from the Iowa District Court for Polk County, Jeffrey D.
Sandoval appeals the summary dismissal of his third
postconviction-relief application. AFFIRMED.
R. Stockdale, Windsor Heights, for appellant.
J. Miller, Attorney General, and Kyle P. Hanson, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
December 2004, a jury found Fernando Sandoval guilty of two
counts of first-degree murder and two counts of attempted
murder in relation to shootings occurring outside of a bar.
This court affirmed his convictions on direct appeal,
State v. Sandoval, No. 05-0426, 2006 WL 3018152
(Iowa Ct. App. Oct. 25, 2006), and procedendo issued in late
2006. Sandoval filed his first postconviction-relief (PCR)
application in June 2007. That application was denied in
December 2008. The supreme court dismissed Sandoval's
subsequent appeal as frivolous. See Iowa R. App. P.
6.1005. Sandoval filed his second PCR application in May
2012. This court subsequently affirmed the district
court's summary dismissal of Sandoval's second
application. Sandoval v. State, No. 14-0341, 2015 WL
1849404 (Iowa Ct. App. Apr. 22, 2015).
filed the present PCR application in January 2016, more than
nine years after procedendo issued in his direct appeal. His
application was based upon, among other things,
newly-discovered evidence, and was accompanied by an
affidavit authored by his cousin, Remberto Hernandez-Virula.
In his affidavit, Hernandez-Virula generally stated Sandoval
was inside the bar with him when shots were fired outside and
someone other than Sandoval was the shooter.
State moved for summary dismissal on statute-of-limitations
grounds, contending the allegedly new evidence was available
to Sandoval at trial and therefore did not serve as an
exception to the statute of limitations. The district court
agreed with the State, concluding Sandoval "cannot make
a claim of newly discovered evidence through a witness he has
known about since the events occurred, " and granted the
State's motion for summary dismissal.
appeals, contending the district court erred in dismissing
his claim concerning newly-discovered evidence. Our review is for
correction of errors at law. Belk v. State, 905
N.W.2d 185, 188 (Iowa 2017).
applications "must be filed within three years from the
date the conviction or decision is final or, in the event of
an appeal, from the date the writ of procedendo is
issued." Iowa Code § 822.3 (2016). "However,
this limitation does not apply to a ground of fact . . . that
could not have been raised within the applicable time
period." Id. Indeed, "[n]ewly discovered
evidence would constitute a 'ground of fact' under
the statute." Whitsel v. State, 525 N.W.2d 860,
863 (Iowa 1994) (quoting State v. Edman, 444 N.W.2d
103, 106 (Iowa Ct. App. 1989)). However, Sandoval makes no
argument that the evidence "could not have been raised
within the applicable time period, " which is a
requirement for the exception to apply. See Iowa
Code § 822.3. And how could he? The substance of the
alleged newly-discovered evidence itself-that Sandoval could
not have committed the crimes because he was inside the bar
with Hernandez-Virula at the time of the shootings-reveals
that, if true, Sandoval was aware of Hernandez-Virula as a
potential alibi witness. As such, the ground of fact could
have been raised at trial and, thereafter, within the
three-year statute-of-limitations period. The evidence
therefore does not fall within the exception to the statute
of limitations. See id.; see also Whitsel,
525 N.W.2d at 863 (noting the proponent of a
newly-discovered-evidence claim must show "that the
evidence was discovered after the verdict").
PCR application was filed more than three years after
procedendo issued in his direct appeal and the ground-of-fact
exception does not apply to except him from the statute of
limitations. The State was therefore entitled to judgment as
a matter of law. We affirm the district court's summary
dismissal of Sandoval's PCR application.