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IN THE COURT OF APPEALS OF IOWA No. 9-862 / 09-0499 Filed December 17, 2009

JOHN HUGHES, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.

John Hughes appeals from the denial of his application for postconviction relief. AFFIRMED.

Lynn C. H. Poschner of Borseth Law Office, Altoona, for appellant. Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee State.

Considered by Vogel, P.J., and Doyle and Mansfield, JJ.

2 DOYLE, J. John Hughes appeals from the denial of his application for postconviction relief. He alleges his trial counsel was ineffective in failing to (1) depose the victim prior to trial, and (2) consult with, retain, and call as a witness an expert in the area of Asperger's Syndrome. He additionally asserts the postconviction court erred in denying the application for postconviction relief because he offered newly discovered exculpatory evidence. Lastly, he asserts his postconviction relief counsel rendered ineffective assistance in failing to (1) depose trial counsel, and (2) present evidence on Asperger's Sydrome. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). I. Background Facts and Proceedings. On the evening of November 12, 2001, while making a purchase at a Waterloo Kwik Star, Calvin Hastings was approached by Hughes. Hughes asked for marijuana and then for money. Hastings said he did not have any marijuana and did not give Hughes any money. When Hastings left the store, Hughes was waiting outside with another person. Hughes asked Hastings again for Our review is de novo.

marijuana. Hastings again said no. Hughes asked Hastings to come over next to his car to talk. Just trying to be friendly, Hughes followed Hastings to a

minivan. There was another man in the minivan. At that point, Hughes grabbed Hastings and screamed "Give me your money." Hastings broke free and was chased by Hughes and the two other men. Hastings tried to get in the back door of the Kwik Star, but it was locked. When Hughes and the two men caught up with Hastings, he was hit in the back of the head, on the cheek, and in the mouth. One of the men said "Get his wallet," and Hastings's wallet was taken from his

3 back pocket. The three men took off, and Hastings went back into the Kwik Star to report the robbery. Hughes was convicted of robbery in the second degree pursuant to Iowa Code sections 711.1 and 711.3 (2001). On October 7, 2002, he was sentenced to fifteen years of imprisonment pursuant to sections 902.8, 902.9, and 911.2. The court found Hughes to be an habitual offender, and it sentenced Hughes to serve at least eighty-five percent of the maximum sentence pursuant to sections 902.12 and 903A.2(1)(b). On direct appeal this court affirmed Hughes's

conviction and sentence. See State v. Hughes, No. 02-1751 (Iowa Ct. App. Oct. 29, 2003). On June 17, 2004, Hughes filed a pro se application for postconviction relief claiming his trial counsel was ineffective for seven different reasons. Hughes was appointed counsel. The State filed a motion to dismiss. At

Hughes's request, he was appointed substitute counsel. On April 27, 2005, the State's motion was heard and was granted in part and denied in part. On

March 1, 2007, Hughes's counsel filed a motion to amend the application for postconviction relief "based upon the discovery of a new witness not previously available to testify at court." The motion was granted. Following a March 3, 2009 trial, the district court denied relief on all grounds. Hughes now appeals, asserting the district court erred in failing to find his trial counsel rendered ineffective assistance, and in failing to grant postconviction relief based on newly discovered evidence. He further asserts his postconviction relief counsel rendered ineffective assistance.

4 To establish a claim of ineffective assistance of counsel, Hughes must show by a preponderance of the evidence that (1) counsel's performance fell outside the normal range of competency and (2) the deficient performance so prejudiced the defense as to deprive the criminal defendant of a fair trial. Thompson v. State, 492 N.W.2d 410, 413 (Iowa 1992). We may dispose of an ineffective-assistance-of-counsel claim if the applicant fails to meet either the breach of duty or the prejudice prong. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 699 (1984). In order to show prejudice, Hughes must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. II. Ineffective Assistance by Trial Counsel. On appeal, Hughes claims his trial counsel provided ineffective assistance for the failure to take a pretrial deposition of Hastings, and for failure to consult with, retain, and call an expert witness in the area of Asperger's Syndrome. Hastings, the victim, was not deposed prior to trial. At trial he testified he

suffered from Asperger's Syndrome, a mental disorder, but he did not k now what it was. No testimony was offered to describe the syndrome or how it might have affected Hastings. On appeal Hughes suggests that had his trial counsel

deposed Hastings before trial, it would have been discovered Hastings suffered from a mental disorder and an expert in the field could have been retained and possibly offered evidence at trial regarding Hastings's ability to recall events and identify witnesses. The record is devoid of any information as to the effects of Asperger's Syndrome, or what an expert's testimony may have been. We will not

5 engage in speculation. Hughes has failed to meet his burden to show he was prejudiced. III. Newly Discovered Evidence. Hughes next contends he was entitled to postconviction relief based upon newly discovered evidence. See Iowa Code

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