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JORGE PEREZ-CASTILLO vs. STATE OF IOWA
Iowa Court of Appeals
Case Number: 13-1557
Judge: Michael R. Mullins
Court: IN THE COURT OF APPEALS OF IOWA
Plaintiff's Attorney: n
Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant Attorney General
Defendant's Attorney: n
Description: Jorge Perez-Castillo appeals the district court’s denial of his application for
postconviction relief (PCR), following his conviction for two counts of murder in
the first degree and two counts of attempted murder. He raises numerous claims
of ineffective assistance of counsel, as well as various constitutional claims. We
generally review PCR proceedings for correction of errors at law. Nguyen v.
State, 878 N.W.2d 744, 750 (Iowa 2016). However, when an applicant raises
constitutional claims, such as claims of ineffective assistance of counsel, we
apply a de novo review. See id.; Bonilla v. State, 791 N.W.2d 697, 699 (Iowa
Our court affirmed Perez-Castillo’s convictions on direct appeal,
concluding statements made by the prosecutor during the course of the trial did
not constitute misconduct and were not prejudicial to him, and preserving two
additional claims for PCR. State v. Perez-Castillo, No. 05-0362, 2006 WL
2419143, at *5–6 (Iowa Ct. App. Aug. 23, 2006). The specific facts and
circumstances surrounding the murders and attempted murders are set forth in
our prior opinion and need not be repeated herein. See id. at *1–2.
On June 5, 2007, Perez-Castillo filed a pro se application for PCR alleging
his trial counsel rendered ineffective assistance of counsel. Counsel for Perez
Castillo later filed an addendum to the PCR application. Perez-Castillo also
made additional claims at the PCR hearing. On September 23, 2013, the district
court denied Perez-Castillo’s PCR application.
On appeal, Perez-Castillo claims trial counsel rendered ineffective
assistance in failing to (1) object to prosecutorial misconduct; (2) adequately
prepare and present certain evidence in his defense, including investigating and
calling two witnesses on his behalf; (3) file a motion to sever the charges of first
degree murder and attempted murder; (4) file a motion to sever his trial from that
of his codefendant; (5) file a motion to suppress Perez-Castillo’s involuntary
waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (6) advise
him of his due process right to contact the Guatemalan Consulate under Article
36 of the Vienna Convention; and (7) object to incomplete jury instructions on
aiding and abetting.
Perez-Castillo also filed a pro se brief in which he argues: (1) his PCR
counsel provided ineffective assistance in being unprepared and in failing to
investigate his claims, including locating two witnesses, hiring a private
investigator, and hiring experts to review physical evidence in the case; (2) his
trial counsel provided ineffective assistance in failing to (a) challenge the
sufficiency of the evidence with regard to the first-degree murder charge as
premeditated murder, (b) object to the first-degree murder charge on the basis of
State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), (c) object to the jury instruction
on aiding and abetting, (d) contact the Guatemalan Consulate until after his trial,
and (e) file a motion to sever the trials of him and his codefendant; (3) the State
committed a violation under Brady v. Maryland, 373 U.S. 83 (1963), by failing to
present exculpatory evidence, including two witnesses and the tape containing
his confession to police; (4) his PCR and trial counsel both failed to object to
(a) the use at trial of statements he made during a police interview and (b) the
State’s failure to produce the tape containing his confession to police; (5) he was
not properly advised of his Miranda rights and his waiver of those rights was
involuntary because he was intoxicated and high on drugs, was unable to speak
English, lacked sleep, had been shot, and had not eaten or slept for several
hours leading up to the police interview; and (6) his appellate and PCR counsel
failed to investigate newly discovered evidence.
Upon our review of the record, the parties’ briefs, and the district court’s
thorough and well-reasoned ruling, we affirm the district court’s order as to
Perez-Castillo’s claims his trial counsel provided ineffective assistance by failing
to (1) object to prosecutorial misconduct; (2) investigate and locate two witnesses
identified by Perez-Castillo and call them to testify at his trial; (3) move to sever
the charges and the trials; (4) move to suppress his involuntary Miranda waiver;
(5) advise him of his right to contact the Guatemalan Consulate; (6) object to the
aiding and abetting jury instructions; and (7) argue the applicability and
retroactivity of Heemstra. See Iowa Ct. R. 21.26(1)(d), (e).
Further, we find Perez-Castillo has failed to preserve error with respect to
the following claims because they were not raised before the district court and
the court did not rule on them: (1) his trial counsel provided ineffective assistance
by failing to challenge the sufficiency of the evidence of the charge of first-degree
murder; (2) the State committed a Brady violation; (3) his confession was
involuntary and his Miranda warnings were improper because they were given
orally rather than written; and (4) his appellate counsel rendered ineffective
assistance in failing to investigate new evidence. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review
that issues must ordinarily be both raised and decided by the district court before
we will decide them on appeal.”); see also State v. Derby, 800 N.W.2d 52, 60
(Iowa 2011) (“Issues not raised before the district court, including constitutional
issues, cannot be raised for the first time on appeal.” (citation omitted)).
Finally, we consider Perez-Castillo’s pro se claims his PCR counsel
provided ineffective assistance by failing to (1) locate two witnesses and hire
experts; (2) object to the use of statements he made during his police interview
and the State’s failure to produce the tape recording of the interview; and
(3) investigate newly discovered evidence.
“Ineffective-assistance-of-counsel claims are an exception to the
traditional error-preservation rules.” State v. Fountain, 786 N.W.2d 260, 263
(Iowa 2010). To succeed on a claim of ineffective assistance of counsel, Perez
Castillo must show “by a preponderance of the evidence: ‘(1) his trial counsel
failed to perform an essential duty, and (2) this failure resulted in prejudice.’”
State v. Thorndike, 860 N.W.2d 316, 320 (Iowa 2015) (quoting State v. Adams,
810 N.W.2d 365, 372 (Iowa 2012)); accord Strickland v. Washington, 466 U.S.
668, 687 (1984).
Based on the record before us, we conclude Perez-Castillo has failed to
prove a reasonable probability that, without any alleged errors by PCR counsel,
“the result of the [PCR] proceeding would have been different.” Strickland, 466
U.S. at 694. Thus, he cannot show he was prejudiced by any alleged failure of
PCR counsel. See id.; see also State v. Shanahan, 712 N.W.2d 121, 142 (Iowa
2006) (acknowledging failure to prove either prong is fatal to the claim).
Furthermore, we find the record contains overwhelming evidence of Perez
Castillo’s guilt. See Boose v. State, No. 13–1130, 2014 WL 7343218, at *3 (Iowa
Ct. App. Dec. 24, 2014) (applying the “overwhelming evidence” standard cited in
State v. Maxwell, 743 N.W.2d 185, 197 (Iowa 2008), to the applicant’s
ineffective-assistance-of-trial-counsel claim in a PCR action).