IN THE COURT OF APPEALS OF IOWA

                                      No. 14-1744
                               Filed September 14, 2016


TIMOTHY S. BENJEGERDES,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Worth County, Gregg R.

Rosenbladt, Judge.



      An applicant appeals the denial of his application for postconviction relief.

AFFIRMED.




      Kent A. Simmons, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Timothy    Benjegerdes    appeals     the   denial   of   his   application   for

postconviction relief, asserting the district court erred in determining his counsel

was not ineffective for failing to investigate certain facts, litigate his motion to

suppress, and impeach the victim’s credibility. He also claims the court erred in

denying his motion for public disclosure.          Finding none of Benjegerdes’s

assertions persuasive, we affirm.

       I.     Background Facts and Proceedings

       In 2009, a jury convicted Benjegerdes of one count of sexual abuse in the

third degree, in violation of Iowa Code sections 709.1(3) and 709.4(2)(b) (2009).1

Benjegerdes’s conviction was affirmed on direct appeal. State v. Benjegerdes,

No. 09-1230, 2011 WL 3925411, at *4 (Iowa Ct. App. Sept. 8, 2011). In 2012,

Benjegerdes filed an application for postconviction relief, claiming his trial

counsel was ineffective on multiple fronts.         Following two amendments to

Benjegerdes’s application, his action came on for hearing in April 2014. On

September 25, 2014, the postconviction court issued its ruling, which found

Benjegerdes’s counsel was not ineffective and denied his application for

postconviction relief.

       II.    Standard of Review

       “The standard of review on appeal from the denial of postconviction relief

is for errors at law.” Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010) (quoting

McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995)).             However, alleged

1
  Benjegerdes was charged with two counts of sexual abuse in the third degree
stemming from incidents involving two separate minor victims. The jury acquitted
Benjegerdes on one of the counts.
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“violations of his constitutional rights are reviewed ‘in light of the totality of the

circumstances and the record upon which the postconviction court’s ruling was

made.’” Reilly v. Iowa Dist. Ct., 783 N.W.2d 490, 493 (Iowa 2010) (citations

omitted). “This is the functional equivalent of de novo review.” Id. “Thus, we

review claims of ineffective assistance of counsel de novo.” Ledezma v. State,

626 N.W.2d 134, 141 (Iowa 2001).

       III.   Ineffective Assistance of Counsel

       Benjegerdes argues the postconviction court erred in its consideration of

his ineffective-assistance claim.      Specifically, Benjegerdes claims his trial

counsel was ineffective in: (1) failing to investigate and develop impeachment

evidence against the investigating officer; (2) failing to effectively litigate the

motion to suppress; and (3) failing to effectively impeach the victim’s credibility.

The State asserts the district court properly concluded Benjegerdes’s counsel

made reasonable strategic decisions and was therefore not ineffective.

       Counsel is ineffective when counsel’s performance, measured against

objective standards, falls below professional norms. State v. Clay, 824 N.W.2d
488, 494–95 (Iowa 2012).        “In order to succeed on a claim of ineffective

assistance of counsel, a defendant must prove: (1) counsel failed to perform an

essential duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185,

195 (Iowa 2008).

       Whether counsel failed to perform an essential duty is measured against

the objective standard of a reasonably competent practitioner. Id. at 195–96.

We begin with the presumption that counsel performed their duties competently,

and “this court ‘avoid[s] second-guessing and hindsight.’” Id. at 196 (alteration in
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original) (quoting Ledezma, 626 N.W.2d at 142). Further, we analyze the claim

based on the totality of the circumstances. Id. Strategic decisions made based

on thorough investigation and reasonable professional judgments are “virtually

unchallengeable.”      Ledezma, 626 N.W.2d at 143 (quoting Strickland v.

Washington, 466 U.S. 668, 690–91 (1984)).

              A.      Credibility of Investigating Officer

       Benjegerdes argues his trial counsel failed to effectively investigate and

develop impeachment evidence against the investigating officer. He claims his

counsel should have attacked the officer’s credibility based on the officer’s

alleged: (1) relationship with the family of the victim, (2) failure to follow protocol

during the investigation, (3) tampering with phone-record evidence, and (4)

overall dishonesty.

       Benjegerdes’s complaints are unpersuasive. His trial counsel had thirty

years of experience, which included handling class “A” felonies and sexual

assault cases.      Counsel testified he took Benjegerdes’s case particularly

seriously because of the severity of the charges.            Trial counsel specifically

challenged the officer during cross-examination based on his stepdaughter’s

relationship with the victim, his conduct during the investigation, and the phone

record evidence. The specificity and depth of counsel’s cross-examination of the

officer indicates he conducted a thorough investigation and prepared extensively.

Based on his investigation and preparation, counsel made reasonable strategic

decisions in cross-examining the officer.           Therefore, we agree with the

postconviction court counsel did not fail to perform an essential duty in
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investigating and developing impeachment evidence against the investigating

officer.

             B.     Motion to Suppress

       Benjegerdes next asserts his trial counsel failed to litigate his motion to

suppress evidence. He claims his counsel should have raised the search and

seizure issue under Iowa Code chapter 808A, which applies to student searches,

rather than on constitutional grounds. The State argues Benjegerdes’s counsel

made a reasonable strategic decision by basing the motion to suppress on

constitutional grounds.

       Trial counsel testified that he reviewed chapter 808A and did not believe it

applied to the search and seizure issue. Counsel also stated he was concerned

that raising the issue under chapter 808A may be less persuasive than raising it

under constitutional grounds and that he wanted to focus on more persuasive

arguments.    Counsel’s testimony indicates that he reviewed the relevant law

regarding search and seizure and chose the grounds he believed had the best

chance of success in his motion to suppress.        Indeed, counsel litigated the

search and seizure issue under the broader protections of the Federal

Constitution, rather than focusing on the less protective context of school

searches. See State v. Jones, 666 N.W.2d 142, 145–46 (Iowa 2003) (“Although

students maintain their constitutional rights within the school setting, the United

States Supreme Court has acknowledged this setting ‘requires some easing of

the restrictions to which searches by public authorities are ordinarily subject.’”

(quoting New Jersey v. T.L.O., 469 U.S. 325, 340 (1985))). Counsel’s choice

was a reasonable strategic decision based on informed professional judgment.
                                             6


Therefore, we agree with the postconviction court’s conclusion counsel did not

fail to perform an essential duty in litigating the motion to suppress.

              C.     Credibility of Victim

       Benjegerdes also asserts his trial counsel failed to perform an essential

duty by not effectively impeaching the victim’s credibility. He argues his counsel

should not have stipulated to the authenticity of the victim’s phone records and

should have impeached the victim’s credibility using the phone records and

social network evidence. The State claims counsel made reasonable strategic

decisions in his cross-examination of the victim.

       Trial counsel testified he believed he and the State reached an agreement

regarding the foundation of the phone records because both sides planned on

using them at trial. Counsel noted that he generally approaches child sex abuse

victims carefully on cross-examination and that he believed he used the phone

records to effectively impeach the victim and thereby created some doubt as to

her credibility. We note the record reflects counsel’s extensive use of the phone

records in his cross-examination of the victim.       As far as the social network

evidence was concerned, counsel testified he had concerns over the

admissibility, relevance, and helpfulness of such information.        Both counsel’s

testimony and the trial record indicate counsel was fully aware of the evidence at

his disposal, devised a reasonable trial strategy, prepared extensively, and made

reasonable, informed strategic decisions throughout the trial.        Therefore, we

agree with the postconviction court that counsel did not fail to perform an

essential duty in attempting to impeach the victim’s credibility.
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       IV.    Open Records Act

       Benjegerdes    next   argues    the   postconviction   court   erred   in   its

consideration of his open-records-act claim. Specifically, Benjegerdes claims the

court should have unsealed testimony taken during the postconviction trial. The

State asserts open- records claims are not appropriate for postconviction actions.

       Postconviction actions are governed by chapter 822 of the Iowa Code.

Postconviction actions may be brought when: (1) a conviction or sentence is

unconstitutional; (2) the court lacked jurisdiction to impose a sentence; (3) the

sentence is greater than allowed by law; (4) new evidence exists; (5) a person is

being unlawfully held; (6) a sentence reduction has been illegally disallowed; or

(7) a conviction or sentence is subject to collateral attack.           Iowa Code

§ 822.2(1)(a)–(g).

       Benjegerdes describes the open-records question now before us as:

“whether the testimony [a former sheriff] gave in the instant PCR hearing on the

merits should be a matter of public record at this time, and for all time hereafter.”

Open-records claims are not actionable under chapter 822. Further, the answer

Benjegerdes seeks has no bearing on the substantive issues in front of the

postconviction court or this court on appeal.           Accordingly, we conclude

Benjegerdes’s open-records-act claim is improper for a postconviction action,

and we decline to consider it on appellate review of postconviction proceedings.
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       V.     Conclusion

       As we conclude the district court properly denied Benjegerdes’s claim of

ineffective assistance of counsel, we affirm the district court’s denial of

Benjegerdes’s application for postconviction relief.

       AFFIRMED.