from the Iowa District Court for Emmet County, Nancy L.
postconviction applicant appeals the denial of relief from
his life sentence for sexual abuse of a child.
Michael H. Johnson, Spirit Lake, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
Luis Aguilar Olvera (Aguilar) appeals the denial of his
petition for postconviction relief. Aguilar is serving life
in prison for first-degree sexual abuse. Following a bench
trial, the district court found Aguilar committed sex acts
against his girlfriend's six-year-old daughter, J.L.M.
Through that sexual contact, Aguilar infected J.L.M. with
herpes simplex virus 2 (HSV2). That infection caused J.L.M.
"severe emotional and physical pain associated with the
[herpes] lesions in her private area."
postconviction action, Aguilar tried to unravel the evidence
linking him to J.L.M.'s herpes infection. Aguilar alleged
his trial attorneys were ineffective in allowing him to
submit blood and saliva samples under a nontestimonial
identification order. See Iowa Code § 810.1
(2013). The postconviction court explained a "subtext to
Aguilar's claim" was that "he may not have
understood the procedures because his first language is not
English." The court then rejected Aguilar's
allegations, finding his attorneys had no duty to pursue
meritless objections to the State's collection of
samples. After reviewing the criminal and postconviction
records, we likewise find Aguilar did not prove his attorneys
performed below professional norms by not objecting to the
nontestimonial identification procedures. We thus affirm the
denial of postconviction relief.
Facts and Prior Proceedings
and his girlfriend, Carmelina, brought J.L.M. to a clinic
because the six-year-old child was experiencing painful
urination in late October 2012. A nurse practitioner noted
J.L.M. had an infection in the perineal area between her
vagina and anus. Two days later, another adult accompanied
J.L.M. for her return visit to the clinic. The child was
"in excruciating pain and having difficulty
walking." The nurse practitioner counted more than a
dozen "open lesions in J.L.M.'s genitalia." A
specialist diagnosed J.L.M. with genital herpes. According to
the medical testimony, HSV2 is "not curable" and
"impairs the bodily function when there is an outbreak
in that J.L.M. is unable to urinate normally." The virus
is normally transmitted by skin-to-skin contact. The first
outbreak occurs within four to twelve days of contact.
mandatory reporter, the nurse practitioner called the Iowa
Department of Human Services (DHS) in early November 2012. A
DHS child-abuse investigator learned Aguilar had lived with
Carmelina and J.L.M. for about two years. During a November
2012 interview at the family residence, Aguilar acted as a
translator because Carmelina spoke only Spanish and the
investigator spoke only English. Although the exchange was
somewhat fragmented, Carmelina appeared to tell the DHS
investigator that she took medication for a similar infection
within the past year. The DHS placed J.L.M. in foster care.
she felt comfortable in her new placement, J.L.M. revealed to
her foster mother and her therapist that Aguilar had sexual
contact with her. After additional investigation, the Emmet
County Sheriff filed a complaint and affidavit charging
Aguilar with second-degree sexual abuse in October 2013. The
prosecuting attorney applied under Iowa Code chapter 810 to
detain Aguilar for obtaining saliva and blood samples. The
application alleged the samples were necessary to verify if
Aguilar had infected J.L.M. with HSV2. The district court
approved the application on October 14, 2013, and ordered
Aguilar to appear for nontestimonial procedures. Aguilar
tested positive for HSV2.
weeks later, the State filed a trial information charging
Aguilar with one count of sexual abuse in the first degree, a
class "A" felony, and one count of sexual abuse in
the second degree, a class "B" felony. Aguilar
waived his right to a jury trial. During his bench trial,
J.L.M. testified over closed-circuit television outside of
Aguilar's physical presence. She told the court Aguilar
"hurt" her by "put[ting] his private stuff
against her skin." J.L.M. circled on a diagram the part
of her body where he touched her. J.L.M. recalled Aguilar
sexually abused her three times while her mother was at work.
district court considered J.L.M.'s testimony to be
"extremely credible" and found Aguilar guilty as
charged. The court sentenced him to concurrent terms of life
and twenty-five years in prison. Our court affirmed his
convictions. See State v. Aguilar, No. 14-1225, 2015
WL 5965076, at *7 (Iowa Ct. App. Oct. 15, 2015).
application for postconviction relief, Aguilar alleged he was
denied his right to effective assistance of counsel because
his criminal trial attorneys failed "to resist, quash,
object to, or move to suppress a buccal swab and blood test
of the defendant ordered by the [d]istrict [c]ourt on October
14, 2013." Aguilar and his trial attorneys, Edward
Bjornstad and Gregory ...