from the Iowa District Court for Black Hawk County, Bradley
J. Harris, Judge.
applicant appeals from the dismissal of his third application
for postconviction relief.
Stephen P. Dowil of McEnroe, Gotsdiner, Brewer, Steinbach
& Rothman, P.C., West Des Moines, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee State.
Considered by Potterfield, P.J., McDonald, J., and Blane,
POTTERFIELD, PRESIDING JUDGE.
Kelly appeals the dismissal of his third application for
postconviction relief (PCR).
Background Facts and Proceedings.
2005, Kelly was charged with sexual abuse in the third
degree. At the jury trial in his opening statement,
Kelly's trial counsel set forth the defense's trial
strategy, stating: "We're not saying there
wasn't sex. We're not here today to deny that [Kelly]
had sex with [N.B.]. The question is whether it was
consensual sex . . . ." N.B. testified that she was
incapable of consenting to the sex act due to her extreme
intoxication. Kelly did not testify.
jury found Kelly guilty. As we summarized in a later opinion:
From the evidence presented at trial, a jury could have found
the following facts: On the evening of December 4, 2004, N.B.
attended a party at her coworker's apartment. Michael
Kelly, an acquaintance of N.B.'s, also attended. N.B.
drank heavily at the party to the point of extreme
intoxication. When N.B. began to stumble about and pass out,
N.B.'s friends put her in a bedroom to sleep, alone.
N.B. awoke the next morning confused, hung-over, in pain, and
lying next to Kelly. N.B. became aware she had had sex the
night before. N.B. also determined she was missing about
eighty dollars from her pants pocket. She asked Kelly what
had happened the night before, and he responded:
"Don't you remember?" N.B. then said to Kelly,
"I'm not a virgin anymore, am I?" Kelly
answered: "Shit happens." Kelly told her he would
help her get her money back. N.B. then drove home.
Kelly called N.B. later to tell her he had gotten her money.
The two met at a convenience store, and Kelly gave N.B. the
money. Kelly and N.B. exchanged a kiss, which N.B. described
as a "peck." Later in the evening, after talking to
family, friends, and a victims' hotline, ...