from the Iowa District Court for Linn County, Ian K.
applicant appeals the district court's refusal to
reinstate his application for postconviction relief after it
was dismissed for lack of prosecution. AFFIRMED.
L. Williams of Williams Law Office, P.L.L.C., Cedar Rapids,
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., Bower, J., and Goodhue, S.J.
GOODHUE, Senior Judge.
Roger Shepherd's postconviction-relief action was
dismissed by application of Iowa Rule of Civil Procedure
1.944(2). Shepherd sought reinstatement under rule 1.944(6),
but reinstatement was denied by the trial court. Shepherd
appeals from the denial of his petition for reinstatement. We
Background Facts and Proceedings
March 19, 2008, Shepherd filed for postconviction relief,
challenging his 2006 conviction for a third or subsequent
offense of operating while intoxicated. By Shepherd's own
account, as stated in his brief, a series of thirteen
attorneys had been appointed to represent him, and all but
the last one had withdrawn, primarily at the request of
Shepherd. Again by Shepherd's own account, thirteen
motions to continue had been requested and granted. Relief
from the automatic dismissal under rule 1.944(2) had been
regularly granted until the August 10, 2015 dismissal notice
was sent and the dismissal date arrived.
time the notice was sent, the matter was set for trial on
September 24, 2015. Ryan Tang, Shepherd's counsel at the
time, requested the September 24 trial date be continued.
Tang requested the continuance, asserting he had made many
attempts to contact Shepherd but Shepherd had only recently
responded and, because of new information, Shepherd
communicated to Tang that additional time to prepare was
necessary. The motion to continue did not request relief from
rule 1.944(2). The court granted the motion to continue but
stated good cause warranting a continuance had not been
provided and further stated, "The court does not have
the judicial resources on the date currently set for trial to
try this case as scheduled and for that reason alone the
court grants petitioner's motion to continue trial."
On October 8, 2015, a trial scheduling order was filed
setting the matter for trial on September 1, 2016. By
operation of rule 1.944(2), the matter was dismissed on
January 8, 2016.
filed a motion for reinstatement on January 20, 2016. The
motion did not allege or assert the matter was dismissed as
the result of oversight, mistake, or other reasonable cause.
Tang appeared by telephone, but Shepherd did not appear. Tang
asserted that he had mailed a notice of the hearing to
Shepherd but it had come back. He further asserted he would
have tried to call Shepherd but believed he did not have
either a valid address or current telephone number. The court
refused to reinstate Shepherd's postconviction-relief
claim. Shepherd asserts that his postconviction counsel was
ineffective and also asserts that the court abused its
discretion in denying the application for reinstatement.
exception to the traditional error preservation rule exists
when a claim of ineffective assistance of counsel is
asserted. State v. Fountain, 786 N.W.2d 260, 263