from the Iowa District Court for Scott County, Mary E. Howes,
from the summary dismissal of a second application for
postconviction relief as time-barred.
R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for
J. Miller, Attorney General, and Aaron Rogers, Assistant
Attorney General, for appellee State.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
2005, following a bench trial, Ambus Davis was convicted
"of first-degree murder, in violation of Iowa Code
sections 707.1, 707.2(1), and 707.2(2) (2005); willful
injury, in violation of section 708.4(1); and going armed
with intent, in violation of section 708.8 in the shooting
death of Jalon Thomas." State v. Davis, No.
06-0148, 2007 WL 601829, at *1 (Iowa Ct. App. Feb. 28, 2007).
This court affirmed his conviction on direct appeal.
Id. The supreme court denied Davis's application
for further review, and procedendo issued April 20, 2007.
Davis filed an application for postconviction relief in which
he contended, among other things, his trial counsel was
ineffective for failing to argue that willful injury could
not be used as the predicate felony for the felony-murder
rule. The district court denied Davis's application for
postconviction relief, and this court affirmed the denial on
appeal. See Davis v. State, No. 13-1630, 2015 WL
4642053, at *1 (Iowa Ct. App. Aug. 5, 2015). In June 2016,
Davis filed a second application for postconviction relief,
which the district court summarily dismissed as barred by the
statute of limitations. Davis timely filed this appeal.
review of the court's ruling on the State's
statute-of-limitations defense is for correction of errors of
law." Harrington v. State, 659 N.W.2d 509, 519
(Iowa 2003). To the extent Davis raises constitutional
claims, our review is de novo. See id. A statutory
claim of ineffective assistance of postconviction counsel is
also reviewed de novo. See Lado v. State, 804 N.W.2d
248, 250 (Iowa 2011).
is no constitutional right to postconviction relief. See
Williams v. Pennsylvania, 136 S.Ct. 1899, 1921 (2016)
(Thomas, J., dissenting); Montgomery v. Louisiana,
136 S.Ct. 718, 746 (2016) (Thomas, J., dissenting). As such,
the availability of postconviction relief and the terms and
conditions of the same are wholly creatures of statute
subject to legislative control. The statute at issue here is
Iowa Code section 822.3 (2016). It provides an application
for postconviction relief
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. However, this
limitation does not apply to a ground of fact or law that
could not have been raised within the applicable time period.
Iowa Code § 822.3.
concedes his second application for postconviction relief was
filed more than three years after procedendo issued in his
direct appeal. He contends, however, that Welch v. United
States, 136 S.Ct. 1257 (2016), is a new ground of law
that could not have been asserted within the relevant time
period. Like the district court, we disagree. The
"narrow question" presented in Welch was
whether the court of appeals erred in denying Welch's
application for a certificate of appealability under the
Antiterrorism and Effective Death Penalty Act of 1996. 136
U.S. at 1263-64. In answering that question, the Supreme
Court discussed and applied Teague v. Lane, 489 U.S.
288 (1989), to determine whether a new rule of constitutional
dimension would be applicable to "those cases which have
become final before the new rule[ ] [is] announced."
Id. at 1264 (quoting Teague, 489 U.S. at
310)). Welch simply has no application to this case.
The district court did not err in concluding the same.
not time-barred, Davis's claims fare no better on the
merits. The gravamen of Davis's application for
postconviction relief is that the rule announced in State
v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), should be
applied retroactively to his case. He has stuffed this
substantive claim into several different
envelopes-ineffective assistance of counsel, equal
protection, and illegal sentence. The different envelopes all
arrive at the same destination: the claims fail on the
merits. See Iowa Code § 822.3; Nguyen v.
State, 878 N.W.2d 744, 758 (Iowa 2016) ("We agree
with the State that defendants whose convictions became final
before the law changed in Heemstra are not similarly
situated to defendants charged after Heemstra.
Nguyen was not denied equal protection of the laws under the
Iowa Constitution."); Goosman v. State, 764
N.W.2d 539, 545 (Iowa 2009) (holding the "limitation of
retroactivity announced in Heemstra to cases on
direct appeal where the issue has been preserved did not
violate federal due process"); Tindell v.
State, 629 N.W.2d 357, 360 (Iowa 2001) ("His claim
of procedural error is not a claim of illegal sentence, and
therefore, it is precluded by our normal error-preservation
rules."); Wright v. State, No. 16-0275, 2017 WL
1401475, at *4 (Iowa Ct. App. Apr. 19, 2017) ("Our
supreme court had the authority to limit the retroactive
application of Heemstra. It has done so,
distinguishing those cases on appeal where error was
preserved and a potentially meritorious legal claim was
presented and those cases where error was not preserved and
no legal claim or no meritorious legal claim was presented.
The equal protection clause does not require that these
dissimilar cases be treated the same."); Pickett v.
State, No. 14-2053, 2015 WL 5970034, at *2 (Iowa Ct.
App. Oct. 14, 2015) ("Pickett's motion for
correction of an illegal sentence was, at its core, yet
another attempt to have Heemstra applied
retroactively to his case-a claim that was rejected by the
Iowa Supreme Court in his appeal from the dismissal of his
second postconviction-relief application."); Hillman
v. State, No. 14-0158, 2015 WL 5278929, at *2-3 (Iowa
Ct. App. Sept. 10, 2015) (rejecting a claim that
Heemstra should be applied retroactively based on
due process and separation of powers under the Iowa
Constitution and equal protection under the Iowa and federal
constitutions); Davis, 2015 WL 4642053, at *2
(rejecting the claim counsel was ineffective in failing to
raise the felony-murder issue subsequently decided in
Heemstra); Memmer v. State, No. 11-0513,
2012 WL 2406129, at *2 (Iowa Ct. App. June 27, 2012)
(rejecting Heemstra-illegal-sentence claim as
"simply his prior ineffective-assistance-of-counsel
considered each of Davis's arguments whether or not set
forth in full herein, and we find no error. We affirm the
district court's dismissal of ...