IN THE COURT OF APPEALS OF IOWA

No. 14-1275

Filed July 22, 2015

ALVIN LEE COOPER,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Paul L. Macek, 

Judge.

An applicant appeals the district court’s denial of his postconviction-relief 

application. AFFIRMED.

Thomas J. OʼFlaherty of OʼFlaherty Law Firm, Bettendorf, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney 

General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant 

County Attorney, for appellee State.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2

VOGEL, P.J.

Alvin Cooper appeals the district court’s denial of his application for 

postconviction relief (PCR). In the PCR proceeding, one of the claims Cooper 

asserted was that his trial attorney was ineffective in not calling all of the alibi 

witnesses identified in the pretrial witness list—only two of the eight alibi 

witnesses testified at the criminal trial. In presenting this claim at the PCR 

hearing, Cooper’s PCR attorney did not develop the record as to what these 

other six alibi witnesses would have been able to testify to at the criminal trial. 

Cooper asserts this failure amounts to ineffective assistance of postconviction 

counsel and asks that we reverse the district court’s decision and remand this 

matter for a new PCR hearing. Because we conclude Cooper’s trial attorney’s 

decision to not call all eight alibi witnesses—after consulting with Cooper—was a 

reasonable strategic decision, Cooper has failed to establish his trial attorney 

breached an essential duty. Therefore, postconviction counsel was not 

ineffective in failing to develop the PCR record with the testimony of the other six 

alibi witnesses as that testimony only affected the prejudice element of the 

ineffective-assistance test. 

In order to establish a claim of ineffective assistance of counsel, Cooper 

must prove by a preponderance of the evidence “(1) his trial counsel failed to 

perform an essential duty, and (2) this failure resulted in prejudice.” See 

Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). Because of the 

constitutional nature of the claim, our review is de novo. Id.

Cooper was convicted of two drug offenses along with harassment and 

interference with official acts after a bench trial. See State v. Cooper, No. 05-
3

0934, 2006 WL 3436132, at *1 (Iowa Ct. App. Nov. 30, 2006). His defense at 

trial was that the person who was discarding the drugs while fleeing from police 

was, in fact, Cooper’s brother, Irvin. Id. At trial, the police officers who 

apprehended Cooper testified they recognized it was Cooper who they have

chasing, not Cooper’s brother, who was several inches shorter. Id. at *1–2. 

Introduced into the trial record were photographs of both Cooper and his brother, 

who bare remarkably similar facial features. Also introduced was each brother’s 

height and weight. The two alibi witnesses who testified at trial asserted Cooper 

was at a recording studio with them when the police chase occurred. The court 

did not find the testimony of these alibi witnesses credible and entered judgment 

against Cooper.

1

Id. at *2. 

In preparing for the PCR hearing, Cooper’s trial counsel was deposed.2 

He testified that while he did not have a specific recollection of this case, he 

normally did not call every witness he subpoenaed during a trial to testify—

Sometimes I talk to them when they show up, and there is 

something about their testimony that would not be helpful or there 

is something about them, their criminal background, that would not 

be helpful. . . . 

 

1 Our court, on direct appeal, articulated the evidence establishing Cooper’s identity as

follows:

Cooper is five feet eight inches tall. His brother, on the other hand, is five 

feet four inches tall. One of the officers, who is five feet eight inches tall, 

testified that he was eye-to-eye with the individual he encountered on 

November 6. Further, officers found a cap in the car in which Cooper was 

sitting embroidered with the name of Cooper’s company on the front and 

“King Blue” on the back.

Cooper, 2006 WL 3436132, at *2. Cooper was known to one of the officers by the 

nickname “King Blue.” Id. at *1. 

2 Cooper’s trial counsel was ill and was not expected to be able to give live testimony at 

the time of the PCR trial, so an evidentiary deposition was taken. His illness, along with 

the medication he had to take, affected his ability to remember the details of his 

representation of Cooper. 
4

So it could have been that they were there or that some of 

them were there, and we decided that none of them were going to 

offer anything better than what our two testifying witnesses had 

already done. 

Counsel went on to testify that in his experience, calling multiple witnesses who 

all provide the same alibi testimony does not strengthen the case—

There is not anything to be gained if—if you have witnesses 

that establish what your client tells you his alibi is. If I have a client 

that says, I was at such and such a place from this time to that 

time, and I put up a couple of witnesses that can verify that, adding 

a third, fourth, or fifth witness typically isn’t going to strengthen that 

alibi, not unless there was something really remarkable about the 

other witnesses like, yes I was there, I was holding his hand the 

entire time. Something that—that really makes them remarkable.

But if it’s just another person, who was at the scene and saw 

my client from a distance, and thinks he was there most of the time, 

they aren’t really helpful at that point.

As it was Cooper’s position that he was at the recording studio at the time 

of the police chase, and the two defense witnesses who testified verified that 

alibi, it can be reasonably assumed the other six alibi witnesses on the list would 

have also testified to seeing Cooper at the studio on the night in question.

3

 Any 

testimony to the contrary would have harmed, rather than helped, the defense’s 

case. As defense counsel testified at his deposition, it is his assessment that 

more alibi witnesses who simply say the same thing do not strengthen the case. 

It is clear that the decision regarding which, and how many, witnesses were 

going to be called to give alibi testimony was a question of trial strategy.

The trial transcript also established that counsel consulted with Cooper 

after the second alibi witness testified, but before resting the defense’s case—

 

3 During their trial testimony, the two alibi witnesses who did testify identified one of the 

other six individuals, who was not called, as being at the recording studio on the night in 

question. It is thus reasonable to assume that this person, if called, would have simply 

corroborated the testimony of the two alibi witnesses that testified. 
5

[Defense Counsel]: If the Court could just give me a 

moment, Your Honor. 

The Court: All right. 

[Defense Counsel]: Your Honor, at this time we have 

decided that we aren’t going to call any more witnesses.

 

(Emphasis added.) Based on the plain reading of the transcript, counsel and 

Cooper discussed whether any additional alibi witnesses should be called, and 

they made the decision not to call any more witnesses. 

We agree with the PCR court’s conclusion that it was a reasonable 

strategic decision to not have all eight witnesses testify as to Cooper’s alibi. 

State v. Fountain, 786 N.W.2d 260, 266 (Iowa 2010) (noting “strategic decisions 

made after [a] ‘thorough investigation of law and facts relevant to plausible 

options are virtually unchallengeable’” (citations omitted)). Counsel consulted 

with Cooper in making this strategic decision. We therefore conclude Cooper 

failed to establish his trial counsel breached an essential duty in not calling the 

other six alibi witnesses at trial. Because Cooper failed to prove the first element 

of the ineffective-assistance test, the claim fails. Id. (“The claim fails if the 

defendant is unable to prove either element of this test.”). 

In light of our affirmation of the PCR court’s conclusion that Cooper’s claim 

of ineffective assistance against his trial counsel fails on the first element, 

Cooper’s claim on appeal that his PCR attorney was ineffective in failing to 

establish a record as to what evidence these six other alibi witnesses could have

offered at trial also fails. As the PCR court noted, information about what 

evidence these six individuals could have offered only goes to whether or not 

Cooper was prejudiced by trial counsel’s omission—Cooper had to prove a 

reasonable probability that the result of the trial would have been different if 
6

these six people testified. See Dempsey, 860 N.W.2d at 868 (“Prejudice exists 

where a claimant proves a reasonable probability that, but for the counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

(internal quotation marks omitted)). Because the ineffective-assistance claim

against trial counsel failed on the breach element, PCR counsel’s failure to 

support the prejudice element would have made no difference at the PCR 

hearing. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (noting “counsel 

has no duty to raise issues that have no merit”). 

AFFIRMED.