Appeal from the Iowa District Court for Polk County, Michael Huppert, Judge.
The opinion of the court was delivered by: Schechtman, S.J.
An applicant appeals the district court decision finding his application for post-conviction relief from his conviction for first-degree murder was untimely. AFFIRMED.
Considered by Doyle, P.J., Bower, J., and Schechtman, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
I. Background Facts & Proceedings
Thanh Dao was convicted of first-degree murder, in violation of Iowa Code section 707.2 (1997). The State alleged Dao and a co-defendant had participated in the drive-by fatal shooting of Monty Thomas. Dao was tried under alternative theories of (1) deliberation, premeditation, and specific intent to kill (section 707.2(1)), and (2) felony murder (section 707.2(2)), with the underlying felony being terrorism.*fn1 He was sentenced to life imprisonment on April 23, 1999. The conviction was affirmed on direct appeal. State v. Dao, No. 99-0727, 2001 WL 246444 (Iowa Ct. App. Mar. 14, 2001). Procedendo was issued on June 28, 2001.
Dao filed an application for post-conviction relief on November 15, 2001, claiming ineffective assistance from trial and appellate counsel. The district court denied his application. Dao's appeal therefrom was dismissed as frivolous under Iowa Rule of Appellate Procedure 6.1005. Procedendo for that appeal was issued on July 21, 2006.
Dao filed a second application for post-conviction relief on April 14, 2009, again asserting ineffective assistance of trial counsel for failure to object to the felony-murder jury instructions and its submission as an alternative offense. His application is predicated on the Iowa Supreme Court's ruling on August 25, 2006, in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), which overruled prior cases that had held an act constituting willful injury, causing the victim's death, could serve as the predicate felony for felony-murder purposes. The court stated, "We now hold that, if the act causing willful injury is the same act that causes the victim's death, the former is merged into the murder and therefore cannot serve as the predicate felony for felony-murder purposes." Heemstra, 721 N.W.2d at 558.
The State filed a motion for summary disposition of Dao's second application for post-conviction relief upon the ground that it was untimely under Iowa Code section 822.3. The district court concluded Dao's application had been filed more than three years after procedendo issued from his direct appeal, and he had not set forth a ground of fact or law that could not have been raised during the three-year time period. See Iowa Code § 822.3. Accordingly, the second application was dismissed as untimely. Dao now appeals.
Our review of a district court ruling dismissing a post-conviction action as time-barred by section 822.3 is for the correction of errors at law. Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003). To the extent constitutional issues are raised, these must be reviewed do novo. Lopez-Penaloza v. State, 804 N.W.2d 537, 541 (Iowa Ct. App. 2011).
A. Applications for post-conviction relief "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." Iowa Code § 822.3. There is an exception in the statute to this time limitation for "a ground of fact or law that could not have been raised within the applicable time period." Id. An applicant must additionally "show a nexus between the asserted ground of fact and the challenged conviction." Harrington, 659 N.W.2d at 520. Where an application is filed beyond the three-year period and does not come within the exception, it may be dismissed as time-barred. See Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).
The procedendo was issued for Dao's direct appeal of his conviction on June 28, 2001. The subject application for post-conviction relief was filed on April 14, 2009, almost eight years thereafter, which is clearly beyond the three-year time limit found in section 822.3. In order to avoid the three-year time limitation, Dao needs to assert a ground of fact or law that could not have been raised within this time period. See Perez v. State, 816 N.W.2d 354, 360 (Iowa 2012).
Dao acknowledges his second application for post-conviction relief was filed beyond the three-year period, but contends the failure of defense counsel to object to the felony-murder instructions submitted at trial, on the premise later adopted in Heemstra, ...