from the Iowa District Court for Black Hawk County, Todd A.
applicant appeals the denial of his application for
postconviction relief. AFFIRMED IN PART, REVERSED IN PART,
C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee State.
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
Moore was convicted of robbery in the first degree, in
violation of Iowa Code section 711.2 (2011); assault causing
serious injury, in violation of Iowa Code section 708.2(4);
and possession with intent to deliver marijuana while in the
immediate possession of a firearm, in violation of Iowa Code
section 124.401(1)(d) and (e). This court affirmed
Moore's conviction on direct appeal. See State v.
Moore, No. 12-2177, 2014 WL 69593, at *1-2 (Iowa Ct.
App. Jan. 9, 2014). Moore now appeals the district
court's denial of his application for postconviction
relief, asserting numerous claims of ineffective assistance
of trial counsel, direct-appeal counsel, and postconviction
relevant offense conduct was set forth in this court's
In 2010, Belinda Robinson became acquainted with Alonzo
Henderson through Facebook. Henderson owned a restaurant in
Waterloo and invited Robinson to move into his trailer in
Cedar Falls and work in his restaurant. Robinson did so, but
Henderson became physically abusive and did not pay Robinson
for her work in the restaurant.
Due to their acquaintance, Robinson was aware Henderson was a
drug dealer and that he was soon to receive a large quantity
of marijuana and some quantity of cocaine. At trial, Robinson
testified the plan was to rob Henderson of the drugs and
"for [Henderson] to get roughed up and if need be then
to use duct tape if they had to, but just basically to rough
him up." Robinson included in the plan Jacque Dukes,
Crystal Cooper, and Lamario Stokes. Moore is a friend of
Dukes and joined in the scheme not long before its
commission. Robinson was not aware Moore was intending to
participate until the day of the robbery.
On January 26, 2011, the marijuana delivery was made to
Henderson's residence. Henderson brought in two men to
help with the drugs, William McNealy and Ryan Harper. Shortly
after the delivery, Robinson drove Harper's car to buy
cigarettes and plastic bags, and later met up with Dukes,
Stokes, Cooper, and Moore at a nearby motel. While there,
they decided to lure McNealy and Harper away from the trailer
by telling them Robinson had run out of gas in the Hy-Vee
parking lot. The group left Harper's car in the Hy-Vee
parking lot and drove back to the trailer in Dukes's car.
Robinson made the call, then the group watched as Harper and
McNealy left the trailer.
Once Harper and McNealy were gone, Moore, Dukes, and Stokes
went into Henderson's trailer. Robinson and Cooper waited
in the car. All three men were dressed in black and wore
covers over their faces. Henderson testified he was in the
kitchen when three people dressed in black kicked in the door
to his trailer, though he could not discern their race or
gender. Two of the intruders were holding guns and pointing
them at Henderson. Henderson further testified the marijuana
was clearly visible on the kitchen counter.
Henderson then walked into his bedroom. One of the intruders
followed him, and after Henderson turned around, hit him in
the head with the gun. The two began to wrestle, and a second
intruder came into the room and pointed the second gun at
Henderson while the first person backed out of the bedroom.
The first intruder stumbled, and Henderson attempted to knock
the gun out of his hand. The second intruder then opened
fire, shooting Henderson once in the arm-after which the
bullet penetrated the abdomen-and once in the leg. All three
intruders then left the trailer with the drugs. Henderson
went into the living room and looked outside but could not
see in which direction the intruders went.
Stokes also testified at trial, stating Henderson was on the
couch when he, Dukes, and Moore entered through the unlocked
front door. Stokes testified he could see the marijuana on
the kitchen island and that Moore was the one who shot
Henderson. He further testified the entire group left with
Robinson testified that as the group was driving back to
Cedar Rapids, she, Dukes, and Cooper were speaking to each
other and texting on their phones. Cooper testified Moore
told the group Henderson was "talkin' a lot of
crap" so Moore shot Henderson in the leg and arm, and
Dukes claimed he hit Henderson in the head with his gun.
However, during the struggle, Dukes dropped the gun.
The group drove to the apartment of Moore's girlfriend,
Bridget Johnson, where they divided up the marijuana. Johnson
testified Moore told her he had robbed someone in the Cedar
Rapids area and that during the robbery there was a struggle
and he shot someone in the leg.
The police were called to Henderson's home the same day.
Two spent casings were found at the scene. While the gun that
fired the bullets was not recovered, police found a pistol in
a bedroom, though it had a bent magazine that would not allow
it to fire. Marijuana residue was found throughout the
trailer, and there was a trail of marijuana leading out the
Sixth Amendment to the United States Constitution provides:
"In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his
defense." U.S. Const. amend. VI. The Supreme Court has
made the Sixth Amendment applicable to the states via
incorporation through the Fourteenth Amendment. "The
right to counsel is the right to the effective assistance of
counsel." State v. Williams, 207 N.W.2d 98, 104
(Iowa 1973). The constitutional right to counsel applies to
the assistance of trial counsel and appellate counsel; there
is no constitutional right to postconviction relief,
postconviction counsel, or the 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."). Although not required
by the constitution, the Iowa General Assembly has created a
postconviction-relief procedure codified at 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).
postconviction relief proceedings are reviewed for
corrections of errors at law." Waters v. Iowa Dist.
Ct., 783 N.W.2d 487, 488 (Iowa 2010). However, claims of
ineffective assistance of counsel are reviewed de novo.
See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).
This is true whether the claim of ineffective assistance of
counsel arises under constitution or statute. See
Killings v. State, No. 15-1061, 2017 WL 1735614, at *1
(Iowa Ct. App. May 3, 2017) ("Our review of
ineffective-assistance claims-whether constitutional or
statutory-is de novo.").
establish a claim of ineffective assistance of counsel, Moore
must show "(1) his trial counsel failed to perform an
essential duty, and (2) this failure resulted in
prejudice." Straw, 709 N.W.2d at 133 (citing
Strickland v. Washington, 466 U.S. 688, 687-88
(1984)). "The claimant must prove both elements by a
preponderance of the evidence." State v.
Madsen, 813 N.W.2d 714, 724 (Iowa 2012). Failure to
prove either element is fatal to the applicant's claim.
See Strickland, 466 U.S. at 700 ("Failure to
make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness
claim."); State v. Graves, 668 N.W.2d 860, 869
(Iowa 2003) ("A defendant's inability to prove
either element is fatal."). If the applicant fails to
meet his or her burden on either element, the court need not
address the other. See Dempsey v. State, 860 N.W.2d
860, 868 (Iowa 2015) ("If we conclude a claimant has
failed to establish either of these elements, we need not
address the remaining element.").
first element requires proof "that counsel made errors
so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland, 466 U.S. at 687.
"[C]ounsel's performance is measured against the
standard of a reasonably competent practitioner."
State v. Begey, 672 N.W.2d 747, 749 (Iowa
2003). There is a strong presumption of counsel's
competence. See Strickland, 466 U.S. at 689
("Judicial scrutiny of counsel's performance must be
It is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
Id. (citation omitted). "Miscalculated trial
strategies and mere mistakes in judgment normally do not rise
to the level of ineffective assistance of counsel."
Lando v. State, 804 N.W.2d 248, 251 (Iowa 2011).
"[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment." Strickland, 466 U.S. at 691. Under
the second element, the applicant is required to show
"that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable." Id. at 687. It is not enough that
the applicant show the error had only some effect on the
outcome, as nearly any act or omission by counsel results in
some change to the outcome one way or another, but not
necessarily in a way that would undermine its reliability.
See id. at 693. Rather, "[t]he defendant must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694.
argues his counsel was ineffective in failing to challenge
the sufficiency of the evidence supporting the robbery
conviction. Specifically, Moore contends there was
insufficient evidence to support the predicate theft because
marijuana is contraband per se and contraband per se is not
"property" subject to theft.
first turn to the elements of the offense.
A person commits a robbery when, having the intent to commit
a theft, the person does any of the following acts to assist
or further the commission of the intended theft or the
person's escape from the scene thereof with or without
the stole property:
(a) Commits an assault upon another.
(b) Threatens another with or purposely puts another in fear
of immediate serious injury.
(c) Threatens to commit immediately any forcible felony.
Iowa Code § 711.1(1) (2015). "A person commits
theft when the person . . . [t]akes possession or control of
the property of another, or property in the possession of
another, with the intent to deprive the other thereof."
Iowa Code § 714.1. Property is defined as "anything
of value, whether publicly or privately owned." Iowa
Code § 702.14.
argues contraband per se is not "property" within
the meaning of the statute. The supreme court has
"recognized that certain property, the possession of
which is illegal, is contraband per se, e.g., heroin
and other illegally controlled substances, moonshine and
sawed-off shotguns." State v. Ludtke, 446
N.W.2d 797, 800 (Iowa 1989). The supreme court has also
stated that "[c]ontraband per se may not legally be
possessed, and no valid ownership interest may exist in such
property." Id. These cases are limited to the
proposition that Iowa does not recognize a property interest
in contraband per se for the purposes of forfeiture law or
does recognize a property interest in contraband per se
sufficient to support criminal liability for theft. In
State v. Sego, 140 N.W. 802 (Iowa 1913), the Iowa
Supreme Court held stealing contraband liquor would support a
conviction for larceny. In State v. May, 20 Iowa
305, 308 (1866), the court stated while possessing
"liquor as an article of traffic is prohibited, and is
liable when kept as such, to be seized and destroyed,
nevertheless, until this is done, it is in its essential
nature property" and "it is a principle or rule of
property, as old as the common law itself, that the
possession of one is good against all others, who cannot show
a better right of possession." The court held, just as
"he who steals a stolen article of property from a
thief, may himself be convicted notwithstanding the
criminality of the possession by his immediate predecessor in
crime, " a thief who steals contraband per se can be
prosecuted for larceny or robbery because "[l]arceny is
a crime against society, and should be punished on account of
its own inherent meanness and criminality."
May, 20 Iowa at 308-09 (stating larceny is a
"distinct crime" from possession of contraband and
"both, to be sure, are violations of law, but each has
its own specific and appropriate penalty, and each must be
dealt with by itself").
the rule is universal that by prohibiting possession of an
item, the government does not license criminals to take it by
force or stealth from other criminals." People v.
Dillon, 668 P.2d 697, 704 n.5 (Cal. 1983). The policy
reasons supporting the rule are numerous and obvious. See
id.; see also Commonwealth v. Rourke, 64 Mass.
397, 402 (Mass. 1852) ("Each violation of law is to be
dealt with by itself. The felonious taking has its
appropriate and specific punishment, so also has the unlawful
acquisition."); People v. Otis, 139 N.E. 562,
562 (N.Y. 1923) (stating the contrary result would
"license theft" and "encourage the
transportation, distribution, and consumption of [the
contraband] by the thief").
is not required to make an argument contrary to settled and
universal law. See Graves, 668 N.W.2d at 881
("Trial counsel has no duty to raise an issue that has
no merit."); State v. Davis, No. 14-1976, 2016
WL 1677591, at *5 (Iowa Ct. App. Apr. 27, 2016) ("Nor
does counsel have a duty to raise and relitigate issues
already decided."). Moore's counsel did not breach
an essential duty in failing to argue this point. The
district court did not err in denying this ground for relief.
next challenges his robbery conviction. By way of background,
the State had several theories of liability with respect to
the robbery charge. The marshaling instruction for robbery in
the first degree allowed the jury to find Moore guilty as the
principal or as an aider and abettor. The district court also
instructed the jury on joint criminal conduct with burglary
serving as the underlying crime. The joint-criminal-conduct
When two or more persons act together and knowingly commit a
crime, each is responsible for the other's acts done in
furtherance of the commission of the crime or escape from the
scene. The defendant's guilt is the same as the other
person's unless the acts could not reasonably be expected
to be done in furtherance of the commission of the crime.
The State must prove all of the following elements for
Robbery under the theory of ...