Jordan v. Mapes

• Decision Date: 04 August 2015
• Docket Number: No. 13-CV-2033-LRR,13-CV-2033-LRR
• Parties: GREGORY EARL JORDAN, Petitioner, v. TERRY MAPES, Respondent.
• Court: U.S. District Court — Northern District of Iowa

GREGORY EARL JORDAN, Petitioner, v. TERRY MAPES, Respondent.

No. 13-CV-2033-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

August 4, 2015

ORDER

TABLE OF CONTENTS

I. INTRODUCTION ....................................... 2

II. PROCEDURAL BACKGROUND ............................. 2

A. Conviction ........................................ 2

B. Direct Appeal ...................................... 2

C. State Post-Conviction Relief Proceedings .................... 3

D. Federal Habeas Corpus Action ........................... 6

III. FACTUAL BACKGROUND ................................. 9

IV. STANDARDS OF REVIEW ................................ 10

A. 28 U.S.C. § 2254(d) ................................. 10

B. Exhaustion and Procedural Default ...................... 12

V. DISCUSSION ......................................... 15

A. Ineffective Assistance of Counsel ........................ 17

1. Applicable law ................................ 17

2. Pre-trial counsel and trial counsel ................... 19

a. Failure to investigate and present defense based on the petitioner's mental health condition .............. 20

b. Grounds II-VIII ........................... 22

3. Appellate counsel .............................. 24

4. Post-conviction counsel .......................... 25

B. Motion to Suppress ................................. 26

VI. CERTIFICATE OF APPEALABILITY ......................... 27

VII. CONCLUSION ........................................ 28

I. INTRODUCTION

The matter before the court is Gregory Earl Jordan's ("the petitioner") "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus" ("petition") (docket no. 1).

II. PROCEDURAL BACKGROUND

A. Conviction

On May 1, 2002, in the Iowa District Court for Black Hawk County ("Iowa District Court"), Case No. FECR102398, a jury found the petitioner guilty of possession of a controlled substance, cocaine (Count I), and possession of a controlled substance, marijuana (Count II), both in violation of Iowa Code section 124.401(5). Appendix ("App'x"), Transcript of Pretrial Plea Offer and Jury Trial (docket no. 31-2). On June 5, 2002, in the Iowa District Court, a jury found the petitioner guilty of being an habitual offender in violation of Iowa Code section 902.8. App'x, Transcript of Trial re: Habitual Offender (docket no. 31-3) at 152. On August 12, 2002, the petitioner was sentenced to two concurrent fifteen year terms of imprisonment. App'x, Judgment and Sentence (docket no. 29) at 34-35.

B. Direct Appeal

On August 29, 2002, the petitioner appealed his conviction to the Iowa Supreme Court. App'x, Notice of Appeal (docket no. 31-5). The petitioner's appellate counsel requested permission to withdraw as the petitioner's counsel. App'x, Motion for Leave to Withdraw (docket no. 31-6); App'x, Brief in Support of Motion to Withdraw (docket no. 31-7). In the motion to withdraw, at the petitioner's request, appellate counsel preserved two issues for post-conviction relief: (1) the Iowa District Court erred inoverruling the motion to suppress based on racial prejudice and (2) pre-trial counsel¹ failed to accurately convey to the petitioner the terms of the State's plea offer. App'x, Brief in Support of Motion to Withdraw (docket no. 31-7) at 4. On November 12, 2003, the Iowa Supreme Court granted the motion for leave to withdraw and dismissed the appeal as frivolous. App'x, Order Dismissing Appeal (docket no. 31-9). On November 18, 2003, Procedendo issued. App'x, Procedendo (docket no. 31-10).

C. State Post-Conviction Relief Proceedings

The petitioner applied for post-conviction relief in the Iowa District Court, asserting the following claims for relief: (1) ineffective assistance of trial counsel for failing to put on a defense to the possession charges; (2) ineffective assistance of trial counsel for failing to put on a defense to the habitual offender charge; (3) ineffective assistance of pre-trial counsel for failing to discuss a plea agreement with the petitioner before informing the Iowa District Court that the petitioner wanted to withdraw his motion to suppress pursuant to the plea agreement; (4) ineffective assistance of pre-trial counsel for failing to accurately convey to the petitioner the terms of the plea agreement; (5) ineffective assistance of trial counsel for failing to object to the State's exhibits when the evidence tags were still attached; (6) ineffective assistance of appellate counsel for failing to raise the ineffectiveness of trial counsel; (7) ineffective assistance of appellate counsel for failing to preserve as error that the Iowa District Court incorrectly overruled the petitioner's motion to suppress; (8) the Iowa District Court erred in overruling the petitioner's motion to suppress; (9) ineffective assistance of pre-trial counsel for failing to refrain from coercing the petitioner; (10) ineffective assistance of trial counsel for failing to object to prejudicial evidence; and (11) the Iowa District Court erred in overruling the motion tosuppress based on racial prejudice.² App'x, Application for Post-Conviction Relief (docket no. 31-11) at 3; App'x, Amended Application for Post-Conviction Relief (docket no. 31-12) at 2-4. Additionally, it appears that the Iowa District Court also considered the petitioner's claim that trial counsel was ineffective for failing to fully investigate and put on a defense based on the petitioner's mental health condition. App'x, Transcript of Post-Conviction Relief Hearing (docket no. 31-13) at 40, 43. The Iowa District Court denied the petitioner's application for post-conviction relief in its entirety. App'x, Jordan v. State, No. PCCV093032; Ruling on Application for Post-Conviction Relief (docket no. 31-14) at 5.

The petitioner appealed the Iowa District Court's denial of post-conviction relief, asserting the following claims on appeal³: (1) ineffective assistance of trial counsel and post-conviction counsel for failing to fully investigate the petitioner's mental health condition and put on a defense based thereon; (2) ineffective assistance of trial counsel for failing to put on a defense to the possession charges; (3) ineffective assistance of trial counsel for failing to put on a defense to the habitual offender charge; (4) ineffective assistance of pre-trial counsel for withdrawing the petitioner's motion to suppress withouthis consent; (5) ineffective assistance of pre-trial counsel for failing to accurately convey to the petitioner the terms of the State's plea offer; (6) ineffective assistance of trial counsel for failing to object to the State's exhibits when the evidence tags were still attached; (7) ineffective assistance of pre-trial counsel for coercing the petitioner into a plea agreement, the subsequent withdrawal of which prejudiced the Iowa District Court; (8) ineffective assistance of trial counsel for failing to seek dismissal and release under speedy indictment rules; (9) ineffective assistance of appellate counsel for failing to raise a claim of ineffective assistance of trial counsel; (10) ineffective assistance of appellate counsel for failing to preserve the issue of whether the Iowa District Court erred in overruling the petitioner's motion to suppress; (11) the Iowa District Court erred in overruling the petitioner's motion to suppress because it prejudicially referred to the petitioner as a "reneger"; (12) ineffective assistance of post-conviction counsel for failing to call all witnesses during the post-conviction relief hearing; and (13) ineffective assistance of post-conviction counsel for failing to contest the petitioner's conviction of possession of marijuana, third offense, because the petitioner had no prior convictions of possession of marijuana.⁴ App'x, Appellant's Brief (docket no. 31-17); App'x, Appellant's Pro Se Supplemental Brief (docket no. 31-18).

On November 29, 2012, the Iowa Court of Appeals affirmed the Iowa District Court's decision denying post-conviction relief. It addressed the merits of the petitioner's first claim for relief, holding that the petitioner failed to show prejudice resulting from the alleged ineffectiveness of trial counsel for failing to present any evidence relating to the petitioner's mental health. App'x, Jordan v. State, No. 10-0397 (docket no. 31-22) at 3. It held that the crime of possession of a controlled substance is a general intent crime underIowa law and because the petitioner did not argue that he was legally insane or incompetent to stand trial, any defense of diminished responsibility would not have negated the general criminal intent necessary for conviction. Id. (docket no. 31-22) at 4. The Iowa Court of Appeals also found that the petitioner waived his remaining twelve claims for relief because he failed to cite to the record or to legal authorities in his pro se supplemental brief, as required by Iowa Rule of Appellate Procedure 6.903(2)(g)(3). Id. (docket no. 31-22) at 4 n.2.

On December 19, 2012, the petitioner filed an application for further review in which post-conviction appellate counsel briefed one claim for relief, that is, the claim regarding trial counsel's failure to fully investigate and present a defense based on the petitioner's mental health condition. App'x, Application for Further Review (docket no. 31-23). Post-conviction appellate counsel also preserved for review, without endorsing them "for professional responsibility reasons," the petitioner's remaining twelve claims, that is, those claims that were determined by the Iowa Court of Appeals to have been waived. Id. (docket no. 31-23) at 12. On February 5, 2013, the Iowa Supreme Court denied the petitioner's application for further review. App'x, Order Denying Application for Further Review (docket no. 31-16). On February 13, 2013, Procedendo issued. App'x, Procedendo (docket no. 31-25).

D. Federal Habeas Corpus Action

On April 25, 2013, the petitioner filed the petition in the United States District Court for the Southern District of Iowa,...