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Winesberry v. State

Court of Appeals of Iowa

August 16, 2017

JAMES EDWARD WINESBERRY, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.

         James Edward Winesberry appeals from the dismissal of his application for postconviction relief. AFFIRMED.

          Jeremy L. Merrill of Lubinus Law Firm, P.L.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., and Potterfield and Bower, JJ.

          DANILSON, Chief Judge.

         James Edward Winesberry appeals from the dismissal of his application for postconviction relief (PCR). He contends the court erred by granting the State's motion for summary judgment before the completion of the discovery process. He further contends his counsel was ineffective for failing to timely file an amended application in the proceedings, thus prejudicing him. The court did not err in granting summary judgment, and Winesberry's ineffectiveness claim fails. We affirm.

         I. Background Facts and Proceedings

         In December 2013, Winesberry pled guilty to possession of a controlled substance (Benzylpiperazine) with intent to deliver as a second or subsequent offender, possession of controlled substance (marijuana) with intent to deliver, failure to affix a tax stamp (marijuana), and felon in possession of a firearm. The court sentenced him to consecutive terms of imprisonment not to exceed thirty-five years.

         In February 2014, Winesberry appealed, arguing his trial counsel was ineffective in failing to challenge the factual basis for his pleas. State v. Winesberry, No 14-0128, 2014 WL 5862040, at *1 (Iowa Ct. App. Nov. 13, 2014). This court affirmed his convictions, finding his trial counsel had no duty to raise a meritless issue. Id. at *2. The supreme court denied further review and procedendo was issued.

         In February 2015, Winesberry filed a pro se application for PCR, reasserting his pleas lacked a factual basis and counsel was ineffective in permitting him to plead guilty.

          On April 24, 2015, the district court entered an order appointing counsel for Winesberry and instructed PCR counsel to meet with Winesberry to investigate his claims, and if necessary, file an amended application within sixty days. The court's subsequent scheduling order set trial for January 20, 2016, and required pleadings and dispositive motions be filed sixty days before trial and discovery be completed thirty days before trial.

         On August 27, 2015, the State filed a motion for summary judgment, asserting no genuine issue of material fact remained for trial because the claims raised had already been addressed on direct appeal. On September 30, Winesberry's counsel filed a late resistance to the motion for summary judgment. Counsel agreed the facts discussed in the motion for summary judgment were substantially undisputed and did not contest them but claimed summary judgment was premature because discovery was not complete. Counsel indicated he anticipated an amendment of the original pleading to include additional claims. Finding no genuine issues of material fact remained on any of Winesberry's claims, the court granted the motion for summary judgment on November 6, 2015.

         Winesberry now appeals, claiming the district court erred in granting the State summary judgment because discovery was not yet complete. He also claims he ...


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