Opinion
No. 3-084 / 02-0870.
Filed April 30, 2003.
Appeal from the Iowa District Court for Woodbury County, JAMES D. SCOTT, Judge.
Applicant appeals the summary dismissal of his application for postconviction relief. AFFIRMED.
Shelley Horak, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, Thomas Mullin, County Attorney, and Mark Campbell, Assistant County Attorney, for appellee.
Heard by Zimmer, P.J., and HECHT and EISENHAUER, JJ.
Matthew Hallum appeals from the summary dismissal of his application for postconviction relief. He contends the district court erred in granting summary judgment on the issue of whether counsel rendered ineffective assistance because a conflict of interest adversely affected his trial counsel's performance. We affirm.
I. Background Facts and Procedures. The facts leading up to this action began in the early morning hours of February 26, 1993. Shortly after midnight, Mathew Hallum and his sixteen-year-old half-brother, Carlos Medina, encountered Justin Cloud and his fifteen-year-old companion, Tanya Rubottom, after Cloud's car became stuck in snow. Medina and Hallum assisted Cloud, and Cloud invited everyone back to his apartment for drinks.
The party consumed whiskey until sometime after 4 a.m., when Cloud and Rubottom retired to the bedroom. Sometime later, Rubottom returned to the living room and asked Hallum and Medina to leave. When Cloud entered the living room a few minutes later, he witnessed Rubottom being held down and molested by Hallum and Medina.
As Cloud went to the kitchen to get a knife, Hallum hit him from behind. Hallum and Medina tied Cloud's hands behind his back with an electrical cord and took turns beating him. After Cloud pretended to be dead, the brothers dragged him into the bedroom. They then brought Rubottom to the bedroom and sexually assaulted her. Hallum then strangled Rubottom. After stealing some cassette tapes, Hallum and Medina left the apartment.
When it became apparent Hallum and Medina were gone, Cloud got up and discovered Rubottom was dead. He found a pile of clothes on top of the oven range, with all four burners lit to start a fire. Hallum and Medina had also locked the apartment door. Cloud unlocked the door with his teeth, chipping one tooth, and pounded on his neighbor's door at approximately 8 a.m. Cloud was hysterical and shouted that "Indians" had broken into his apartment, killed his "wife," and beaten him. Cloud's hands were still bound by the electrical cord and his face was bruised.
Cloud was an initial suspect in the murder. However, Hallum and Medina were later arrested. On March 12, 1993, the Public Defender's office was appointed to represent Hallum. On March 30, 1993, Assistant Public Defender Michael Williams sent a note to Hallum's lead trial counsel, Chief Public Defender Gregory Jones. The note advised Jones that Williams's client, Joseph Biggs, had spoken with Justin Cloud in prison. In regard to Rubottom's murder, Biggs stated, "You might as well done it," to which Cloud responded with a laugh. Although Biggs felt this was odd, Cloud never indicated he did anything wrong or lied to police. Jones felt Biggs did not have any testimony of value to Hallum's defense. He also did not seek a deal for Biggs to dismiss his pending criminal charges in exchange for any information he could provide.
The charges against Hallum were dismissed without prejudice on May 12, 1993. The charges were re-filed on October 12, 1995, and the State Public Defender continued its representation of Hallum. Jones and Williams represented Hallum at trial, which started on January 15, 1997.
At Hallum's trial, the court admitted into evidence a videotape of Medina talking to police about the night of the murder. Medina admitted that he and Hallum had raped Rubottom, and said Hallum had used his bandana to strangle Rubottom. Hallum was convicted of first-degree sexual abuse, first-degree murder, and assault with intent to commit serious injury. He was sentenced to two life terms in prison.
The Iowa Supreme Court affirmed Hallum's conviction in State v. Hallum, 585 N.W.2d 249 (Iowa 1998). Hallum appealed to the United States Supreme Court, which vacated and remanded the matter for reconsideration in light of Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). The Iowa Supreme Court affirmed on remand in State v. Hallum, 606 N.W.2d 351 (Iowa 2002).
On October 9, 2000, Hallum filed an application for postconviction relief alleging his trial counsel provided ineffective assistance, prosecutorial misconduct, newly discovered evidence, and juror misconduct. On April 9, 2001, the State filed its first motion for summary judgment. On October 2, 2001, the court granted the motion as to the issues of newly discovered evidence, prosecutorial misconduct, juror misconduct, and the related ineffective assistance claims. The court held that the remaining ineffective assistance of counsel claims involved issues of material fact. The State filed a second motion for summary judgment on February 19, 2002, and the court dismissed the remaining issues in its May 8, 2002 ruling.
II. Scope of Review. Normally, a trial court's denial of a postconviction relief action is reviewed for correction of errors at law. Fenske v. State, 592 N.W.2d 333, 338 (Iowa 1999). Where, however, the applicant asserts violations of constitutional safeguards, our review is de novo. Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994).
III. Analysis. Hallum's sole claim on appeal is that the district court erred in granting summary judgment on the issue of whether trial counsel rendered ineffective assistance because co-counsel had also represented Biggs. The court concluded Hallum had not shown an actual conflict of interest that adversely affected his trial counsel's performance.
The State argues Hallum failed to preserve this ineffective assistance claim for postconviction relief because it was not raised on direct appeal. Generally, a claim not raised on direct appeal cannot be raised in a postconviction relief proceeding unless the applicant demonstrates a sufficient cause for not properly raising the issue previously. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). For instance, factual or legal matters that were excusably unknown at the time of the trial and appeal may be properly asserted on postconviction relief. Id. Hallum asserts trial counsel did not inform him of the conflict, and his postconviction attorney only discovered it while reviewing trial counsel's files during the postconviction proceeding. However, Hallum's counsel on direct appeal states he considered all possible grounds for challenging Hallum's convictions and raised only those he believed to be the strongest. There is no indication as to whether Hallum's conflict of interest claim was discoverable at that time or considered. Accordingly, we will address the merits of Hallum's claim.
When summary judgment is granted in a postconviction relief action, we examine the record to determine if a genuine issue of fact exists and whether the moving party is entitled to a judgment as a matter of law. Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999). We consider all materials in the light most favorable to the party opposing summary judgment. Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002). A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts. Id.
A conflict of interest may result in ineffective assistance of counsel. Connor v. State, 630 N.W.2d 846, 849 (Iowa Ct.App. 2001). To succeed on this claim, Hallum was required to show an actual conflict of interest adversely affected the adequacy of his representation. See State v. Thompson, 597 N.W.2d 779, 784 (Iowa 1999). This entails a showing that his counsel actively represented conflicting interests. Id. at 784-85. To establish an actual conflict it must be demonstrated that the attorney made a choice between alternative courses of action. Id. at 785. If counsel did not make such a choice, the conflict remained hypothetical. Id.
The district court concluded Hallum failed to show an actual conflict of interest existed that adversely affected his trial counsel's performance. The court found Hallum failed to show the existence of inconsistent interests in defending Hallum and Biggs. It noted that Jones, Hallum's lead counsel, merely decided that Biggs' testimony was not beneficial to Hallum's case because Biggs did not have direct knowledge of the murder or the events surrounding it.
Hallum's trial co-counsel, Williams, represented Biggs on a charge unrelated to Rubottom's murder. Biggs was sentenced on March 29, 1993, nearly four years before the start of Hallum's trial. After Biggs was sentenced, the State Public Defender's office no longer represented him.
Hallum argues that Williams was in a conflicted position because he represented both Hallum and Biggs in March 1993. Hallum claims that because Biggs wanted to "sell" information to force a deal, "[o]ne can only assume that upon being informed that Williams had no power to force a deal for the information, that Biggs told his attorney not to divulge the information." This speculation does not create an actual conflict of interest. State v. Douglas, 485 N.W.2d 619, 625 (Iowa 1992) ("A reviewing court cannot predicate error on speculation.").
The State notes this case is unlike most conflict cases. Biggs was not a co-defendant or an adverse prosecution witness. See, e.g., Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981) ("Most conflict-of-interest cases involve representation of multiple defendants under circumstances compelling an attorney to choose one client over another."); Cosgrove v. State, 304 N.W.2d 184, 186 (Iowa 1981) (noting potential conflict where attorney represents defendant and adverse witness). Hallum argues that although Biggs would not have been an adverse witness, he was clearly a reluctant and potentially hostile one because he "apparently" would not talk without a deal. Hallum claims that forcing Biggs to testify would therefore create an actual conflict for Williams with his past client because he would be forced to confront Biggs with his letter.
Our supreme court has previously held that no conflict of interest exists in these circumstances. See Nichol, 309 N.W.2d at 470. In Nichol, the petitioner's counsel had represented a witness for the prosecution in an unrelated case approximately one year before trial. Id. Counsel did not represent the witness at the time of trial. Id. The court held the single isolated representation of the witness on a wholly unrelated matter "does not raise even a remote possibility of conflict." Id. The applicant failed to show any possibility of future business, nor was there any suggestion that counsel obtained any privileged information which would inhibit his representation of the petitioner. Id. The information provided by Biggs was so ambiguous it could not create a conflict of interest. Because Hallum has likewise failed to show a conflict of interest stemming from his counsel's previous representation of Biggs, we affirm the district court's summary dismissal of Hallum's application for postconviction relief.