No. 5-807 / 04-0629Court of Appeals of Iowa.
Filed December 7, 2005
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.
Euric Fountain appeals after his postconviction relief application was dismissed by the district court. AFFIRMED.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John Sarcone, County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.
Tiffany Koenig and Christopher Kragnes, Sr. of Kragnes, Tingle Koenig, P.C., Des Moines, for appellant.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
SACKETT, C.J.
Euric Fountain was convicted of first-degree murder. Fountain filed an application for postconviction relief fourteen years after his conviction alleging that there was newly discovered evidence that exonerated him. Approximately a year and one-half after being appointed as counsel, Fountain’s appointed counsel moved to withdraw from the case and dismiss the application for lack of new evidence, which was granted by the district court. Fountain now alleges his appointed postconviction counsel was ineffective for failing to make a thorough investigation into the alleged newly discovered evidence. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Euric Fountain was convicted of first-degree murder on June 30, 1988. Fountain’s conviction was affirmed after appellate review. Fountain filed his first application for postconviction relief on March 12, 1993. His application was denied and dismissed and that decision was affirmed on appeal. On June 27, 2002 Fountain filed another application for postconviction relief. Fountain was appointed counsel.
The basis for Fountain’s application for postconviction relief was that a new witness had come forward with information that would place Fountain at a different location at the time of the murder. Counsel for Fountain met with family members of Fountain’s and was given a handwritten letter that the family members claimed was from the alleged new witness. Counsel for Fountain asked that the family members get the new witness into contact with her, which never occurred. Approximately a year and one-half after being appointed as counsel for Fountain, counsel filed a motion to withdraw and dismiss the application for lack of new evidence. The district court granted the motion. Fountain appeals alleging that his counsel provided ineffective assistance for failing to properly investigate Fountain’s petition.
II. SCOPE OF REVIEW.
Postconviction proceedings are reviewed for errors of law Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005) (citin Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001)). However, issues of constitutional dimension are reviewed de novo. Id.
III. ANALYSIS.
To establish an ineffective assistance of counsel claim, the applicant must show that “(1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom.” Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999) (quoting State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984)). To establish the first prong of the test the applicant must show that counsel’s performance “fell below an objective standard of reasonableness so that counsel failed to function as guaranteed by the Sixth Amendment.” Id. (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). To establish the second prong of the test the applicant must show that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 815 (citing State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987)). Ineffective assistance claims may be disposed of if the applicant fails to prove either prong State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
Assuming without deciding that Fountain’s counsel breached an essential duty, Fountain has not established the prejudice prong and, thus, is not entitled to relief. When an applicant alleges counsel was ineffective for failing to investigate newly discovered evidence, the applicant must make a showing as to what exculpatory evidence could have been discovered. See Luke v.State, 465 N.W.2d 898, 902 (Iowa Ct.App. 1990). In his appeal, Fountain simply asserts that prejudice is clear because counsel “could very well have discovered evidence had counsel simply took it upon herself to do her own investigation of the individual’s statements.” Fountain has not established what new evidence would have been discovered if counsel had undertaken a more thorough investigation. We will not find prejudice based on mere speculation.
AFFIRMED.