from the Iowa District Court for Polk County, Mary Pat
Gunderson (pretrial) and Lawrence P. McLellan (trial),
appeals from the denial of his claims for postconviction
Christopher R. Kemp of Kemp & Sease, Des Moines, for
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Bower, P.J., McDonald, J., and Goodhue, S.J.
Killings was convicted of murder in the first degree. This
court affirmed his conviction on direct appeal. See State
v. Killings, No. 09-0739, 2010 WL 3894161, at *1 (Iowa
Ct. App. Oct. 6, 2010). Killings now appeals from the denial
of his application for postconviction relief, contending his
postconviction counsel was ineffective in two respects.
First, Killings claims his postconviction counsel
constructively denied Killings the right to counsel by
failing to present any meaningful challenge to the
conviction. Second, Killings argues his postconviction
counsel was ineffective for failing to challenge the
felony-murder instruction provided to the jury.
begin by noting there is no constitutional right to
postconviction relief, postconviction counsel, or effective
assistance of postconviction counsel. See Williams v.
Pennsylvania, 136 S.Ct. 1899, 1920 (2016) (Thomas, J.,
dissenting); Montgomery v. Louisiana, 136 S.Ct. 718,
746 (2016) (Thomas, J., dissenting) ("Because the
Constitution does not require postconviction remedies, it
certainly does not require postconviction courts to revisit
every potential type of error."). The legislature has
created a postconviction relief procedure codified in chapter
822 of the Iowa Code. The Iowa Supreme Court has recognized a
statutory right to counsel in chapter 822 proceedings and a
corresponding statutory right to the effective assistance of
postconviction counsel. See Dunbar v. State, 515
N.W.2d 12, 15 (Iowa 1994).
prevail on a claim of ineffective assistance of
postconviction counsel, the applicant must "ultimately
show that his attorney's performance fell outside a
normal range of competency and that the deficient performance
so prejudiced him as to give rise to the reasonable
probability that, but for counsel's errors, the result of
the proceeding would have been different." Id.
Our review of ineffective-assistance claims-whether
constitutional or statutory-is de novo. See Lamasters v.
State, 821 N.W.2d 856, 862 (Iowa 2012).
of background, on July 9, 2007, a passing motorist observed
what appeared to be dead body on a porch. The motorist and
her passenger stopped to investigate. They discovered a dead
body, later identified as Margaret Gottschalk. They called
the police. Evidence collected from the scene was sent to the
Iowa Department of Criminal Investigation for DNA testing.
DNA from blood on the victim's clothing matched Allen
Killings. DNA obtained from a cigarette butt at the scene
matched the victim and Killings. Killings denied involvement
in Gottschalk's death, but admitted "he might have
had sex with her. Later, he denied that."
Killings, 2010 WL 3894161, at *1.
trial, the jury was instructed on premeditated murder and
felony murder as follows:
The State must prove all of the following elements of murder
in the first degree:
1. On or about July 9, 2007, the defendant beat or strangled
2. [The victim] died as a result of being beaten or
3. The defendant acted with malice aforethought.
a. The defendant acted willfully, deliberately,
premeditatedly, and with specific intent to kill ...