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Killings v. State

Court of Appeals of Iowa

May 3, 2017

ALLEN KILLINGS, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson (pretrial) and Lawrence P. McLellan (trial), Judges.

         Applicant appeals from the denial of his claims for postconviction relief. AFFIRMED.

          Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.

          Thomas 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. [*]

          MCDONALD, Judge.

         Allen 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.

         We 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).

         To 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).

         By way 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.

         At 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 [the victim].
2. [The victim] died as a result of being beaten or strangled.
3. The defendant acted with malice aforethought.
4. Either:
a. The defendant acted willfully, deliberately, premeditatedly, and with specific intent to kill ...

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