from the Iowa District Court for Floyd County, Christopher
Lusk appeals the denial of his application for postconviction
Priscilla E. Forsyth, Sioux City, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle,
A jury found John Lusk guilty on two counts of second-degree
sexual abuse. This court affirmed his convictions on direct
appeal. State v. Lusk, No. 15-1294, 2016 WL 4384672,
at *1 (Iowa Ct. App. Aug. 17, 2016). Lusk then filed an
application for postconviction relief (PCR), which the
district court denied. He appeals that ruling, arguing he
received ineffective assistance from his PCR counsel.
review Lusk's claims of ineffective assistance of PCR
counsel de novo. See Allison v. State, 914 N.W.2d
866, 870 (Iowa 2018) ("[W]hen a PCR petitioner claims
ineffective assistance of PCR counsel, our review is de
novo."). Typically, to succeed on an
ineffective-assistance claim, a PCR applicant must establish
that counsel breached a duty and prejudice resulted, and the
claim fails if either element is lacking. See Lamasters
v. State, 821 N.W.2d 856, 866 (Iowa 2012). However, if
counsel's representation is so deficient as to constitute
a structural error, no showing of prejudice is required.
See Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011).
That is because a structural error-an error that affects the
framework of the legal proceeding-leads to a result that is
"presumptively unreliable." Id. (citation
omitted). In other words, when structural error occurs, the
prejudice showing is not required because "such an
analysis 'would be a speculative inquiry into what might
have occurred in an alternate universe.'"
Id. (citation omitted). Examples of structural error
include counsel's failure to file an appeal against the
defendant's wishes or to respond to a motion to dismiss a
PCR application. See id. at 252-53.
asserts his PCR counsel committed structural error by failing
to engage in "meaningful adversarial testing" of
his claims. Id. at 252. He alleges his PCR counsel
left him to present and explain his PCR claims on his own,
"just asked questions and at times appeared to be
defending trial counsel," and failed to investigate,
test the expert witness's opinion, or obtain records to
bolster his argument that the children's testimony was
the product of undue influence.
support of his structural-error claim, Lusk cites to
Williams v. State, No. 17-0431, 2018 WL 1629910, at
*5 (Iowa Apr. 4, 2018) (application for further review
granted Oct. 10, 2018). There, we found PCR counsel committed
structural error by failing to present any of Williams's
claims and allowing them to be decided without a record or
adversarial testing. Williams, 2018 WL 1629910, at
*5. Similar to the allegations raised by Lusk, Williams's
"PCR counsel was less than a zealous advocate in his
examination of trial counsel" and "[h]is leading
questions provided trial counsel with an excuse for her lack
of trial preparation." Id. at *2. However, in
Williams, PCR counsel's deficiencies extended
far beyond the examination of trial counsel. Id. at
*2. Although the PCR court instructed counsel to submit a
written argument as to each of Williams's claims and the
prejudice that resulted, his counsel "failed to argue
how any of the alleged failures raised by Williams prejudiced
him" and instead "wrote the legal standard for
determining prejudice and then repeatedly informed the court
to 'see authority issue 1.'" Id. at *3.
Moreover, the record demonstrated that PCR counsel "did
not investigate or even inquire" about Williams's
claims, with PCR counsel writing in response to one issue,
"I really have no clue whatsoever what Troy was talking
about or how any of that was relevant or material to his
criminal trial or this postconviction case."
Id. In response to another, PCR counsel
"actually ma[de] the State's argument" by
pointing out how the strategy Williams's sought
"could have seriously backfired." Id. PCR
counsel also made "a number of incorrect, misleading
statements" that would have been discovered "[i]f
PCR counsel had read the trial transcript." Id.
contrast to the concrete examples of PCR counsel's
failure to prosecute claims presented in Williams,
the examples Lusk provides of his PCR counsel failing to
advocate his position zealously are subject to
interpretation. A close reading of the transcript does not
show counsel undermined Lusk's claims. Although counsel
did not provide sufficient evidence for Lusks's PCR
claims to succeed, we cannot say whether that was a result of
deficient representation or whether the evidence in question
simply does not exist. In such cases, we ordinarily require
further proceedings to allow development of the record.
See State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006)
(noting that we ordinarily prefer to reserve questions of
ineffective assistance of counsel for PCR proceedings).
argues that even if counsel's representation did not rise
to the level of structural error, we can still find his PCR
counsel was ineffective under a traditional
ineffective-assistance analysis. Claiming prejudice is
apparent, he asks us to reverse and remand to the PCR court
to allow him to present his case. However, the proper
mechanism for resolving claims of ineffective assistance of
PCR counsel raised for the first time on appeal is for an
applicant to file a separate PCR application in the district
court. See Goode v. State, 920 N.W.2d 520, 526-27
(Iowa 2018). Because his first PCR action was timely, a
second application raising claims of ineffective ...