At page 824 Distinguishing statutory exceptions to the time bar for claims43 citing casesholding that an applicant for PCR cannot circumvent the effect of the three-year time-bar by merely claiming the ineffective assistance of postconviction counsel because section 822.3 “creates an exception for untimely filed application if they are based on claims that ‘could not’ have been previou…
- Jeffery Wheeldon v. State of Iowa, No. 17-1868 (Iowa Ct. App. Dec. 19, 2018).published(A reasonable interpretation of the statute compels the conclusion that exceptions to the time bar would be, for example, newly-discovered evidence or a ground that the applicant was at least not alerted to in some way.)
- Charles Watkins, Applicant-Appellant v. State of Iowa, No. 14-0404 (Iowa Ct. App. July 9, 2015).published (A reasonable interpretation of the statute compels the conclusion that exceptions to the time bar would be, for example, . . . a ground that the applicant was at least not alerted to in some way.)
- Dewayne Campbell, Applicant-Appellant v. State of Iowa, No. 3-1197 / 12-1523 (Iowa Ct. App. Feb. 5, 2014).published(Wilkins labels his claim ineffective-assistance-of-postconviction- counsel in the hope that the court will reach the merits of his contention that his trial counsel was ineffective. However, his claims neither involve…)
- Tiamo Leroy Blackcloud v. State of Iowa, No. 22-0418 (Iowa Ct. App. Aug. 30, 2023).publishedWilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).
- Shiro Edward Remeliik v. State of Iowa, No. 21-0655 (Iowa Ct. App. June 29, 2022).published“In other words, the exception applies to situations in which there ‘would be no opportunity to test the validity of the conviction in relation to [the ground of fact or law that allegedly could not have been raised with…”
- Ricky Joe Blodgett v. State of Iowa, No. 19-1877 (Iowa Ct. App. Oct. 6, 2021).published“claims that ‘could not’ have been previously raised because they were not available”
- Perry Andrew Fischer v. State of Iowa, No. 18-0450 (Iowa Ct. App. Apr. 3, 2019).published“newly-discovered evidence or a ground that the applicant was at least not alerted to in some way”
- Jacob Lee Schmidt v. State of Iowa, 909 N.W.2d 778 (Iowa 2018).published “no opportunity to test the validity of the conviction in relation to [the ground of fact or law that allegedly could not have been raised within the time period]”
- James Dean Raymond, Applicant-Appellant v. State of Iowa, No. 16-0371 (Iowa Ct. App. May 3, 2017).publishedSmith v. State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995) (“[A]n applicant for postconviction relief cannot circumvent the effect of the three-year time bar by merely claiming the ineffective assistance of postconviction counsel.” (citing W…
- Eric Bonita Peppers, Applicant-Appellant v. State of Iowa, No. 16-0715 (Iowa Ct. App. Apr. 19, 2017).publishedThe ruling was consistent with Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994) (“Section 822.3 creates an exception for untimely filed applications if they are based on claims that ‘could not’ have been previously raised because they wer…
Show 33 more citing cases
- Kevin Cleveland Jordan, Applicant-Appellant v. State of Iowa, No. 15-0820 (Iowa Ct. App. Jan. 11, 2017).publishedJordan states he “is not attempting to argue whether [his claims] will prove meritorious, merely that [they] were dismissed for the wrong reason.” Specifically, Jordan asks us to “overrule” Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994)…
- Napoleon Hartsfield, Applicant-Appellant v. State of Iowa, No. 15-1702 (Iowa Ct. App. Nov. 9, 2016).publishedAs procedendo issued in February 2003, and Hartsfield did not institute the current PCR action until 2010, this matter is clearly untimely under section 822.3. “[I]neffective assistance of counsel does not provide an exception to the limit…
- Jimmy Dean Stevens, Applicant-Appellant v. State of Iowa, No. 15-1033 (Iowa Ct. App. Apr. 27, 2016).published(second alternation in original)
- Donald Dockery, Applicant-Appellant v. State of Iowa, No. 13-2067 (Iowa Ct. App. Jan. 27, 2016).published Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).
- Daniel Frederick King II, Applicant-Appellant v. State of Iowa, No. 14-0409 (Iowa Ct. App. July 22, 2015).published State v. Wilkins, 522 N.W.2d 822, 824 (Iowa 1994).
- Darryl Washington, Applicant-Appellant v. State of Iowa, No. 14-0923 (Iowa Ct. App. July 9, 2015).published State v. Wilkins, 522 N.W.2d 822, 824 (Iowa 1994).
- Richard Allen Heien, Applicant-Appellant v. State of Iowa, No. 13-1006 (Iowa Ct. App. Oct. 1, 2014).publishedWilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994) (citation omitted).
- Jason Alan Carlton, Applicant-Appellant v. State of Iowa, No. 13-2068 (Iowa Ct. App. Oct. 1, 2014).publishedSee, e.g., Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003); Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994); Davis v. State, 443 N.W.2d 707, 709-10 (Iowa 1989); Fuhrmann v. State, 433 N.W.2d 720, 723 (Iowa 1988).
- Odell Everett Jr., Applicant-Appellant v. State of Iowa, No. 12-1032 (Iowa Ct. App. July 30, 2014).published(noting Wilkins had three opportunities to raise ineffectiveness of trial counsel and could not use claim to circumvent time bar.)
- Anthony Brown, Applicant-Appellant v. State of Iowa, No. 13-0244 (Iowa Ct. App. July 16, 2014).publishedWilkens v. State, 522 N.W.2d. 822, 824 (Iowa 1994).
- Eric Mel Thompson, Applicant-Appellant v. State of Iowa, No. 13-0421 (Iowa Ct. App. Mar. 12, 2014).published Our review of the district court’s application of this code section “is to correct errors of law.” Wilkins v. State, 522 N.W.2d 822, 823 (Iowa 1994).
- Phuoc Thanh Nguyen v. State of Iowa, 829 N.W.2d 183 (Iowa 2013).published“should have at least been alerted to”
- Sergio Perez v. State of Iowa, 816 N.W.2d 354 (Iowa 2012).published“A reasonable interpretation of the statute compels the conclusion that exceptions to the time bar would be, for example, newly-discovered evidence or a ground that the applicant was at least not alerted to in some way”
- Grinols v. State, 10 P.3d 600 (Alaska Ct. App. 2000).publishedSee Pizzuto v. State, 127 Idaho 469 , 903 P.2d 58, 61 (1995); Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994). 73 .
- Smith v. State, 542 N.W.2d 853 (Iowa Ct. App. 1995).published Wilkins v. State, 522 N.W.2d 822, 823 (Iowa 1994).
- Roberto Villasenor v. State of Iowa, No. 21-0755 (Iowa Ct. App. May 25, 2022).published(noting this exception allows the court to consider “untimely filed applications if they are based on claims that ‘could not’ have been previously raised because they were not available” and concluding “Wilkins cannot as…)
- Mohamed Hassan Ali v. State of Iowa, No. 20-1421 (Iowa Ct. App. Mar. 2, 2022).publishedSee Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).
- Euric Abray Fountain v. State of Iowa, No. 17-2024 (Iowa Ct. App. Oct. 23, 2019).published(noting exception is limited to “a ground that the applicant was at least not alerted to in some way)
- Troy Alan Hartson v. State of Iowa, No. 18-1124 (Iowa Ct. App. Mar. 6, 2019).published(noting exception is limited to “a ground that the applicant was at least not alerted to in some way)
- Armstrong v. State, No. 17-0224 (Iowa Ct. App. Dec. 20, 2017).publishedSee Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).
- Danny Ray Long, Applicant-Appellant v. State of Iowa, No. 16-1220 (Iowa Ct. App. June 21, 2017).published(rejecting applicant’s attempt to label his claim an ineffective-assistance-of- counsel claim “in the hope that the court will reach the merits)
- David Lee Tomlinson Jr., Applicant-Appellant v. State of Iowa, No. 15-1146 (Iowa Ct. App. Oct. 12, 2016).published(holding claims of ineffective assistance are not an exception to the time limit of section 822.3)
- George Prentiss III, Applicant-Appellant v. State of Iowa, No. 15-1167 (Iowa Ct. App. Aug. 31, 2016).published(noting the applicant “label[ed] his claim ineffective-assistance-of-postconviction-counsel in the hope that the court [would] reach the merits of his contention that his trial counsel was 3 ineffective” and concluding “…)
- Pedro Perez-Fuentes, Applicant-Appellant v. State of Iowa, No. 15-0584 (Iowa Ct. App. Aug. 17, 2016).published (holding that an applicant for PCR cannot circumvent the effect of the three-year time-bar by merely claiming the ineffective assistance of postconviction counsel because section 822.3 “creates an exception for untimely…)
- Jense Allan Bergantzel, Applicant-Appellant v. State of Iowa, No. 15-1273 (Iowa Ct. App. May 11, 2016).publishedSee Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).
- Ronald Eugene Holdsworth, Applicant-Appellant v. State of Iowa, No. 13-1629 (Iowa Ct. App. Jan. 28, 2015).published(stating the exception provided in section 822.3 is based on claims that “could not” be raised because they were unavailable)
- Shawn James, Applicant-Appellant v. State of Iowa, 858 N.W.2d 32 (Iowa Ct. App. 2014).publishedSee Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994); Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct.App.1995).
- Dible v. State, 557 N.W.2d 881 (Iowa 1996).published See Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).
- Dewann Marquis Stone v. State of Iowa, No. 23-1273 (Iowa Ct. App. Aug. 21, 2024).published(holding ineffective assistance is not a new ground of fact or law)
- Anthony Quinn v. State of Iowa, No. 20-0918 (Iowa Ct. App. Mar. 30, 2022).published(stating that, in essence, this exception allows the court to consider “untimely filed applications if they are based on claims that ‘could not’ have been previously raised because they were unavailable)
- Kenneth Lee Frei, Applicant-Appellant v. State of Iowa, No. 16-2113 (Iowa Ct. App. Aug. 2, 2017).publishedOur legislature has provided to convicted criminals a statutory remedy for obtaining PCR, but it chose to limit the time frame for pursuing that remedy to three years, except where the applicant asserts “a ground of fact or law that could…
- Raymond Lee Thomas Jr., Applicant-Appellant v. State of Iowa, No. 16-0008 (Iowa Ct. App. June 21, 2017).published(rejecting 4 applicant’s attempt to label his claim an ineffective-assistance-of-counsel “in the hope that the court will reach the merits)
- Joseph Houston, Applicant-Appellant v. State of Iowa, No. 14-0631 (Iowa Ct. App. May 20, 2015).publishedThere is only one exception to the three-year limitation period in section 822.3, “this limitation does not apply to a ground of fact or law that could not have 4 been raised within the applicable time period.” See id.; see also Wilkins v.…
At page 823 Correcting legal errors in application of code section8 citing cases“is to correct errors of law”
- Bobby Ray Woodberry, Applicant-Appellant v. State of Iowa, No. 14-1434 (Iowa Ct. App. Mar. 9, 2016).publishedAllowing Woodberry to recast his petition would not remedy the timeliness issue. “[A]n applicant for [PCR] cannot circumvent the effect of the three-year time bar by merely claiming the ineffective assistance of [PCR] counsel.” Smith v. St…
- Eric Mel Thompson, Applicant-Appellant v. State of Iowa, No. 13-0421 (Iowa Ct. App. Mar. 12, 2014).published “is to correct errors of law”
- Pablo Benavidez, Applicant-Appellant v. State of Iowa, No. 3-1149 / 13-0109 (Iowa Ct. App. Feb. 5, 2014).publishedWilkins v. State, 522 N.W.2d 822, 823 (Iowa 1994).
- State v. Anderson, 636 N.W.2d 26 (Iowa 2001).publishedWilkins v. State, 522 N.W.2d 822, 823 (Iowa 1994).
- Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359 (Iowa 2000).publishedWilkins v. State, 522 N.W.2d 822, 823 (Iowa 1994).
- Smith v. State, 542 N.W.2d 853 (Iowa Ct. App. 1995).published Wilkins v. State, 522 N.W.2d 822, 823 (Iowa 1994).
- Whitsel v. State, 525 N.W.2d 860 (Iowa 1994).published Wilkins v. State, 522 N.W.2d 822, 823 (Iowa 1994).
- Cornell v. State, 529 N.W.2d 606 (Iowa Ct. App. 1994).publishedWilkens v. State, 522 N.W.2d 822, 823-24 (Iowa 1994) (citing Edman, 444 N.W.2d at 106 ).
Other citing cases
- Schrier v. State, 573 N.W.2d 242 (Iowa 1997).published
v.
STATE of Iowa, Appellant
The State was granted permission to appeal from a denial of its motion for summary disposition of Delbert Wilkins’ second application for postconviction relief. The State contends Wilkins’ application is time barred under Iowa Code section 822.3 (1993). We reverse the district court order and remand for summary disposition.
Wilkins has filed a second application for postconviction relief dated April 19, 1993. This application comes nine years after pro-cedendo issued on his appeal affirming his conviction for first-degree murder. During that time he unsuccessfully pursued a first application for postconviction relief and a writ .of habeas corpus in federal district court. He now claims he was denied effective assistance of first posteonvietion counsel.
In particular, Wilkins contends his appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness and first postconviction counsel was ineffective for failing to raise trial and appellate counsel’s ineffectiveness. Wilkins’ claim essentially targets the failure of trial counsel to raise an issue involving the victim’s shirt. Wilkins asserts that if the shirt had been preserved, and tested for powder burns, it would have supported his theory of self-defense by proving the victim was shot at close range and not from a distance. He also argues the absence of the shirt evidence provided the State with an improper presumption and inference that the fatal shot was fired from a distance.
The State argues Wilkins’ application is time barred pursuant to Iowa Code section 822.3. Wilkins responds that his claim of ineffectiveness-of-first-posteonviction-relief counsel could not have been raised within the three-year time limit of section 822.3 and is thus an exception to the time bar.
In considering statutory questions our review is to correct errors of law. State v. Stanford, 474 N.W.2d 573, 575 (Iowa 1991). To construe a statute, we examine both the language used and the purpose for which the legislation was enacted. State v. Edman, 444 N.W.2d 103, 106 (Iowa App.1989). A statute should be given a sensible, practical, workable and logical construction. Id.
Iowa Code section 822.3 (1993) provides:
[Applications must be filed within three years from the date the conviction or decision is final or, in the event of an appeal, from the date the writ of procedendo is issued. However, this limitation does not apply to a ground of fact or law that could not have been raised within the applicable time period.
(Emphasis added.) Wilkins contends his claim comes within the exception to the time bar and cites Odem v. State, 483 N.W.2d 17 (Iowa App.1992), to support his argument. That case interpreted section 822.8 which provides:
Any ground finally adjudicated or not raised [in] the proceeding that resulted in the conviction or sentence, or in any other proceeding [to] secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.
(Emphasis added.) Odem held ineffective assistance of counsel constitutes “sufficient reason” for failure to raise an issue in an earlier trial or direct appeal. Odem, 483 N.W.2d at 19.
[*824] We believe Odem is inapplicable to our analysis because an essential distinction exists between sections 822.8 and 822.3. Whereas the language of section 822.8 presumes a timely filed application for postcon-vietion relief and the prior availability of a claim, the language of section 822.3 clearly does not. Section 822.3 creates an exception for untimely filed applications if they are based on claims that “could not” have been previously raised because they were not available. In other words, the exception applies to situations in which there “would be no opportunity to test the validity of the conviction in relation to [the ground of fact or law that allegedly could not have been raised within the time period].” Edman, 444 N.W.2d at 106. A reasonable interpretation of the statute compels the conclusion that exceptions to the time bar would be, for example, newly-discovered evidence or a ground that the applicant was at least not alerted to in some way. Hogan v. State, 454 N.W.2d 360, 361 (Iowa 1990).
Wilkins labels his claim ineffective-assistance-of-posteonviction-counsel in the hope that the court will reach the merits of his contention that his trial counsel was ineffective. However, his claims neither involve new evidence nor are they new legal claims. Wilkins had three opportunities to claim ineffectiveness of trial counsel before the time bar became enforceable against him. He could have raised it on appeal, in his postcon-viction action, and on appeal from denial of postconviction relief. Wilkins cannot assert ignorance of the claim because he should have at least been alerted to trial counsel’s failure to raise the shirt issue and appellate and postconviction counsels’ failure to raise ineffectiveness claims. See Younger v. State, 580 A.2d 552 (Del.1990) (Younger’s present contention of ineffectiveness was available and was known, or should have been known, to him within the time limitation) (emphasis added); Fuhrmann v. State, 433 N.W.2d 720, 723 (Iowa 1988) (if matters raised in untimely postconviction application were not raised due to ineffective assistance of appellate counsel or failure to preserve error at trial, ineffective assistance could also have been raised within the time limitation).
We are aware of one jurisdiction that has addressed this particular issue. The Delaware courts have routinely held a claim of ineffective assistance of counsel is not sufficient to meet the “miscarriage of justice” exception to their three-year time limitation for a postconviction relief application. See Johnson v. Ellingsworth, 783 F.Supp. 215, 220 (D.Del.1992); Del.Super.Ct.Crim.R. 61(i)(1) and 61(i)(5).
We hold Wilkins’ second postconviction application is time barred under section 822.3. We find this interpretation of the section based on the above discussion best promotes legislative intent “to limit postconviction litigation in order to conserve judicial resources, promote substantive goals of the criminal law, foster rehabilitation, and restore a sense of repose in our system of justice.” See Edman, 444 N.W.2d at 106.
We reverse the district court ruling and remand this ease for summary disposition.
DISTRICT COURT ORDER REVERSED; CASE REMANDED FOR SUMMARY DISPOSITION.