KEITH C. WALKER, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Black Hawk County, Andrea J.
Walker appeals the district court's dismissal of his
application for postconviction relief. AFFIRMED.
Deck of Deck Law, Sioux City, for appellant.
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
Walker was found guilty of first-degree murder in 1990, and
his conviction was affirmed in 1992. He filed his fifth
application for postconviction relief in 2013. The State
moved to dismiss the application as time-barred. Following a
hearing, the district court concluded, "All of Mr.
Walker's claims are barred by the statute of
limitations." Walker appealed.
Code section 822.3 (2013) requires most postconviction relief
applications to be filed "within three years from the
date the conviction or decision is final or, in the event of
an appeal, from the date the writ of procedendo is
issued." Walker's fifth application was filed
twenty-one years after procedendo issued. It was untimely.
"now asserts that the statute of limitations is an
affirmative defense that was waived when not raised in a
timely manner by the [S]tate." He relies on Iowa Code
section 822.6, which states: "Within thirty days after
the docketing of the application, or within any further time
the court may fix, the state shall respond by answer or by
motion . . . ." We decline to address this argument
because it was not asserted below. See Nguyen v.
State, 829 N.W.2d 183, 187 (Iowa 2013); Top of Iowa
Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa
2000) ("In view of the range of interests protected by
our error preservation rules, this court will consider on
appeal whether error was preserved despite the opposing
party's omission in not raising this issue at trial or on
also contends his "application has merit and he was not
sufficiently informed of the district court's intention
to summarily dispose of his application." To the
contrary, the district court afforded Walker the opportunity
to resist the motion and granted a hearing on the motion at
which Walker voiced his own views in addition to the views
expressed by his attorney.
next argues "summary judgment was improper . . . because
[his] application state[d] issues of material fact, "
"[t]he law under which [he] was convicted has changed
significantly, " and "he should be afforded an
opportunity to be heard on the merits of his
application." Walker makes no further argument on this
point. Reading between the lines, we assume he disputes the
postconviction court's conclusion that his
Heemstra challenge to a felony-murder jury
instruction fell outside the limitations period. See
State v. Heemstra, 721 N.W.2d 549, 558 (Iowa
2006) (holding "if the act causing willful injury is the
same act that causes the victim's death, the former is
merged into the murder and therefore cannot serve as the
predicate felony for felony-murder purposes"); see
also Iowa Code § 822.3 (stating "limitation
does not apply to a ground of fact or law that could not have
been raised within the applicable time period");
Nguyen, 829 N.W.2d at 188 (holding the three-year
limitations period in section 822.3 did not bar the
applicant's constitutional challenge to his felony-murder
instruction based on the holding of Heemstra because
Heemstra constituted a ground of law that could not
have been raised within the applicable time period).
discern no error in the postconviction court's
conclusion. Although the Iowa Supreme Court recognized that a
Heemstra-style challenge could fall within the
"ground of law" exception to the three-year time
bar, the court essentially held such a challenge would need
to be raised within three years of Heemstra. See
Nguyen v. State, 878 N.W.2d 744, 749-50 (Iowa
2016) ("Since Nguyen had filed his application for
postconviction relief within three years, his claims as to
retroactivity were not time-barred."); see, e.g.,
Burkett v. State, No. 14-0998, 2015 WL 5278970, at *1-3
(Iowa Ct. App. Sept. 10, 2015); Thompson v. State,
No. 14-0138, 2015 WL 1332352, at *1 (Iowa Ct. App. Mar. 25,
2015). Walker's fifth postconviction application was not
filed within three years of the Heemstra opinion.
His claim based on Heemstra is
to Walker's pro se arguments based on Lado v.
State, 804 N.W.2d 248 (Iowa 2011). In Lado, the
supreme court held a postconviction attorney's failure to
seek a continuance or to have a postconviction relief
application reinstated following the issuance of a notice of
automatic dismissal under Iowa Rule of Civil Procedure 1.944
constituted a breach of an essential duty and amounted to
structural error. 804 N.W.2d at 251 -53. Walker raised the
identical issue in his first application for postconviction
relief, which preceded the filing of Lado. The Iowa
Supreme Court rejected the argument. See Walker v.
State, 572 N.W.2d 589, 589-90 (Iowa 1997). Having
finally adjudicated the issue, Walker is barred from raising
the same ground for relief. See Iowa Code §
822.8 ("Any ground finally adjudicated . . . may not be
the basis for a subsequent application, unless the court
finds a ground for relief asserted which for sufficient
reason was . . . inadequately raised in the original . . .
application"). The State raised this alternative basis
for dismissing the Lado claim in the district court.
We affirm the district court on this ground.
Walker argues his postconviction attorney was ineffective in
declining to pursue his Lado argument. As noted, the
postconviction court gave Walker the opportunity to
supplement his attorney's statements. Walker spoke
extensively about Lado, structural error, and the
effect of Lado on his case. Accordingly, he cannot