Derrick Steven Pena v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 17-0474
Filed May 2, 2018

DERRICK STEVEN PENA,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.

The applicant appeals from the denial of his application for postconviction

relief. AFFIRMED.

Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

Thomas J. Miller, Attorney General, and Benjamin M. Parrott, Assistant

Attorney General, for appellee State.

Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
2

POTTERFIELD, Judge.

Derrick Pena appeals from the denial of his application for postconviction

relief (PCR) following his 2011 convictions for robbery in the first degree, burglary

in the first degree, and willful injury causing serious injury. Pena claims trial

counsel provided ineffective assistance in a number of ways: (1) failing to inform

him of his right to testify or to advise him he should do so; (2) failing to properly

investigate and prepare the case; (3) failing to object to testimony regarding

statements Pena made about robberies in the area prior to the incident; (4) failing

to advise him of his plea options; and (5) failing to make a Batson challenge1 when

the prosecution struck one of two minority potential jurors. Pena also claims direct

appeal counsel provided ineffective assistance by failing to challenge the district

court’s denial of his motion for new trial on direct appeal.

I. Prior Proceedings.

In March 2011, Pena was charged with burglary in the first degree, robbery

in the first degree, conspiracy to commit a forcible felony, willful injury causing

serious injury, and assault while participating in a felony resulting in serious injury.

Following a jury trial later that year, Pena was convicted of each of the five charges.

At sentencing, the district court determined Pena’s convictions for

conspiracy to commit a forcible felony and assault while participating in a felony

resulting in serious injury merged into other offenses. The court then sentenced

Pena on the three remaining charges. The court ordered Pena to serve a twenty-

five year sentence for both the burglary conviction and the robbery conviction;

1
Batson v. Kentucky, 476 U.S. 79 (1986).
3

Pena was sentenced to a five-year term for the willful-injury conviction. The court

ordered the sentences to be served concurrently.

Pena filed a direct appeal, in which he challenged the district court’s denial

of his motion for judgment of acquittal and argued trial counsel had provided

ineffective assistance by not seeking to sever Pena’s trial from that of his co-

defendant. After hearing oral argument on the matter, a panel of this court affirmed

Pena’s conviction, with one judge dissenting on the issue of sufficiency of the

evidence. See State v. Pena, 12-0082, 2013 WL 5745608, at *4 (Iowa Ct. App.

Oct. 23, 2013).

Pena filed his first application for PCR in August 2015 before later filing two

amended applications. When the matter initially came on for hearing, in October

2016, Pena had seventeen claims to be adjudicated by the PCR court. After a

second day of hearing—in February 2017—the PCR court issued a written ruling

finding Pena had failed to establish that he was entitled to relief on any of his

claims.

Pena appeals.

II. Underlying Facts.

The following is our recitation of facts from Pena’s direct appeal:

On January 17, 2011, at 10:00 p.m., three men broke into a
residence occupied by four residents, including Nikolas Bender.
Bender had been selling powder cocaine from the residence since
November 2010. He had sold to five different customers, but only
two of those customers, one of which was Pena, were allowed to pick
up drugs at the residence. Those two customers would knock at the
back door and be taken by Bender to his basement bedroom where
he kept the drugs in a safe. Strangers usually used the front door,
and only friends and the drug buyers used the back door. Bender
4

had retrieved drugs from the safe in Pena’s presence a couple of
weeks before the break-in.
At about 3:00 p.m. on the day of the break-in, Pena had
contacted Bender about purchasing a large amount of powder
cocaine, and they had agreed on a sale of the amount specified for
$700. Pena said he would get back to Bender later in the evening.
Pena’s prior purchases had been for smaller amounts in the forty-to-
seventy dollar price range. About two weeks prior to the purchase
Pena’s girlfriend overheard a conversation between Pena and
another male that mentioned the Bender residence. When she
asked what was going on he said they “would be in a lot of money
soon.” Also, two-to-four weeks prior to the incident Pena told other
occupants of the residence that they should be careful that “in this
neck of the woods people get robbed every day.”
Eventually all of the perpetrators donned face coverings of
some sort. Initially one of them, Bobby Thompson, was not masked
and was recognized by Bender. On the date of the break-in, Pena
and Thompson spoke by telephone twelve times in the hours before
the robbery, none during the time frame of the actual break-in, and
eight times in the three hours after the robbery. They had
communicated by telephone seven times on January 14 and January
16.
Thompson initiated the entry by approaching the back door of
the residence and asking Bender if he could use his telephone.
Thompson was accompanied by two others, one of [whom] was
subsequently identified as Albert Butler. Neither Thompson nor
Butler had ever been to the residence previously. Bender noticed
that one of the two men accompanying Thompson had a gun. He
retreated into the residence, but the perpetrators were able to keep
the door from closing and made entry into the premises. The
residents handed over wallets and telephones at the demand of the
perpetrators to empty their pockets. It was obvious the perpetrators
were not interested in general property items. Thompson stated
“that’s not what we came for” and demanded to know “where is it at?”
The one carrying a duffel bag led Thompson to the basement
and on their return asked for the combination to the safe. The duffel-
bag carrier identified Bender as the owner of the safe, and Thompson
proceeded to escort him to the basement, but a scuffle ensued.
Bender yelled to another occupant, who had remained on the second
story, to call the police. During the struggle the third intruder shot
Bender in the leg. All three of the intruders left immediately through
the back door.
Neither Thompson nor the third perpetrator, Albert Butler, had
ever been to Bender’s residence before. Pena made no attempt to
contact Bender to finalize the $700 purchase that had been
negotiated or for any other reason after the incident. The other
5

purchaser who had been to Bender’s basement residence did try to
contact Bender after the incident. To the extent anyone was able to
describe the duffel-bag carrier, there was general agreement that he
was of the same race as Pena, fairly good sized, wore dark clothes,
and his face was covered. There was no positive identification of
Pena as one of the intruders by the victims. Thompson and Pena
were tried together.
At the close of the State’s evidence, Pena moved for a
judgment of acquittal on the grounds that there was a lack of
sufficient evidence to establish that he was a[t] the scene of the
break-in or in any way connected with it. The motion was denied, and
the jury convicted Pena of all charges.

Id. at *1–2.

III. Standard of Review.

Generally, we review PCR proceedings for correction of errors at law.

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). “However, when the

applicant asserts claims of constitutional nature, our review is de novo.” Id. Thus,

we review claims of ineffective assistance—which have their basis in the Sixth

Amendment—de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). That

being said, we give weight to the PCR court’s findings concerning witness

credibility. Ledezma, 626 N.W.2d at 141.

IV. Discussion.

To prevail on his claims of ineffective assistance, Pena “must satisfy the

Strickland test by showing ‘(1) counsel failed to perform an essential duty; and (2)

prejudice resulted.’” State v. Clay, 824 N.W.2d 488, 495 (Iowa 2012) (citing

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

presume the attorney performed his or her duties competently and “[w]e do not

find such a breach by second-guessing or making hindsight evaluations.” Id. In

determining whether an essential duty was breached, “we measure . . . counsel’s
6

performance ‘objectively by determining whether [it] was reasonable, under

prevailing professional norms, considering all the circumstances.’” Id. (alteration

in original) (quoting State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)). Under the

second prong, Pena must prove by a preponderance of the evidence “that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Ledezma, 626 N.W.2d at 143 (citation

omitted). “In determining whether this standard has been met, we must consider

the totality of the evidence, what factual findings would have been affected by

counsel’s errors, and whether the effect was pervasive or isolated and trivial.”

Clay, 824 N.W.2d at 496 (citation omitted). “Improvident trial strategy,

miscalculated tactics, and mistakes in judgment do not necessarily amount to

ineffective assistance of counsel.” State v. McKettrick, 480 N.W.2d 52, 55 (Iowa

1992).

A. Trial Counsel.

Right to Testify. Pena alleges trial counsel failed to inform him of his right

to testify or to advise him he should do so. He claims he was prejudiced because

his testimony was the only evidence that he was at home the night of the incident.

At the PCR hearing, Pena testified that though he remembered telling the

district court he was not going to be testifying as part of his and the trial attorney’s

“strategies regarding the case,” the statement was false. According to Pena, they

“never even discussed the strategies. She just did what she wanted.” He also

claimed his trial attorney never gave him any advice about whether he should

testify and that, in fact, at the time of his trial, he did not understand what the word
7

“testify” meant. In contrast, at the PCR hearing, Pena’s trial attorney testified that

her “general rule” about whether her criminal clients testify in their own defense is

that “it’s their decision.” When asked what she considers before advising

defendants whether she thinks it is in their best interest to testify, she responded:

Well, I look at the background. I look at whether or not they’ve
been involved with the criminal justice system or they have a record,
if you will. I look at whether or not they can testify in a believable
manner, look at their demeanor. I look at the State’s case and make
some judgment calls on whether or not it’s even necessary for the
testimony if the State has not really made a plausible case in the first
place.

Specifically regarding Pena’s case, she testified:

Mr. Pena did not have a criminal record. That was very much
to his credit. His problem was his involvement with the victim in this
case, Nikolas Bender. I told him the choice was his; however, if he
had taken the stand, he would have had to admit such things as he
had been involved in drug transactions with Mr. Bender and that he,
in fact, was involved with making arrangements for a drug deal the
night of the incident, and I advised him that could work in a negative
way toward the jury seeing him as an honest, credible person. That
was the worst thing.

Pena has not established that his trial attorney breached an essential duty

by failing to inform him of his right to testify. While we are generally skeptical of a

PCR applicant’s self-serving statements regarding trial, see Kirchner v. State, 756

N.W.2d 202, 206 (Iowa 2008), we are even more so when those statements are

contradicted by a record made contemporaneously at the time of trial. Here, the

following exchange between trial counsel and Pena took place during trial:

Q. Your Honor. I have had the same conversation with my
client. He understands he has the absolute right to take the stand
and testify on his own behalf. He also understands he has the
absolute right to have evidence presented to the Court. I will ask him
to confirm that with the Court. You understand that you have the
right to take the stand if you want to? A. Yes.
8

Q. You have a right to have evidence presented on your
behalf? A. Yes.
Q. We also talked about the fact that the jury’s not to hold that
against him if he doesn’t take the stand. You understand that, don’t
you? A. Yes, ma’am.
Q. And after discussing our strategies regarding this case, it
is my understanding that my client does not want to take the stand;
is that correct? A. Yes.
Q. Speak up. A. Yes.
....
Q. Is it your decision not to take the stand? A. Yeah.
Q. Let me put it another way. Is it your decision not to testify
in this case? A. Yeah.
Q. Yes? A. Yes.

Insofar as Pena claims trial counsel breached an essential duty by not advising

him he should testify, counsel has no such duty. Counsel must consult with the

criminal defendant about his or her decision, but “whether to testify in his or her

own behalf” is a “decision[] ultimately to be made by a competent client.” ABA

Standards for Criminal Justice: Control and Direction of the Case 4-5.2(b)(vi) (4th

ed. 2015); see also Ledezma, 626 N.W.2d at 146 (“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.”). “Generally, the advice provided by

counsel is a matter of trial strategy and will not support a claim of ineffective

assistance absent exceptional circumstances.” Ledezma, 626 N.W.2d at 147.

Here, where trial counsel considered and indicated both the positives and

negatives associated with Pena testifying, we will not use hindsight to second

guess the strategic decision.

Pena has not established that trial counsel breached an essential duty

regarding his right to testify in his own defense.
9

Investigation and Preparation. Pena maintains trial counsel breached an

essential duty by failing to properly investigate and prepare for the case.

Specifically, Pena claims his trial counsel failed to investigate two witnesses who

could provide an alibi for him; failed to investigate a potential getaway car, which

was not associated with Pena; failed to hire an expert to compare shoes Pena

owned with a shoeprint found at the site of the incident; and failed to investigate

potentially exculpatory evidence she learned of after trial.

We agree with Pena that counsel has a duty “to conduct reasonable

investigation or make reasonable decisions that make a particular investigation

unnecessary.” Id. at 145. However, Pena has not established prejudice because

by the time of the PCR hearing, he had taken no further steps to establish that any

of the evidence actually existed or was exculpatory. Neither of the two witnesses

Pena named—persons he was living with at the time of the incident—testified at

the PCR hearing. While he testified they could have provided an alibi, we have

only Pena’s statements to support the claim. See, e.g., Gregory v. Thaler, 601

F.3d 347, 352 (5th Cir. 2010) (“Claims of uncalled witnesses are disfavored,

especially if the claim is unsupported by evidence indicating the witnesses’s

willingness to testify and the substance of the proposed testimony.”). Similarly,

while it is unclear to us how testing Pena’s shoes against the shoeprint could be

exculpatory—the print was never tied to Pena at trial—he took no action to do so

before the PCR hearing. And Pena has no evidence to provide regarding, as he

refers to it, the “potentially exculpatory evidence” of the “gray sedan” that acted “as

a potential getaway car.” See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994)
10

(“When complaining about the adequacy of an attorney’s representation, it is not

enough to simply claim that counsel should have done a better job.”).

In contrast to Pena’s statement that his trial counsel failed to investigate the

potentially exculpatory evidence she learned after trial, trial counsel filed a motion

to delay sentencing, claiming she was “conferring with the attorney of an interested

party to this case who may have some material evidence favorable to Mr. Pena.”

At the PCR hearing, she testified that after Pena’s conviction, she learned of a

rumor regarding something one of his co-defendants had allegedly told a cellmate

in prison about a possibly different third actor. Although she investigated the

rumor, she was “never able to substantiate that.”

Even if we assume counsel failed to investigate, Pena has not established

that the investigations would have turned up any exculpatory evidence. Without

more, we cannot say there is a reasonable probability the outcome of Pena’s trial

would have been different; this claim fails.

Prior Statements about Robberies. During direct examination by the

State, Jose Anaya—who lived with his brother Ricky and Bender in the residence

where the robbery took place—testified as follows:

Q. Okay. Now, tell us about the occasion that Derrick [Pena]
had been over to the house before January 17th. A. He came in, Nik
[Bender] met him at the back door, they went in the basement, hung
out. Then as he left, he turned, looked at my brother [Ricky] and was
like you guys got to be careful, in this neck of the woods people get
robbed every day.

Similarly, Brooke Heisterkamp—who was the girlfriend of Ricky and visiting on the

day Pena came to the house “two to four weeks” before January 17—testified Pena

“walked up the steps and he kind of waved in. He was directing his comments
11

towards Ricky and he said, you have a nice house, he said you need to be careful

in these neighborhoods when summertime comes around because that’s when

people rob in this area.” Pena maintains these statements are not relevant or,

alternatively, are relevant but inadmissible because their probative value is

substantially outweighed by the danger of unfair prejudice; he claims trial counsel

breached an essential duty when she failed to object to their admission.

Evidence is relevant when “[i]t has any tendency to make a fact more or

less probable than it would be without the evidence; and [t]he fact is of

consequence in determining the action.” Iowa R. Evid. 5.401. “The test is ‘whether

a reasonable [person] might believe the probability of the truth of the consequential

fact to be different if he knew of the proffered evidence.’” State v. Plaster, 424

N.W.2d 226, 229 (Iowa 1988) (alteration in original) (citation omitted). The State

urges us to find the evidence was relevant because the statements could be

viewed as establishing Pena’s intent to commit the robbery. The State maintains

Pena may have made the statement in an attempt to misdirect the victims from

identifying him in the event of the future robbery, arguing Pena hoped “to plant in

their minds the idea that robberies are such regular events in their neighborhood

that, should one occur, they could chalk it up to a random act.” We are persuaded

by the State’s argument and find that Pena’s prior statement about robberies was

relevant to the underlying proceedings.

Next, we employ a two-part test to decide whether the evidence should be

excluded under Iowa Rule of Evidence 5.403. See State v. Huston, 825 N.W.2d

531, 537 (Iowa 2013). Under the first prong, we consider the probative value of
12

the evidence. Id. Under the second, we balance the probative value against the

danger of its prejudicial or wrongful effect upon the jury. Id. In a case involving an

alleged robbery between a drug-dealing victim and a drug-purchasing defendant,

much of the evidence will be at least somewhat prejudicial; however, “[e]xclusion

is required only when evidence is unfairly prejudicial [in a way that] substantially

outweighs its probative value.” Id. (alteration in original) (citation omitted).

Pena maintains the statements “carried a high risk of unfair prejudice,” while

at the same time arguing that they had nothing to do with the actual robbery

because “it is highly unlikely a perpetrator of a crime would publish his intention to

commit a crime to the future victims of that crime.” Pena cannot have it both ways.

If, as he argues, Pena’s warning about robberies in the area makes it unlikely he

was part of the robbery, there can be no unfair prejudice. Additionally, a statement

about crime in the area is not the type of evidence that “appeals to jury’s

sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers

other mainsprings of human action [that] may cause a jury to base its decision on

something other than the established propositions in the case.” State v.

Rodriguez, 636 N.W.2d 234, 240 (Iowa 2001) (alteration in original) (citation

omitted); contra Huston, 825 N.W.2d at 537–38 (determining a “founded child

abuse report” from the Iowa Department of Human Services was unfairly

prejudicial as it was “irrelevant to any issue for the jury to decide” and there was a

“real danger the jury will be unfairly influenced by that agency finding, which gives

the ‘imprimatur’ of a purportedly unbiased state agency on a conclusion” the

defendant was guilty of child abuse).
13

Because the evidence of Pena’s statements was relevant to the underlying

proceeding and the risk of unfair prejudice was low, the district court would have

overruled any objection made by Pena’s trial counsel. Thus, trial counsel did not

breach an essential duty by not objecting to Anaya’s and Heisterkamp’s testimony.

See State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015) (“Counsel does not fail to

perform an essential duty by failing to raise a meritless objection.”). This claim

fails.

Plea Options. Pena claims trial counsel breached an essential duty when

she “failed to properly advise [him] regarding the plea offer and the risk of going to

trial.” Pena relies on his own testimony whereby he claimed his trial counsel “just

said she could win at trial, so the plea was out the window with me when she told

me she could win.” But Pena’s testimony on the subject is not credible. Pena’s

trial counsel testified—credibly, according to the PCR court—that she explained

his options and the benefits of the plea agreement. She also “remember[ed] telling

Mr. Pena that [she] couldn’t guarantee the outcome of a case. So much of the

State’s evidence was circumstantial, but circumstantial evidence is nevertheless

evidence.” She testified she had made Pena aware that the State’s evidence was

enough to convict him, and she even set up a meeting with herself, Pena, and the

county attorney “so that he would know in detail what the State would present at

trial.”

The county attorney was also called to testify at the PCR hearing; she

testified she remembered having “several conversations in [her] office [with trial

counsel] about whether or not [she] would come off that initial plea offer. And by
14

virtue of that, [she] actually did a little bit later on in the case.” Part of the reason

Pena received the offer he did was because trial counsel spoke with the county

attorney about Pena’s “lack of criminal history and how harsh the penalties were.”

The county attorney stated that even after she made her presentation of her case

and her offer to Pena

it was very apparent to [the county attorney] that [trial counsel] asking
for the conference did not have the impact on Mr. Pena that she
hoped it would.
....
[Trial counsel] talked to her later on, and he was not interested
in the offer at all. And [trial counsel] actually was very upset about
that and she had expressed that he just wasn’t showing any interest
in it at all.

Additionally, Pena’s testimony at the PCR hearing lacked credibility. He

testified he discussed the plea agreement with trial counsel only “very brief[ly]” and

only the day before trial. He agreed he met with the county attorney and trial

counsel at the courthouse but repeatedly maintained that had also taken place the

day before trial. Pena’s testimony changed once he was reminded that his trial

started on a Monday morning, as he agreed that the meeting would not have

occurred in the courthouse on a Sunday evening.

Because there is no credible evidence counsel breached an essential duty

by failing to properly advise Pena regarding the plea offer and the risk of going to

trial, this claim fails.

Batson Challenge. Pena maintains trial counsel breached an essential

duty by failing to raise a Batson challenge when the prosecuting attorney struck a

minority potential juror.
15

In Batson, the United States Supreme Court held that the Equal Protection

Clause of the Fourteenth Amendment prevents a prosecutor from using

peremptory strikes to challenge potential jurors “solely on account of their race.”

476 U.S. at 89.

Under our Batson jurisprudence, once the opponent of a peremptory
challenge has made out a prima facie case of racial discrimination
(step one), the burden of production shifts to the proponent of the
strike to come forward with a race-neutral explanation (step two). If
a race-neutral explanation is tendered, the trial court must then
decide (step three) whether the opponent of the strike has proved
purposeful racial discrimination.

State v. Mootz, 808 N.W.2d 207, 215 (Iowa 2012).

Based on our review of the record, this claim is a nonstarter; a Batson

challenge—though not initially termed as such—was raised by trial counsel for

Pena’s co-defendant and then joined by Pena’s trial counsel. Although voir dire

was generally unreported, during the process of striking potential jurors, the court

went on the record with both defense attorneys and the prosecution and made the

following record:

THE COURT: We are out of the presence of the members of
the jury panel at this time. The lawyers have been passing the list of
potential jurors back and forth exercising strikes and counsel have
asked to make a record on this matter. And so I am going to—I think
that technically [co-defendant’s counsel] asked about this, so you
may go first.
CO-DEFENDANT’S COUNSEL: Thank you. Your Honor.
The record should reflect that both [co-defendant] and Derrick Pena
are African American. There are as I understand it two African
American potential jurors, a [D.C.] and [X.M]. I had struck [D.C.] and
the reason had nothing to do with the color of her skin, but rather with
the fact that it appears she has a very close association to a
Davenport police officer and through that relationship a close
personal relationship to many Davenport police officers, and this
case, of course, was being investigated by the Davenport Police
Department. I do note that [the prosecuting attorney] struck [X.M.]
16

and I don’t recall any discussion that would provide a race-neutral
reason for her to have made that strike, so I did challenge the strike.
THE COURT: Okay. [Prosecuting attorney]?
PROSECUTING ATTORNEY: Your Honor, my strike of [X.M.]
is much like the strike that [co-defendant’s counsel] exercised with
respect to [D.C.]. [X.M.] is personally acquainted with [Pena’s trial
counsel]. They attend the same church together and [Pena’s trial
counsel] had noted that he will be coming into her Sunday school
class. And the second basis for the strike, which is also the basis for
another strike that I made, is [X.M.] was born in ‘93. He is young,
only 18 years of age. And then the State also exercised a strike of
[B.M.], who was born in ‘88, who is young. And I would have also
struck [H.M.], but I believe [Pena’s trial counsel] exercised that strike
because she was born in ‘80 and she is a younger member of the
jury. And as everybody is well familiar with me, particularly having
tried a number of cases with me, I have a tendency to remove young
people from the jury panel because of their life experience. But his
strike is twofold because he does have a personal relationship with
[Pena’s trial counsel] and I’m worried that because of that
relationship that he may be unduly influenced at such a young age,
particularly recognizing that they do attend church and she’ll be his
Sunday school teacher.
THE COURT: [Co-defendant’s counsel], any comments you
wish to make in response to [the prosecuting attorney’s] statements?
CO-DEFENDANT’S COUNSEL: No, Your Honor.
THE COURT: [Pena’s trial counsel], any comments or matters
you wish to place upon the record?
PENA’S TRIAL COUNSEL: Well, of course, I would join [co-
defendant’s counsel] in his motion here, but, on the other hand, I tried
to make it very clear that I did know [X.M.]. And [prosecuting
attorney] is correct, he does attend my church and he will be a
member of a Sunday school class that I teach. He has not been a
member of that class up to this point.
THE COURT: Anything else?
....
PENA’S TRIAL COUNSEL: I would like to go ahead on the
record just because of my past civil rights experience and say I do
not strike people because of their youth.
THE COURT: The Court has considered the matters that are
asserted by [co-defendant’s counsel] and has also considered the
responses made to those assertions by [the prosecuting attorney]
and the comments of [Pena’s trial counsel] as well. The Court
believes that the State has satisfactorily articulated a rationale other
than race for the strikes that were made in this case and the Court is
noting but overruling the objection made by [co-defendant’s counsel].
The Court was present in the courtroom and listening to the
17

responses made by the persons who are on our list at this time for
possible choice as a juror, and I think that there is merit to the matter
as raised by [co-defendant’s counsel], but I think there also was merit
in the response made by [the prosecuting attorney], so that being the
case, the objection, then, is overruled to those two particular strikes.
Anything else we need to do?
PROSECUTING ATTORNEY: No, Your Honor.
CO-DEFENDANT’S COUNSEL: The name of the challenge
slipped my mind as I was making it, but that, as I am sure everyone
is aware, was meant to be a Batson challenge.
PROSECUTING ATTORNEY: Yeah.
THE COURT: So noted. Okay. Thank you.

Because trial counsel did join in a Batson challenge, there has been no breach of

an essential duty and this claim fails.

B. Direct-Appeal Counsel.

Motion for New Trial. Pena maintains his appellate counsel provided

ineffective assistance by failing to properly challenge on direct appeal2 the district

court’s denial of his motion for new trial (based on the weight of the evidence being

contrary to the jury’s verdicts).

The appellate court reviews the district court’s ruling on a motion for new

trial for an abuse of discretion. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003).

We do not consider the underlying question of whether the verdict is against the

weight of the evidence. Id. The district court is to “exercise its discretion carefully

2
We note that appellate counsel technically did raise the issue of whether the district court
abused its discretion in denying his motion for new trial. However, it appears counsel
failed to raise the issue with sufficient specific argument for our court to rule on it. The
following is from the ruling on Pena’s direct appeal:
Pena moved for a new trial where the ground for relief is defined
as where the verdict is “contrary to the weight of the evidence.” See State
v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Pena gets to benefit from the
possibly less-stringent rule on the motion for new trial, but Pena does not
direct the court to contrary evidence. His claim is a lack or deficiency of
evidence connecting him to the crimes.
Pena, 2013 WL 5745608, at *2.
18

and sparingly when deciding motions for new trial based on the ground that the

verdict or conviction is contrary to the weight of the evidence.” Id. at 205. Even if

the district court might have been inclined to render a different verdict than the jury,

it must uphold that verdict in the face of mere doubts that it is correct. Id. at 203.

We cannot say appellate counsel breached an essential duty by not

properly challenging the district court’s ruling on a motion for new trial. “Given the

broad discretion that a trial court enjoys in ruling” on such motions, “we do not

believe it was ineffective assistance of counsel not to include the denial of that

motion as an issue on direct appeal.” Stringer v. State, 522 N.W.2d 797, 799 (Iowa

1994). “Appellate counsel must be discerning in the determination of those issues

to be presented on appeal with an idea of presenting the most effective argument

for the client.” Id. “Selecting assignments to assert as grounds for reversal is a

professional judgment call we are reluctant to second-guess.” Osborn v. State,

573 N.W.2d 917, 922 (Iowa 1998).

[M]ost experienced appellate lawyers or judges will attest it is a
tactical blunder, often devastating to an appellant, to assign every
conceivable complaint. Highly competent appellate lawyers
generally assign only the strongest points and rely on them for
reversal. . . . Hindsight [may show the judgment call] was wrong.
But this is a far cry from qualifying as ineffective representation.

Id. at 922–23 (alteration in original) (quoting Cuevas v. State, 415 N.W.2d 630,

633 (Iowa 1987)). “For judges to second-guess reasonable professional

judgments and impose on . . . counsel a duty to raise every ‘colorable’ claim

suggested by a client would disserve the very goal of vigorous and effective

advocacy.” See Jones v. Barnes, 463 U.S. 745, 754 (1983).
19

Because Pena has not established that appellate counsel had a duty to

argue this specific error, this claims fails. See Osborn, 573 N.W.2d at 922 (refusing

to find appellate counsel breached an essential duty because applicant was unable

to overcome strong presumption of counsel’s competence in choosing which errors

to raise on appeal).

V. Conclusion.

Because Pena has failed to establish that either his trial counsel or his

appellate counsel provided ineffective assistance, we affirm.

AFFIRMED.