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Arturo Avina A/K/A v. State of Iowa


April 10, 2013


Appeal from the Iowa District Court for Tama County, Ian K. Thornhill, Judge.

The opinion of the court was delivered by: Bower, J.

Arturo Avina, also known as Abel Gomez Avina, appeals from a district court order denying his application for post-conviction relief. AFFIRMED.

Heard by Eisenhauer, C.J., and Danilson and Bower, JJ.

Arturo Avina, also known as Abel Gomez Avina, appeals from a district court order denying his application for post-conviction relief. Avina argues his guilty plea was procedurally deficient because of certain constitutional errors which occurred during the plea process, he was not properly informed of the immigration consequences of his plea in violation of Padilla v. Kentucky, and the district court erred in dismissing his application because it was not timely filed. We affirm.

I. Background Facts and Proceedings

On March 7, 1993, the Tama County Sheriff's Department executed a search warrant for an apartment where deputies discovered seven individuals. Cocaine was found on a table in the living room and in a bedroom closet. Avina, one of the seven individuals, was found sleeping on a bed in the living room. All seven individuals were arrested and submitted to urine tests.

Avina made his initial appearance that same day. His application for appointment of counsel was denied. The State filed a trial information charging Avina with possession of cocaine on March 15, 1993. On March 25, 1993, Avina appeared at the courthouse with attorney, Pat White,*fn1 who secured a reduction in bond.

On April 6, 1993, Avina appeared without counsel and entered a guilty plea to the charge contained in the trial information. The circumstances of the court appearance are the basis of this application for post-conviction relief.

During the course of the April 6, 1993 plea proceeding, Avina was provided with an interpreter and requested immediate sentencing, pursuant to a plea bargain. He was not, however, notified by the State that his urine test had come back clean, nor that other co-defendants with clean urine tests had or would have their charges dismissed. Avina was sentenced to a term of fifteen days in the county jail with credit for fifteen days served. At no point during the hearing was Avina represented by counsel, though the presiding judge did offer to appoint counsel. Avina, through his interpreter, rejected the offer.

On August 20, 2010, Avina filed an application for post-conviction relief. Avina alleged in the application that interpretation errors and the absence of counsel prevented his plea from being voluntary and intelligent. He was allowed to orally amend his application to later include a claim pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The district court conducted a full evidentiary hearing concerning the events and circumstances of Avina's guilty plea. The district court issued its ruling on October 13, 2011, ruling that each of Avina's claims were barred by the statute of limitations found in Iowa Code section 822.3 (2009). Avina now appeals.

II. Scope and Standard of Review

Our review of the district court's denial on the grounds of statute of limitations is for correction of errors at law. See Clark v. Miller, 503 N.W.2d 422, 424 (Iowa 1993) (reviewing motion to dismiss on statute of limitations grounds for errors at law). "Thus, we will affirm if the trial court's findings of fact are supported by substantial evidence and the law was correctly applied." Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003).

III. Discussion

Chapter 822 of the Iowa Code provides for and governs post-conviction relief actions. Section 822.3 places a limitation on the commencement of such actions. Most applications for post-conviction relief must be filed within three years. Iowa Code § 822.3.*fn2 Exceptions exist, however, for grounds "of fact or law that could not have been raised within the applicable time period." Id. The statute is to be read and understood as an effort to "conserve judicial resources, promote substantive goals of criminal law, foster rehabilitation, and restore a sense of repose in our criminal justice system." Cornell v. State, 529 N.W.2d 606, 611 (Iowa Ct. App. 1994). Exceptions found within the section act as an escape clause when an applicant had "no opportunity" to assert them within the limitations period. Id. When a party claims the benefit of the limitations exception they must plead and prove the exception by showing they were not or should not have been alerted to the potential claim before the period expired. Id. at 610--11.

In the present case Avina argues that the State suppressed evidence at the time of his plea providing an undiscovered ground of fact which should excuse his late filing. He also claims the absence of counsel while pleading guilty is a "structural deficiency" which excuses the late date of his post-conviction application and that precedent establishes that such collateral challenges to a conviction are permissible despite the statute of limitations. Finally, he asserts that he is entitled to relief under Padilla v. Kentucky despite the statute of limitations.

A. Brady claim

Avina argues the State's failure to disclose his clean urine test prior to his plea and sentencing is a violation of the rule announced in Brady v. Maryland, 373 U.S. 83 (1963). He relies upon the case of Harrington v. State, 659 N.W.2d 509 (Iowa 2003), to excuse his failure to file his application within the required three-year limitations period.*fn3

Harrington concerned the suppression of certain police investigative reports which were not made available to the defendant at the time of trial. 659 N.W.2d at 517--18. The defendant was denied access to eight separate investigative reports, as well as during a subsequent post-conviction relief proceeding, despite having requested "everything" relevant to the investigation. Id. Our supreme court held that to succeed in a post-limitations period post-conviction relief application premised upon a Brady violation, the defendant is required to show that the ground of fact could not have been raised earlier and that the suppressed evidence contain a causal nexus between the asserted ground of fact and the conviction. Id. at 520. Having been withheld for approximately twenty years, the investigative reports in Harrington clearly and obviously could not have been used within the limitations period. Id. at 522--23.

The Harrington case differs from the case at bar. The Harrington court stated that in order to avoid the statute of limitations the ground raised could not have been raised earlier. Id. The district court found that all of the allegations made by Avina were known to him within three years of the judgment becoming final. We agree. Assuming without deciding that the urinalysis result was suppressed, it is unquestionable that Avina knew or should have known that a helpful test result would be forthcoming. Having participated in the urine test, nothing prevented Avina from knowing of its results within the limitations period. The district court's conclusion on the issue is substantially supported. We therefore affirm.

B. Denial of Counsel Claim and Plea Irregularities

Avina next argues that he was denied counsel during the plea process, and that denial was a "structural error" excusing his failure to file an application for post-conviction relief during the three-year limitations period.*fn4

Support for Avina's position comes in two parts. First, he points out that the absence of counsel has prevented criminal convictions from being used in subsequent proceedings, particularly for enhancement purposes. Second, he argues for a "discovery rule" exception under Harrington.

In Baldasar v. Illinois, the United States Supreme Court held that a "prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction." 446 U.S. 222, 226 (1980) (partially overruled by Nichols v. United States, 511 U.S. 738 (1994), which allowed for the use of uncounseled misdemeanor convictions for enhancement purposes when no prison term was imposed). It is unmistakable, however, that questions of enhancement stand on a different procedural posture than Avina's case. It may be true that Avina's 1993 conviction could not be used for enhancement purposes; however, chapter 822 of the Iowa Code is unconcerned with enhancement. The section expressly concerns itself with applications for post-conviction relief. Cases cited by Avina on this point do not address the post-conviction relief statute of limitations, and the statute itself does not provide an exception for such "structural errors." Chapter 822 applies to constitutional violations, which would include "structural errors." Iowa Code § 822.2 (1)(a). The statute of limitations in section 822.3 would apply to this argument and, absent a showing of new facts, would bar the application. Once again, this court finds that all relevant facts were known to Avina within the limitations period.

Avina's Harrington argument fares no better. He argues that Harrington crafts a discovery rule whereby an application for post-conviction relief may be presented outside the statute of limitations when the State is responsible for concealing relevant information from the applicant. This argument is simply another attempt at presenting the exception to the statute of limitations, as a new ground of fact, later discovered. Once again, Avina is unable to avail himself of the exception. Avina knew, within the limitations period, that he was without counsel when entering his plea.

This case illustrates the difficulty in inappropriately using the post-conviction relief mechanism for purposes of attacking a guilty plea. The post-conviction relief process is not designed for litigation of guilty pleas and should not normally be employed in such a manner.

The court also notes that Avina was not prejudiced by his lack of representation in this case. With counsel present, all indications are that Avina would have entered an identical plea leading to an identical outcome. Though prejudice is not a part of the statute of limitations analysis, it does eliminate any injustice application that the statute of limitations might otherwise cause.

The district court's conclusion that there is no new ground of fact on this issue is substantially supported, and we therefore affirm.

C. Padilla v. Kentucky

Finally, Avina contends he is entitled to relief under Padilla v. Kentucky, 130 S. Ct. 1473. The issue we confront today is whether Padilla applies retroactively to Avina's plea, or, whether application of Padilla is barred by the post-conviction relief statute of limitations.

Padilla requires counsel to advise a criminal defendant of the potential immigration consequences of a plea. 130 S. Ct. at 1483. The decision does not, however, explain whether it is to be applied retroactively, leaving open the question of how Padilla is to be applied to the facts before the court today.

The question of the retroactive application of Padilla was recently settled by the United States Supreme Court. In Chaidez v. United States, the Court directly confronted the question presented by a lawful permanent resident of the United States who, after being convicted of mail fraud prior to the announcement of Padilla, faced deportation. 133 S. Ct. 1103, 1105--06 (2013). Like Avina, Chaidez argued that Padilla announced an old rule which can apply retroactively to his conviction. The Chaidez court disagreed. Examining Padilla at length, the Court noted that Padilla started not with the question of whether counsel is ineffective for failing to advise a client of immigration consequences under Strickland v. Washington, 466 U.S. 668 (1984), but rather with the question of whether immigration advice was a part of Sixth Amendment analysis at all. Id. at 1108. Based upon that analysis, the court determined that Padilla announced a new rule and that "defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Id. at 1113. As a new rule, Avina may not avail himself of Padilla in this proceeding.

That Padilla announced a new rule does not mean Avina may use the "ground of fact or law that could not have been raised within the applicable time period" exception to the statute of limitations. Iowa Code § 822.3.

The Iowa Supreme Court recently examined possible applications of Padilla in Perez v. State, 816 N.W.2d 354 (Iowa 2012). The facts of Perez are strikingly similar to the case at bar. Perez was arrested and charged with possession of a schedule II controlled substance after drugs were discovered following a barroom fight. Perez, 816 N.W.2d at 355--56. He pleaded guilty and received a thirty day sentence, with credit given for thirty days previously served. Id. at 356. Nine years later and facing immigration consequences, Perez filed an application for post-conviction relief based upon the Padilla decision. Id. The district court granted the State's motion to dismiss based upon the statute of limitations found in section 822.3, and this court affirmed. Id. On further review, our supreme court discussed the split in authority on the question of whether Padilla qualifies as a new rule but withheld judgment on the issue. Id. at 358--59. Instead, the court examined the statute of limitations and concluded that Perez was unable to avail himself of the rule in Padilla regardless of retroactive application. Id. at 360--61. If Padilla is a new rule, it would fit the exception to the statute of limitations, but it would not be applied retroactively, whereas if Padilla is an old rule and thereby eligible for retroactive application, it would fail to meet the exception in the statute of limitations. Id. The present matter is substantially similar to Perez.*fn5 Chaidez answers the question as to which of these possibilities applies, though it does not change the result. As our supreme court indicated in Perez, because Padilla is a new rule, it fits the exception to the statute of limitations, but as a new rule it cannot be applied retroactively. Accordingly, we affirm.


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