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Olvera v. State

Court of Appeals of Iowa

August 21, 2019

JOSE LUIS AGUILAR OLVERA, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Emmet County, Nancy L. Whittenburg, Judge.

         A postconviction applicant appeals the denial of relief from his life sentence for sexual abuse of a child.

          Michael H. Johnson, Spirit Lake, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee State.

          Considered by Vaitheswaran, P.J., and Tabor and May, JJ.

          TABOR, JUDGE.

         Jose 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."

         In his 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.

         I. Facts and Prior Proceedings

         Aguilar 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.

         As a 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.[1] 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.

         Once 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.

         Two 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.[2] 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.

         The 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).

         In his 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 ...

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