IN THE COURT OF APPEALS OF IOWA

No. 15-0991

Filed August 31, 2016

ROBERTO RODRIGUEZ,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, 

Judge.

Applicant appeals the district court decision denying his request for 

postconviction relief. AFFIRMED.

Thomas A. Hurd of Law Office of Thomas Hurd, P.L.C., Des Moines, for 

appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant 

Attorney General, for appellee.

Considered by Danilson, C.J., and Mullins and Bower, JJ.
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BOWER, Judge.

Roberto Rodriguez appeals the district court decision denying his request 

for postconviction relief. We find the district court properly granted summary 

disposition to the State because the claims of ineffective assistance of counsel 

raised in this postconviction action were previously decided in Rodriguez’s direct 

appeal. We affirm the district court.

After an evening of drinking alcohol and using drugs, Rodriguez and some 

friends decided to drive around and look for people to beat up. One of the 

victims, Dean Davis, died as a result of a stab wound. Rodriguez presented 

defenses of identification and intoxication at his criminal trial. He was convicted 

of first-degree murder, first-degree robbery, first-degree burglary, and seconddegree robbery.

In Rodriguez’s direct appeal we stated:

Rodriguez claims “[i]n light of the testimony of the witnesses 

that defendant was intoxicated, it was error for counsel to fail to 

present expert testimony regarding the defendant’s intoxication.” 

However, Rodriguez does not set forth any argument concerning 

what evidence an expert would have offered or how such testimony 

would have made a difference at trial.

We note from our review of the trial record defense counsel 

did present some testimony regarding defendant’s intoxication. 

Counsel also asked the medical examiner several questions

regarding the effects of alcohol and marijuana.

. . . . 

In addition, the court submitted an intoxication instruction to 

the jury. It is unclear what other evidence an expert could have 

offered in support of Rodriguez’s intoxication defense.

There was also substantial evidence Rodriguez was not 

severely intoxicated at the time of the crimes. According to the 

testimony of several witnesses, Rodriguez admitted to stabbing 

Davis. Several admissions were made in the days following the 

incident. This testimony reveals that Rodriguez clearly had 

memory of the incident and what happened. Had defense called an 
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expert on intoxication, Rodriguez fails to demonstrate it would have 

made a difference in the outcome of the trial.

We also note Rodriguez’s main defense at trial was 

identification, not intoxication. In fact, an intoxication defense 

would have been at odds with his main defense of identity.

Rodriguez presented testimony Holland actually stabbed Davis. He 

did not present evidence he stabbed Davis, but blacked out or did 

not understand what he was doing. An intoxication defense admits 

to the act, but negates whether the person acted with specific 

intent. Rodriguez’s defense at trial was he did not commit the 

offense.

“[A]n attorney’s decision regarding strategy or tactics does 

not ordinarily provide an adequate basis for a claim of ineffective 

assistance of counsel.” When trial counsel acts reasonably in 

selecting and following through on a chosen strategy, the claim of 

ineffective assistance is without merit. Because we find defense 

counsel acted reasonably in selecting a defense strategy and 

Rodriguez failed to show he was prejudiced by counsel's failure to 

call an expert on intoxication, we deny this claim of ineffective 

assistance of counsel.

State v. Rodriguez, No. 10-0039, 2011 WL 1814707, at *6-7 (Iowa Ct. App. 

May 11, 2011) (citations omitted). 

On September 7, 2011, Rodriguez filed an application for postconviction 

relief, claiming he received ineffective assistance because defense counsel did 

not present the testimony of an expert witness to support his intoxication 

defense. Rodriguez also stated he received ineffective assistance because 

appellate counsel did not “provide the appellate court with any indication of what 

information an expert witness would have provided or how this information would 

have assisted the jury and affected the outcome of trial.” The State claimed the 

issue had been fully addressed in the direct appeal and requested summary 

disposition of the case.

A postconviction hearing was held on March 25, 2015. Rodriguez 

presented the testimony of Dr. John Fell, an osteopathic physician, who made a 
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calculation of Rodriguez’s blood-alcohol content at the time of the offenses and 

stated Rodriguez’s critical judgment and sensory perception would have been 

impaired. At the close of Rodriguez’s evidence, the State moved for summary 

disposition of the case.

The district court granted the motion for summary disposition.1 The court 

found the issue raised by Rodriguez concerning his trial counsel was the same 

as the issue decided in the direct appeal and could not be relitigated. The court 

found Rodriguez failed to show he received ineffective assistance from appellate 

counsel for the same reasons we previously found he failed to show he received 

ineffective assistance of trial counsel. Rodriguez now appeals, claiming he 

received ineffective assistance of counsel.

We review claims of ineffective assistance of counsel de novo. Ennenga 

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective 

assistance of counsel, an applicant must show (1) the attorney failed to perform 

an essential duty, and (2) prejudice resulted to the extent it denied the applicant 

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).

The issue of whether Rodriguez received ineffective assistance because 

defense counsel did not present the testimony of an expert witness to support his 

defense of intoxication was addressed in the direct appeal. See Rodriguez, 2011 

WL 1814707, at *6-7. An applicant may not use postconviction proceedings to 

relitigate issues decided in a direct appeal. Snyder v. State, 262 N.W.2d 574, 

 

1 The parties and the court referred to the State’s request as a motion for directed verdict 

under Iowa Rule of Civil Procedure 1.945. We determine the motion is more properly 

considered as a motion for summary disposition, as permitted by Iowa Code section 

822.6 (2011).
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578 (Iowa 1978). “A postconviction proceeding is not intended as a vehicle for 

relitigation, on the same factual basis, of issues previously adjudicated, and the 

principal of res judicata bars additional litigation on this point.” Holmes v. State, 

775 N.W.2d 733, 735 (Iowa Ct. App. 2009). We determine the district court 

properly concluded Rodriguez’s claim of ineffective assistance of defense 

counsel should be dismissed.

Rodriguez also claims he received ineffective assistance because 

appellate counsel raised the issue in the direct appeal, when he did not have 

expert testimony to support his claims. In the direct appeal, we noted Rodriguez 

did “not set forth any argument concerning what evidence an expert would have 

offered or how such testimony would have made the difference at trial,” but this is 

not the basis for our conclusion Rodriguez failed to show he received ineffective 

assistance of counsel. Rodriguez, 2011 WL 1814707, at *7. We found, “Had 

defense called an expert on intoxication, Rodriguez fails to demonstrate it would 

have made a difference in the outcome of the trial.” Id. Once again, the main 

thrust of Rodriguez’s defense was identification, which is quite different than an 

intoxication defense. Because we found Rodriguez was not prejudiced by 

counsel’s performance, Rodriguez was also not prejudiced by appellate 

counsel’s decision to raise the issue on direct appeal. We conclude the district 

court properly found Rodriguez’s claim of ineffective assistance of appellate 

counsel should be denied on the same grounds found in our earlier decision.

We affirm the decision of the district court.

AFFIRMED.