from the Iowa District Court for Linn County, Marsha M.
Beckelman (first motion to amend), Mary E. Chicchelly (second
motion to amend), and Lars G. Anderson (trial), Judges.
Keyes appeals the denial of his application for
postconviction relief (PCR), asserting that his trial counsel
provided ineffective assistance and that the PCR court erred
in denying his motions to amend his application.
L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.
J. Miller, Attorney General, and Darrel Mullins, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
found Stephen Keyes guilty of two counts of first-degree
murder, and he was sentenced to life in prison. We affirmed
Keyes's convictions on direct appeal, but we preserved
his ineffective-assistance-of-counsel claims for possible
postconviction-relief (PCR) proceedings. See State
v. Keyes, No. 97-1997, slip op. at 1-5 (Iowa
Ct. App. May 26, 1999). Keyes timely filed a PCR application
in 1999, but trial did not take place until 2014. The PCR
court denied the application in early 2015. Keyes appeals,
raising two claims: (1) trial counsel was ineffective
regarding the cross-examination of Keyes's eight-year-old
son, and (2) the PCR court abused its discretion in denying
his motions to amend the PCR application. We conclude that
Keyes did not meet his burden to prove his trial counsel was
ineffective and that the PCR court did not abuse its
discretion in denying his motions to amend his PCR
application. We therefore affirm.
Background Facts and Proceedings.
early morning hours of December 26, 1996, Keyes's wife,
Sandra, and two-year-old son, Joshua, died in a house fire.
The State accused Keyes of setting the fire to collect
insurance proceeds and charged him with two counts of murder.
Keyes was tried to a jury in September 1997.
Agent Michael Hiles was the State's chief fire
investigator on the case. He testified concerning accelerant
detection at the fire scene by a dog trained for this
purpose. See id. at 2. Hiles was also allowed to
demonstrate the dog's ability to detect a drop of
gasoline concealed in the courtroom. See id.
"Other inculpatory evidence included Keyes's failing
marriage to Sandra, threat to kill her, and recent purchase
of substantial life and renter's insurance."
Id. Keyes was found guilty of two counts of
first-degree murder and sentenced to life in prison. See
direct appeal, this court concluded the State's
foundation for admission of Hiles's expert testimony
concerning the reaction of a dog trained in accelerant
detection was sufficient. See id. at 3-4. We also
found no error in the dog's in-court demonstration.
See id. at 5. We affirmed Keyes's convictions
and sentence and preserved for postconviction proceedings
Keyes's ineffective-assistance-of-counsel claims that
"his trial counsel was ineffective in (1) failing to
object to evidence of [Keyes's] 'check kiting'
offenses; and (2) failing to cross-examine [Keyes's] son
Michael about his recall of the events surrounding the
morning of the fire." Id.
timely filed his pro se PCR application on November 1, 1999,
setting forth three claims of ineffective assistance of
counsel. He contended his trial counsel was ineffective in
(1) failing to object to evidence of other crimes, i.e.,
Keyes's check kiting offenses, (2) failing to
cross-examine his eight-year-old son Michael concerning the
boy's recall of events at the time of the fire, and (3)
failing to object to the warrantless search and seizure of
Keyes's clothing. Keyes was appointed PCR counsel. As the
PCR court so aptly noted: "From there, this case . . .
had a sad history of progression." Keyes's eighth
PCR counsel was appointed in April 2007.
September 2008, PCR counsel moved for a continuance. Counsel
advised the court that "in spite of the multiple
attorneys that [had] been appointed, very little was
done" in the case and that he had to "essentially
begin from scratch." Due to the size and complexity of
the case, counsel requested an extension of one year to
develop the PCR record. Counsel also requested depositions
and preparation of transcripts at the State's expense,
stating Keyes's expert had "now completed his
preliminary analysis, " and the case was "finally
ready for depositions." The court granted Keyes's
April 2009 motion, PCR counsel advised that Keyes had
"obtained the services of a Dr. Gerald Hurst in Austin,
Texas, " who had worked for Keyes pro bono and
"prepared a 57 page report finding significant
infirmities in the arson investigation, " and counsel
requested funds for the expert to travel to give testimony,
as well as funds for other experts. Dr. Hurst's September
3, 2008 report was attached to the motion. The report was
very critical of Hiles, stating: "The origin and cause
investigation in the Keyes case was an exercise based on
concepts which had been long relegated to the category of old
wives tales." The State resisted, but the PCR court
granted funding for two of three requested experts.
end of 2010, PCR counsel requested another continuance and a
trial-scheduling conference. Following the conference, the
court entered a scheduling order setting deadlines of
February 15, 2011, for amendments to pleadings and March 15,
2011, for Keyes's designation of experts. Trial was set
for January 9, 2012.
March 15, along with a designation of experts, PCR counsel
filed a motion to amend the PCR application. The motion
stated counsel "inadvertently tickled this deadline for
March 15" and learned of the error when talking to the
State's counsel. PCR counsel took full responsibility for
missing the deadline by twenty-eight days and requested the
fault not be placed on Keyes. PCR counsel also stated he
"had no tactical advantage for missing the deadline, and
the contents of his Amended Application merely restate many
of the core conclusions" of Dr. Hurst's report,
which the State had had since April 2009. With the trial some
ten months away, counsel believed the State had adequate time
to prepare, but Keyes did not object to a continuance,
including the resetting of deadlines, if the State needed
additional time. The proposed amended application asserted
fourteen grounds, including the original three claims of
ineffective assistance of counsel. The State resisted, and
the PCR court denied the motion, concluding it substantially
changed the issues, prejudiced the State, and would likely
require a continuance.
status hearing was held in December 2011, and Keyes and his
counsel requested the trial date be reset. The State did not
resist a continuance, but it "reserved the right to
object in the future to any further request by [Keyes] to
amend the [application]." The court granted the motion
to reset the trial date.
status hearing was held in June 2013, and trial was again
reset- for September 2014. In July 2014, PCR counsel filed a
second motion seeking to amend the PCR application. The
proposed amended application raised ten grounds, including
two of the original ineffective-assistance-of-counsel claims.
Among other things, the motion advised that since the first
motion to amend, the Iowa Fire Marshal had officially adopted
National Fire Protection Association (NFPA) 921, a Guide for
Fire and Explosion Investigations. The State again resisted,
and the PCR court denied the motion in August 2014 for the
same reasons it stated in its prior order.
commenced in September 2014 on the three
ineffective-assistance-of-counsel claims asserted by Keyes in
his original 1999 PCR application. The PCR court declined to
reconsider the rulings previously made on the earlier motions
to amend. Though the court did not consider Keyes's
experts' testimony at trial, the court did permit Keyes
to elicit their testimony by way of an offer of proof for
appellate review. On January 30, 2015, the PCR court entered
its ruling denying Keyes's
appealed. In June 2015, the Iowa Supreme Court entered an
order for limited remand to allow the PCR court to rule on
Keyes's motions for a new trial and to amend or enlarge
pursuant to Iowa Rule of Civil Procedure
1.904(2).The PCR court denied the motions on August
24, 2015. The matter then bounced back to the supreme court
and was transferred to this court in December 2016.
appeal, Keyes argues a single ground of
ineffective-assistance-of-counsel: that his trial counsel was
ineffective for failing to impeach or more effectively
cross-examine his then eight-year-old son about the
inconsistencies in his trial testimony compared to the
child's statements given to a detective the day of the
fire. Keyes also argues the PCR court erred or abused its
discretion when it denied his motions to amend the PCR
application. We begin with Keyes's
Ineffective Assistance of Counsel.
Standard of Review ...