ABDINUR v. STATE (2021)

Court of Appeals of Iowa.

Isack ABDINUR, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.

No. 19-1933

Decided: March 03, 2021

Considered by Vaitheswaran, P.J., May, J., and Carr, S.J.*

Fred Stiefel, Victor, for appellant. Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee State.

Following a bench trial, the district court found Isack Abdinur guilty of first-degree murder. This court affirmed his conviction on direct appeal. State v. Abdinur, No. 17-0247, 2018 WL 2731624, at *6 (Iowa Ct. App. June 6, 2018). Abdinur filed an application for postconviction relief (PCR), which the State moved to dismiss. Because Abdinur failed to resist the motion or produce facts to support his application, the PCR court dismissed the application as a matter of law.

Abdinur appeals the dismissal of his PCR application, arguing for the first time that his PCR counsel was ineffective. Abdinur and the State both agree that the proper procedure is for this court to affirm and allow Abdinur to litigate his claim in a second PCR action. See Goode v. State, 920 N.W.2d 520, 527 (Iowa 2018) (“The applicant must assert his claim of ineffective assistance of postconviction counsel raised on appeal in a separate application for PCR.”). We affirm the dismissal of Abdinur's PCR application so that Abdinur may raise his claim of ineffective assistance of PCR counsel in a second PCR action.

AFFIRMED.

CARR, Senior Judge.

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