IN THE COURT OF APPEALS OF IOWA No. 19

- 0773 Filed November 30, 2020

TYLER JAMES WEBSTER , Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Jefferson County, Shawn R. Showers , Judge.

Tyler Webster appeals the district court ’ s denial of his postconviction

- relief application. AFFIRMED.

R.E. Breckenridge of Breckenridge Law P.C. , Ottumwa , for appellant. Thomas J. Miller, Attorney General, and Thomas E. Bakke , Assistant Attorney General, for appellee State.

Considered by Vaitheswaran, P.J. , and Tabor and Schumacher, JJ.2

VAITHESWARAN , Presiding Judge
.

“ Webster shot and killed Buddy Frisbie. ” State v

. Webster

, 865 N.W.2d 223, 226 (Iowa 2015). A jury found Tyler James Webster g uilty of second

- degree murder. On direct appeal, Webster argued that one of the jurors engaged in misconduct or evinced bias. Id

. at 236. In addressing the issue, t he supreme court explained, “[N] o record was made of voir dire or of the district court ’ s preliminary admonition to the jury ” but those “ shortcomings ” did “ not raise a questi o n of
preser vation of the claims so much as affect[ed] the viability of Webster ’ s claims on the merits. ” Id

. at 233. A record was made of an in

- camera examination of the juror

. Id

. at 227. The court considered that record and other evidence in finding the claims unpersuasive. Id

. at 233

– 40. O ne justice specially concurred to note the presence of potential ineffective

assistance

- of

- counsel claims. Id . at 245 (Wiggins, J., concur ring specially). The justice stated , “[I] ssues regarding ineffective assistance of counsel, if any ” would

“ have to be ful ly explored in a postconviction

- relief proceeding. ” Id

. Webster pursued that avenue. H e filed a postconviction

- relief application alleging his trial attorney was ineffective in (1) “ waiving the transcription reporting of jury selection, voir dire, and the court ’ s preliminary admonitions resulting in an inadequate record for appeal and further review on the merits ” ; (2) “ failing to question [the] juror

. . . in voir dire on her relationship with [the victim ’ s] family and for failing to strike or move to dismiss said juror in the preliminary jury selection stage ”; (3) “ failing to develop the record during the in camer a inspection of [the] juror

. . . and failing to move to dismiss her f or cause at the in camera stage ” ; and (4) “ failing to raise a separate juror bias claim in addition to juror misconduct and3

failing to raise distinct constitutional claims under the Iow a and United States Constitutions. ” 1 The postconviction court denied the application following an evidentiary hearing. On appeal, Webster reiterates that he “ was denied effective assistance of counsel. ” Ineffective

- assistance

- of

- counsel claims have tw o components. “ First, the defendant must show that counsel ’ s performance was deficient. ” Strickland v

. Washington , 466 U.S. 668, 687 (1984). “ Second, the defendant must show that the deficient performance prejudiced the defense. ” Id

. To prove prejudice, “ [t]he 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. Constitutional prejudice will not be found where the evidence of guilt is overwhelming. See State v

. Walker , 935 N.W.2d 874, 881 (Iowa 2019). We elect to focus on the prejudice prong of the Strickland test. See State

v
. Lorenzo Baltazar

, 935 N.W.2d 862, 868 (Iowa 2019) ( “ Failure to prove either prong i s fatal to an ineffectiv e - assistance

- of

- counsel claim. ” ). The postconviction court stated that prong was “ a legal Mount Everest ” for Webster. On our de novo review of the constitutionally grounded ineffective

- assistance claims, we agree. In finding Webster guilty of second

- degree murder, the jury considered the testimony of a woman Frisbie was dating . She stated Webster barged in as Frisbie was kissing her and she saw Webster “ sta nding over [them] with a gun. ” As she

“ turned, ” Webster “ s hot [Frisbie]. ” She “ kind of stepped back in shock . . . [a]nd then he shot again. ”

1 Webster’s original application simply alleged “[j]ury [m]isconduct.” Counsel amended the application twice.4 After the shooting, Webster told a 911 dispatcher that he “ just shot a man in the face. ” He repeated the statement , stated the man was “ dead, ” and identified the man as Buddy Frisbie. When the dispatcher asked if Webster was sure Frisbie was dead, Webster responded, “ Oh, he ’ s definitely dead. I shot him twice in the face. ” He described the gun, told the dispatcher it was “ in the glove box of [his] truck, ” and provid ed his location. When the dispatcher asked why he shot Frisbie, Webster responded, “ [T] here was an incident with a young lady. I thought it was getting out of control. He was hurting her

. . . . ” The woman Frisbie was dating dispelled this concern, tes tifying her contact with Frisbie was entirely consensual and she had no fear of him

. A special agent with the division of c riminal i nvestigation interviewed Webster following his arrest. Webster told him “ he had shot Buddy Frisbie two times in the face. ” According to the special agent, Webster said that he didn ’ t like the way that it appeared Buddy Frisbie was treating [the woman] , but he may have misunderstood the situation

. . . . He said he left the t railer, walked out to his white Mazda pickup truck and got his gun

. . . , which is a .45 caliber semi

automatic handgun, retrieved it from his glove box , and went back into the trailer. . . . [ H ]e cycled the weapon to make it ready to be fire d

. He shot Frisbie “ at point

- blank range. ” Webster told the special agent that “ when he racked the slide back and made the weapon ready to fire that he knew there was no turning back. ” Webster ended the interview by saying, “ It is what it is. It is what it is. ” We conclude the evidence of guilt is overwhelming. Accordingly, there is no reasonable probability of a different outcome had Webster ’ s trial attorney insisted on a record of voir dire, questioned the juror about her r elationship with5

Frisbie ’ s family, more thoroughly developed the record of the in

- camera examination and moved to dismiss the juror for cause following the examination , and raised distinct constitutional claims , including a claim of juror bias. See Gunther v

. State , No. 09

- 0275, 2009 WL 3775147 , at *6 (Iowa Ct. App. Nov. 12, 2009) ( “ [T] here was ‘ overwhelming record evidence from which a rational jury could find Gunthe r guilty of second

- degree murder ’

. . . . [W] e conclude there is no reasonable likelihood that the outcome of Gunther ’ s direct appeal would have been different if he had raised t he juror misconduct issue. ” ). With respect to the claimed failure to raise a claim of juror bias, it is worth reiterating

— as the postconviction court did

— that the supreme court addressed the clai m notwithstanding counsel ’ s omission. Webster ’ s efforts to recast the issue as an ineffective

- assistance

- of

- counsel claim with due process underpinnings is a thinly veiled attempt to relitigate the issue. See Holmes v

. State , 775 N.W.2d 733, 735 (Iowa Ct. App. 2009) ( “ Issues that have been raised, litigated, a nd adjudicated on direct appeal cannot be relitigated in a postconviction proceeding. ” (quoting Wycoff v

. State , 382 N.W.2d 462, 465 (Iowa 1986) ) ) . He “ cannot now relitigate issues decided adversely to him on direct appeal. ” Id

. We affirm the den ial of Webster ’ s postconviction

- relief application. AFFIRMED.