a claim of ineffective assistance of
counsel, the claimant must show counsel failed to perform an
essential duty and prejudice resulted." State v.
Ary, 877 N.W.2d 686, 705 (Iowa 2016). An applicant has
the burden to establish a claim of ineffective assistance of
counsel. Ennenga v. State, 812 N.W.2d 696, 701 (Iowa
Dorris claims he received ineffective assistance because
defense counsel did not adequately investigate the deal the
State made with Shada. He points out the prosecutor in his
criminal trial, Jeffrey TeKippe, was later convicted of
drug-related crimes. Dorris states the nature of the deal made
between Shada and TeKippe concerning Shada's testimony in
Dorris's criminal trial was not thoroughly investigated.
cross-examination in the criminal trial, Shada testified he
had been granted immunity for any drug-related crimes in
exchange for his testimony. On redirect, Shada testified he
had no immunity whatsoever with respect to the shooting. The
order granting Shada limited immunity was presented as an
exhibit in Dorris's criminal trial. Dorris does not
propose what further investigation into the deal between
Shada and the State would have revealed or how the results of
further investigation would have affected the result of the
trial. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa
1994). It is not enough to claim an attorney should have done
a better job; "[t]he applicant must state the specific
ways in which counsel's performance was inadequate and
how competent representation probable would have changed the
outcome." Id. We conclude Dorris has not shown
he received ineffective assistance of counsel on this ground.
Dorris also claims he received ineffective assistance because
defense counsel did not vigorously pursue access to police
reports and witness statements. Prior to trial, defense
counsel filed a "Request for Production and
Disclosure." During a hearing on the request, defense
counsel stated, "We have discovered evidence which I
think can fairly be labeled exculpatory, in depositions in
this case." The State resisted providing Dorris with
incident reports prepared by law enforcement officers prior
to the time the officers testified, and the district court
denied Dorris's request for disclosure of the reports.
The court ordered the State to provide Dorris with recorded
witness statements. Dorris claims defense counsel should have
pursued access to the reports.
Dorris does not propose what was in the officers'
incident reports or how access to the reports would have
impacted his case. See State v. Astello, 602 N.W.2d
190, 198 (Iowa Ct. App. 1999) ("[Defendant] must state
the specific ways in which counsel's performance was
inadequate and identify how competent representation probably
would have changed the outcome."). It is not enough for
an applicant to simply state how defense counsel could have
done a better job. Burgess v. State, 585 N.W.2d 846,
847 (Iowa Ct. App. 1998). We conclude Dorris has not shown he
received ineffective assistance of counsel on this ground.
Dorris claims he received ineffective assistance from
postconviction counsel because there was no meaningful
investigation into whether TeKippe engaged in prosecutorial
misconduct in Dorris's case, prior to his later criminal
conviction. TeKippe was convicted nearly ten years after he
was involved in the prosecution in Dorris's criminal
trial. Dorris has not made any showing of how the
prosecutor's subsequent legal problems impacted
Dorris's criminal trial many years earlier. See State
v. Martin, 587 N.W.2d 606, 609 (Iowa Ct. App. 1998)
(noting an applicant must state the specific ways in which
counsel's performance was inadequate and identify how
competent representation probably would have changed the
outcome of the case).
Dorris briefly claims he received ineffective assistance of
counsel because defense counsel showed an unwillingness to
pursue investigation and interview potential witnesses and
failed to object to the prosecution's use of a gun that
was not the murder weapon. The random mention of an issue,
without elaboration or supporting authority, is not
sufficient to raise the issue for consideration on appeal.
State v. Mann, 602 N.W.2d 785, 788 n.1 (Iowa 1999)
(citing Soo Line R.R. v. Iowa Dep't of Transp.,
521 N.W.2d 685, 689 (Iowa 1994)). We, therefore, do not
consider these claims.
Retroactive Application of Heemstra
claims the Iowa Supreme Court's decision in
Heemstra, 721 N.W.2d at 558, should be retroactively
applied in his case. In Dorris's criminal trial, held in
1998, the jury was instructed it could find Dorris guilty if
he killed Osbourn with premeditation or if Dorris was
participating in the offense of willful injury. The jury
found Dorris guilty of first-degree murder and willful
years later, the Iowa Supreme Court decided "if the act
causing willful injury is the same act that causes the
victim's death, the former is merged into the murder and
therefore cannot serve as the predicate felony for
felony-murder purposes." Heemstra, 721 N.W.2d
at 558. The court determined the new rule would only apply to
cases not finally resolved on direct appeal at that time.
Id. In Goosman v. State, 764 N.W.2d 539,
545 (Iowa 2009), the court again stated the rule announced in
Heemstra would not be applied retroactively. More
recently, in Nguyen v. State, 878 N.W.2d 744, 759
(Iowa 2016), the court concluded its decision not to apply
Heemstra retroactively did not violate the due
process, separation of powers, or equal protection clauses of
the Iowa Constitution or the Equal Protection Clause of the
United States Constitution.
conclude the district court properly determined the rule
announced in Heemstra should not be retroactively
applied in Dorris's criminal case.
affirm the decision of the district court.
 Dorris was sentenced to life in prison
on the charge of first-degree murder. His sentence for
willful injury was merged into his life sentence.
 It is not entirely clear from the
record what caused the delay of more than eleven years from
the time the postconviction application was filed until it
was submitted to the district court for
 Dorris also sought transcripts from
July 13, 2015, and this request was denied by the district
court. The record does not show an evidentiary hearing was
held on July 13, 2015. In any event, any hearing that was
held was not recorded, so no transcripts were
 See State v. TeKippe, No.
07-1840, 2009 WL 1492660 (Iowa Ct. App. May 29,