from the Iowa District Court for Linn County, Mitchell E.
Braggs appeals the denial of his application for
postconviction relief. AFFIRMED.
Wallace L. Taylor of the Law Offices of Wallace L. Taylor,
Cedar Rapids, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
DANILSON, Chief Judge.
Braggs was convicted following a jury trial of first-degree
burglary and second-degree sexual abuse. In State v.
Braggs, No. 09-1932, 2011 WL 2697740 (Iowa Ct. App. July
13, 2011), this court addressed his several allegations of
error and affirmed his convictions. We will not
restate the background facts because they are set out at
length in that prior opinion. Braggs, 2011 WL
2697740, at *1-3.
then filed an application for postconviction relief (PCR),
alleging multiple counts of ineffective assistance of trial
and appellate counsel, requesting relief based upon newly
discovered evidence, and contending there is insufficient
evidence to support his convictions. The district court
carefully and thoroughly addressed each of his contentions
and denied relief. On appeal, Braggs asserts the district
court erred in rejecting his claims that trial counsel was
ineffective in failing to obtain an expert witness to testify
about the reliability of eyewitness identification, and his
appellate attorney was ineffective in failing to challenge
the trial court's admission of rebuttal testimony by the
DCI chemist and failing to present a claim of prosecutorial
misconduct in closing arguments.
review of PCR proceedings is generally for correction of
errors at law. Lamasters v. State, 821 N.W.2d 856,
862 (Iowa 2012). However, we review constitutional claims
such as ineffective assistance of counsel de novo. Nguyen
v. State, 878 N.W.2d 744, 750 (Iowa 2016).
order to succeed on a claim of ineffective assistance of
counsel, an applicant must show counsel (1) breached an
essential duty and (2) prejudice resulted. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). "If we
conclude a claimant has failed to establish either of these
elements, we need not address the remaining element."
Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).
"[W]e begin with the presumption that the attorney
performed competently. Moreover, we avoid second-guessing and
hindsight." Ledezma v. State, 626 N.W.2d 134,
142 (Iowa 2001) (citations omitted). An accused is not
entitled to perfect representation but only that level of
representation that is within the normal range of competency.
State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).
note, first, Braggs' trial attorney thoroughly prepared
for the criminal proceedings. We agree with the PCR
court's characterization of his representation: "Mr.
Braggs' trial counsel, Raphael Scheetz, obviously
prepared his case meticulously and extensively. From the
transcript of the trial, it appears that Mr. Scheetz raised
timely objections, engaged in effective and focused
cross-examination, and raised approximately [nineteen]
trial three witnesses-the victim and her two roommates-were
asked to make eyewitness identifications of Braggs. The
sexual abuse victim informed police at the time that her
assailant had his face wrapped throughout the incident and
all she ever saw was his eyes, and consequently, she was
never shown a photo lineup. She did, however, identify Braggs
at the time of trial about two years later. Attorney Scheetz
testified he did not consider an expert witness for this
purpose because he felt "it was of common
understanding" an identification made based on just
someone's eyes "would be unreliable." We
conclude trial counsel's strategic decision was
reasonable. See Ledezma, 626 N.W.2d at 143 (noting
"strategic decisions made after 'thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable'" (citation omitted));
see also Osborn v. State, 573 N.W.2d 917, 924 (Iowa
1998) (noting reasonable "[t]actical decisions . . . are
immune from subsequent attack by an aggrieved defendant
claiming ineffective assistance of counsel").
victim's roommates were presented with photo lineups. One
was unable to identify anyone in the photo lineup, and her
testimony remained consistent through the trial. The other
did identify a photo of Braggs as being the person she saw
outside of the apartment complex that morning but qualified
her identification both at the time of the photo lineup and
in her testimony at trial that she was only seventy-five
percent certain of her selection. Braggs asserts trial
counsel should have engaged an expert witness to testify as
to the reliability of photo lineups and eyewitness
identifications. At the PCR trial, Braggs called Professor
Jason Chen, an associate professor of psychology at Iowa
State University, to testify about research investigating the
reliability of photo lineups and eyewitness identification.
Our review of Professor Chen's testimony does not
convince us such testimony at ...