from the Iowa District Court for Henry County, Lucy J. Gamon,
petitioner appeals the dismissal of his application for
William Monroe of Law Office of William Monroe, Burlington,
J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
Kensett was convicted of "manufacturing more than five
grams of methamphetamine, a class B felony, in violation of
Iowa Code section 124.401 (1)(b)(7) (2009), and possessing
anhydrous ammonia and lithium with the intent that the
products be used to manufacture methamphetamine, both class D
felonies, in violation of Iowa Code section 124.401
(4)(b)." State v. Kensett, No. 11-0621, 2012 WL
3026528, at *1 (Iowa Ct. App. July 25, 2012). This court
affirmed his convictions on direct appeal. See id.
appeal, Kensett contends the district court erred in denying
his application for postconviction relief. The only claim at
issue on appeal is Kensett's claim that his trial counsel
operated under a conflict of interest because the magistrate
who signed the search warrant, which resulted in evidence
obtained and used in the underlying criminal proceeding, was
Kensett's trial counsel's law partner. Kensett
contends his trial counsel thus had divided loyalties. The
postconviction court denied Kensett's claim, and Kensett
timely filed this appeal.
Kensett's claim implicates the constitutional right to
the assistance of counsel, our review is de novo. See
State v. Vaughan, 859 N.W.2d 492, 497 (Iowa 2015)
("We review conflict-of-interest allegations de
novo."). With respect to conflict-of-interest claims,
automatic reversal is required under the Sixth Amendment only
when the trial court refuses to inquire into a conflict of
interest over defendant's or counsel's objection.
When neither the defendant nor his or her attorney raises the
conflict of interest, the defendant is required to show an
adverse effect on counsel's performance to warrant
reversal, even if the trial court should have known about the
conflict and failed to inquire.
Id. at 500 (citation omitted). "[A]n adverse
effect occurs when counsel fails to pursue a plausible
strategy or tactic due to the existence of a conflict of
interest." Id. at 501.
contends he need not establish the potential conflict of
interest adversely affected counsel's performance. He
contends automatic reversal is required. We respectfully
disagree. Neither Kensett nor his trial counsel raised the
potential conflict of interest in the underlying criminal
proceeding. Kensett's contention is thus contrary to
Vaughan. See id. at 500.
on de novo review of the record, there is no evidence the
potential conflict of interest had an adverse effect on
counsel's performance. The record shows Kensett's
privately-retained trial counsel filed a motion to suppress
evidence and vigorously challenged the validity of the search
warrant. Trial counsel attacked the credibility of the
confidential informant and argued the warrant itself was
predicated on unlawfully obtained information. The district
court in the underlying criminal proceeding denied the motion
to suppress evidence. The validity of the warrant was again
challenged on direct appeal, and this court rejected that
challenge. See Kensett, 2012 WL 3026528, at *5
(affirming denial of motion to suppress evidence). There is
no showing of what, if anything, counsel should have done
differently in challenging the motion. There is no showing
trial counsel failed to pursue a plausible argument,
strategy, or tactic. In the absence of evidence showing the
potential conflict of interest had an adverse effect on trial
counsel's decision with respect to the suppression
motion, we are "left with sheer speculation, and that is
not enough." Mediina v. United States, CR No.
04-043-ML, 2008 WL 4974597, at *9 (D.R.I. Nov. 21, 2008)
(denying application for postconviction relief where offender
asserted a claim that potential conflict of interest had an
adverse effect on trial counsel's decision to forego a
motion to suppress evidence) (quoting Reyes-Vejerano v.
United States, 276 F.3d 94, 100 (1st Cir. 2002)).
these reasons, the district court did not err in denying