Morgan v. State, 89-1950

• Decision Date: 17 April 1991
• Docket Number: No. 89-1950,89-1950
• Citation: 469 N.W.2d 419
• Parties: Hosea MORGAN, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 419

469 N.W.2d 419

Hosea MORGAN, Appellant, v. STATE of Iowa, Appellee.

No. 89-1950.

Supreme Court of Iowa.

April 17, 1991.

Rehearing Denied May 13, 1991.

Brian L. Danielson of Pattie, Hinshaw, Danielson & Kloberdanz, P.C., Marshalltown, for appellant.

Thomas J. Miller, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., Diann Wilder-Tomlinson, Marshall County Atty., and Peter J. Grady, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, NEUMAN, and SNELL, JJ.

LAVORATO, Justice.

In this postconviction relief proceeding, we must decide whether we should apply a recent United States Supreme Court decision retroactively to the applicant's conviction. We must also decide whether the applicant's appellate counsel rendered ineffective assistance. That claim is based on counsel's failure to prolong the applicant's case so the applicant could assert retroactive application of the decision. The district court denied the applicant relief on both issues. We affirm.

I. Background Facts and Proceedings.

In November 1986 Hosea Morgan, the postconviction relief applicant, was convicted of sexual abuse in the third degree. See Iowa Code § 709.4 (1985). His sentence was enhanced to a term of incarceration not to exceed fifteen years because he was an habitual offender. See Iowa Code §§ 709.4, 902.8, 902.9(2).

During the criminal trial, the prosecuting witness--a thirteen-year-old child--testified by one-way closed circuit television. In taking her testimony the court followed the following procedure now codified in Iowa Code section 910A.14(1):

A court may, upon its own motion or upon motion of any party, order that the testimony of a child, as defined in section 702.5, be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the court.... [A]ny person whose presence, in the opinion of the court, would contribute to the welfare and well-being of the child may be present in the room with the child during the child's testimony.

This procedure was originally codified at section 910A.3(1) (Supp.1985). This section was later renumbered 910A.14(1). 1986 Iowa Acts, ch. 1178, § 19.

Before the child testified, the district court made no findings that the procedure was necessary to protect her. The child gave her testimony from a room next to the courtroom. A video monitor recorded and displayed the child's testimony to those in the courtroom. The child, however, was not able to see the defendant. Only the child's guardian ad litem and the child's natural mother were present in the room with the child when she testified. Counsel and the judge had microphones so they could talk to the child.

Before the child testified, Morgan's counsel objected to this procedure on the grounds that section 910A.14(1) violated Morgan's sixth amendment right to confrontation. In support of the objection, counsel stated:

I believe that pursuant to the confrontation clause, the alleged victim in this case should be required to be in the courtroom to face my client and to face the jury while she is testifying, and the procedure that we have here, she does not see anyone in the courtroom. She just hears the voices, and although we can see her, she does not have to come face to face with the person that she is accusing of a crime. And we would, therefore, submit that she should be required to testify in person.

The court overruled the objection.

Morgan again raised the confrontation issue in his motion for new trial, which was overruled.

Morgan appealed his conviction to this court on February 4, 1987. The state appellate defender's office was appointed to represent Morgan on the appeal, and B. John Burns of that office handled it. In the appeal Burns squarely raised the confrontation issue.

Burns had handled the appeal in State v. Coy, which we decided in December 1986. See State v. Coy, 397 N.W.2d 730 (Iowa 1986). In that case the district court granted the State's request that a screen be placed in front of Coy during the testimony of two children. The children were alleged victims of Coy's lascivious acts. The screening procedure was codified in what was then section 910A.3(1) (Supp.1985). On appeal Burns challenged the procedure on two grounds. He claimed the procedure violated Coy's sixth amendment right to confront witnesses against him and his fourteenth amendment right to a fair trial. See U.S. Const. amends. VI, XIV. We rejected both claims and affirmed Coy's conviction. Coy, 397 N.W.2d at 733-35.

After our decision in State v. Coy, Burns sought the help of Paul Papak, a law professor at the University of Iowa Law School. Burns asked Papak to appeal the case to the United States Supreme Court. Papak did, and on June 26, 1987, the Supreme Court noted probable jurisdiction. Coy v. Iowa, 483 U.S. 1019, 107 S.Ct. 3260, 97 L.Ed.2d 760 (1987). The Supreme Court heard the case in January 1988.

While Coy v. Iowa was pending in the Supreme Court, Burns was handling Morgan's appeal to our court. We transferred Morgan's case to the court of appeals. That court rejected Morgan's confrontation challenge based on our decision in State v. Coy and affirmed his conviction on March 9, 1988. State v. Morgan, 428 N.W.2d 318 (Iowa App.1988) (Table No. 87-243).

We overruled Morgan's application for further review on April 22. Neither Morgan nor Burns took any further direct action.

On May 9, while Coy v. Iowa was still pending, Morgan filed a pro se application for postconviction relief. He asked to have his conviction set aside for a number of reasons. See Iowa Code § 663A.3 (1987).

On June 29, 1988, the Supreme Court handed down its decision in Coy v. Iowa. The Court held that Coy's sixth amendment confrontation right had indeed been violated. See Coy v. Iowa, 487 U.S. 1012, 1022, 108 S.Ct. 2798, 2803-04, 101 L.Ed.2d 857, 867 (1988). This was one week after Morgan's right to seek certiorari had expired.

Morgan's court-appointed lawyer--an attorney other than Burns--amended Morgan's pro se application on July 11. In this amended application Morgan asserted, among other things, that Burns was ineffective because he did not raise a sufficiency of the evidence issue on appeal. Morgan also claimed his conviction could not stand because the Supreme Court had recently overturned State v. Coy. The court of appeals had relied on this case in rejecting Morgan's confrontation claim. Morgan made no further assertions about State v. Coy or Coy v. Iowa.

The State answered on July 28. It denied that Coy v. Iowa affected Morgan's conviction.

In September Morgan applied for summary disposition. See Iowa Code § 663A.6. He alleged that there was no issue of fact that required a trial on his amended application.

The State answered on November 7. It asserted that Coy v. Iowa was inapplicable to Morgan's conviction because Morgan's case was not pending before the Supreme Court when Coy v. Iowa was decided. The State also asserted that even if Coy v. Iowa applied and the child's testimony was excluded, there was sufficient remaining evidence to sustain Morgan's conviction.

Judge Carl E. Peterson heard the summary disposition application on November 7 and denied it on December 28. The judge decided that Coy v. Iowa should not be applied retroactively to Morgan's conviction.

On April 4, 1989, Morgan made application for leave to amend, which was granted several weeks later. In this amendment Morgan more fully stated his claim of ineffective assistance of appellate counsel. He asserted that Burns was ineffective for

failing to file a request for direct review or certiorari to the United States Supreme Court from the Iowa Court of Appeals' and the Iowa Supreme Court's decisions affirming Morgan's conviction at trial, or in not advising Morgan to do likewise while Coy v. Iowa was pending before the United States Supreme Court.

Judge J.W. Frye heard the postconviction action in June and ruled against Morgan on the retroactive application and the ineffective assistance claims. Judge Frye also held that even if Coy v. Iowa applied, there was sufficient remaining evidence to satisfy the harmless error standard. See Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967).

Morgan appealed. He raises a number of issues on appeal that boil down to two: (1) whether Coy v. Iowa applies retroactively to his conviction; and (2) whether Burns rendered ineffective assistance of counsel when he did not seek relief in the Supreme Court while Coy v. Iowa was pending.

II. Retroactive Application of Coy v. Iowa.

The first issue we address is whether Coy v. Iowa applies retroactively to Morgan's conviction. The answer depends on several Supreme Court holdings dealing with retroactive application of constitutional decisions to cases on collateral review.

New constitutional rules of criminal procedure apply retroactively to all cases--state or federal--pending on direct review or not yet final. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987). "Final" refers to all cases in which a judgment of conviction has been rendered, appeals have been exhausted, and the time for petition for certiorari has elapsed before the new rule is announced. Teague v. Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 1066-67, 103 L.Ed.2d 334, 345-46 (1989).

So, generally, such new rules do not apply retroactively to cases on collateral review. Id. at 311-16, 109 S.Ct. at 1075-78, 103 L.Ed.2d at 356-60; Brewer v. State, 444 N.W.2d 77, 81 (Iowa 1989). There are two exceptions. New rules are applied to cases on collateral review if the rule change (1) places certain types of individual, private conduct beyond the ability of the lawmakers to proscribe, or (2) creates a "watershed" rule of criminal procedure implicating issues of fundamental trial fairness. Teague, 489 U.S. at 311-12, 109 S.Ct. at 1075-76, 103 L.Ed.2d at 356-57; Brewer, 444 N.W.2d at...