Opinion
No. 1-873 / 01-0910.
Filed January 28, 2002.
Appeal from the Iowa District Court for Scott County, GARY D. McKENRICK, Judge.
Travis Herman appeals the district court order denying his application for postconviction relief. AFFIRMED.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Robert F. Ewald, Assistant Attorney General, and William E. Davis, County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Travis Herman appeals from a district court order denying his application for postconviction relief. He contends his appellate counsel was ineffective for failing to raise constitutional attacks on his sentence for second-degree murder. We affirm on appeal by memorandum opinion pursuant to Iowa Supreme Court Rule 9.
Herman was convicted of second-degree murder and other crimes in 1997. His convictions were affirmed on direct appeal. Herman then sought postconviction relief alleging his appellate counsel provided ineffective assistance by failing to challenge the constitutionality of Iowa statutes requiring him to serve 85% of his fifty-year sentence for second-degree murder before becoming eligible for parole. Herman's trial counsel challenged the requirements of the 85% law on state and federal constitutional grounds prior to Herman's sentencing. The constitutional challenges were based on the defendant's rights of due process, equal protection, and freedom from cruel and unusual punishment.
A claim raised at trial but abandoned on direct appeal may be litigated in postconviction relief proceedings in order to determine if appellate counsel provided ineffective assistance. Ledezma v. State, 626 N.W.2d 134,152 (Iowa 2001). "Ineffective assistance of counsel" means that (1) counsel failed to perform an essential duty, which (2) resulted in prejudice. Strickland v. Washington. 446 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Counsel is not ineffective for failing to raise a meritless issue. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).
The postconviction court relied on State v. Cronkhite, 613 N.W.2d 664 (Iowa 2000) in deciding that Herman suffered no prejudice from his appellate counsel's omission because any such challenge would have failed on the merits. The court correctly noted the constitutional issues raised by Herman and his trial counsel had not been addressed by the appellate courts of this state at the time of Herman's direct appeal. However, those issues have been adjudicated adversely to Herman's position since that time. In Cronkhite, our supreme court rejected a claim that a similar sentence imposed for second-degree murder violated the constitutional rights of equal protection and due process of law. Cronkhite, 613 N.W.2d at 667-68. The court also rejected the notion that such a sentence constituted cruel and unusual punishment. Id.at 669. Because we determine State v. Cronkhite is controlling, we affirm the ruling of the postconviction court.
AFFIRMED.