from the Iowa District Court for Johnson County, Ian K.
Thornhill, Judge. Applicant appeals from the denial of his
third application for postconviction relief.
J. Bishop, Cedar Rapids, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., Vaitheswaran, J., and Mahan,
Peppers appeals from the denial of his third application for
postconviction relief (PCR), contending the district court
erred in concluding the application was barred by the
three-year time limit of Iowa Code section 822.3 (2017) as
Peppers raised no ground of law or fact that could not have
been raised within the applicable time frame. Finding no
error, we affirm.
1999, Peppers was convicted of second-degree sexual abuse,
domestic abuse assault while displaying a dangerous weapon,
and false imprisonment. State v. Peppers, No.
00-283, 2001 WL 810740, at *1 (Iowa Ct. App. July 18, 2001).
Procedendo issued on his appeal. This court affirmed the
convictions and preserved for possible PCR proceedings four
asserted grounds, including an
ineffective-assistance-of-counsel claim for failure to file a
motion to dismiss for violation of his speedy-trial
rights. Id. However, a partial dissent
was filed with respect to preserving the speedy-trial issue:
The defendant [Pepper] waived speedy trial and previously
scheduled trial was then continued to a date about four
months later. About one week after waiving speedy trial he
secured the appointment of new counsel. Then, after about one
more week, he filed a written "motion" requesting
speedy trial. His motion does not indicate he served a copy
on either the State or his own attorney, and he makes no
claim that he did so. Trial commenced 110 days later, as
previously rescheduled. The defendant claims his attorney was
ineffective in failing to file a motion to dismiss for
violation of his right to speedy trial. He bases this claim
on an assertion that his attorney "had a duty to fully
review the court file, which contained the defendant's
motion reasserting his right to a speedy trial, " and
therefore should have notified the court that the defendant
had reasserted the right and the previously scheduled trial
was outside the time for speedy trial. I would reject this
assertion and the claim of ineffective assistance which is
based upon it.
Assuming without deciding that the defendant, who had
requested and received court-appointed counsel, had the right
to file the "motion" in question while represented
by counsel, counsel had no duty to file a motion to dismiss
for violation of defendant's speedy trial rights unless
counsel knew or should have known of that "motion."
The record provides no basis for finding that counsel knew of
defendant's "pro-se" filing, and the defendant
makes no claim that counsel in fact did so. Absent any
evidence or claim to that effect, there is no reason to
preserve for a possible postconviction proceeding any issue
of breach of duty based on actual knowledge of the filing.
The State is obligated to serve on defense counsel a copy of
its filings, and defense counsel is obviously aware of
defense counsel's filings. It is apparently the
defendant's position that defense counsel must from time
to time review the court file to determine if there are any
other filings of which counsel is not aware. The defendant
cites no authority in support of his apparent assertion that
defense counsel has a duty to periodically review the court
file to determine if the defendant has filed something which
the defendant has brought to the attention of neither the
State nor defendant's own attorney, and I would reject
out of hand the claim that such a duty exists. By preserving
the defendant's fourth claim of ineffective assistance
for a possible postconviction proceeding we implicitly accept
the existence of such a duty.
Id., 2001 WL 810740, at *5-6 (Miller, J., dissenting
in part). Procedendo issued on November 1, 2001.
filed his first PCR application on April 13, 2002, raising
several ineffective-assistance claims. We affirmed the
dismissal of his PCR application. See Peppers v.
State, No. 07-0865, 2008 WL 2042504, at *1 (Iowa Ct.
App. May 14, 2008).
filed a second PCR application in which he asserted his
speedy-trial rights were violated and his first PCR counsel
was ineffective in failing to raise the claim. Peppers v.
State, No. 12-1197, 2013 WL 6116815, at *1 (Iowa Ct.
App. Nov. 20, 2013). The trial court dismissed the claim, and
this court affirmed on appeal, observing:
Peppers filed [his first] postconviction relief application
raising several issues, including the claimed speedy trial
violation. An attorney subsequently appointed to represent
him filed a document waiving the speedy trial issue. The
attorney mailed a copy of the document to Peppers. Following
an evidentiary hearing, the district court filed an ...