Wendell Harrington v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-2090
Filed April 13, 2022

WENDELL HARRINGTON,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.

Applicant appeals from the denial of his application for postconviction relief.

AFFIRMED.

Francis Hurley, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.

Considered by Bower, C.J., and Greer and Badding, JJ. Chicchelly, J., and

Gamble, S.J., take no part.
2

GREER, Judge.

With a long list of arguments in this appeal, Wendell Harrington continues

to challenge his 2008 arrest and convictions following a string of home burglaries

and thefts. More than a decade after his conviction, he appeals the denial of his

2012 application for postconviction relief (PCR). His claims include (1) a

constitutional challenge to his statutory inability to submit pro se appellate briefs

following the 2019 enactment of Iowa Code section 822.3A; (2) that he should

have been granted a new trial following the discovery of new evidence regarding

drug use by an officer involved in the identification of Harrington before his arrest;

(3) that the State suppressed that evidence about the officer; (4) that he should

have been allowed to introduce additional depositions and DNA evidence into the

PCR record after it closed; (5) that his PCR counsel was ineffective for not seeking

the DNA evidence sooner; (6) that the district court failed to rule on his pro se

issues regarding suppression of evidence of another suspect; (7) that his PCR

counsel was ineffective in arguing the existence of the other suspect; (8) that his

PCR counsel was ineffective for failing to file a deposition transcript and report

regarding that DNA evidence; (9) that all of his attorneys were ineffective in not

arguing that his past convictions of burglary and theft were not crimes of

dishonesty and, therefore, should not have been admitted as impeachment

evidence against him at the underlying criminal trial; and (10) that the PCR trial

judge should have recused himself. For the reasons discussed below, we affirm

the PCR court’s denial of his application.
3

I. Statement of Facts and Prior Proceedings.

Although our court previously outlined the facts of Harrington’s underlying

criminal conviction, we repeat them here for context:

In the early morning hours of June 14, 2008, several
neighbors, Mr. and Mrs. Graves, Ms. Bains, and Ms. Chicchelly,
discovered their homes had been burglarized and Chicchelly’s car
had been stolen. Officer Singleton interviewed the neighbors.
Ms. Chicchelly mentioned an incident that occurred the preceding
morning. She was walking her dog when a man approached her and
threatened to “stick” her with the knife he displayed to her if her dog
bit him.
While the officer was meeting with the neighbors, they saw
Chicchelly’s car go by on a cross street. When Officer Singleton
pursued the car, it sped away. The officer followed the car until it
crashed while trying to make a turn. As Officer Singleton got out of
his patrol car and ordered the other driver to stop and to lie on the
ground, the other driver got out and ran away. The officer radioed a
description of the driver to other officers, who set up a perimeter and
started a search.
Officer Trimble saw a man matching the description of the
driver walking behind some shrubs and carrying something in his
hands. When Officer Trimble looked behind the shrubs, he found a
stocking cap and white cotton gloves. Officer Trimble then got back
in his car, drove down the street, and stopped the defendant. When
the officer saw that the defendant had fresh dirt on his shirt and grass
clippings in his hair, he handcuffed the defendant. Upon searching
the defendant, Officer Trimble found a pocket knife with an ivory
handle, a gold ring, a cigarette lighter, and cigarettes.
Police took Chicchelly to where police had detained the
defendant to see if she could identify him. She identified the knife as
the one used to threaten her the previous day. She thought the
defendant was the man who had threatened her, but was not
completely certain. When police searched Chicchelly’s car, they
found items taken from all three homes.
The State charged the defendant by trial information with
eluding, theft in the first degree, theft in the second degree, and three
counts of burglary in the second degree, all enhanced as a habitual
offender. The State also charged the defendant with ongoing
criminal conduct.
At trial, the court allowed the State to use several of the
defendant’s past convictions to impeach him in cross-examination
during the defense case-in-chief. The jury found the defendant guilty
of all charges. The court sentenced the defendant to twenty-five
years for ongoing criminal conduct and fifteen years for each of the
4

remaining six convictions, to be served consecutively, for a total of
115 years.

State v. Harrington, No. 08-2030, 2010 WL 2925696, at *1 (Iowa Ct. App. July 28,

2010).

On direct appeal, this court reversed Harrington’s conviction of ongoing

criminal conduct, finding there was insufficient evidence to support the conviction.

Id. at *10. We affirmed the rest of his convictions and preserved for possible PCR

proceedings his claim of ineffective assistance of trial counsel. Id.

On further review to our supreme court, Harrington argued the district court

“abused its discretion when it failed to make a record of its balancing of the

prejudicial and probative effect of Harrington’s prior convictions” of theft and

burglary before admitting them as impeachment evidence. State v. Harrington,

800 N.W.2d 46, 49 (Iowa 2011). Harrington relied on State v. Axiotis, 569 N.W.2d

813 (Iowa 1997), which dictated that a district court must “always balance the

probative and prejudicial value of a witness’s prior conviction before admitting the

prior conviction for impeachment purposes” under Iowa Rule of Evidence

5.609(a)(2),1 though the test was enumerated only in rule 5.609(a)(1). Id. But, our

supreme court overturned the Axiotis balancing test and determined

rule 5.609(a)(2) “applies only to crimes involving dishonesty or false statement and

requires the automatic admissibility of these prior convictions for impeachment

purposes.” Id. at 50. The court concluded:

It has been settled law in this state that convictions for theft and
burglary with intent to commit theft are crimes of dishonesty.
Harrington makes no contention his prior theft and burglary

1 Rule 5.609(a)(2) stated: “Evidence that any witness has been convicted of a
crime shall be admitted if it involved dishonesty or false statement.”
5

convictions are not crimes of dishonesty or false statement under
rule 5.609(a)(2). Thus, we find Harrington’s prior convictions fall
within the scope of rule 5.609(a)(2). . . .
. . . [T]he convictions are automatically admissible for
impeachment purposes.

Id. at 51–52 (footnote omitted). It noted, though, that many other jurisdictions have

“reached different results as to whether theft and burglary convictions are crimes

that per se ‘involve dishonesty or false statement,’” but it “reserve[d] this potential

issue for a case where it [was] properly argued.” Id. at 51 n.4.

In March 2012, Harrington applied for PCR, requesting to proceed pro se

with standby counsel. He originally sought subpoenas of only his trial and

appellate counsel. However, the PCR action became more complicated when it

was discovered that, in April 2012, Officer Singleton was arrested for two counts

of possession of a controlled substance and was subsequently terminated from

the Des Moines Police Department (DMPD). In a 2013 discovery request,

Harrington asked for records of Singleton’s criminal history, any internal affairs

investigations from his time as a police officer, and all unsealed information from

his time in the military. The court, following a hearing on the matter, ordered the

State to produce Singleton’s criminal history and internal affairs reports but that it

need not provide Singleton’s military records. Instead, Harrington could seek the

military records from the appropriate source at the State’s expense.

The records obtained showed Singleton’s first drug charge occurred in

2003, when he was charged with possession of a controlled substance after he

and a friend were found with cocaine; Singleton entered an agreement with the

State and the charges were dismissed. Singleton’s military records revealed a
6

methamphetamine charge in 2004.2 Neither charge was disclosed in his

employment application to DMPD. Then, in 2012, Singleton called in two flat tires

on his squad car. When officers came to help, they found Singleton asleep and

discovered marijuana and drug paraphernalia in his vehicle and equipment bag.

Additional paraphernalia and methamphetamine were found in Singleton’s

personal vehicle and residence. It was also discovered that Singleton was

involved in a hit-and-run accident earlier that morning before calling in the

damage.3 DMPD placed Singleton on administrative leave and had him drug

tested; the screen came back positive for methamphetamine. Following a

complete investigation and pre-disciplinary hearing, Singleton’s employment was

terminated. Upon discovering Singleton’s history, Harrington moved to amend his

PCR application to include claims of prosecutorial misconduct in suppressing

evidence about Singleton.

In 2015, Harrington deposed Mandy McConnelee, a former police officer

who worked with Singleton for about a year around the time of Harrington’s arrest.

She stated, and then reiterated in her testimony at the PCR trial, that she noticed

withdrawal symptoms from Singleton while they worked together, which she stated

he had explained as a side effect of prescribed opiates he took for a back injury.

She believed this was during the spring and summer of 2008. However, she was

unaware of Singleton taking any drugs, let alone illicit drug use, during work hours,

2 Singleton denies this charge, stating he was in Korea when the results allegedly
were recorded in Virginia.
3 This was not the first preventable accident Singleton was involved in during his

employment with DMPD. There were also two accidents in 2011, two in 2010, and
one in 2008.
7

and she testified that the behavior would be consistent with taking the medication

for pain management before a shift and it wearing off by the end of a shift. She

confirmed she relayed these concerns to sergeants, but she could not recall who

and did not know of any further action. McConnelee clarified that she had no

specific recollection of whether this behavior was apparent on the date of

Harrington’s arrest.

Singleton also gave a deposition and testified. He acknowledged his

problem with illegal drugs but denied that he had been using anything at the time

of Harrington’s arrest. In response to McConnelee’s assertions about his

prescription drug use, Singleton noted that he had been prescribed medication for

his back in 2007 but by June 2008 his pain management no longer relied on

opiates. Rather, he claimed his drug addiction did not rear back up until 2011.

To further investigate Officer Singleton, Harrington was granted state funds

to hire a private investigator. The investigator assisted with navigating the process

of collecting Singleton’s military records and investigated other potential suspects

for the crimes of which Harrington was convicted. One such suspect, A.H., was a

man who Harrington asserted had a similar physical description to Harrington.

A.H. was linked to a string of 2008 break-ins that resulted in sexual assaults. At

the PCR bench trial, the investigator presented the evidence he found that A.H.

might have had similar gloves to those found by Officer Trimble at the time of

Harrington’s arrest.

With a combination of changes in counsel, bureaucracy involved with

navigating the military record database, and the discovery processes in place to

protect private information, collecting and accessing Singleton’s military record
8

information required jumping through hoops. From Harrington’s initial request in

2013, it took until 2017 for the records to be fully accessible.

In the midst of evaluating the new evidence surrounding Singleton,

Harrington also asked for further investigation into hairs his PCR counsel found in

the hat admitted as evidence in his criminal case. In May 2015, Harrington moved,

pro se, to appoint an expert at state expense to investigate hairs that had been

found in the stocking cap. At the hearing on the motion, Harrington said: “I don’t

know where [the evidence] is or whether it is more than one hair. It was supposedly

several hairs. So we want to make sure that we have access to those hairs,

wherever they may be located at this time.” The court’s responsive order, in July,

stated:

Applicant desires to retain the services of an expert with regard to
testing of any hair samples or hair follicles that might be located and
produced by the respondent. As it has not yet been determined
whether such items exist, the motion is denied with the
understanding that it may be re-filed if necessary.

In 2016, a trial was held to hear testimony in this PCR case. However, both

the State and Harrington were in agreement that there was still evidence to be

collected. The court established:

We can—you know, if you choose to add to the record . . . in writing,
by submitting things in writing by means of, let’s say, affidavits or
stipulations or whatever it might be, or transcripts of depositions, or
whatever it might be, yes, you can do that. Although, I will—with this
qualification . . . [that] the State will have the opportunity to express
those objections. And so the receipt of any of that evidence will be
subject to the State’s objections, and those objections will be ruled
on as part of the final ruling.
But with that qualification, no, if you want to leave the record
open at the end of this thing so that . . . the record gets
supplemented, but it doesn’t involve any further court time with this
guy, then fine. We do that all the time in these cases for a whole
9

variety of reasons that make it really the only way that you can
complete the record in most instances.

Briefing schedules continued to be extended and, in December 2017, the

court ordered that the record would remain open for evidence until February 26,

2018. At a January 2018 hearing, Harrington maintained the hairs were not his

and, because they were woven into the fabric of the hat, might link the hat to

another suspect. He asked for additional evidence to be collected, including a

variety of depositions. The court noted in its March 2 order that the case’s

evidentiary record had closed, but it reopened evidence for the limited purpose of

deposing Scott Stocksleger, the Iowa Division of Criminal Investigation (DCI)

criminologist who originally examined the hat, and a DMPD identification

technician. Stocksleger stated in his deposition that the hairs in the hat might have

been missed but that they were not appropriate for the type of DNA testing

conducted by the State. Instead, mitochondrial DNA testing might determine

whose hairs they were.

In August, Harrington asked the court for funds for the mitochondrial DNA

testing. He also requested another deposition of Stocksleger. The State resisted,

pointing to the time and expense required for this type of DNA testing. It also noted

that, as it stood, there was no DNA evidence connecting Harrington to the hat, and

any mitochondrial testing would only, at best, show that someone else had worn

the hat at some time. Conversely, the testing would not disprove Harrington was

wearing it at the time of the crime. At the hearing on the motion, the court noted

that the deadline to collect evidence had already closed and, as the case had drug

on for many years, the court would not reopen it again for the additional testing
10

and depositions. As the court put it, the case was an “extraordinary situation

that . . . should have been decided literally years ago, literally.” It went on:

I don’t know of any other case as a lawyer or as a judge that I can
say I’ve been personally involved with that has dragged on as long
as this one has relative to the issues and the evidence for this
particular case. So it’s just got to come to an end. So those two
motions [for the additional testing and deposition] are denied.

A written order followed, reflecting the same decision. Harrington moved for the

court to reconsider; still, the court maintained its decision. Harrington then sought

interlocutory appeal, which was denied.

In the midst of this evidentiary debate, Harrington moved pro se for the

judge to recuse himself, arguing a conflict of interest existed between the judge

and him. Harrington asserted that the judge acted with partiality toward the State

and hostility toward him. He also raised concerns about the judge’s refusal to

reopen the record and his belief the State and the judge were colluding to suppress

exculpatory evidence. The district’s chief judge overruled the motion to recuse but

noted that “due to the court’s regular rotation, [the initial judge was] no longer

assigned to this case.” But, the judge to which the case had been reassigned

issued an order noting that the case had been tried and taken under advisement

already by the initial judge and so the initial judge would issue the ruling.

Harrington moved once more for recusal and submitted a complaint to the judicial

qualifications commission. In a hearing on recusal, the judge stated:

And unless and until I come up with some reason to believe
otherwise, those motions will be denied both for recusal and any
other kind of disqualification. I don’t think there’s grounds for
anything like that other than the fact that Mr. Harrington is
disappointed that I’m ruling against him.
11

The court’s written ruling detailed that Harrington both failed to prove that “a

reasonable person would question [the court’s] impartiality under the instant

circumstances” and that he “failed to demonstrate actual prejudice,” and so the

court denied the motion. See State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005)

(requiring proof of both to support grounds for recusal).

As a final arrow from the quiver, Harrington points to his 2019 written brief

detailing his closing position in the PCR action. In his pro se brief, Harrington

asserted that, during his criminal trial, the State suppressed evidence of A.H. as

an alternative suspect. The State responded that A.H. had never been a suspect

but was instead an alternate theory suggested by Harrington in the course of his

PCR. In its ruling, the court did not specifically address this late allegation but said,

“Considering all of the evidence that has been discovered since the filing of this

[PCR] action, Petitioner has not proven any prosecutorial misconduct by the State

in this case.”

Ultimately, on July 31, 2019, the court denied the entirety of Harrington’s

PCR application. Harrington timely appealed.

II. Discussion.

Harrington now brings ten claims against the PCR court, the State, and his

past counsel. We address each argument in turn.

A. Pro Se Appellate Brief.

Harrington’s first argument is that applying Iowa Code section 822.3A

(Supp. 2019) to this appeal, which prevents him from filing a pro se brief, would be
12

unjust.4 Ultimately, this is a question of timing—Harrington asserts the 2019

change in law should not affect his appeal of an action filed in 2012 and that doing

so would violate his constitutional rights to due process and equal protection.

The State asserts that Harrington has not preserved error on this issue. We

disagree, as Harrington is challenging a procedure that was not implicated in his

original application and has only arisen with his appeal. See, e.g., State v.

Brothern, 832 N.W.2d 187, 191 (Iowa 2013) (“Generally, we require objections to

be made ‘at the earliest opportunity’ after the grounds become apparent [to

preserve error].” (citation omitted)); State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997)

(noting error was preserved as the party “raised the constitutional issues at the

earliest available opportunity”). As such, we will address Harrington’s challenges

to Iowa Code section 822.3A.

To address his core argument about timing, Harrington believes that

because his case was initially filed in 2012 and most of the conduct that he appeals

from occurred before the statute went into effect, this law should not be

retroactively applied to him. This argument begins from a faulty premise. A statute

is applied retrospectively when it “applies a new rule, standard, or consequence to

a prior act or omission.” Hrbek v. State, 958 N.W.2d 779, 782 (Iowa 2021)

(emphasis omitted). “The prior act or omission is the event of legal consequence

‘that the rule regulates.’” Id. (citation omitted). In other words, a statute is

retrospective if it controls a specific action already done. In this case, Iowa Code

4Before transferring this case to our court, the Iowa Supreme Court ordered that
Harrington’s pro se supplemental brief would not be considered according to Iowa
Code section 822.3A(1).
13

section 822.3A controls Harrington’s actions while filing his appeal—actions that

all took place after the statute went into effect. Our supreme court already

established this law does not apply retroactively, and it is not being applied

retroactively to Harrington now. See id. at 783.

Although in Hrbek the court noted that the applicant’s equal protection and

due process challenges to section 822.3A were not developed in any meaningful

way, and here Harrington loosely makes these arguments, we still find guidance

from our supreme court to apply in this appeal. Id. at 788 (concluding appellants

have no constitutional right to “hybrid representation” with both counsel’s briefs

and pro se supplemental documents). And at center, Harrington’s challenges go

directly to the claimed violation of his right to enter his pro se briefs alongside those

of his counsel of record—or to access “hybrid representation” that was a “right”

once provided in a PCR action. Recently, in a challenge involving a pro se notice

of appeal in a PCR action, the court discussed the Hrbek decision:

We also rejected the applicant’s claims that the prohibition of pro se
filings in postconviction-relief proceedings violated the applicant’s
“inalienable rights; the right to the assistance of counsel; the right to
access the courts; the right to the equal protection of the laws; and
some principle of due process” and held “there is no constitutional
right of any sort to file pro se supplemental documents in
postconviction-relief proceedings and postconviction appeals.”

State v. Davis, 969 N.W.2d 783, 786 (Iowa 2022) (quoting Hrbek, 958 N.W.2d at

785). Any “right” to file a pro se brief only originated by a rule of appellate

procedure and through case precedent; thus, there is no federal or state

constitutional right involved. See Hrbek, 958 N.W.2d at 785–86 (“This right [to file

pro se supplemental documents] was provided by a rule enacted in January 2001.

This right was also provided for in our precedents.” (internal citations omitted)).
14

Because now both Davis and Hrbek confirm there is no constitutional right to file

pro se supplemental documents, we see no reason to wade into the waters of

constitutional analysis over Harrington’s claims. See Davis, 969 N.W.2d at 786;

Hrbek, 958 N.W.2d at 788.

B. A New Trial for New Evidence about Officer Singleton.

Harrington’s next challenge is that the PCR court erred in finding that new

evidence discovered about Singleton’s character was not sufficient to require a

new trial. “A [PCR] action based on newly discovered evidence is reviewed for

corrections of errors at law.” More v. State, 880 N.W.2d 487, 498 (Iowa 2016).

Iowa Code section 822.2(1)(d) allows for an applicant to seek PCR if “[t]here

exists evidence of material facts, not previously presented and heard, that requires

vacation of the conviction or sentence in the interest of justice.” To receive a new

trial based on a newly-discovered-evidence claim, an applicant must show:

(1) that the evidence was discovered after the verdict; (2) that it could
not have been discovered earlier in the exercise of due diligence;
(3) that the evidence is material to the issues in the case and not
merely cumulative or impeaching; and (4) that the evidence probably
would have changed the result of the trial.

Harrington v. State, 659 N.W.2d 509, 516 (Iowa 2003) (quoting Jones v. State, 479

N.W.2d 265, 274 (Iowa 1991)). The PCR court found that the new evidence about

Singleton’s substance abuse was available for Harrington to find before the

underlying criminal trial even if it would have been challenging to do so; as the

court put it, “difficulty does not equate with impossibility.” The court also found the

evidence was merely impeachment evidence, failing the third prong of the newly-

discovered-evidence test, and that the evidence probably would not have changed
15

the trial’s result as there was enough other credible evidence for a jury to convict.

Harrington challenges all three findings.

We disagree with the PCR court that Harrington could have discovered

evidence of Officer Singleton’s drug history before the verdict. In Moon v. State,

911 N.W.2d 137, 152 (Iowa 2018), the supreme court placed the burden on the

applicant “to demonstrate he could not have raised the newly discovered evidence

earlier in the exercise of due diligence.” To show due diligence, the applicant must

show “that a reasonable effort was made,” though the applicant “is ‘not called upon

to prove he sought evidence where he had no reason to apprehend any existed.’”

State v. Uranga, 950 N.W.2d 239, 243 (Iowa 2020) (citation omitted). Still, this is

a hard hill to climb because “a defendant ‘must exhaust the probable sources of

information concerning his case; he must use that of which he knows, and he must

follow all clues which would fairly advise a diligent man that something bearing on

his litigation might be discovered or developed.’” Id. (emphasis and citation

omitted).

Here, Harrington had no reason to suspect Officer Singleton’s drug use

before the criminal verdicts were read. Harrington’s verdicts came down in

October 2008, whereas Singleton’s employment with the DMPD was not

terminated until 2012. And as to the evidence of his previous drug issues, the fact

that the evidence existed at the time of trial is not in itself dispositive; rather, “‘newly

discovered evidence’ refers to facts existing at trial time of which the aggrieved

party was then excusably ignorant.” Carter v. Carter, 957 N.W.2d 623, 637 (Iowa

2021) (quoting Wilkes v. Iowa State Highway Comm’n, 186 N.W.2d 604, 607 (Iowa

1971)). It is not the possibility of a path of discovery alone that serves as the test,
16

but whether the defendant had the responsibility to venture down that path. Here,

Harrington was excusably ignorant and had no reason to dig into Singleton’s past

until he became aware of Singleton’s arrest and subsequent termination.

Still, Harrington faces other hurdles. To successfully win a new trial on the

basis of newly discovered evidence, the applicant must prove the evidence is

material to the issues in the case rather than merely cumulative or impeaching.

Harrington, 659 N.W.2d at 516. Impeachment evidence is defined as “[e]vidence

used to undermine a witness’s credibility.” Impeachment Evidence, Black’s Law

Dictionary (9th ed. 2009). In contrast, when “the newly discovered evidence goes

directly toward the central issue in the case, it is not merely impeaching.” State v.

Adamson, 542 N.W.2d 12, 14 (Iowa Ct. App.1995).

Harrington claims that the evidence against him, namely Singleton’s

testimony identifying him as the man driving away in Chicchelly’s car, was a central

link in the case against him. And, because Singleton’s purported drug use at the

time of the arrest goes to his “state of mind,” it is a material issue. But, this

evidence of Singleton’s history of substance abuse, which Harrington is now

attempting to base a new trial on, is squarely meant to undermine Singleton’s

credibility. However Harrington wishes to frame it, impeachment evidence by any

other name is still impeachment evidence.5 Because Harrington has not shown

that this evidence is not merely impeachment evidence, the PCR court did not err

in denying his request for a new trial based on newly discovered evidence

5We note that, in parts of Harrington’s appellate brief, he openly refers to the
evidence as impeachment evidence and states the purpose of the evidence would
be to prevent the jury from trusting or believing Singleton’s testimony.
17

regarding Singleton’s substance abuse. Plus, it is difficult to see how casting

aspersions about Singleton’s state of mind from drug use might have changed the

trial result given the other extensive evidence against Harrington. See Moon, 911

N.W.2d at 145 (noting defense must show how the suppressed evidence, if used

evidence effectively, might be the difference between conviction and acquittal).

C. Suppression of Evidence: Singleton.

Harrington’s next claim is that the PCR court erred in finding the State did

not suppress evidence of Singleton’s bad character in violation of Brady v.

Maryland, 373 U.S. 83, 87 (1963), which provides: “[T]he suppression by the

prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution.” He believes that during his

criminal trial the State “blindly ignore[d] impeaching evidence” about Singleton’s

drug use and dishonesty. We conduct a de novo review of evidence-suppression

claims, as they relate to due process and are of a constitutional nature. DeSimone

v. State, 803 N.W.2d 97, 102 (Iowa 2011). “To show a Brady violation, [the

applicant] ‘must prove by a preponderance of the evidence “(1) the prosecution

suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the

evidence was material to the issue of guilt.”’” Moon, 911 N.W.2d at 145 (citation

omitted). “Evidence is suppressed ‘when information is discovered after trial

“which had been known to the prosecution but unknown to the defense.”’”

Harrington, 659 N.W.2d at 522 (citation omitted).

Harrington makes conclusory statements that the State should be imputed

with the knowledge of Singleton’s drug use and dishonesty—even if such facts
18

were not actually known by the prosecution at the time of Harrington’s underlying

criminal trial—but provides no support for that claim. Still, because he believes the

State was charged with this knowledge, he asserts the State’s suppression of this

information should be grounds for a new trial.

The barrier to Harrington’s claim begins with the first prong. “The

prosecution ‘has a duty to learn of any favorable evidence known to . . . others

acting on the government’s behalf in the case, including the police.’” DeSimone,

803 N.W.2d at 103 (alteration in original) (citation omitted). It is the nondisclosure

of this evidence, not the good or bad faith of the prosecutor, which is dispositive;

the prosecution must disclose this information even without a request by the

defendant. Id. Harrington fails to show what evidence was suppressed. The

record confirms DMPD learned of Singleton’s drug use in 2012 and subsequently

terminated his employment. While Harrington has a deposition from McConnelee

discussing potential withdrawal symptoms and prescription drug use that might

have presented themselves around the time of Harrington’s arrest, he offered no

evidence that Singleton was actively using illicit drugs at the time of his arrest.

Harrington also mentions Singleton’s 2003 arrest for possession of a controlled

substance and his 2004 methamphetamine charge while he was in the military.

But he proffers no evidence DMPD, and by extension the State, were aware of

these occurrences. The 2003 charge was dismissed, and it was not disclosed in

Singleton’s employment application for the DMPD. It took Harrington years to

discover the 2004 charge and, even then, Singleton disputed its accuracy. From

this record, without a clear indication of what evidence of Singleton’s drug use

Harrington believes existed or was known by the State or others acting on its behalf
19

while the case was in trial, we have no reason to believe it was suppressed in

2008.6

On top of all of that, Harrington provides no argument that the evidence was

favorable or material to the issue of guilt. See Goode v. State, 920 N.W.2d 520,

524 (Iowa 2018) (“Our appellate rules of procedure and judicial restraint expect

claims raised on appeal be specific. A party who fails to satisfy this standard risks

waiving the issue.” (internal citation omitted)); Hyler v. Garner, 548 N.W.2d 864,

876 (Iowa 1996) (“[W]e will not speculate on the arguments [the appellant] might

have made and then search for legal authority and comb the record for facts to

support such arguments.”); see also Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite

authority in support of an issue may be deemed waiver of that issue.”). As

Harrington cannot pass the first prong of the Brady test and provides no argument

for the second or third, his Brady claim must fail.

D. Mitochondrial DNA and Additional Deposition.

Harrington next argues the district court abused its discretion when it denied

his motion to reopen the record for additional evidence in the PCR proceeding to

allow mitochondrial DNA testing on the hairs found in the stocking cap and an

additional deposition of Stocksleger. We evaluate discovery issues for an abuse

of discretion, and the party challenging the discovery decision carries the burden

of proof. State v. Ary, 877 N.W.2d 686, 702 (Iowa 2016). “We will find a discovery

ruling indicates an abuse of discretion only when it reflects an exercise of discretion

6 We note that Harrington is not the first defendant to raise a Brady violation
regarding Singleton’s involvement in their case. See State v. Lomax, 852 N.W.2d
502, 508–09 (Iowa Ct. App. 2014) (finding “no reasonable probability the
disclosure of [Singleton’s arrest] would have altered the outcome of the case”).
20

on grounds clearly untenable or to an extent clearly unreasonable.” Id. Harrington

must also prove that any abuse of discretion “prejudiced [his] substantial rights.”

Id. at 702–03.

Harrington asserts that, because the court left the record open for additional

discovery in 2016, the court abused its discretion by denying the discovery and

presentation of additional evidence in 2018. The court did draw a line ending the

discovery quest. Still, we believe that the district court acted within its discretion

in doing so. The presence of hairs was an issue first raised in 2015, and the PCR

record was left open for additional discovery in 2016. Harrington had ample time

to ask for and develop this evidence before the evidentiary record closed in 2018.

The court had no obligation to continue to let the case languish7 on after it had

already granted a limited extension for specific depositions. The opportunity to

test any possible hairs in the stocking cap was available to Harrington from before

his trial in 2008 until the date of his final request for testing ten years later—

Harrington can hardly claim he had insufficient time. See In re Marriage of Doss,

No. 20-0624, 2022 WL 108961, at *6 (Iowa Ct. App. Jan. 12, 2022) (finding no

7 As the court reasoned at the hearing:
You know, who knows what any case, civil, criminal, or otherwise,
could become if the rules allowed for an infinite amount of time to
discover and an infinite amount of time to research and infinite
resources to do all of those things.
But, you know, the rules are in place for a reason, and that is
because, as an overarching matter, the Court strives to get things
done in a timely fashion and with some finality and, at the same time,
tries to be fair to everybody and give everybody an adequate
opportunity to present their cases and prepare for trial and do all of
those kinds of things.
But at some point, at some point, the case has to come to an
end. And, frankly, we reached that point a long time ago.
21

abuse of discretion when the court denied a party’s motion to compel a deposition

because discovery had closed and the party had sufficient time for discovery).

Likewise, the presence of other hair in the stocking cap only serves to impeach

Singleton’s initial description of Harrington8 and would not have overcome the

strong evidence against him. The court’s decision to leave the record closed was

neither untenable nor unreasonable, and we find no abuse of discretion.

E. Ineffective Assistance of PCR Counsel: Failing to Arrange for

Mitochondrial Testing.

Harrington’s next contention also concerns the mitochondrial DNA testing.

He asserts that two of his PCR counsel were constitutionally ineffective for failing

to seek testing of the hairs from 2015 until his subsequent 2018 motion to reopen

the evidentiary record. One of these attorneys served as Harrington’s counsel in

2015 when the possibility of the hairs was first raised and the court ordered that

such a motion would have to be refiled when the existence of the hairs was

confirmed; the other9 took over the case in March 2016.

We review claims of ineffective assistance do novo. Ledezema v. State,

626 N.W.2d 134, 141 (Iowa 2001). To prove counsel was ineffective, Harrington

must satisfy the two-prong Strickland test by proving both that counsel breached

an essential duty and that prejudice resulted. See State v. Kuhse, 937 N.W.2d

622, 628 (Iowa 2020) (citing Strickland v. Washington, 466 U.S. 668, 687–88

8 Establishing another person’s DNA was present in the hat would not show when
that person wore the hat, nor would it prove Harrington never wore it.
9 In a pleading, this counsel stated she first noticed the hairs in October 2017 and

did not believe they had been tested. The hairs were then taken to the DCI
Laboratory for testing.
22

(1984)). “Failure to prove either prong of the Strickland test results in failure of the

[applicant’s] ineffective-assistance-of-counsel claim.” State v. Dalton, 674 N.W.2d

111, 119 (Iowa 2004). “In the end, the inquiry is transformed into an individualized

fact-based analysis.” Ledezma, 626 N.W.2d at 142.

“To satisfy the breach prong, [the applicant] must establish his counsel’s

performance fell ‘below the standard demanded of a reasonably competent

attorney.’” Krogmann v. State, 914 N.W.2d 293, 306 (Iowa 2018) (citation omitted).

We begin with the presumption that counsel was competent; it is up to the applicant

to overcome that presumption and “prove[] [their] counsel’s performance ‘fell below

the normal range of competency.’” Id. (citation omitted). “[I]neffective assistance

is more likely to be established when the alleged actions or inactions of counsel

are attributed to a lack of diligence as opposed to the exercise of judgment.

Improvident trial strategy, miscalculated tactics or mistakes in judgment do not

necessarily amount to ineffective counsel.” Lamasters v. State, 821 N.W.2d 856,

866 (Iowa 2012) (alteration in original) (citations omitted).

The prejudice prong, on the other hand, requires Harrington to prove “his

counsel’s ‘errors were so serious as to deprive [him] of a fair trial.’” Id. (alteration

in original) (quoting Strickland, 466 U.S. at 687). Rather than merely “showing that

the error ‘conceivably could have influenced the outcome’ of the proceeding,” the

challenger must establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.

(citations omitted).

Here, we do not have the benefit of PCR counsels’ reasoning for not testing

the hairs. Even so, the State speculates that both attorneys could have avoided
23

asking for the testing for fear the results might connect Harrington to the hat.

Harrington rebuts the argument by saying, were that their strategy, his attorney

would not have sought the evidence in the first place. Yet, neither attorney

Harrington complains of filed the original application for additional expert

evaluation of the hairs; rather, Harrington filed the request pro se. At the 2018

hearing for the evidence, then-counsel noted this concern in saying:

Mr. Harrington is aware that if this evidence, if this DNA testing, does
somehow have some sort of connection, Mr. Harrington is well aware
that the State can point to that. He understands the risk. . . . We
believe it’s going to show his innocence. But it can be evidence that,
unfortunately for Mr. Harrington, might be beneficial to the State.

Weighing the strength of other avenues to a new trial, counsel may have not

wanted to risk a test that might confirm guilt if counsel felt another strategy was

more sound. Ultimately, choosing not to seek evidence that could further implicate

a client is a reasonable and competent strategy. See Blair v. State, No. 00-1890,

2003 WL 1785896, at *3 (Iowa Ct. App. Apr. 4, 2003) (“Blair’s attorney testified he

did not try to discover the existence of those letters for it might alert the State to

their existence. This falls within the scope of trial strategy.”). Both attorneys could

have balanced that risk against the limited benefit10 of potentially discovering that

someone else had worn the hat at some point and determined it was not worth it

to pursue. Here, Harrington presented no evidence at the PCR hearing to show

10 As the PCR court explained:
Stocking caps may be loaned, borrowed, stolen, or found on the side
of a road. They can be worn by anyone. It is not inconceivable that
more than one person wore this stocking cap. Whether or not more
than one person’s hair was found in the stocking cap would not have
undermined the evidentiary value of the stocking cap linking
Petitioner to the crimes.
24

why counsel did not pursue testing. In the face of the presumption that counsel

acted reasonably, without evidence rebutting the presumption, Harrington failed to

show either PCR attorney breached an essential duty. See Strickland, 466 U.S.

at 689; Anfinson v. State, 758 N.W.2d 496, 501 (Iowa 2008). As Harrington failed

to prove that either attorney’s performance was below the normal competency, he

has not overcome the presumption that his counsel was competent and this

ineffective-assistance claim must fail.

F. District Court’s Ruling on Pro Se Issues.

In another argument about timing, Harrington’s next claim concerns a pro

se brief he filed after the close of evidence. The pro se brief asserted the State

had another suspect for the burglaries and thefts, Adam Harvell, and did not

disclose that evidence.11 Because the change in law that currently prevents

Harrington from submitting pro se filings did not apply to filings made in the PCR

proceedings before the district court, he had a right to both raise the issues in pro

se filings and have the district court hear and rule on each issue raised. Jones v.

State, 731 N.W.2d 388, 391–92 (Iowa 2007), superseded by statute, Iowa Code

§ 822.3A (Supp. 2019) (effective July 1, 2019), as recognized in Hrbek, 958

N.W.2d at 785–86. The State concedes this timing question in its appellate brief.

11 In Harrington’s appellate brief, he also points to testimony from Officer Trimble
at the PCR trial that the officer had seen another potential suspect in his
investigation before Harrington’s arrest but ruled the man out as a resident of the
neighborhood who did not match the given description. To the extent that
Harrington is arguing this information was also suppressed, we note that, even in
his brief in lieu of closing argument, he raised no concern about this suspect. See
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine
of appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”).
25

Under the previous framework, the court is required to “make specific findings of

fact and conclusions of law as to each issue,” but “substantial compliance is

sufficient. Even if the court does not respond to all of the applicant’s allegations,

the ruling is sufficient if it responds to all the issues raised.” Gamble v. State, 723

N.W.2d 443, 446 (Iowa 2006) (emphasis omitted), superseded by statute, Iowa

Code § 822.3A (Supp. 2019), as recognized in Hrbek, 958 N.W.2d at 785–86.

The State argues that Harrington did not raise this other suspect issue in

his original, supplemental, or amended applications for PCR, raising it only in his

April 2019 pro se brief in lieu of closing arguments; therefore, the PCR court was

not required to rule on it. Harrington retorts that, by raising a general Brady issue

in his amended application, the concern about an additional suspect was also

brought to the court’s attention. As with most PCR proceedings, we review for

correction of errors at law. Moon, 911 N.W.2d at 142.

Iowa Code section 822.8 states, “All grounds for relief available to an

applicant under this chapter must be raised in the applicant’s original,

supplemental or amended application.” To raise an issue for the first time in

closing argument, years after the final amended application was filed, is simply too

late. See Junk Bros. Land & Cattle v. Buchanan Cnty., No. 19-2084, 2020 WL

5230459, at *2 (Iowa Ct. App. Sept. 2, 2020) (agreeing, in a discussion of error

preservation, that a district court was justified in declining to address an issue first

raised in closing arguments). Notice pleading standards apply in a PCR case.

Mahnesmith v. State, No. 19-0877, 2020 WL 7868233, at *4 (Iowa Ct. App. Dec.

16, 2020) (citing Belk v. State, 905 N.W.2d 185, 188 (Iowa 2017)). These

standards do not require that the application “allege ultimate facts supporting each
26

element of the cause of action”; rather, “it ‘must contain factual allegations that give

the [State] “fair notice” of the claim asserted so the [State] can adequately respond

to the application.’” Belk, 905 N.W.2d at 188 (alterations in original) (citation

omitted). “The application meets the ‘fair notice’ requirement ‘if it informs the

[State] of the [events] giving rise to the claim and of the claim’s general nature.’”

Id. (alterations in original) (citation omitted).

Harrington’s argument all along, outside of his closing brief, was that the

Brady violation consisted of information about Singleton, not about alternate

suspects.12 While he was not required to outline his precise legal argument, he

was required to give “notice of the incident giving rise to the claim.” Roush v.

Mahaska State Bank, 605 N.W.2d 6, 10 (Iowa 2000). This eleventh-hour argument

was not a properly raised claim, and the PCR court was not obligated to respond.

Still, even if the issues were properly raised, the Gamble requirement of

substantial compliance was met in this case when the PCR court’s order stated

“the State did not suppress evidence. . . . Considering all of the evidence that has

been discovered since the filing of this post-conviction relief action, Petitioner has

not proven any prosecutorial misconduct by the State in this case.” See Tooson

v. State, No. 15-0555, 2016 WL 4543531, at *4 (Iowa Ct. App. Aug. 31, 2016)

(finding that a court’s general ruling that prosecutorial misconduct had not

occurred, even without going into each specific allegation, was substantially

compliant with Gamble). As such, Harrington’s pro se concerns about the

12Harrington raised concerns about Harvell, but not in the suppression context.
He provided no evidence that Harvell was actually an alternate suspect in the
State’s investigation, but instead pointed to Harvell as another possible
consideration.
27

suppression of alternate suspects were properly considered and rejected by the

district court.

G. Ineffective Assistance of Counsel: Failing to Argue the State

Suppressed Evidence of an Alternate Suspect.

Harrington’s next argument is an extension of the last; here, he claims that

his PCR counsel were ineffective for not arguing that the suppression of evidence

about Harvell was a ground for setting aside Harrington’s convictions. He asks

that we grant him another shot at a new PCR action to further litigate the issue.

The State contests that this record is sufficient to decide the claim and argues we

should not reach the issue as error has not been preserved. See Goode, 920

N.W.2d at 526 (“Without this evidence . . . the record on appeal is inadequate to

address the new claim of ineffective assistance of postconviction counsel.”).

However, ineffective-assistance-of-counsel claims step outside of our typical rules

of error preservation, so we can address it in this appeal. See Nguyen v. State,

878 N.W.2d 744, 750 (Iowa 2016). And Harrington will just have to make do to

establish his claim with the record currently before us as, absent a few exceptions,

the clock has run on his chance to initiate PCR actions. See Iowa Code § 822.3

(providing a statute of limitations of three years from the date the writ of

procedendo issued on a defendant’s direct appeal to file a PCR application and

preventing claims of ineffective assistance from “toll[ing] or extend[ing] the

limitations period in this section”); see also In re F.W.S., 698 N.W.2d 134, 135

(Iowa 2005) (“It is the appellant’s duty to provide a record on appeal affirmatively

disclosing the alleged error relied upon.”).
28

As explained above, to prove ineffective assistance of counsel, an applicant

must show both that their counsel breached an essential duty and that the breach

caused prejudice. Kuhse, 937 N.W.2d at 628. To prove prejudice, Harrington

must prove by a preponderance of the evidence, see Dunbar v. State, 515 N.W.2d

12, 15 (Iowa 1994), that the errors were serious enough to deprive him of a fair

trial and “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Lamasters, 821

N.W.2d at 866 (citation omitted). It is not enough to simply assert the error might

have influenced the outcome. Id. Harrington cannot only rely on the belief that his

counsel could have done better. See Dunbar, 515 N.W.2d at 15 (“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. The applicant must

state the specific ways in which counsel’s performance was inadequate and

identify how competent representation probably would have changed the

outcome.” (internal citation omitted)).

Here, Harrington’s prejudice argument is only that he lost the opportunity to

have the PCR court consider the issue. See Douglass v. State, No. 20-0011, 2021

WL 5458478, at *2 (Iowa Ct. App. Nov. 23, 2021) (“[O]ther than pointing to the lack

of response to his request, [the applicant] neglected to explain how any data from

his phone would have enhanced his defense. . . . With no showing of how any of

the phone data would have benefitted his defense, [the applicant] fails to meet his

burden to prove counsel was ineffective.”). He has not provided us any reason to

believe that the State actually suppressed any evidence or that it even considered

Harvell a suspect, but instead makes only conclusory statements that his PCR
29

counsels’ actions in not pursuing the theory kept the additional claim from being

considered by the court. See Penwell v. State, No. 09-1820, 2011 WL 238196, at

*6 (Iowa Ct. App. Jan. 20, 2011) (finding that when the applicant only asserted

prejudice based on counsel’s failure to raise claims that “may have been

instrumental to obtaining a new trial” without any substantive prejudice argument,

the burden of proving prejudice was not met (emphasis omitted)); see also Beard

v. State, No. 15-1393, 2017 WL 2461415, at *2 (Iowa Ct. App. June 7, 2017)

(“These vague claims, however, fail to state who those witnesses would have

been, what they would have said, and how the omission of their testimony resulted

in prejudice to [the applicant].” (footnote omitted)). Without any proof of prejudice,

Harrington cannot meet his burden to show PCR counsel was ineffective for not

arguing the issue.

H. Ineffective Assistance of Counsel: Stocksleger’s Deposition

Transcript and Report.

Harrington claims that his PCR counsel was ineffective for failing to file the

transcript of a deposition taken of Stocksleger and the DNA report. In its PCR

ruling, the district court relied on both the deposition transcript and the report, citing

to each by page and line numbers. Now, Harrington asks that we order production

of both documents and add them into his appendix on appeal. Specifically, he

believes his counsel failed to provide this “source material” in our record, depriving

us of the ability to determine if the findings of the court were supported by sufficient

evidence. Yet, he again gives us no substantive argument of what prejudice

resulted. He tells us only that he did not get to review the report and transcript, not

that “there is a reasonable probability that, but for counsel’s unprofessional errors,
30

the result of the proceeding would have been different.” Lamasters, 821 N.W.2d

at 866 (citation omitted). His claim that counsel was ineffective for failing to file the

transcript and report must fail.

I. Ineffective Assistance of Counsel: Burglary and Theft as Crimes of

Dishonesty.

Harrington’s penultimate argument is that all of his attorneys, from the time

of his criminal trial through the end of his PCR, were ineffective for not arguing that

theft and burglary are not crimes of dishonesty. He makes this claim following the

supreme court’s decision in his direct appeal that his prior crimes of dishonesty—

theft and burglary—were not subject to the balancing test previously laid out in

Axiotis but were automatically admissible in his criminal trial as impeachment

evidence. See Harrington, 800 N.W.2d at 50. Again, to prove counsel was

ineffective, Harrington must establish both that counsel breached an essential duty

and that breach resulted in prejudice. See Kuhse, 937 N.W.2d at 628. Harrington

argues that, had the convictions not been allowed as impeachment evidence

against him, the jury could have better believed his testimony and might not have

convicted him.

“[W]here a claimant alleges counsel’s failure to pursue a particular course

breached an essential duty, there is no such duty when the suggested course

would have been meritless.” State v. Tompkins, 859 N.W.2d 631, 638 (Iowa 2015).

Harrington oversells the value of claiming theft and burglary are not crimes of

dishonesty, asserting on appeal that the supreme court “hand[ed] counsel the

issue on a silver platter.” As our supreme court put it in Harrington, “It has been

settled law in this state that convictions for theft and burglary with intent to commit
31

theft are crimes of dishonesty.” 800 N.W.2d at 51. And, we have previously

interpreted these sections of the Harrington opinion that Harrington points to not

as undermining controlling Iowa case law that burglary and theft qualify as crimes

of dishonesty but instead “our supreme court’s refusal to sort out the disparity of

interpretations between the various state and federal courts.” Reed v. State,

No. 17-1680, 2018 WL 6659875, at *2 (Iowa Ct. App. Dec. 19, 2018). As arguing

this point would have been meritless under current Iowa law, Harrington has not

proven his counsel breached an essential duty.

J. Recusal.

Harrington’s final claim is that the PCR court abused its discretion in

denying his motion for the judge’s recusal. Specifically, he focuses on the judge’s

“attitude at the 2016 Bench Trial and the January 24, 2018 Motion Hearing.” In the

former, the court said, “[I]f you want to leave the record open at the end of this

thing so that it gets—so that the record gets supplemented, but it doesn’t involve

any further court time with this guy, then fine.” In the latter, which surrounded

Singleton’s past drug use before Harrington’s arrest, Harrington believes that the

court had already determined the drug habit was not relevant and “had already

decided the case before receiving all of the evidence.” “We review a judge’s

recusal decision for an abuse of discretion.” Toney v. Parker, 958 N.W.2d 202,

208 (Iowa 2021) (citation omitted).

Iowa Code of Judicial Conduct rule 51:2.11(A) outlines in part:

A judge shall disqualify himself or herself in any proceeding in
which the judge’s impartiality might reasonably be questioned,
including but not limited to the following circumstances:
32

(1) The judge has a personal bias or prejudice concerning a
party or a party’s lawyer, or personal knowledge of facts that are in
dispute in the proceeding.

This is echoed in Iowa Code section 602.1606. Still, “[o]nly personal bias or

prejudice stemming from an extrajudicial source constitutes a disqualifying factor.

Judicial predilection or an attitude of mind resulting from the facts learned by the

judge from the judge’s participation in the case is not a disqualifying factor.”

Millsap, 704 N.W.2d at 432 (internal citation omitted); see also Long v. State, No.

19-0726, 2020 WL 2061934, at *5 (Iowa Ct. App. Apr. 29, 2020) (citing Black’s

Law Dictionary to note that “extrajudicial” refers to “outside the court” or “outside

the functioning of the court system”). “‘[T]here is as much obligation for a judge

not to recuse when there is no occasion for him to do so as there is for him to do

so when there is’ because of the ‘ever mounting sea of litigation.’” Carter v. Carter,

957 N.W.2d 623, 644 (Iowa 2021) (alteration in original) (citation omitted).

Harrington has raised no argument on appeal that the ruling judge had any

extrajudicial prejudice apart from simply ruling against him.13 See Long, 2020 WL

2061934, at *6 (“[Appellant] raises no claim that [the judge] had any judicial bias

or prejudice toward him stemming from any source other than the judge’s prior

encounters with [the appellant] in the course of judicial proceedings. . . . [The

appellant’s] conclusory statements that [the judge] was biased, prejudiced, or had

impermissible personal knowledge amount to either mere speculation or a

13Though in his initial motion for recusal Harrington noted that his attorney clerked
for the judge, he has raised no such argument on appeal and so waives the issue.
See Hubby v. State, 331 N.W.2d 690, 694 (Iowa 1983) (“Moreover, issues are
deemed waived or abandoned when they are not stated on appeal by brief; random
discussion of difficulties, unless assigned as an issue, will not be considered.”).
33

misunderstanding of Iowa law. Neither suffices to show a violation . . . .” (internal

citation omitted)). Without this vital step in his argument, we find no abuse of

discretion.

III. Conclusion.

For all the aforementioned reasons, we affirm the PCR court’s denial of

Harrington’s application.

AFFIRMED.