Opinion
No. 3-887 / 02-1916
Filed March 24, 2004
Appeal from the Iowa District Court for Plymouth County, James D. Scott, Judge.
Dionicio Hernandez, Jr. appeals from the district court's grant of summary judgment on his application for postconviction relief. REVERSED AND REMANDED.
Scott Bixenman of Murphy, Collins Bixenman, P.L.C., LeMars, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, and Darin Raymond, County Attorney, for appellee.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
Dionicio Hernandez, Jr. appeals from a district court ruling that granted summary judgment on his application for postconviction relief. We reverse the grant of summary judgment and remand this matter for further proceedings.
Background Facts and Proceedings.
In November 1998, Dionicio Hernandez, Jr. crashed his pickup truck into a fire station in LeMars, Iowa, killing his passenger. Following a jury trial, Hernandez was convicted of homicide by motor vehicle and sentenced to prison. He appealed his conviction alleging, among other things, that he was denied effective assistance of counsel. On direct appeal this court affirmed Hernandez's conviction, but preserved two of his ineffective assistance of counsel claims for possible postconviction relief proceedings. State v. Hernandez, No. 99-1338 (Iowa Ct.App. Sept. 27, 2000).
Hernandez subsequently filed an application for postconviction relief, raising the two preserved ineffective assistance claims. The application alleged Hernandez's trial counsel was ineffective in failing to (1) adequately investigate his case and prepare a defense, in that counsel did not conduct additional depositions or call an expert witness even when given additional funds to do so, and (2) prove prejudice from jury exposure to in-trial publicity. The State responded to the application by contemporaneously filing a resistance and a motion to dismiss. The State's motion to dismiss alleged the application failed to state a claim, and further stated Hernandez was attacking a strategic decision by counsel, which was not a proper ground for postconviction relief. Hernandez filed a resistance to the State's motion.
The district court set a hearing on the "Motion to Dismiss Defendant's Application for Postconviction Relief" for May 20, 2002. Following two continuances to allow for discovery, the "Motion to Dismiss" was reset for hearing on August 26, 2002. The hearing was apparently held as scheduled, but was not reported. Following the hearing, on September 24, 2002, Hernandez filed an application for the appointment of an expert.
On October 25, 2002, the district court issued a "Ruling on Respondent's Motion for Summary Judgment." The court granted summary judgment and dismissed Hernandez's application, finding trial counsel's failure to call an expert was a strategic decision made following adequate investigation, and that Hernandez had not shown a reasonable probability of a different outcome if an expert witness had been called. The court did not specifically rule on Hernandez's claim regarding in-trial publicity, but did identify the claim and make general findings as to trial counsel's competence and Hernandez's failure to show prejudice. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984) (setting forth standard of proof in ineffective assistance claims).
Hernandez appeals, raising two issues. First, he contends the district court erred in considering the state's motion to dismiss as a motion for summary judgment without giving him notice of its intention or an opportunity to respond. Second, he argues the district court erred in dismissing his application for postconviction relief because the application properly states a claim for relief and issues of material fact preclude summary judgment. Scope of Review.
In this appeal, Hernandez limits his arguments to counsel's alleged failure to adequately investigate and prepare a defense.
Our review in postconviction relief proceedings is for the correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002).
Discussion.
Iowa Code section 822.6 (2001) provides for disposition of a postconviction relief application without a trial on the merits in two circumstances. Manning v. State, 654 N.W.2d 555, 559 (Iowa 2002). The first method, described in unnumbered paragraph 2, allows for disposition on the court's initiative, and entitles the applicant to notice of the court's intention to dismiss the application and its reasons for dismissal, as well as an opportunity to respond. Iowa Code § 822.6; Manning, 654 N.W.2d at 559. Hernandez relies on this portion of section 822.6 to support his claim that the court erred when it failed to give him notice or an opportunity to respond to the dismissal of his application.
That portion of Iowa Code section 822.6 specifically provides:
When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for dismissal. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if a material issue of fact exists.
It appears, however, that the district court took action under the second method, found in paragraph three of section 822.6, which controls when the court may grant a motion for summary disposition made by either party. Id. Although this method does not specifically require notice or an opportunity to respond, the procedure is analogous to a summary judgment procedure, and the principles of summary judgment apply. Iowa Code § 822.6; Manning, 654 N.W.2d 559-60. Thus, this section provides for "`a method of disposition once the case has been fully developed by both sides, but before an actual trial.'" Manning, 654 N.W.2d at 559 (emphasis in original).
That portion of Iowa Code section 822.6 provides:
The court may grant a motion by either party for summary disposition of the application, when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Based on our supreme court's recent analysis of section 822.6 in Manning v. State, 654 N.W.2d 555 (Iowa 2002), we conclude there is merit to Hernandez's argument that he was not fairly apprised of the district court's intention to summarily dispose of the claims in his application. In Manning, the district court summarily dismissed an application for postconviction relief on the merits, after holding an unreported hearing on the State's motion to dismiss. Manning, 654 N.W.2d at 558. The supreme court found that, because the order specifically set hearing on a motion to dismiss, the applicant had not received sufficient notice of his need to present proof on any issue other than those alleged in the motion to dismiss. Id. at 561.
A similar situation exists here. The State filed a motion to dismiss, not a motion for summary judgment, and the order setting hearing refers to a "Motion to Dismiss Defendant's Application for Postconviction Relief." Moreover, the record provides no indication that the parties agreed to treat the State's motion to dismiss as a motion for summary judgment. There is no reference to any agreement between the parties, and while the State did submit two exhibits at the hearing — the State's brief in Hernandez's direct appeal and the deposition of Hernandez's trial attorney — the file contains no memorandums of authorities, no statements of disputed or undisputed facts, or anything resembling summary judgment filings.
In addition, our supreme court has expressed a preference that ineffective assistance of counsel claims in postconviction relief proceedings, even if deemed improbable by the district court, be addressed in an evidentiary hearing. Id. at 562. This allows the applicant to present any proof he may have. Id. Here, Hernandez was not given an opportunity to fully develop his claims.
Although the State's motion to dismiss did assert that trial counsel's actions constituted a reasonable tactical decision, that alone did not provide Hernandez adequate notice of all the issues addressed by the court in its summary judgment ruling. See Manning, 654 N.W.2d at 561 (indicating that applicant must be properly notified of need to present proof on "any issue other than what was alleged in the State's motion to dismiss").
For these reasons we conclude the district court should not have summarily dismissed Hernandez's application. Accordingly, we reverse the district court's grant of summary judgment and remand for further proceedings not inconsistent with this opinion.