Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shepherd v. State

Court of Appeals of Iowa

July 6, 2017

JOHN ROGER SHEPHERD, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

         The applicant appeals the district court's refusal to reinstate his application for postconviction relief after it was dismissed for lack of prosecution. AFFIRMED.

          Geneva L. Williams of Williams Law Office, P.L.L.C., Cedar Rapids, for appellant.

          Thomas 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.

         John 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 affirm.

         I. Background Facts and Proceedings

         On 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stated in his brief, a series of thirteen attorneys had been appointed to represent him, and all but the last one had withdrawn, primarily at the request of Shepherd.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.

         At the 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.

         Tang 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.

         II. Error Preservation

         An 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 (Iowa 2010).

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.