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Cross v. State

Court of Appeals of Iowa

December 20, 2017

FLOYD EUGENE CROSS, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

         An 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, for appellant.

          Thomas 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. [*]

          SCOTT, SENIOR JUDGE.

         Floyd 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).

         Cross 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 time period").

         On 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 decided.

         We 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.

         Cross 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.[1] 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, [2] 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.

         Finally, 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 exception.

         The 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 ...


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