Michael James Shivers v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
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No. 24-2046
Filed April 15, 2026
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Michael James Shivers,
Applicant–Appellant,
v.
State of Iowa,
Respondent–Appellee.
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Appeal from the Iowa District Court for Webster County,
The Honorable Bethany J. Currie, Judge.
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AFFIRMED
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Steven J. Drahozal of the State Public Defender’s Office,
Wrongful Convictions Unit, Des Moines, attorney for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, attorneys for appellee.
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Considered without oral argument
by Tabor, C.J., and Badding and Sandy, JJ.
Opinion by Badding, J.

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BADDING, Judge.

A gun battle between two groups gathered on opposite sides of a
residential street in Fort Dodge ended with the deaths of two bystanders. See
State v. Shivers, No. 22-0437, 2023 WL 6293844, at *1 (Iowa Ct. App.
Sep. 27, 2023). Witnesses identified Michael Shivers as having fired the shot
that sparked the battle, and he was convicted of two counts of second-degree
murder. We affirmed his convictions on appeal, concluding there was
“substantial evidence from which a jury could find, beyond a reasonable
doubt, that Shivers’ reliance on the defense of justification was unfounded.”
Id. at *4.

Shivers applied for postconviction relief, claiming that defense
counsel was ineffective for advising him not to testify in support of his
justification defense. He also claimed that counsel should have “pursue[d]
a separate trial” on a third count—possession of a firearm by a prohibited
person—even though that count was dismissed on counsel’s motion for
judgment of acquittal. Postconviction-relief counsel withdrew the separate-
trial claim at the hearing on Shivers’ application, and the district court
rejected the other claim on its merits.

Shivers appeals, asserting the court erred in finding no breach of duty
or prejudice on his right-to-testify claim. He also contends that
postconviction-relief counsel provided ineffective assistance by “conceding
the issue of criminal trial counsel’s failure to pursue a separate trial” on the
firearm-possession charge.

***

Postconviction-relief proceedings are normally reviewed for the
correction of errors at law. See Iowa R. App. P. 6.907; Krogmann v. State, 914

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N.W.2d 293, 306 (Iowa 2018). But when the application raises a
constitutional claim, such as ineffective assistance of counsel, we review the
proceedings de novo. Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021).

To prevail on a claim of ineffective assistance of counsel, Shivers must
establish that (1) counsel failed to perform an essential duty and (2) prejudice
resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.
Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We “may consider either the
prejudice prong or breach of duty first, and failure to find either one will
preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (citation
omitted).

***

At the criminal trial, defense counsel spoke with Shivers about his
constitutional right to testify:
COUNSEL: Just for the purposes of the record, we have called two
different witnesses related to Mr. Shivers’ defense. I believe Mr. Shivers
is going to exercise his right to remain silent in this matter. I’m going to
ask you a series of questions, okay, Mike? DEFENDANT: Uh-huh.

COUNSEL: Michael, you know you have a constitutional right to
testify if you so desire; correct? DEFENDANT: Correct.

COUNSEL: You also know you have a right not to testify if you
don’t want to; correct? DEFENDANT: Correct.

COUNSEL: You and I have had multiple conversations related to
whether it would be beneficial for you to testify or not testify; correct?
DEFENDANT: Correct.

COUNSEL: I’ve informed you what the pros and cons of testifying
and not testifying; correct? DEFENDANT: Correct.

COUNSEL: I’ve been able to answer all your questions related to
that particular issue; correct? DEFENDANT: Correct.

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COUNSEL: I haven’t threatened you to do one way or the other;
correct? DEFENDANT: Correct.

COUNSEL: And is it your desire to remain silent and not testify;
is that correct? DEFENDANT: Correct.

COUNSEL: And you’re doing this of your own free will?
DEFENDANT: Correct.

COUNSEL: Not under threats or promises or anything?
DEFENDANT: Correct.

COUNSEL: And I think that’s an adequate record for that, Judge?

COURT: I agree and just ask you myself, that is your decision and
certainly your attorney can help you but you do acknowledge that is your
decision? DEFENDANT: Correct.

At the postconviction-relief hearing, Shivers acknowledged that
“[t]he colloquy was appropriate” and that he “waived his right to testify.”
But he argued defense counsel’s advice about that decision was deficient
because the justification defense required proof that “he had a genuine fear
of imminent physical harm,” and only Shivers could testify about his own
state of mind. See State v. Howard, 14 N.W.3d 763, 767 (Iowa Ct. App. 2024)
(“The [justification] defense is both subjective and objective.”).

The district court disagreed, reasoning:
Advising a client not to testify despite raising the justification of
self-defense may or may not be merely a mistaken trial strategy, as the
defendant’s state of mind must be presented to the jury in order for them
to accept the justification. In this case, other witnesses testified to Mr.
Shivers’ statements reflecting his state of mind and they testified
regarding the mood of the entire group, which supported Mr. Shivers’
self-defense claim. Furthermore, [defense counsel] elicited information
from Mr. Shivers during his colloquy that they had several conversations
about testifying or not and the pros and cons of testifying. Both [defense
counsel] and the trial judge confirmed with Mr. Shivers directly that the
decision was his alone and he was not just doing what his lawyer told him

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to do. Under the circumstances, the Court does not find that such advice
is ineffective.

We agree with the court that Shivers failed to prove defense counsel
performed deficiently.

“The decision whether or not to testify belongs to the defendant, and
the role of counsel is to provide advice to enable a defendant to make the
decision.” Ledezma v. State, 626 N.W.2d 134, 146 (Iowa 2001); see also State
v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003) (“Trial counsel’s role is
simply to provide advice to the defendant to enable the accused to make a
well-informed decision.”). Shivers argues that counsel had a duty to advise
him “about the subjective standard of his justification defense” and that
counsel failed to perform that duty. But the district court did not find Shivers
credible when he testified at the postconviction-relief hearing that he never
discussed the defense with his attorney. And upon our de novo review, we
too reject that allegation.

Shivers initially testified that defense counsel “came and seen me for
the very first time in Humboldt County [Jail].” But later, Shivers maintained
that he had no in-person meetings with counsel, which the court found
“directly contradicted” his earlier testimony. In addition to that conflicting
testimony, Shivers confirmed at the criminal trial that he had “multiple
conversations” with counsel about testifying, that counsel informed him
about “the pros and cons of testifying and not testifying,” and that counsel
was “able to answer all [his] questions related to that particular issue.” See
Pena v. State, No. 17-0474, 2018 WL 2084850, at *3 (Iowa Ct. App. May 2,
2018) (noting that “[w]hile we are generally skeptical of a [postconviction-
relief] applicant’s self-serving statements regarding trial, we are even more
so when those statements are contradicted by a record made

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contemporaneously at the time of trial.” (internal citation omitted)). Given
these inconsistencies, and mindful of the weight we owe the district court’s
credibility assessment, see Sothman, 967 N.W.2d at 522, we find no reason to
doubt that Shivers was fully advised about the elements of his defense and
the strategic impact of maintaining his right to silence. Nothing more is
required under the routine circumstances present here. Cf. Ledezma, 626
N.W.2d at 147 (“Generally, the advice provided by counsel is a matter of
trial strategy and will not support a claim of ineffective assistance absent
exceptional circumstances.”).

We also agree with the district court that Shivers’ claim fails on the
prejudice prong. The court found that even if defense counsel
had advised him to testify, either Mr. Shivers might have elected not to
testify anyway (as he indicated to his trial attorney and then to the judge
that the decision not to testify was his own choice) or he might have
testified but his testimony would have contradicted numerous other
witnesses, including his own witnesses. The Court has no reason to
believe that, if only Mr. Shivers had testified, the jury would have
disregarded the overwhelming evidence that Mr. Shivers shot first and
instead believed that he acted in self-defense or defense of another. If Mr.
Shivers testified at the criminal trial as he did in the [postconviction-relief]
trial, there is not a substantial likelihood that he would have been
acquitted.

The Court finds that Mr. Shivers has failed to prove that the result
of the trial would have been different but for his attorney’s advice not to
testify. Despite not testifying, the Court still gave the justification jury
instruction and the jury had the testimony of Mr. Shivers’ other witnesses
regarding the events of the evening. Mr. Shivers received the benefit of
the jury considering his justification defense without the burden of being
subject to cross-examination. Mr. Shivers has not met his burden of
proving the prejudice prong under Strickland.

As we found on direct appeal, “three witnesses testified that they
observed Shivers with the AR-15, and two of them stated that Shivers fired

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the first shot.” Shivers, 2023 WL 6293844, at *4 n.7. Shivers’ testimony at
the postconviction-relief hearing conflicted with those accounts and with the
stories that he told law enforcement officials who were investigating the
shooting. He did not tell officers at the scene anything about “being shot at”
or “acting in self-defense.” And when he was interviewed by a detective a
few days later, he “said with 100 percent certainty he never had a gun” that
night. But that story changed during an interview with a different detective.
In that interview, Shivers admitted that he shot “three to four rounds” from
“a .38 caliber revolver.” He later “denied shooting the rifle, although he did
talk about touching and holding” it earlier in the evening. By the
postconviction-relief hearing, Shivers’ story had shifted again. He testified
that when he saw a group from across the street “coming towards us,” he
“reached down and grabbed that rifle that was in the back of the truck. And
just as I was preparing to fire, someone else fired too.”

“When the performance of counsel relates to the failure to present
evidence, we must consider what bearing the evidence may have had on the
outcome of the case.” Ledezma, 626 N.W.2d at 148. Given Shivers’ ever-
changing story—and the testimony of other witnesses (including his own
son) who saw him fire the first shot and described “tension” but no
imminent threat from the group across the street—we find no reasonable
probability that Shivers’ testimony would have changed the outcome of the
trial. See Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only weakly
supported by the record is more likely to have been affected by errors than
one with overwhelming record support.”). A guilty verdict was the likely
result whether or not Shivers’ counsel would have advised him differently.
We accordingly affirm the district court’s denial of this claim.

***

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Along with the two counts of second-degree murder, Shivers was also
charged with possession of a firearm by a prohibited person. The State did
not offer any evidence about that charge, other than an exhibit documenting
that Shivers had been convicted of domestic abuse assault. After the State
rested its case, the trial court granted Shivers’ motion for judgment of
acquittal and withdrew the exhibit from the jury’s consideration.

On postconviction relief, Shivers argued that defense counsel was
ineffective for failing to “pursue a separate trial” on the firearm possession
charge to “keep[] prior bad acts evidence out.” But at the hearing on
Shivers’ application, postconviction-relief counsel withdrew that claim
because he did not believe that he could satisfy the prejudice prong. Now,
on appeal, Shivers claims postconviction-relief counsel “was ineffective for
conceding” the issue.

The State urges us not to reach this issue because it was not decided
by the district court. However, ineffective assistance is an exception to our
normal error-preservation rules. See Goode v. State, 920 N.W.2d 520, 526
(Iowa 2018). And while we cannot decide ineffective-assistance claims on
direct appeal from criminal proceedings, see Iowa Code § 814.7 (2024), we
may do so in postconviction-relief proceedings, Goode, 920 N.W.2d at 526.
“We exercise our review only ‘when the appellate record is adequate’ and
‘when no prejudice would result to any party.’” Chandler v. State, No. 24-
0399, 2025 WL 2237244, at *2 (Iowa Ct. App. Aug. 6, 2025) (quoting Goode,
920 N.W.2d at 526). Both conditions are satisfied here. But on the merits,
Shivers’ claim fails.

As the State points out, Shivers’ appellate brief identifies only “a
single mention of the judgment entry during the trial: when it was offered
and admitted without objection.” The exhibit was not displayed to the jury

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when it was admitted, and it was not included among the exhibits submitted
to the jury. No mention of the exhibit—or Shivers’ domestic-abuse
conviction—was made during any witness’s testimony or the State’s
arguments to the jury. We agree with the State that “[t]here’s no plausible
view of the record where this single isolated reference to a prior judgment
entry—withdrawn and not mentioned again—could have” impacted the
outcome of the criminal trial. See State v. Graves, 668 N.W.2d 860, 882–83
(Iowa 2003) (considering whether the effect of trial counsel’s claimed error
was “pervasive or isolated and trivial” in examining the prejudice prong of
an ineffective-assistance claim). As a result, Shivers failed to establish that
he was prejudiced by postconviction-relief counsel’s withdrawal of the issue.

AFFIRMED.

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