Michael William Walker McPeek Jr. v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-1870
Filed May 8, 2024

MICHAEL WILLIAM WALKER McPEEK Jr.,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Story County, Amy M. Moore, Judge.

Michael McPeek appeals from the denial of his application for

postconviction relief alleging ineffective assistance of counsel. AFFIRMED.

Francis Hurley, Des Moines, for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.

Considered by Greer, P.J., Chicchelly, J., and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
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VOGEL, Senior Judge.

Michael McPeek Jr. appeals from the denial of his application for

postconviction relief (PCR), which claimed his defense counsel provided

ineffective assistance. Because McPeek’s trial counsel did not breach any

essential duty, nor was McPeek prejudiced by appellate counsel’s form-of-review

error, we affirm.

I. Background Facts and Proceedings

McPeek was charged with first-degree burglary, assault causing bodily

injury, and stalking after he defied a protective order, broke through the victim’s

back door, entered her home, grabbed her, and continued to contact her after the

event. Following a December 2019 jury trial, McPeek was convicted of the lesser

offense of trespass, the lesser offense of assault, and acquitted of stalking.

McPeek’s sentence for the two simple misdemeanor convictions was a $265 fine

and thirty days in jail. McPeek received credit for time served, which immediately

discharged his jail sentence.

Shortly after sentencing, McPeek filed a handwritten “motion to appeal” his

misdemeanor convictions, later refiled by defense counsel. Because there is no

appeal as a matter of right from simple misdemeanor convictions, our supreme

court treated the appeal as an application for discretionary review and, after

briefing, denied the same. See Iowa Code § 814.6(2)(d) (2021).

McPeek then filed a PCR application, arguing he received ineffective

assistance of counsel. Following trial, the district court denied McPeek’s

application. McPeek appeals.
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II. Standard of Review

A district court’s denial of an application for PCR relief is ordinarily reviewed

for correction of errors at law. Sothman v. State, 967 N.W.2d 512, 522 (Iowa

2021). But when an applicant alleges ineffective assistance of counsel, the appeal

implicates a constitutional issue, which we review de novo. Linn v. State, 929

N.W.2d 717, 729 (Iowa 2019).

III. Discussion

To obtain PCR relief, an applicant must clear two thresholds. First, the

applicant must show that defense counsel “breached an essential duty.” State v.

Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). Breaching an essential duty means

performing “below the standard demanded of a reasonably competent attorney.”

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). When considering breach,

“ineffective assistance is more likely to be established when the alleged actions or

inactions of counsel are attributed to a lack of diligence as opposed to the exercise

of judgment.” Id. An applicant must “overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.”

Nguyen v. State, 878 N.W.2d 744, 752 (Iowa 2016) (quoting Strickland v.

Washington, 466 U.S. 668, 689 (1984) (citation omitted)).

Second, an applicant must show defense counsel’s error resulted in

prejudice. Ledezma, 626 N.W.2d at 143. An applicant is prejudiced when there

is “a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at

694).
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On appeal, McPeek argues defense counsel (1) pursued a trial strategy that

was not adequately communicated to him, prioritized defending against the greater

charges at the expense of the lesser-included charges, and failed to explore the

nature of his relationship with the victim; and (2) erred in filing a notice of appeal

rather than seeking discretionary review. McPeek further claims the cumulative

effect of these errors prejudiced him. We consider each argument in turn.

A. Trial Strategy

McPeek primarily attacks defense counsel’s strategy, which he argues

focused too much on defending the main charges—two of which were felonies,

posing a twenty-eight-year prison sentence—and not enough on the lesser-

included simple misdemeanors of which he was ultimately convicted. He also

disputes trial counsel’s reluctance to delve into his “convoluted relationship” with

the victim.

McPeek argues “there was poor communication” with his defense counsel.

He claims that, around the time of closing arguments, defense counsel stated,

“we’re going for simple assault” because McPeek “kicked a door in,” so he had “to

get something.” But the trial record undermines McPeek’s version of events.

During closing arguments, counsel argued McPeek lacked specific intent to

commit assault. Far from conceding assault, counsel discussed the prosecution’s

various theories of specific intent and why they failed.

Moreover, McPeek agreed that defense counsel needed to spend

significant time on the greater charges because “that’s what the State would be

talking the most about.” McPeek even testified to having a good working

relationship with defense counsel at trial. He agreed defense counsel explained
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her pretrial filings, including her motion in limine. McPeek believed defense

counsel listened to his thoughts and at times took his suggestions. Throughout

the trial, McPeek trusted defense counsel’s judgment.

Turning to the strategy itself, McPeek believes counsel should have fully

explored the nature of his relationship with the victim. According to him, more

information about his history with the victim—including prior altercations or

disputes—would have avoided the assault and trespass convictions. On our

review, we agree with the PCR court that counsel’s decision to refrain from

“call[ing] further attention to the historically volatile and violent nature of the parties’

relationship was not ineffective.” As the PCR court concluded, counsel’s strategy

of not delving too deeply into the relationship between McPeek and the victim was

“to prevent the jurors from simply viewing [McPeek] as violent and thus being more

apt to convict him on the greater offenses.”

As to one particular event, McPeek believed defense counsel should have

inquired about the age of the bruises on the victim and supported the same by

engaging a medical expert. While McPeek testified that the victim’s bruises “were

not from the day I kicked the door,” but “from a prior event” where he similarly

injured her, the PCR court made no mention of the issue in its ruling. See Meier

v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (requiring issues “be both raised

and decided by the district court before we will decide them on appeal”). McPeek’s

brief makes only a passing reference to this injury issue, which is not enough to

obtain appellate review. See State v. Louwrens, 792 N.W.2d 649, 650 n.1 (Iowa

2010); Iowa R. App. P. 6.903(2)(a)(8)(3). Absent proper error preservation and

issue development, we decline to address this argument.
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We therefore conclude defense counsel’s chosen strategy falls within the

sphere of reasonable “trial tactics, strategies, or other judgment calls” that we will

not second-guess. Meier v. State, 337 N.W.2d 204, 206 (Iowa 1983).

B. Mode of Appeal

McPeek next argues he was deprived of effective assistance when his

appellate counsel did not file an application for discretionary review. We disagree.

McPeek initiated his own appeal by filing a handwritten motion. Defense

counsel then filed a notice of appeal, which substantially conformed with Iowa Rule

of Appellate Procedure 6.1401—Form 1, rather than an application for

discretionary review. McPeek’s appointed appellate counsel likewise failed to

recognize McPeek’s improper form of appeal, instead proceeding to the briefing

stage and filing an appellant proof brief.1

Yet under these facts, we find no prejudice. Pursuing the wrong form of

review does not result in automatic dismissal. Iowa R. App. P. 6.151(1). Instead,

the appellate court “may treat the documents upon which the action was initiated

as seeking the proper from of review.” Iowa R. App. P. 6.151(2). That is the course

of action our supreme court took in this case. McPeek’s appellant brief—which

must explore every argument in support of overturning his conviction, see Iowa R.

App. P. 6.903(2)(a)(8)—was treated as an application for discretionary review.

Thus, beyond merely previewing his case, see Iowa R. App. P. 6.106(1)(e),

1 McPeek argues he was “deprived of an opportunity to communicate with counsel

recording the appeal,” preventing him from correcting the error himself. The record
refutes McPeek’s claim. McPeek was not incarcerated at the time of the appeal,
was provided with appellate counsel’s phone number, and testified he never tried
to contact appellate counsel.
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McPeek presented the Iowa Supreme Court with briefing on the merits for every

ground he sought to overturn his convictions. The court was not persuaded and

denied the appeal.

McPeek’s brief on direct appeal was not sufficiently convincing to obtain

discretionary appellate review of two misdemeanor convictions. In this case,

McPeek needed to prove that, had the correct vehicle been utilized—seeking

discretionary review rather than direct appeal—the outcome “would have been

different.” See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). McPeek has not

met this heavy burden, particularly in light of the considerable evidence at trial

supporting the trespass and assault convictions.

Thus, we find McPeek failed to prove he was prejudiced by his counsel’s

actions. Because we find no prejudice, we need not consider whether counsel

breached any essential duty. See Osborn v. State, 573 N.W.2d 917, 922 (Iowa

1998).

C. Cumulative Error

Finally, McPeek makes a cumulative-error argument under State v. Clay,

824 N.W.2d 488 (Iowa 2012). But this too fails. Clay instructs that where “the

defendant raises one or more claims of ineffective assistance of counsel, and the

court finds that trial counsel performed an essential duty in an individual claim, the

court should dismiss that claim.” 824 N.W.2d at 501. We only engage in a

cumulative-error inquiry when we “analyze[] the prejudice prong of Strickland

without considering trial counsel’s failure to perform an essential duty.” Id. at 501–

02.
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Here, defense counsel did not breach any duty when pursuing the trial

strategy and avoiding certain evidence about McPeek and the victim’s relationship.

Therefore Clay’s cumulative-error inquiry is inapplicable to that claim. That leaves

one claim—the mode of appellate review—which we have already found did not

prejudice McPeek. Thus, Clay provides no path to relief.

IV. Conclusion

McPeek’s defense counsel did not breach any essential duty, nor did the

form of appellate review error cause him prejudice, so McPeek was not deprived

of effective assistance of counsel.

AFFIRMED.