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IN THE COURT OF APPEALS OF IOWA No. 1-493 / 10-1407 Filed August 24, 2011 RODNEY FITZGERALD JACKSON, Plaintiff-Appellant, vs. STATE OF IOWA, Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.

Rodney Fitzgerald Jackson appeals from the district court order granting summary disposition on his applications for postconviction relief. AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender. Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Patrick Jennings, County Attorney, and Terry Ganzal, Assistant County Attorney, for appellee.

Considered by Eisenhauer, P.J., and Potterfield and Tabor, JJ.

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TABOR, J. This appeal marks the second time that our court has considered these postconviction relief (PCR) actions filed by Rodney Fitzgerald Jackson. In 2009 we reversed the district court's grant of summary disposition and remanded Jackson's claims for further proceedings at which he would have "a meaningful opportunity to present his position." Following that remand, Jackson's new

postconviction counsel filed written resistances to the State's motion for summary judgment and argued at a motion hearing that Jackson's applications presented issues of material fact concerning the performance of counsel at both the plea and probation revocation stages. disposition. Jackson appeals, The district court again granted summary contending summary disposition was

inappropriate, or alternatively, that his PCR counsel was ineffective. Because Jackson's ineffective-assistance-of-counsel claim bearing on whether his guilty plea was knowing and voluntary raises a genuine issue of material fact precluding the entry of summary disposition, we reverse that portion of the district court ruling and remand for an evidentiary hearing under Iowa Code section 822.7 (2005). We affirm the district court's dismissal on all remaining claims. I. Background Facts and Proceedings. On April 24, 2004, Rodney Jackson stole a watch from the wrist of a fellow patron at the Pearl Street Paradise in Sioux City. On June 3, 2004, the

Woodbury County Attorney charged him with first-degree theft from a person in violation of Iowa Code section 714.2(1) (2003). Pursuant to an agreement, on

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May 19, 2005, Jackson pleaded guilty to first-degree theft and received a tenyear suspended sentence, three years of probation, and costs and fines totaling $1000. One week later, Jackson was arrested for public intoxication and failure to obey a police officer. Jackson did not report this arrest to his probation officer. On May 27, 2005, Jackson was arrested and charged with possession of drug paraphernalia, simple assault, and assault with bodily fluids. Jackson pleaded guilty to assault on a peace office on June 8, 2005. At an August 22, 2005 probation revocation hearing, Jackson testified that he was trying to get into alcohol treatment program in Sioux Falls, but his probation officer testified that South Dakota officials were not willing to supervise Jackson's probation. Jackson expressed an unwillingness to participate in an Iowa treatment program. Citing Jackson's record, his criminal conduct within days of being placed on probation, and his failure to take responsibility for his actions, the court revoked Jackson's probation and imposed the ten-year sentence for his theft conviction. On November 9, 2005, Jackson filed a PCR application challenging his attorney's performance in the guilty plea proceedings. On January 10, 2006, Jackson filed a PCR application contesting his probation revocation. On

November 9, 2006, the State moved for summary disposition of both applications. Jackson's postconviction counsel did not file a resistance to those motions or any affidavits to support Jackson's claims. The court denied

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Jackson's attempt to testify at the April 21, 2008 hearing on the motions and granted summary disposition on both, finding Jackson had waived his claims. Jackson appealed the summary dispositions and this court reversed, finding Jackson was denied effective assistance of postconviction counsel. The court held "he was not afforded a meaningful opportunity to present his position as to whether there were genuine issues of material fact presented in his application or to argue his interpretation of the law." Jackson v. State, No. 080838 (Iowa Ct. App. Mar, 26, 2009). Our court remanded the case "for further proceedings to ensure the defendant's procedural due process rights are protected and his claims are properly heard." Id. The decision explained: If the parties or the court wish to proceed by summary disposition, it must be clear that Jackson was provided a meaningful opportunity to present his position. Otherwise the application for postconviction relief should be heard as provided by section 822.7. Following remand, Jackson--through newly appointed counsel--resisted both motions for summary disposition. While fully reciting the legal standard for summary judgments, the resistances advanced meager support for Jackson's factual assertions, stating only "he makes specific allegation and specific statements of facts that create material fact for the Court to rule on." Jackson's resistance in the probation violation action further alleged the probation revocation transcript "is not sufficient to establish that [his] assertions have no basis in fact," and "[t]he transcript is not sufficient to establish that there are no issues of material fact to be determined by the court."

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The district court held a hearing on the motions on June 9, 2010. At the hearing, Jackson's counsel argued that he had "really two claims of ineffective assistance of counsel." Counsel explained that the first one involved his attorney advising him not to reveal to the plea-taking court that Jackson had been drinking alcohol before the plea proceeding. The second claim involved the failure of his attorney at the probation revocation proceeding to vigorously argue the option of the out-of-state treatment facility. In a fifteen-page ruling filed on August 9, 2010, the district court addressed each of Jackson's PCR claims. The court dismissed the applications, finding: The applicant has failed to identify the meaning or import of his allegations, and the failure to do so leads to the conclusion that there is no issue of material fact. . . . The applicant has not provided the court with any support from the record to demonstrate a violation of his constitutional rights, nor has he shown any material facts that are in dispute. On August 9, 2010, Jackson filed his notice of appeal. II. Scope and Standard of Review. We review summary dismissal of a PCR application for the correction of errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct. App. 1998).

Claims of ineffective assistance of counsel receive de novo review. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998). When claims of ineffective assistance of counsel are properly raised in a PCR application, "an evidentiary hearing on the merits is ordinarily required." Manning v. State, 654 N.W.2d 555, 562 (Iowa 2002).

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III.

Analysis. The district court summarized Jackson's postconviction claims as follows: 1. His attorney in the plea and sentencing hearing was ineffective because the attorney did not explain Jackson's rights to him, did not want to fight the case and provided poor counsel because Jackson was indigent, misled him by saying he would receive the maximum sentence if he went to trial, and coached him in what to say at the plea and sentencing hearing; 2. His attorney in the probation revocation hearing was ineffective because the attorney misled him about the plea bargain by saying he would not have a prison term, failed to negotiate a plea bargain after promising to, did not explain his rights, and failed to promptly consult with him before making decisions; 3. He did not comprehend the content of the August 22 revocation hearing or the consequences of the plea bargain; 4. The judge in the probation revocation hearing had racial prejudice toward him; 5. The judge made false statement in the revocation proceeding; 6. The probation office made false statement under oath in the revocation proceeding; 7. The sentence was too harsh; and 8. His Sixth and Fourteenth Amendment rights were violated. Iowa Code section 822.6 (2005) provides for disposition of a PCR

application without a trial on the merits. Summary disposition may be granted when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa Code

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