IN THE COURT OF APPEALS OF IOWA

No. 16-0875

Filed May 2, 2018

ROBERT LEE PATE JR.,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, David N. May, Judge.

Robert Pate Jr. appeals the denial of his postconviction relief application. 

AFFIRMED.

Nathan A. Olson and Christine E. Branstad of Branstad Law, P.L.L.C., Des 

Moines, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney 

General, for appellee State.

Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

Robert Pate Jr. appeals the denial of his postconviction relief application.

I. Background Proceedings

Des Moines police officers obtained a search warrant based on information 

provided by a confidential informant. They executed the warrant on an apartment

and found Pate and a woman inside with eighty-one grams of crack cocaine, as 

well as cocaine salt, marijuana, and a large amount of cash.

The State filed criminal complaints against Pate but dismissed them without 

prejudice based on the United States government’s expected pursuit of charges. 

The United States filed a federal indictment against Pate for possessing at least 

fifty grams of cocaine with intent to deliver. The government later dismissed the 

indictment after a federal magistrate judge ordered the government to produce to 

the court materials relating to the confidential informant.

The State refiled the criminal complaints following the federal dismissal. 

Pate moved to have the identity of the confidential informant disclosed. He also 

filed a motion to suppress evidence, asserting a Des Moines police officer “made 

false statements in the application for a search warrant.” Specifically, he alleged 

the confidential informant identified in the application “either did not exist or did not 

make purchases from the apartment” in which Pate was found.

The district court denied the motion to have the informant disclosed. Pate 

withdrew his motion to suppress and agreed to a stipulated trial on the minutes of 

evidence. The district court adjudged Pate guilty of possession of a controlled 

substance with intent to deliver as a second or subsequent offender. 
3

The court of appeals affirmed Pate’s conviction. See State v. Pate, No. 11-

0971, 2012 WL 3860450, at *1 (Iowa Ct. App. Sept. 6, 2012). We rejected a 

challenge to the lengthy delay between the dismissal of original charges against 

Pate and the refiling of charges. Id. at *3-4. We also concluded the district court 

did not err in denying Pate’s request to disclose the identity of the confidential 

informant. Id. at *5-6.

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Pate filed a postconviction relief application raising several claims. 

Following an evidentiary hearing, the district court denied the claims and dismissed 

the application. On appeal, Pate argues the district court erred in (1) denying his 

ineffective-assistance-of-counsel claims, (2) limiting discovery in the 

postconviction relief proceedings, and (3) concluding he did not establish preaccusatorial delay. 

II. Ineffective Assistance Claims

To prove ineffective assistance of counsel, Pate had to show (1) deficient 

performance (2) and prejudice. See Strickland v. Washington, 466 U.S. 668, 687 

(1984). The first element requires a “showing that counsel made errors so serious 

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 

Sixth Amendment.” Id. The second element requires a “showing that counsel’s 

errors were so serious as to deprive the defendant of a fair trial, a trial whose result 

is reliable.” Id. On the second prong, “[t]he defendant must show that there is a 

 

1 See also State v. Pate, No. 13-0482, 2014 WL 3747698, at *1 (Iowa Ct. App. July 30, 

2014) (addressing the denial of Pate’s request for credit for presentence time served on 

his fifty-year sentence).
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reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different.” Id. at 694. 

A. Dismissal

Iowa Rule of Criminal Procedure 2.33(1) authorizes the dismissal of 

pending charges “in the furtherance of justice.” See Iowa R. Crim. P. 2.33(1). The 

dismissal “is not a bar if the offense charged” is “a felony or an aggravated 

misdemeanor.” Id. “[I]n order to obtain a valid dismissal in the interests of justice 

(and the resulting benefit of a dismissal without prejudice), the State must provide 

appropriate and sufficient reasons for the dismissal.” State v. Abrahamson, 746 

N.W.2d 270, 273 (Iowa 2008). 

Pate contends his trial and appellate attorneys were ineffective in failing to 

“research or recognize that [he] deserved a hearing on the motion to dismiss” and 

in failing to argue “that dismissal should have been with prejudice.” 

As noted, we addressed the State’s dismissal of the charges in our prior 

opinion and we specifically addressed the State’s proffered reason for dismissal 

and whether it was “in the furtherance of justice.” See Pate, 2012 WL 3860450, at 

*3-5. We concluded the “federal government’s intent to prosecute Pate for the 

same conduct” was an adequate reason “in the furtherance of justice.” Id. at *4-5.

In light of our conclusion, we agree with the postconviction court that there was no 

probability of a different outcome even if a hearing had been fixed on the dismissal 

motion and counsel had argued for dismissal with prejudice. 

B. Confidential Informant

Pate asserts his trial attorney was ineffective in failing to advocate more 

forcefully for disclosure of the confidential informant. He contends (1) his attorney 
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should have made “an offer of proof to the court to support the request to disclose 

the confidential informant or to support the request to excise false information from 

the search warrant application” and (2) his attorney should have cited the correct 

“legal standard on” his “burden of proof to force disclosure of the confidential 

informant.”

The background for the contention that an offer of proof should have been 

made is as follows. At a hearing on the motion for disclosure of the confidential 

informant, Pate’s attorney advised the court Pate did not believe there was a 

confidential informant. The attorney did not put Pate on the stand to elaborate on 

this belief. The question is whether she should have done so. 

The burden is on a defendant “to demonstrate the necessity of disclosure 

of the identity of an informant.” State v. Hoskins, 711 N.W.2d 720, 730 (Iowa 

2006). 

[I]n the context of a motion to suppress evidence found in a search 

conducted pursuant to a warrant, there is a much greater burden on 

the defendant to compel disclosure after the magistrate has passed 

on the veracity of the informant than a suppression hearing based on 

a warrantless search and seizure.

Id. “When the question of an informant’s credibility arises in a motion to suppress 

evidence obtained from a search pursuant to a warrant, and a judicial officer has 

passed on veracity and probable cause, the defendant’s interests in disclosure are 

less compelling.” State v. Robertson, 494 N.W.2d 718, 723 (Iowa 1993).

At the postconviction relief hearing, Pate testified police fabricated the 

existence of a confidential informant to cover up the fact they barged into the wrong 

apartment. On realizing their error, Pate asserted, police doctored the search-
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warrant application to specify that a confidential informant made drug buys at the 

apartment they raided rather than the one originally identified in the application. 

An offer of proof along the lines of Pate’s postconviction relief testimony 

may have been helpful at the hearing on the motion to disclose the identity of the 

confidential informant. An offer would have supplemented counsel’s 

representation that there was no confidential informant. But even if Pate’s attorney 

had put Pate on the stand, there is no reasonable probability his testimony would 

have resulted in disclosure of the confidential informant. 

First, the district court judge who issued the search warrant found the 

confidential informant reliable. See id. at 724. Second, the information given by 

the confidential informant was corroborated by police officers and “was consistent 

with the evidence actually seized pursuant to the warrant.” See id. Finally, Pate’s 

assertion that the apartment number in the search warrant application was 

intentionally altered lacked direct evidentiary support. See id. at 725; see also 

Pate, 2012 WL 3860450, at *6 n.7 (“Pate notes that after the magistrate signed the 

warrant, officers realized they listed the subject apartment as apartment 4 rather 

than apartment 3, and made the change to the warrant. The inaccuracy appears 

to have been an insubstantial oversight or typographical error. Claims of innocent 

or negligent mistakes are insufficient to mandate an evidentiary hearing.”); cf. State 

v. Partington, No. 01-0164, 2002 WL 1331864, at *5 (Iowa Ct. App. June 19, 2002) 

(noting the defendant presented the sworn testimony of two individuals and 

deposition testimony of law enforcement officers together with counsel’s 

professional statement to support the defendant’s assertion that there was no 

confidential informant). We conclude counsel was not ineffective in failing to make 
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an offer of proof of Pate’s testimony on the claimed falsity of the search warrant 

application.

Pate also suggests his attorney should have offered the federal public 

defender’s testimony, to explain how he succeeded in obtaining dismissal of the 

federal proceeding. We do not necessarily agree she needed to call a federal 

witness to testify about the federal proceeding. But she may have helped her case 

by introducing the materials from the federal investigation that were offered at the 

postconviction relief hearing, including emails between Pate’s federal public 

defender and his investigator detailing possible weaknesses in the warrant 

application and materials documenting the federal defense theory, which was 

premised on Pate’s belief that a person identified as O.C. was the confidential 

informant. However, even if she had done so, there is no reasonable probability 

of a different outcome because the State prosecutor advised the court that O.C.

was not the confidential informant. 

Finally, Pate contends his attorney misstated the burden of proof. In his 

view, he simply needed to present “some quantum of evidence” to support his 

claim of falsity in the search warrant application, whereas his attorney stated she 

would have to present proof by “a preponderance of the evidence.” 

Counsel correctly articulated the established standard for voiding a search 

warrant application, which requires proof by “a preponderance of the evidence.” 

Robertson, 494 N.W.2d at 724 (quoting Franks. v. Delaware, 438 U.S. 154, 155-

56 (1978)). True, Robertson also states “some quantum of evidence of possible 

police perjury must be shown before disclosure can be required.” Id. But the 

federal standard to obtain a hearing on the falsity of a search-warrant application 
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is “a substantial preliminary showing that a false statement knowingly and 

intentionally, or with reckless disregard for the truth, was included by the affiant in 

the warrant affidavit” and “the allegedly false statement is necessary to the finding 

of probable cause.” Id. (quoting Franks, 438 U.S. at 155-56). Whether 

characterized as “some quantum” of evidence or otherwise, this is a high bar. We 

conclude Pate’s attorney was not remiss in failing to advise the court she only 

needed to present some quantum of evidence to obtain a hearing. 

We affirm the district court’s denial of Pate’s ineffective-assistance-ofcounsel claim premised on disclosure of the confidential informant.

C. Favorable Information in Officer’s Personnel File 

Pate contends his trial attorney was ineffective in failing to obtain favorable 

information from an officer’s personnel file. See Brady v. Maryland, 373 U.S. 83, 

87 (1963) (“[S]uppression by the prosecution of evidence favorable to an accused 

upon request violates due process where the evidence is material either to guilt or 

to punishment, irrespective of the good faith or bad faith of the prosecution.”); 

Giglio v. United States, 405 U.S. 150, 154 (1972) (“When the reliability of a given 

witness may well be determinative of guilt or innocence, nondisclosure of evidence 

affecting credibility falls within [the Brady] rule.” (internal quotation omitted)). This 

claim fails because counsel obtained the identical information from another source 

and cited it in support of the motion to suppress. We conclude counsel breached 

no essential duty in her conduct with respect to information in the personnel file. 

D. Ineffective Assistance – Postconviction Counsel

Pate contends his postconviction attorney was ineffective in (1) “failing to 

assert or investigate [postconviction relief] claims regarding prosecutorial 
9

misconduct for failure to disclose Brady and Giglio information,” (2) “failing to use 

the civil discovery rules to pursue information from [the Des Moines police officer’s] 

file,” and (3) “failing to ensure that the district court provided a ruling on all postconviction claims asserted by Pate.” He argues these instances of ineffective 

assistance “warrant[] a limited remand pursuant to Iowa Rule of Appellate 

Procedure 6.1004.” 

Having found trial counsel performed effectively with respect to the first two 

issues, we conclude postconviction counsel could not have been ineffective in 

failing to raise those claims. As for the third issue, Pate argues his postconviction 

attorney failed to ensure the postconviction court ruled on a sentencing claim he 

raised during the hearing. Specifically, he asserted his trial attorney was 

ineffective in representing he could not receive a sentence of less than fifty years. 

He faults her “failure to know the minimum sentence” and her “error in incorrectly 

instructing the court on the minimum sentence” and seeks a limited remand to 

allow the court to rule on this issue. 

“[I]neffective-assistance-of-counsel claims based on failure to preserve 

error are not to be reviewed on the basis of whether the claimed error would have 

required reversal if it had been preserved at trial. Rather, a defendant must 

demonstrate a breach of an essential duty and prejudice.” State v. Maxwell, 743 

N.W.2d 185, 196 (Iowa 2008) (internal citation omitted). 

The sentencing transcript contains the following statements bearing on the 

issue. The prosecutor stated, “The minimum sentence for this level of offense 

would be the 50-year sentence and the possibility of a suspended sentence and 

probation or a deferred judgment if he were eligible.” In light of Pate’s stipulation 
10

to being a second or subsequent offender, the prosecutor informed the court the 

sentence could be tripled “to 150 years.” See Iowa Code § 124.411 (2011)

(permitting a term of imprisonment for “a second or subsequent offense” of up to 

three times the term otherwise authorized). Pate’s attorney did not disagree with 

the prosecutor’s summary of the minimum sentence. She requested “a 50-year 

suspended sentence with probation” on behalf of Pate. The district court imposed 

a prison term “for a period not to exceed 50 years” for a “Class ‘B’ Felony subject 

to enhancement as a second or subsequent offender.”

The basis for arriving at the prison sentence was clear in the record. 

Accordingly, trial counsel breached no essential duty in articulating the sentence

and postconviction counsel breached no essential duty in failing to address the 

matter. 

III. Limitation of Discovery

After Pate filed his postconviction relief application, the State moved to limit 

discovery. The State alleged Pate wished to depose police officers “who were 

involved with the underlying criminal charges” and “these individuals possess[ed] 

no information related to the performance of underlying criminal counsel.” The 

State also pointed out that certain claims were resolved on direct appeal and 

discovery as to those claims would be unnecessary. 

Pate responded by filing a notice of depositions, which listed six Des Moines 

police officers. He also asked to depose an assistant county attorney and the State 

public defender. The district court granted the State’s motion to limit discovery, 

reasoning “the proposed depositions of the police officers and Assistant Polk 

County [Attorney] are not calculated to lead to admissible evidence.”
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On appeal, Pate argues (1) his “PCR claims included claims of ineffective 

assistance of trial counsel,” (2) “[s]howing that trial counsel failed to effectively 

address any of the underlying issues may be part of that claim,” and, (3) 

accordingly, “previously decided issues are open to additional discovery.” 

As discussed, we are unpersuaded by Pate’s ineffective assistance claims

that Pate now claims were the reason for seeking additional discovery. But, giving 

Pate the benefit of the doubt, we have asked ourselves whether additional 

discovery would have advanced any of his claims. The only conceivable benefit 

we can glean from allowing depositions to go forward is the possible extraction of 

an admission from the officers that they altered the search-warrant application. If 

this was Pate’s goal, we have no trouble concluding his wide-ranging deposition 

notice would have amounted to a “fishing expedition.” See Robertson, 494 N.W.2d 

at 724. We conclude the district court did not abuse its discretion in limiting 

discovery. 

IV. Preaccusatorial Delay

The State waited 501 days after the dismissal of Pate’s federal charges to 

refile the State criminal complaints. Pate argues his “due process rights under the 

Iowa and U.S. Constitutions were violated by [the] delay in prosecuting” him.

Although “[t]here is no constitutional right to be arrested and charged 

at the precise moment probable cause comes into existence,” the 

government cannot delay “filing charges to intentionally ‘gain [a]

tactical advantage over the accused’” without implicating the Due 

Process Clause. To prevail on a claim that such a delay violated due 

process, a defendant has a heavy burden of proving both (1) the 

defendant’s defense suffered actual prejudice due to a delay in 

prosecution and (2) the delay causing such prejudice was 

unreasonable. “To establish actual prejudice a defendant must show 

loss of evidence or testimony has meaningfully impaired his ability to 

present a defense.” Generalized claims of prejudice, such as “loss 
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of memory, loss of witnesses, or loss of evidence” do not constitute 

actual prejudice.

State v. Brown, 656 N.W.2d 355, 363 (Iowa 2003) (internal citations omitted).

As a preliminary matter, the State argues we addressed the delay on direct 

appeal and Pate is foreclosed from re-litigating the issue. See Pate, 2012 WL 

3860450, at *3-5. Because Pate formulated the issue slightly differently in his 

postconviction relief application, we will address the claim.

Pate asserts he suffered prejudice by virtue of the delay in prosecution 

because the “actual search warrant” presented to him at the time of the search 

was lost and, without the search warrant, he “was unable to show that the entry 

into his apartment was illegal.” But, if there was another search warrant and if it 

was lost, the loss had nothing to do with the State’s delay in refiling the criminal 

complaints. 

Pate raised the identical claim in 2008, long before the State refiled its 

charges. The federal public defender investigated the assertion and obtained 

clarification from the State clerk of court of the procedure with respect to search 

warrants, including the warrants in this case. In short, the existence or nonexistence of another warrant was thoroughly vetted in the federal proceeding and 

could not form the basis for a finding of actual prejudice from the State’s delay of 

the State criminal prosecution. 

We affirm the district court’s denial of Pate’s postconviction relief 

application.

AFFIRMED.