Appeal from the Iowa District Court for Black Hawk County, Richard D. Stochl, Judge.
The applicant appeals the district court decision dismissing his third application for postconviction relief.
Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim A. Griffith, Assistant County Attorney, for appellee State.
Considered by Vaitheswaran, P.J., Doyle, J., and Huitink, S.J. [*]
I. Background Facts & Proceedings.
On October 22, 2007, Marshal Ray Adcock entered a guilty plea to criminal mischief in the second degree, in violation of Iowa Code section 716.4 (2007), and to being a habitual offender, as defined in section 902.8. He was sentenced to a term of imprisonment not to exceed fifteen years. His direct appeal was dismissed as frivolous by the Iowa Supreme Court, and procedendo was issued August 1, 2008. See Iowa R. App. P. 6.1005.
Adcock filed his first postconviction relief application April 10, 2008, claiming there was an insufficient factual basis to show he caused damage exceeding $1000, as required for a charge of second-degree criminal mischief, and his plea was not knowing and voluntary. He also claimed he received ineffective assistance because defense counsel: (1) did not advise him of his right to file a motion in arrest of judgment; (2) did not object when the State was permitted to withdraw from the plea agreement due to his actions between the plea proceedings and sentencing; (3) did not file a motion to reconsider sentence; (4) did not spend enough time consulting with him; and (5) failed to present a defense that there were no eyewitnesses to the offense.
After a hearing, the district court granted the State's motion to dismiss, finding there was no genuine issue of material facts and the State was entitled to judgment as a matter of law. See Iowa Code § 822.6; Manning v. State, 654 N.W.2d 555, 559-60 (Iowa 2002) (finding disposition under the third paragraph of section 822.6 was analogous to summary judgment). The court found Adcock's challenges to the sufficiency of the evidence did not survive the entry of the guilty plea. The court rejected Adcock's related claim that his plea was not knowing and voluntary. The court also determined Adcock was unable to show he received ineffective assistance of counsel. The district court's decision was affirmed on appeal. Adcock v. State, No. 09-0657, 2010 WL 446513 (Iowa Ct. App. Feb. 10, 2010).
Adcock filed a second application for postconviction relief June 15, 2009. In granting the State's motion to dismiss, the district court found "all issues raised in the present matter have previously been raised and adjudicated." Adcock appealed the denial of his second application for postconviction relief. The Iowa Supreme Court dismissed the appeal as frivolous on August 1, 2011. See Iowa R. App. P. 6.1005.
Adcock filed his third, and present, application for postconviction relief January 14, 2011. He raised a multitude of claims, primarily asserting he received ineffective assistance of counsel. The State filed a motion to dismiss, asserting the issues raised in this third application for postconviction relief had already been adjudicated. The State asserted, "Res Judicata applies and the applicant is prohibited from filing a post-conviction action." Adcock then raised four additional claims of ineffective assistance of counsel.
A hearing on the motion to dismiss was held October 6, 2011. The district court granted the State's motion to dismiss the third application for postconviction relief. The court stated it did "not note any differences in the issues raised by Petitioner in the first two actions and the current action." Additionally, the court stated it was concerned the second postconviction action was still pending on appeal at the time of the present action, thereby limiting the court's jurisdiction. The court then went on to find that even if Adcock were raising new issues, those ...