Opinion
No. 4-360 / 03-1086.
July 14, 2004.
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.
Carl Kon Vongchanh appeals from the district court's denial of his application for postconviction relief. AFFIRMED.
Susan R. Stockdale of Terrill, Martens, Hulting Stockdale, Ames, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and James Ward, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Carl Kon Vongchanh and three others entered a business on the morning of October 26, 1996. Mr. Vongchanh served as a "look-out" for the other three. One of the owners was shot and eventually died. The State charged Mr. Vongchanh and his companions with first-degree murder, first-degree robbery, and willful injury. The defendants were jointly tried. While the other defendants were found guilty as charged, the jury found Mr. Vongchanh guilty of second-degree murder, first-degree robbery, and willful injury. The trial judge sentenced Mr. Vongchanh to prison terms of fifty years, twenty-five years, and ten years, respectively, with sentences to run consecutively. This court affirmed the convictions. State v. Vongchanh, No. 97-1061 (Iowa Ct.App. Feb. 9, 2000); see also State v. Leutfaimany, 585 N.W.2d 200 (Iowa 1998) (affirming convictions of one of Mr. Vongchanh's codefendants).
In January 2003, Mr. Vongchanh filed an application for postconviction relief, which was denied, and he appeals. He asserts his counsel was ineffective (1) for failing to present mitigating evidence at sentencing; (2) for failing to argue, on direct appeal, that the trial judge erred in giving a supplemental jury instruction; and (3) for failing to file an application for further review of our decision affirming his convictions. After a de novo review of the record, see Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001), we affirm the denial of postconviction relief.
Criminal defendants enjoy a constitutional right to "the assistance of counsel," see U.S. Const. amend. VI, which assistance must be effective. A person claiming ineffective assistance of counsel must rebut the presumption that counsel was effective by showing both a failure to perform an essential duty and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). To show prejudice resulted from counsel's breach of an essential duty, a defendant must show that, absent the breach, the outcome "would reasonably likely have been different." Id. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699.
I.
After hearing from the victim's surviving spouse and other family members at sentencing, the trial court imposed the previously noted consecutive sentences. Mr. Vongchanh, whose goal is concurrent sentences, claims his counsel rendered ineffective assistance when he failed to call witnesses or present mitigating evidence on his behalf at sentencing. Defense attorneys have a duty to present mitigating evidence at sentencing; in the present instance, however, we cannot find Mr. Vongchanh was prejudiced by the failure to offer mitigating evidence.
At his postconviction hearing, Mr. Vongchanh presented testimony from his younger brother, who testified that he would have told the sentencing court that Mr. Vonchanh "was a good guy" who played basketball with him and took him fishing. The record contains no evidence about what other family members would have said if called to present information at the sentencing. Assuming they would have provided testimony similar to Mr. Vongchanh's younger brother, we find no reasonable likelihood that the sentence would have been different. When viewed with other information available to the sentencing judge, including the presentence investigation (which included mitigating information) and the demeanor of the defendants during the sentencing (including laughter during the testimony of the surviving spouse), and considering the nature of the crimes, testimony that Mr. Vongchanh was "generally a good person," see Strickland, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 701, is insufficient to show the judge would have imposed concurrent, rather than consecutive, sentences.
II.
Next, Mr. Vongchanh claims his counsel was ineffective in failing to brief and argue on direct appeal that the trial court erred in giving a supplemental jury instruction. During deliberations, the jury sent a question to the judge, who in reply told the jury to reread the instructions. The next day, the jury sent the following question to the judge:
Without further clarification on 1) aiding and abetting and 2) separating the charges, we will end up with a hung jury. Some jurors agree to aiding and abetting in the armed robbery but think that the State wants us to ignore that when we consider the murder charge. We need to know if the participation in the robbery can be used in determining the degree of guilt in the murder.
After a discussion among counsel and with the court, the judge directed the jury to read the instructions defining first-degree murder, defining joint criminal conduct, defining participation in a crime, defining "aiding and abetting," explaining specific intent, and explaining the effect of multiple prosecution theories. The judge further advised that, if the jury was unable to reach a verdict for all four defendants, it should reread this instruction: "If you cannot reach a verdict as to all of the Defendants, you shall reach a verdict only as to those defendants upon whom you can unanimously agree." Mr. Vongchanh complains of this instruction.
Mr. Vongchanh's counsel raised six issues on direct appeal. We believe that effective appellate practitioners focus on only the most promising issues, rather than presenting a shopping list of all conceivable grounds for reversal. Bear v. State, 417 N.W.2d 467, 474 (Iowa Ct.App. 1987). When this jury instruction issue is compared with the issues presented on direct appeal, we cannot say that Mr. Vongchanh's counsel failed to perform any essential duty. Moreover, the trial judge was well within his discretion to give the supplemental jury instruction, which accurately stated the law without placing emphasis on one particular theory or piece of evidence. The supplemental instruction did not prejudice Mr. Vongchanh.
III.
Finally, Mr. Vongchanh asserts that his counsel was ineffective when he did not seek further review by the Supreme Court of Iowa after we affirmed his conviction. Because Mr. Vongchanh did not apply for further review, the claims raised on direct appeal are procedurally defaulted, and may not be raised in a habeas corpus action in federal court. See O'Sullivan v. Boerckel, 528 U.S. 838, 848, 119 S. Ct. 1728, 1734, 144 L. Ed. 2d 1, 11 (1999); Swartz v. Mathes, 291 F. Supp. 2d 861, 871 (N.D. Iowa 2003); see also Akins v. Kenney, 341 F.3d 681, 683-85 (8th Cir. 2003) (stating that a defendant must seek "further review" of a Nebraska Court of Appeals decision by the Nebraska Supreme Court to preserve an issue for federal habeas corpus review).
Citing Iowa Rule of Appellate Procedure 6.402(3), the State asserts that Mr. Vongchanh's counsel had no duty to apply for further review, where such application would be denied. This argument has not been addressed by the Iowa Supreme Court; however, we need not accept it to decide this case, for Mr. Vongchanh has not shown that he was prejudiced by counsel's failure to seek further review.
Federal courts will grant habeas corpus relief only when an applicant demonstrates his state court conviction "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Applying this standard to the present case, we conclude Mr. Vongchanh has not demonstrated prejudice. Mr. Vongchanh claims the Confrontation Clause was violated when the trial court permitted testimony about confessions made by two nontestifying codefendants. State v. Vongchanh, No. 97-1061, slip op. at 8-14 (Iowa Ct.App. Feb. 9, 2000). The confessions were edited to remove any reference to other defendants and were summarized by police officers and other witnesses. The jury never saw the edited confessions. Assuming this issue was properly before the postconviction court and viewing it in a most charitable light, we fail to see how the trial court crossed the bounds of "clearly established Federal law," 28 U.S.C. § 2254(d)(1), in admitting this evidence. See Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987) (approving a similar procedure).