from the Iowa District Court for Cerro Gordo County, DeDra L.
applicant appeals the district court's denial of his
second postconviction-relief proceeding.
A. Reindl of Reindl Law Firm, Mason City, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
Raymond was convicted of first-degree murder in 2006.
Procedendo from his direct appeal from his conviction was
issued April 1, 2008. See State v. Raymond, No.
06-2059, 2008 WL 141184, at *1 (Iowa Ct. App. Jan. 16, 2008).
Raymond filed his first postconviction-relief (PCR)
proceeding in November 2008. Following a bench trial, the
district court denied the PCR application, and we affirmed
that denial on appeal. See Raymond v. State, No.
12-1174, 2013 WL 4474479, at *1 (Iowa Ct. App. Aug. 21,
2013). Subsequently, on March 3, 2014, Raymond filed a second
PCR application. On January 6, 2016, the district court
denied that action following a bench trial. Raymond once
again appeals claiming the district court erred in
concluding his second PCR action is time-barred and that a
Brady violation did not occur during his
PCR action to be timely, it must be filed within three years
of the date the conviction was final or the date the writ of
procedendo was issued if the conviction was appealed.
See Iowa Code § 822.3 (2014). "However,
this limitation does not apply to a ground of fact or law
that could not have been raised within the applicable time
period." Id. While Raymond's second PCR
action was clearly filed outside the three-year limitation,
he asserts newly discovered evidence, specifically
polygraph-examination reports of two of the State's
witnesses-Charles Gallmeyer and Michael Gallmeyer-and a video
of Charles Gallmeyer's polygraph examinations, tolls the
statute of limitations under the new-ground-of-fact
exception. See id. To establish the
exception to the three-year statute of limitations, Raymond
"must show the alleged ground of fact could not have
been raised earlier" and "must show the ground of
fact is relevant to the challenged conviction."
Harrington v. State, 659 N.W.2d 509, 520-21 (Iowa
Our appellate courts have previously observed that the
objective of the escape clause of section 822.3 is to provide
relief from the limitation period when an applicant had
"no opportunity" to assert the claim before the
limitation period expired. . . . [T]he focus of our inquiry
has been whether the applicant was or should have been
"alerted" to the potential claim before the
limitation period expired.
Cornell v. State, 529 N.W.2d 606, 611 (Iowa Ct. App.
1994) (citations omitted).
asserts that it was only through the "dogged
pursuit" of his second PCR counsel in this proceeding
that he was able to obtain both the polygraph-examination
reports and the video recording from the State. However, it
is clear from a review of the trial transcript that defense
counsel was aware the witnesses in question underwent
polygraph examinations and questioned witnesses regarding the
results of those examinations at trial. While counsel may not
have the polygraph-examination reports or the video of the
examination at the time of trial, counsel was at least
"alerted" to the potential existence of these
items. See id. Assuming the polygraph-examination
reports and the polygraph-interview video were withheld by
the prosecution at the time of trial, nothing prevented
Raymond from obtaining the reports and video within the
three-year PCR period. Prior PCR counsel's
ineffectiveness does not satisfy the new-ground-of-fact
exception to the three-year statute of limitations. Smith
v. State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995)
("[A]n applicant for postconviction relief cannot
circumvent the effect of the three-year time bar by merely
claiming the ineffective assistance of postconviction
counsel." (citing Wilkins v. State, 522 N.W.2d
822, 824 (Iowa 1994))).
addition, we agree with the district court's alternate
holding that even assuming Raymond can avoid the application
of the statute of limitations, he cannot prove a
Brady violation because defense counsel knew of the
essential facts that the witnesses underwent polygraph
examinations and that in particular Charles Gallmeyer's
polygraph examination indicated he was being deceptive;
defense counsel questioned Charles Gallmeyer and the
investigating officer regarding the deception. Cornell v.
State, 430 N.W.2d 384, 385 (Iowa 1988)
("Exculpatory evidence is not 'suppressed' if
the defendant either knew or should have known of the
essential facts permitting him to take advantage of the
conclude the district court correctly denied Raymond's