Abdalla Elehamir Mousa v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-1713
Filed February 5, 2025

ABDALLA ELEHAMIR MOUSA,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

Abdalla Elehamir Mousa appeals the denial of his application for

postconviction relief. AFFIRMED.

Erin M. Carr of Carr Law Firm, P.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.

Considered by Schumacher, P.J., and Badding and Chicchelly, JJ.
2

CHICCHELLY, Judge.

Abdalla Elehamir Mousa appeals the denial of his application for

postconviction relief. He contends his trial counsel were ineffective for failing to

investigate and call witnesses to testify, failing to properly cross-examine a key

State witness, and requesting a modified jury instruction. Upon our review, we

affirm.

I. Background Facts and Proceedings.

A jury convicted Mousa of third-degree sexual abuse in 2019. In 2022, we

affirmed his conviction on direct appeal and summarized the facts of the case:

On the afternoon of August 24, 2016, C.K. and her best friend,
Lacey, shared a bottle of wine at Lacey’s house. At about 7:00 p.m.,
C.K. drove to a bar, where she and Lacey spent the next few hours
drinking. The bartender called a cab to take them home. Lacey was
dropped off first at about 11:00 p.m. C.K. declined Lacey’s invitation
to stay with her overnight. C.K. was dropped off and remembers
being at her front gate, unable to find her cell phone or keys in her
purse. She next remembers waking up on a couch in the basement
of an unfamiliar house. Her skirt was up around her waist and a man
was sitting at a nearby table, smoking a hookah.
C.K. ran up the stairs avoiding Mousa’s attempts to block her.
She ran out the door of the house, yelling and screaming. Mousa
followed her outside. At 1:43 a.m. on August 25, he called 9-1-1.
The emergency log states the caller reported a woman wearing a
blue skirt and black t-shirt. “She is lost and intoxicated. She was
dropped off here by yellow cab.”

State v. Mousa, No. 19-1748, 2022 WL 610315, at *1 (Iowa Ct. App. Mar. 2, 2022).

Two officers responded and took C.K. home, just across the street from Mousa’s

and one or two houses down. Id.

Once home, C.K. began to notice the state of her clothes, her
underwear, and her body. The back of her skirt was smeared and
stained with dirt, and her underwear was stiff as if “stuff had dried.”
She saw fresh bruises along the inside of her thighs and felt severe
pain in her vagina. . . . She told Lacey she had been sexually
assaulted. C.K. also called her family doctor, . . . retrieve[d] her
3

clothes from the night before, and went to the hospital for a sexual
assault exam.

Id. at *2. The exam, which found internal physical evidence of a sexual assault,

sparked an investigation. The police questioned Mousa and obtained a DNA

sample, which matched the swabs obtained from C.K.’s sexual assault exam. The

State charged Mousa with third-degree sexual abuse.

At the five-day trial, the State called several witnesses to testify, including

both C.K. and Lacey. Mousa testified in his own defense and called another

witness to testify. After both sides had rested, Mousa requested modification of a

jury instruction regarding intoxication. The court accepted the proposed jury

instruction and submitted the case to the jury. After its deliberation, the jury

convicted Mousa of third-degree sexual abuse. Mousa directly appealed, and we

affirmed his conviction. See id. at *6. Mousa then applied for postconviction relief,

contending his trial counsel were ineffective. After a hearing, the court denied his

application. He appeals.

II. Review.

We generally review denials of postconviction relief applications for

correction of errors at law. See Linn v. State, 929 N.W.2d 717, 729 (Iowa 2019).

But because ineffective-assistance-of-counsel claims raise constitutional issues,

our review is de novo. See Goode v. State, 920 N.W.2d 520, 523–24 (Iowa 2018).

III. Discussion.

“To prevail on an ineffective-assistance-of-counsel claim, the claimant must

satisfy [a] two-prong test by proving that his trial counsel failed to perform an

essential duty and prejudice resulted.” State v. Majors, 940 N.W.2d 372, 391
4

(Iowa 2020) (applying the two-prong test for ineffective-assistance claims set out

in Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Under the first prong, our

presumption is that counsel performed competently unless the claimant proves

otherwise by a preponderance of the evidence,” which we measure “objectively

against the prevailing professional norms.” Id. To establish prejudice under the

second prong, “the claimant must prove by a reasonable probability that, but for

counsel’s failure to perform an essential duty, the result of the proceeding would

have been different.” Id. (citation omitted).

Mousa argues on appeal that his trial counsel were ineffective on several

grounds: (1) their alleged failure to investigate and call eyewitnesses to testify at

trial; (2) their cross-examination of Lacey at trial; and (3) the modification of Jury

Instruction No. 20. We consider each argument in turn.

A. Alleged Failure to Investigate.

Mousa first argues that his trial counsel failed to investigate and call several

witnesses to testify. Specifically, he alleges that his counsel should have called

his housemates or neighbors to corroborate his own testimony. But he does not

provide a single name of any potential witness nor explain what their testimony

would be. Mousa similarly makes only one cursory argument on prejudice,

claiming that the witnesses’ testimonies “had the potential to create doubt” about

C.K.’s testimony. But “these types of conclusory claims of prejudice are not

sufficient to satisfy the prejudice element.” Jackson v. State, No. 20-1361,

2021 WL 5918050, at *2 (Iowa Ct. App. Dec. 15, 2021) (cleaned up). As the

district court correctly stated, Mousa failed “to show who these witnesses were and

what, if any, helpful evidence they could have provided.” Without presenting any
5

evidence, he cannot effectively establish prejudice, and his entire ineffectiveness

argument fails. See Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (“If the

claim lacks prejudice, it can be decided on that ground alone without deciding

whether the attorney performed deficiently.”). We therefore affirm.

B. Alleged Failure to Cross-Examine.

Mousa next contends that his trial counsel should have more effectively

cross-examined Lacey at trial because her story somewhat conflicted with C.K.’s.

But again, he fails to provide any evidence of prejudice. While Mousa loosely

asserts that “there were many inconsistencies in [Lacey’s] testimony,” he does not

cite a single one. Without this necessary step, we cannot find that Mousa

adequately established prejudice. In fact, as the court correctly pointed out, “there

was a valid strategic reason for defense counsel to avoid highlighting some of the

inconsistencies in the victim’s account.” Lacey testified that C.K. was highly

intoxicated that night, and Mousa confessed to engaging in sexual activity with her.

Accordingly, we do not find any resulting prejudice and similarly affirm.

C. Modification of Jury Instructions.

Finally, Mousa contends that his trial counsel requested an “erroneous” jury

instruction. Jury Instruction No. 20 states: “The fact that C.K. may have been

under the influence of alcohol is only material to whether the act was done by force

or against the will of C.K.” Mousa’s counsel requested this instruction because he

was worried the jury would “conclude that she was unable to consent to any sort

of sex act” and “fault Mr. Mousa for engaging in a sex act with her” while she was

intoxicated. He similarly expressed his desire to maintain “a balancing act”

between fighting C.K.’s credibility without drawing attention to her high level of
6

intoxication. While Mousa argues this ultimately “confused the jury,” we do not

fault trial counsel for making reasonable strategic decisions. See id. at 143 (finding

strategic decisions “virtually unchallengeable” when accompanied by thorough

investigation). Moreover, Mousa provides no evidence that the jury was confused

or that a different instruction would have changed the outcome.1 We therefore

must affirm.

IV. Disposition.

Because Mousa did not establish either of his trial counsel were ineffective,

we affirm the denial of his application for postconviction relief.

AFFIRMED.

1 Mousa does argue that we should presume prejudice or, in the alternative, at

least shift the burden to the State. But Mousa does not cite an authority that
applies this standard in postconviction proceedings. See Iowa R. App.
P. 6.903(2)(a)(8)(3) (stating an appellant waives issues on appeal by failing to cite
supporting authority). We therefore do not consider the merits of this argument.