IN THE COURT OF APPEALS OF IOWA No. 21

- 0725 Filed June 21, 2023
TERRELL ONTERIAL LOBLEY, Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Scott County, Mark D. Cleve , Judge.

Terrell Lobley appeals the denial of his application for postconviction relief following his 2007 convictions f or second

- degree murder and intimidation with a dangerous weapon. AFFIRMED.

Thomas Hurd of Law Office of Thomas Hurd PLC, Des Moines, for appellant. Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee State.

Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.2

VAITHESWARAN , Presiding Judge

. The State charged Terrell Lobley with crimes arising out of a shooting in Davenport. A jury found him guilty of second

- degree murder and intimidation with

a dangerous weapon. S ee S tate v. Lobley , No. 07

- 0167, 2008 WL 2357672, at *1 (Iowa Ct. App. June 11, 2008 ). The court of appeals affirmed his convictions. Id. at *3. Lobley filed a n application for postconviction relief

. The district court denied the application following an evidentiary hearing. On appeal, Lobley contends his trial attorney was ineffective in failing to (1) impeach the State’s key witness; (2) investigate another potentially beneficial witness; and (3) file a posttrial motion to s et as id e the verdicts as inconsistent and irreconcilable. Lobley had to show (1) deficient performance and (2) prejudice

. See Strickland v

. Washington , 466 U.S. 668, 687 (1984). “ Our ultimate concern is
with ‘ the fundamental fairness of the proceeding whose result is being challenged. ’ ” State v. Risdal , 404 N.W.2d 130, 131 (Iowa 1987) (citing Strickland , 466 U.S. at 696 ). The first issue is premised on counsel ’s cross - examination of Roy Washington, a State w i tness who was incarcerated with Lobley. Lobley contends “multiple available impeachable offenses were not utilized to impeach” Washington . He points to “two first degree thefts back in ’96,” separate convictions for theft in the ‘third and fourth degree’ ” and a re cent plea to “ theft 5 th .” In his view, the State opened the door to consideration of the convictions. T he State responds that the evidentiary rule on use of prior convictions to attack witness credibility contained a time limit of ten years , subject to the court’s balancing of probative value and prejudicial effect

. See Iowa R. Evid. 5.609

. The State vigorously denies3

opening the door to consideration of the dated crimes and also argues “[f ] urther impeachment with additional theft convicti ons would not have led the jury to discount Washington’s testimony and acquit Lobley.” Washington testified at Lobley’s trial more than ten years after his 1996 convictions

. That fact alone dimi ni shed the ir probative value as an impeachment tool. Addi tionally, those convictions and others were not needed to undermine Washington’s credibility, in light of admitted evidence of the same nature. Washington acknowledged he had pending charges of second

- degree burglary and fourth

- degree criminal mischief as a habitual offender , which the State would dismiss if Washington agreed to testify against Lobley

. He stated the possible sentence as a habitual offender was “15 years” and he would be required to serve “[s]even” if the charges were not dismissed. When Lobley’s attorney suggested he was mo re concern ed with the length of the sentence he was facing than the circumstances of Lobley’s case , Washington responded, “You’re damn right.” Washington also agreed he was presently in jail on the cha rges , previously pled guilty to and served time for first

- degree theft , and previously had been in prison for a parole violation. In short, Washington’s credibility was severely impugned without evidence of the additional convictions. 1 For purposes of i mpeachment, those convictions were cumulative. The second issue relates to counsel’s claimed failure to investigate a possibly beneficial witness who also was incarcerated with Lobley. Lobley’s

a ttorney admitted he did not speak to the witness. He expl ained, he “ had no

1 In light of our conclusion, we find it unnecessary to address whether the State opened the door to consideration of the outdated convictions.4

indication that [the witness] would be a favorable witness ” and would “ contradict what was said by Roy Washington. ” “[I] n fact, ” counsel stated, the witness “ very well could have just confirmed [Lobley’s] confession ” as recounted by Washington

. That was far from a speculative risk, given Washington’s suggestion that the witness wanted to “jump on ” Lobley

. As t he postconviction court pointed out , counsel ’ s de cision not to investigate the witness “ would have involved a st rategic decision ” because “[c] ounsel would have run the serious risk of having [the witness] learn of the [ ] substantial benefit Washington would receive from his testimony ,” which “ could have incentivized [the witness] to testify similarly, which would ha ve resulted in the State ending up with an even stronger case against the applicant. ” We conclude counsel did not engage in deficient performance by declining to investigate th e witness. We are left with Lobley’s claim that counsel was ineffective in failing to file a new trial motion to challenge inconsistent verdicts. 2 The claim is premised on an opinion decided four years after his trial. See State v. Halstead , 791 N.W.2d 805, 815 (Iowa 2010). There, the co urt held “a criminal conviction of a compound offense cannot stand when the defendant has been acquitted of the underlying predicate offense.” Id. at 806. Counsel did not have an obligation to predict a change in the law

. State v. Schoelerman , 315 N.W.2 d 67, 72 (Iowa 1982) ( “[A]n attorney need not be a ‘crystal gazer’ who can predict future changes in established rules of law in order to provide

2 The State contends that, if Lobley’s argument can be read as a direct challenge to the verdicts, rather than a challenge under an ineffective

- assistance

- of

- counsel rubric, it is unpreserved because the issue was not raised in the trial court. We agree.5

effective assistance to a criminal defendant.” ). But, even if Halstead was the law at the time of Lobley’s tr ial, we agree with the district court that it s holding did not apply to Lob l ey’s circumstances because Lobley “ was convicted and not acquitted of what the Halstead c ourt would term the underlying predicate crime, and conversely he was not convicted of what would be termed the compound felony, but was instead convicted of one of its lesser

- included offenses. ” S ee S tate v. Sanchez , No. 14

- 1912, 2016 WL 530409, at * 4 (Iowa Ct. App. Feb. 10, 2016) (“ Halstead is inapposite because [the defendant] was not acquitted of a predicate felony and found guilty of a compound felony.”). We conclude Lobley’s trial attorney was not ineffective

. We affirm the denial of Lobley’s postconviction

- relief application.
AFFIR MED.