from the Iowa District Court for Polk County, Jeanie K.
applicant appeals the district court's summary dismissal
of his application for postconviction relief.
Patrick W. O'Bryan of O'Bryan Law Firm, Des Moines,
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., Bower, J., and Scott, S.J.
Cross was convicted of first-degree robbery and willful
injury causing serious injury in 2007. He appealed, and this
court affirmed his conviction. See State v. Cross,
No. 07-0599, 2008 WL 3916703, at *3 (Iowa Ct. App. Aug. 27,
2008). Following the appeal, procedendo was entered October
24, 2008. Cross then filed a postconviction relief (PCR)
application, raising a number of
ineffective-assistance-of-counsel claims. His application was
denied, and we affirmed in part and reversed in part that
denial on appeal. See Cross v. State, No. 10-0968,
2012 WL 5356167, at *2-5 (Iowa Ct. App. Oct. 31, 2012)
(finding Cross failed to prove his trial counsel was
ineffective but his two convictions should be merged).
then filed a second application for PCR September 24, 2015.
The State filed a motion for summary judgement, asserting
Cross's application was time-barred under Iowa Code
section 822.3 (2015). The motion came on for a hearing before
the district court, and in a written ruling, the district
court granted the State's motion for summary judgment and
dismissed Cross's application. The court concluded
Cross's application was time-barred and he failed to
prove he was raising a new ground of fact or law, which would
have satisfied the exception to the three-year statute of
limitations. See Iowa Code § 822.3 (providing
all PCR applications "must be filed within three years
from the date . . . the writ of procedendo is issued"
but the "limitation does not apply to a ground of fact
or law that could not have been raised within the applicable
appeal, Cross claims his application is excused from the
statute of limitations because of a ground of law that could
not have been raised within the applicable three-year period.
Specifically, he claims the case of State v. Smith,
739 N.W.2d 289 (Iowa 2007), changed the substantive law
regarding how juries are to be instructed on joint criminal
conduct, Smith should be applied retroactively to
his case, and he could not have raised this argument earlier
until the case of State v. Shorter, No. 14-1239,
2016 WL 3272291, at *3-4 (Iowa Ct. App. June 15, 2016), was
begin by noting our decision in Shorter has been
vacated by the supreme court and is no longer good law for
Cross to rely on in his attempt to excuse the late filing of
his PCR claim. See State v. Shorter, 893 N.W.2d 65,
68 (Iowa 2017). Secondly, Cross never asserted in the
district court that our decision in Shorter in any
way affected his argument that the ground-of-law exception to
three-year statute of limitations should apply to his PCR
application. Thus, his argument that Shorter is a
new ground of law that could not have been raised within the
statute of limitations has not been preserved. Lamasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012) ("It is a
fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court
before we will decide them on appeal." (quoting
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)).
Finally, even if our decision in Shorter were still
good law and assuming such claim had been preserved, our
decision in Shorter did not "change" the
law with respect to the jury instruction for joint criminal
conduct; it merely attempted to apply the then-existing law
as articulated by State v. Tyler, 873 N.W.2d 741,
752-54 (Iowa 2016), and Smith, 739 N.W.2d at 295.
See State v. Edman, 444 N.W.2d 103, 106 (Iowa Ct.
App. 1989) (holding the ground-of-law exception is meant
"to allow for a review of a conviction if there has been
a change in the law that would [a]ffect the validity
of the conviction" (emphasis added)). Thus, our opinion
in Shorter does not excuse Cross's late filing
of his second PCR application.
did assert in the district court that Smith, 739
N.W.2d at 295, changed the law with respect to the
joint-criminal-conduct jury instruction and this change
should be retroactively applied to his case. However, as noted
by the district court, Smith was decided in 2007,
and thus, this claim could have been raised in Cross's
first PCR application,  which was filed within the applicable
three-year statute of limitations. The decision in
Smith does not satisfy the ground-of-law exception
to the three-year statute of limitations in order to save
Cross's second PCR application.
Cross cites the case of Tyler, 873 N.W.2d at 752-54,
in his brief in support of his appeal. While the
Tyler decision was filed after the expiration of the
three-year statute of limitations, it cannot satisfy the
exception to the three-year bar because, again, the case
merely applied the Smith decision. Tyler,
873 N.W.2d at 752-54. As stated earlier, the ground-of-law
exception allows "for a review of a conviction if there
has been a change in the law that would [a]ffect the
validity of the conviction." Edman, 444 N.W.2d
at 106 (emphasis added). Tyler did not change the
law, and thus, it does not satisfy the ground-of-law
procedendo following Cross's direct appeal was entered
October 24, 2008, and Cross did not file this current PCR
application until September 24, 2015, more than three years
later. None of the cases cited by Cross satisfy the
ground-of-law exception to the statute of limitations.
Therefore, we agree with the district court's ...