WILLIAM J. NIMS JR., Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee
This opinion is subject to modification or correction bye the court and is not final until the time for rehearing or further review has passed.
Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge. An applicant appeals the district court's dismissal of his postconviction relief application.
James T. Peters, Independence, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mullins and McDonald, JJ. McDonald, J., concurs.
William Nims appeals the district court's dismissal of his second postconviction relief (PCR) application. Nims was convicted of first-degree kidnapping in 1983, following his abduction and sexual assault of an eight-year-old child, and was sentenced to life in prison. See State v. Nims, 357 N.W.2d 608, 608-09 (Iowa 1984). He filed this most recent PCR application pro se, asserting his sentence amounted to cruel and unusual punishment, detailing facts of both disproportionality and categorical challenges to the legality of his sentence. The State filed a motion to dismiss the application as time barred under the three-year statute of limitations for PCR applications. See Iowa Code § 822.3 (2011).
The district court dismissed the petition after an unreported hearing where Nims was represented by counsel. The district court found Nims's argument to be essentially that if it has been determined by the United States Supreme Court to be cruel and unusual punishment to sentence a seventeen-year-old to life in prison without the possibility of parole, then it should also be considered cruel and unusual punishment to sentence him to life in prison without the possibility of parole when he was just nineteen years old at the time of the commission of the offense. See Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding the Federal Constitution prohibits the imposition of a life-without-parole sentence on a juvenile offender who did not commit homicide). The district court concluded there were no cases extending the cruel-and-unusual-punishment argument, articulated in Graham, to adult teenagers. The court also concluded it was unaware of any appropriate exception to the three-year statute of limitations found in section 822.3.
On appeal Nims claims " the court erred by denying him an evidentiary hearing to fully address his claim that the mandatory sentence of life without parole as applied to him amounts to cruel and unusual punishment under the state and federal constitutions." In his argument section, however, Nims fails to cite any statutory or case law authority to support his claim that he is entitled to an evidentiary hearing on his claim. He cites only cases from the Supreme Court and the courts of our state that hold juveniles cannot be sentenced to life without the possibility of parole, and statutes that limit the rights of those under the age of twenty-one. He also fails to assert any facts that could support his claim made in his application for postconviction relief that his sentence was grossly disproportionate to his crime. Because Nims has failed to cite both facts and authority to support his claim, we consider the issue waived pursuant to Iowa Rule of Appellate Procedure 6.903(2)(g)(3) (" Failure to cite authority in support of an issue may be deemed a waiver of that issue." ). Finding Nims's only claim on appeal has been waived, we affirm the district court's dismissal of his application for postconviction relief.
McDonald, J., concurs; Mullins, J., dissents.
MULLINS, J., (dissenting)