Allen Killings, Applicant-Appellant v. State of Iowa, 15-1061

In 2007 Margaret Gottschalk was found dead; DNA from her clothing and a cigarette butt at the scene matched Allen Killings. Killings gave inconsistent statements about sexual contact.
Killings was tried, convicted of first-degree murder on a general verdict; jury was instructed on premeditated murder and felony murder (predicate felony: robbery or assault with intent to commit sexual abuse).
Killings’ direct appeal affirmed the conviction; he later filed a chapter 822 postconviction-relief (PCR) application represented by appointed counsel.
PCR proceedings were protracted; Killings intermittently refused to cooperate, sought new counsel and at one point sought to proceed pro se; counsel acted as both retained and standby at different times.
At the PCR trial counsel introduced deposition transcripts and trial exhibits, did not call live witnesses, and Killings did not present evidence; the district court denied relief after a brief evidentiary hearing.
Killings appealed, arguing postconviction counsel was ineffective and constructively denied counsel by failing to meaningfully challenge the conviction and by not attacking the felony-murder instruction (merger under Heemstra/Tribble).

Issue	Killings' Argument	State's Argument	Held
Whether PCR counsel’s performance rose to structural error/constructive denial of counsel	Counsel was inattentive, colluded with State, failed to meaningfully test conviction	Counsel reasonably prepared, was obstructed by Killings’ refusal to cooperate; hearing was adequate	No structural error; counsel’s advocacy was adequate under circumstances
Whether PCR counsel was ineffective for not challenging felony-murder instruction	Assault with intent to commit sexual abuse merged into murder (Heemstra/Tribble), so predicate felony invalid	Evidence supported two independent assaults and a valid predicate felony; merger rule inapplicable	No breach: challenge lacked merit; counsel need not raise frivolous claim
Whether, assuming breach, Killings established prejudice	Different instruction would have altered verdict	Identity, not intent, was central; evidence strongly identified Killings as assailant	No prejudice: reasonable probability of different result not shown
Whether merger doctrine (Heemstra/Tribble) applied to bar felony-murder here	Merger applies when the act causing injury is the same act causing death	Evidence showed separate acts (multiple blows and manual strangulation; movement of victim); felony distinct from murder	Heemstra inapplicable: substantial evidence of separate acts and sufficient predicate felony

Dunbar v. State, 515 N.W.2d 12 (Iowa 1994) (statutory right to effective assistance of PCR counsel)
Lado v. State, 804 N.W.2d 248 (Iowa 2011) (structural-error framework for counsel deprivation)
Lamasters v. State, 821 N.W.2d 856 (Iowa 2012) (de novo review of ineffective-assistance claims)
Heemstra v. State, 721 N.W.2d 549 (Iowa 2006) (merger rule for felony-murder predicate)
Tribble v. State, 790 N.W.2d 121 (Iowa 2010) (requiring separate act causing death to support felony-murder where merger is challenged)
Nguyen v. State, 878 N.W.2d 744 (Iowa 2016) (counsel not required to raise meritless claims)
Washington v. Recuenco, 548 U.S. 212 (U.S. 2006) (structural error is rare)
Williams v. Pennsylvania, 136 S. Ct. 1899 (U.S. 2016) (noting no constitutional right to collateral relief)