### The Honorable George F. Gunn, Jr., Senior United State s 1 

### Distri ct Judge for the Eastern District of Missouri, sitting b y designation.

The Honorable Donald E. O'Brien, Senior United State s 2 

### District Judge for the Southern District of Iowa. ___________ No. 96-2215

___________ Isaac L. Neal, Jr., * * Appellant, * Appeal from the United States * District Court for the v. * Southern District of Iowa * Gerado Acevedo, * * Appellee. *

___________ Submitted: January 17, 1997

Filed: June 11, 1997

___________ Before LOKEN and MORRIS SHEPPARD ARNO LD, Circuit Judges, and GUNN, Senior 1 District Judge.

___________ GUNN, Senior District Judge. Isaac L. Neal, Jr. appeals the District Court's or der denying his 28 2 U.S.C. § 2254 petition for a writ of habeas corpus. For the reasons set forth below, we affirm.

I. Background

A jury convicted Neal of first-degree kidnapping in violation o f Iowa Code §§ 710.1 and 710.2 for the abduction and sexual abuse of a sixteenyear-old female. The trial court sentenced Neal to life in prison without the possibility of parole. The Iowa Supreme Court affirmed the conviction

. State v. Neal , 353 N.W.2d 83 (Iowa

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1984). Thereafter, Neal moved for postconviction relief in state court. Following an evidentiary hearing, the trial court denied Neal's applicatio n for relief. App. at 135-43. Neal obtained no relief on appeal.

Neal then commenced this habeas acti on alleging numerous grounds for relief. The District Court denied the petition. This appeal ensued.
The following facts are drawn primarily from the Iowa Supreme C ourt's opinion. On August 26, 1982, a male assailant accosted a young woman in Davenport, Iowa, and dragged her into a car. The assailant forced th e victim to perform oral sex on him as he drove. The assailant later stoppe d and made the woman disrobe. A police car passed by and the assailant drov e to a different location. The assailant then uns uccessfully attempted anal intercourse with the victim. Thereafter, the as sailant ordered the victim out of the car. She tried to escape and a strug gle ensued. The assailant stabbed the victim in the neck, but the victim b it the assailant's arm and escaped. T he victim then ran to a nearby house and the police wer e summoned. The victim gave the police a description of the assailant and the automobile. Neal , 353 N.W.2d at 85.
The polic e recovered the vehicle from a city street about two hours later and traced owne rship of the vehicle to Neal's fiancee, Anita Wells. The victim positively identified the car the next day. The victim later identified Neal as her assailant, selecting his picture from a photographi c array, picking him out of a lineup, and pointing him out as the perpetrato r at trial. Id.

Additional circumstantial evidence connected Neal to the crime

. Police recovered Neal's palm print from the driver's door handle of th e vehi cle. A Davenport police officer testified that he observed Nea l driving the car used in the offense at around 9:00 p.m., on August 26 , 1982. Id. at 89; App. at 12-13.

### - 3 - Neal pres ented an alibi defense at trial. He testified that he was at his fiancee's home the night of the crime. App. at 85. Patty Jo Wells , his fianc ee's mother, corroborated this testimony. Id. at 67. Sh e recalled seeing Neal at around 8:15 or 8:30 p.m. , just before going to bed for the e vening. Id. at 65. Neal's fiancee, Anita Wells, als o corroborated Neal's testimony regarding his whereabouts the night of the crime. Id. at 76. Ms. Wells stated that she we nt to bed between 8:00 and 8:30 p.m. the night of the crime. Id. , 77. She left Neal downstairs with her baby. Id. Ms. Wells testified that Neal drove her car on on e occasion, but that he rode in it all the time. Id. at 73. She furthe r stated that she used her car after Neal was last in it and that she opened the driver's side door by using the handle. Id. at 82. Ms. Wells reporte d the car stolen the morning after the crime. Id. at 76.

On appeal, Neal argues that (1) trial counsel provided ineffectiv e assistance in violation of the Sixth and Fourteenth Amendments; and (2) hi s convic tion violates the Due Process Clause of the Fourteenth Amendmen t because the evidence adduced at trial was insufficient.

II. Discussion

A. Ineffective Assistance "The Sixt h Amendment guarantees a criminal defendant charged with a serious crime the right to effective assistance of counsel." Garrett v. United States , 78 F.3d 1296, 1301 (8th Cir.), ce rt. denied , 117 S. Ct. 374 (1996). In order to prevail on his ineffective-assistance claim, Neal mus t show t hat (1) counsel's performance was deficient and (2) counsel' s deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). An attorney's performance must be objectively
reason able and "scrutiny of counsel's performance must be highl y def erential." Id. at 689. There exists a strong presumption tha t counsel's conduct falls within the wide range of professionally reasonable assistance. Id. In order to establish prejudice, the

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defendant must show t hat "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable prob ability is one "sufficient to undermine confidence in the outcome." Id.
Neal first argues that trial counsel provided ineffective assistance by failing to consult with him sufficiently to prepare for trial. At the hearing on Neal's motion for postconviction relief, trial counsel testifie d that Neal 's position was clear from the start: he did not commit th e offense, and he was a t his fiancee's home when it occurred. App. at 112- 14. Counsel further testified that he met with Neal no more than twice at the jail and spoke with Neal at court hearings. Id. at 114-15.

"[W]hen the facts that support a certain potential line of defens e are generally known to counsel because of what t he defendant has said, the need for further investigation may be considerably diminished or eliminate d altogether." Strickland , 466 U.S. at 691. Here, the information Neal gav e to counsel limited the potential avenues of inve stigation and the need for furthe r consultation. Given Neal's alibi defense, counsel conducted a n adequa te investigation and presented all the witnesses who coul d corroborate the defense.

Moreover, as the District Court correctly observed, Neal has failed to provide any exampl es of evidence counsel could have discovered through further investigation or what exculpatory information Neal could hav e conveyed to counsel through further consultation. See Otey v. Grammer , 85 9 F.2d 575, 578 (8th Cir. 1988) (burden on petitioner to show what additiona l eviden ce counsel could have discovered that would have helped defense) ; United Sta tes v. Mealy , 851 F.2d 890, 908 (7th Cir. 1988) (conclusor y allegations regarding time spent in consultation with trial counsel do not show how petitioner was prejudiced at trial; thus ineffective-assistance claim fails). Accordingly, we reject

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Neal's first argument in support of his ineffective-assistance claim.

Neal next maintains that counsel provided ineffective assistance by failing to request instructions on lesser-included offenses. Trial counse l testified that he discussed this issue with Neal. Counsel could not recal l whet her Neal wanted lesser- included offense instructions, but counse l testified he explained why they were inappropriate. Counsel stated that arguing lesser- inclu ded offenses is inconsistent with the alibi defense. App. at 125-26. Counsel testified that making s uch an argument "is almost guaranteed to lose you a case as a defense lawye r." App. at 126. Counsel fur ther testified that he did not believe lesser-included offens e instructions would ha ve been warranted in view of the evidence presented. Id.

"[S]t rategic choices made after thorough investigation of law an d facts relevant to plausible options are virtually unchallengeable. " Strickland , 466 U.S. at 690. We conclude that trial counsel's decision no t to request the lesser-included offense instructions was reasonable trial strategy because the instructions would have bee n inconsistent with Neal's alibi defense. See Kubat v. Thieret , 867 F.2d 3 51, 364-65 (7th Cir. 1989) (counsel's decision n ot to request lesser-included offense instruction in kidnapping case reasonable in light of defendant's alibi defense). We als o agr ee that the facts of the case would not have warranted such a n in struction. We therefore reject this aspect of Neal's claim o f ineffective assistance.

In the District Court, Neal also claimed that counsel provide d ineffective assistance by failing to move to sup press evidence seized from his fianc ee's car and by failing to request a ruling on his motion t o present evidence concerning the prior sexual con duct of the victim. It is unclear fr om Neal's brief whether he intends to raise these issues o n appeal. In any event, we agree with the District Court that Neal lacked standing to challenge the search of his fiancee's car. See United States v. Kiser , 948 F.2d 418, 424

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(8th Cir. 1991). Therefore, counsel did not perform deficiently by failin g to move to suppress evidence from the vehicle. We further conclude that Neal was not prejudiced by counsel's failure to request a ruling on hi s motion to present evidence concerning the prior sexual conduct of th e victi mbefore the victim's testimony. The record reflects that such a request wo uld not have changed the trial court's decision to deny th e motion.

B. Sufficiency of the Evidence

Neal next contends that the evidence was insufficient to support his conviction for first- degree kidnapping. Neal argues that the victim gave inconsistent descriptions of him, that his physi cal characteristics at the time of the incident conflicted with the description given by the victim, and that the state failed to establish that the assailant used forc e
cre ating either a substantial risk of death or serious injury to th e victim as required to prove second-degree sexual abuse.

The Due Process Clause protects "the accused against convictio n excep t upon proof beyond a reasonable doubt of every fact necessary t o constitute the crime with which he is charged." In re Winship , 397 U.S. 358, 364 (1970). In a challenge to the sufficiency of the evidence t o support a state court conviction, we must determine "whether, after viewin g the evidence in the l ight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyon d a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (1979). Under Io wa law, kidnapping is defined as either confining a perso n
or removi ng a person from one place to another without authority o r consent, with, inter alia , the intent to inflict serious injury upon such person or to subject the person to sexual abuse. Iowa Code Ann. § 710.1. First- degree kidnapping requires that the person kidnapped, as a consequence of the kidnapping, suffer serious injury or intentionally be subjected to torture or sexual abuse. Id. , § 710.2. Sexual abuse i s defined as, inter

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alia , a sex act performed by force or against the will of another. Id. , § 709.1. To prove second-degree sexual abuse, the state must establis h that the assailant displayed a deadly weapon in a threatening manner o r used or t hreatened to use force creating a substantial risk of death o r serious injury to any person. Iowa Code Ann. § 709.3.
Upon review of the record, we conclu de that a rational trier of fact could f ind the evidence adduced at trial sufficient to support Neal' s conviction for first-degree kidnapping. The victim's testimony establishe d the essen tial elements of the offense. App. at 36-37, 39. The mino r discrepancies in the victim's descriptions of Ne al were brought before the jury by defense couns el. The jury could have rationally discounted these discrepancies in ligh t of the victim's positive identification of Neal at trial, the other circumstantial evidence connect ing Neal to the crime, and the problems with Neal's alibi defense. Finally , Neal's argument that the evi dence was insufficient to show a use of force creating either a substantial risk of d eath or serious injury to the victim misses the mark because any degree of sexual abuse will support a conviction for first

degree kidnapping. See State v. Mitchell , 450 N.W.2d 828, 831 (Iowa 1990)

. Thus, the State did not have to prove second-degree sexual abuse to convic t Neal of first-degree kidnapping, State v. Newman , 326 N.W.2d 796, 802 (Iow a 1982), and the eviden ce clearly shows that sexual abuse occurred. In any event, w e agree with the State that Neal's use of the knife during th e
course of the offense and his stabbing of the victim would support a conviction for second-degree sexual abuse.

III. Conclusion

For the reasons set forth above, we conclude that the District Court correctly denied Neal's petition for a writ of habeas corpus. Accordingly , we affirm the judgment of the District Court.

### - 8 - A true copy.

Attest:

CLERK, U.S . COURT OF APPEALS, EIGHTH CIRCUIT.