from the Iowa District Court for Clarke County, Gary G.
applicant appeals the summary dismissal of his application
for postconviction relief. AFFIRMED.
Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines,
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., McDonald, J., and Scott, S.J.
Moon appeals the district court's summary dismissal of
his second application for postconviction relief (PCR) based
on the applicable statute of limitations. Moon was convicted
of first-degree murder in June 2000. This court affirmed his
conviction in April 2002, see State v. Moon, No.
00-1128, 2002 WL 663486, at *1 (Iowa Ct. App. Apr. 24, 2002),
and procedendo was issued in July 2002 following that appeal.
Moon filed his first PCR application in October 2002, which
was denied by the district court, and the district
court's denial was affirmed by this court in May 2007.
See Moon v. State, No. 05-0816, 2007 WL 1345732, at
*10 (Iowa Ct. App. May 9, 2007).
January 2012, Moon filed his second PCR application-the
application at issue in this matter. He claimed newly
discovered evidence requires the vacation of his conviction
and sentence. The district court rejected this assertion,
granting the State's motion for summary dismissal of this
PCR application. Moon appeals.
actions for postconviction relief must be filed no later than
three years from the date the conviction is final or, in the
event of an appeal, from the date procedendo is issued.
See Iowa Code § 822.3 (2011). The procedendo
following Moon's direct appeal was issued in July 2002,
almost ten years before Moon's current PCR application.
However, the three-year statute of limitations will not bar a
PCR application if there is "a ground of fact or law
that could not have been raised within the applicable time
claims he recently received information from a person by the
name of Brandon Lee Boone that justifies the late filing of
this PCR application. In support of his claim, Moon submitted
an affidavit from Boone where Boone admitted he lied to
police in 1998 and 1999 implicating Moon in the murder at the
behest of another individual by the name of Casey
Brodsack. Moon claimed he never received any police
reports regarding the statements Boone made to police, which
he claimed was a Brady violation. He also claims he is
entitled to a new trial in light of this newly discovered
evidence of Boone's recantation.
review of the district court's summary dismissal of a PCR
application is for the correction of errors at law.
Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). To
satisfy the ground-of-fact exception to the three-year
statute of limitations, an applicant must prove "the
alleged ground of fact could not have been raised earlier, .
. . [and] a nexus between the asserted ground of fact and the
challenged conviction." Harrington v. State,
659 N.W.2d 509, 520 (Iowa 2003).
This additional [nexus] requirement is based on the common
sense conclusion that it would be absurd to toll the statute
of limitations pending the discovery of a trivial fact that
could not possibly affect the challenged conviction.
Accordingly, we have held that an "exonerating ground of
fact must . . . be 'relevant and . . . likely [to] change
the result of the case.'"
Id. (second alteration in original) (citations
omitted). As used in this test, "relevant" means
"the ground of fact must be of the type that has the
potential to qualify as material evidence for purposes of a
substantive claim under section 822.2." Id. at
521. The applicant does not need to "show the ground of
fact would likely or probably have changed the outcome of the
underlying criminal case in order to avoid a limitations
defense." Id. This final determination must
await an adjudication on the merits of the case. Id.
was disclosed as a witness in the minutes of testimony in the
underlying criminal case. The minutes stated the State
anticipated Boone would testify that he was in prison with
Moon in 1995 or 1996 and that during that time Moon confessed
his involvement in the murder. However, Moon's trial
counsel moved to exclude Boone from testifying at trial,
noting the State had advised Boone was refusing to cooperate
and Moon had not had an opportunity to depose Boone. Moon
asserted the admission of any statement made by Boone to
police was hearsay and violated his Sixth Amendment
confrontation rights. The State responded to Moon's
motion to exclude by noting it had given Moon the police
report containing Boone's interview, Boone had refused to
be interviewed since his arrest as a material witness, and
the State was unaware whether Boone would cooperate at the
time of trial. The record is unclear as to the trial
court's ruling on Moon's motion to exclude, but
ultimately, Boone did not testify at trial. While prior to
the 2000 trial, Moon may not have been ...