The Honorable George F. Gunn, Jr., Senior United States

1

District Judge for the Eastern District of Missouri, sitting by

designation.

 The Honorable Donald E. O'Brien, Senior United States

2

District Judge for the Southern District of Iowa.

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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 ARNOLD, Circuit Judges, and GUNN, Senior 1

District Judge.

___________

GUNN, Senior District Judge.

Isaac L. Neal, Jr. appeals the District Court's order 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 of 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 application

for relief. App. at 135-43. Neal obtained no relief on appeal. 

Neal then commenced this habeas action alleging numerous grounds for

relief. The District Court denied the petition. This appeal ensued.

The following facts are drawn primarily from the Iowa Supreme Court'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 the

victim to perform oral sex on him as he drove. The assailant later stopped

and made the woman disrobe. A police car passed by and the assailant drove

to a different location. The assailant then unsuccessfully attempted anal

intercourse with the victim. Thereafter, the assailant ordered the victim

out of the car. She tried to escape and a struggle ensued. The assailant

stabbed the victim in the neck, but the victim bit the assailant's arm and

escaped. The victim then ran to a nearby house and the police were

summoned. The victim gave the police a description of the assailant and

the automobile. Neal, 353 N.W.2d at 85.

The police recovered the vehicle from a city street about two hours

later and traced ownership 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 photographic

array, picking him out of a lineup, and pointing him out as the perpetrator

at trial. Id. 

Additional circumstantial evidence connected Neal to the crime.

Police recovered Neal's palm print from the driver's door handle of the

vehicle. A Davenport police officer testified that he observed Neal

driving the car used in the offense at around 9:00 p.m., on August 26,

1982. Id. at 89; App. at 12-13.
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Neal presented 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 fiancee's mother, corroborated this testimony. Id. at 67. She

recalled seeing Neal at around 8:15 or 8:30 p.m., just before going to bed

for the evening. Id. at 65. Neal's fiancee, Anita Wells, also

corroborated Neal's testimony regarding his whereabouts the night of the

crime. Id. at 76. Ms. Wells stated that she went 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 one

occasion, but that he rode in it all the time. Id. at 73. She further

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 reported

the car stolen the morning after the crime. Id. at 76. 

On appeal, Neal argues that (1) trial counsel provided ineffective

assistance in violation of the Sixth and Fourteenth Amendments; and (2) his

conviction violates the Due Process Clause of the Fourteenth Amendment

because the evidence adduced at trial was insufficient.

II. Discussion

A. Ineffective Assistance

"The Sixth 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.), cert. denied, 117 S. Ct. 374

(1996). In order to prevail on his ineffective-assistance claim, Neal must

show that (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

reasonable and "scrutiny of counsel's performance must be highly

deferential." Id. at 689. There exists a strong presumption that

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 that "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 probability 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 testified

that Neal's position was clear from the start: he did not commit the

offense, and he was at 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 defense

are generally known to counsel because of what the defendant has said, the

need for further investigation may be considerably diminished or eliminated

altogether." Strickland, 466 U.S. at 691. Here, the information Neal gave

to counsel limited the potential avenues of investigation and the need for

further consultation. Given Neal's alibi defense, counsel conducted an

adequate investigation and presented all the witnesses who could

corroborate the defense. 

Moreover, as the District Court correctly observed, Neal has failed

to provide any examples of evidence counsel could have discovered through

further investigation or what exculpatory information Neal could have

conveyed to counsel through further consultation. See Otey v. Grammer, 859

F.2d 575, 578 (8th Cir. 1988) (burden on petitioner to show what additional

evidence counsel could have discovered that would have helped defense);

United States v. Mealy, 851 F.2d 890, 908 (7th Cir. 1988) (conclusory

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 counsel

testified that he discussed this issue with Neal. Counsel could not recall

whether Neal wanted lesser- included offense instructions, but counsel

testified he explained why they were inappropriate. Counsel stated that

arguing lesser- included offenses is inconsistent with the alibi defense.

App. at 125-26. Counsel testified that making such an argument "is almost

guaranteed to lose you a case as a defense lawyer." App. at 126. Counsel

further testified that he did not believe lesser-included offense

instructions would have been warranted in view of the evidence presented.

Id.

"[S]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable."

Strickland, 466 U.S. at 690. We conclude that trial counsel's decision not

to request the lesser-included offense instructions was reasonable trial

strategy because the instructions would have been inconsistent with Neal's

alibi defense. See Kubat v. Thieret, 867 F.2d 351, 364-65 (7th Cir. 1989)

(counsel's decision not to request lesser-included offense instruction in

kidnapping case reasonable in light of defendant's alibi defense). We also

agree that the facts of the case would not have warranted such an

instruction. We therefore reject this aspect of Neal's claim of

ineffective assistance.

In the District Court, Neal also claimed that counsel provided

ineffective assistance by failing to move to suppress evidence seized from

his fiancee's car and by failing to request a ruling on his motion to

present evidence concerning the prior sexual conduct of the victim. It is

unclear from Neal's brief whether he intends to raise these issues on

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 failing

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 his

motion to present evidence concerning the prior sexual conduct of the

victim before the victim's testimony. The record reflects that such a

request would not have changed the trial court's decision to deny the

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 physical 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 force

creating either a substantial risk of death or serious injury to the

victim as required to prove second-degree sexual abuse. 

The Due Process Clause protects "the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to

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 to

support a state court conviction, we must determine "whether, after viewing

the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the offense beyond

a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). 

Under Iowa law, kidnapping is defined as either confining a person

or removing a person from one place to another without authority or

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 is

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 establish

that the assailant displayed a deadly weapon in a threatening manner or

used or threatened to use force creating a substantial risk of death or

serious injury to any person. Iowa Code Ann. § 709.3. 

Upon review of the record, we conclude that a rational trier of fact

could find the evidence adduced at trial sufficient to support Neal's

conviction for first-degree kidnapping. The victim's testimony established

the essential elements of the offense. App. at 36-37, 39. The minor

discrepancies in the victim's descriptions of Neal were brought before the

jury by defense counsel. The jury could have rationally discounted these

discrepancies in light of the victim's positive identification of Neal at

trial, the other circumstantial evidence connecting Neal to the crime, and

the problems with Neal's alibi defense. Finally, Neal's argument that the

evidence was insufficient to show a use of force creating either a

substantial risk of death or serious injury to the victim misses the mark

because any degree of sexual abuse will support a conviction for firstdegree 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 convict

Neal of first-degree kidnapping, State v. Newman, 326 N.W.2d 796, 802 (Iowa

1982), and the evidence clearly shows that sexual abuse occurred. In any

event, we agree with the State that Neal's use of the knife during the

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.
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A true copy.

Attest:

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