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Morris v. State

Court of Appeals of Iowa

August 7, 2019

BOBBY JOE MORRIS, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

         Bobby Joe Morris appeals from the dismissal of his application for postconviction relief.

          Andrew Dunn of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee State.

          Considered by Mullins, P.J., Bower, J., and Vogel, S.J. [*] Gamble, S.J., takes no part.

          BOWER, JUDGE.

         Bobby Joe Morris appeals from the dismissal of his application for postconviction relief (PCR) in which he challenges his 1998 conviction for first-degree murder.

         While details of the underlying offense have been set out in our previous opinion, see State v. Morris, No. 98-1640, 2000 WL 381641, at *1-2 (Iowa Ct. App. Apr. 12, 2000), here we note Morris was charged with committing or aiding and abetting first-degree murder, with the jury being allowed to determine the shooting of Morris's girlfriend was done with premeditation or while committing the forcible felony of willful injury. We affirmed his conviction on appeal. Id. at *9 (further review denied, procedendo issued Aug. 3, 2000).

         On appeal from the denial of his first PCR proceeding-which application was filed in 2001 but was not decided until December 16, 2005-Morris's counsel argued four issues,

all of which relate to the felony murder/merger rule adopted in [State v.] Heemstra[, 721 N.W.2d 549 (Iowa 2006)]. Morris claim[ed]: (1) the district court erred when it ruled his concerns were without merit; (2) appellate counsel was ineffective for not challenging the felony murder/merger rule on direct appeal; (3) he received ineffective postconviction relief counsel because counsel did not claim appellate counsel was ineffective for not raising the felony murder/merger rule; and (4) the Iowa Supreme Court erred when it ruled that Heemstra only applied to cases on direct appeal.

Morris v. State, No. 06-0069, 2007 WL 1827394, at *1 (Iowa Ct. App. June 27, 2007). We addressed those claims and affirmed the PCR dismissal. See id. at *2-5. Further review was denied by the supreme court, and procedendo issued on August 31, 2007.

         A second July 30, 2010 PCR application was dismissed for failure to prosecute on January 20, 2015. This application was filed three years and ten months after Heemstra was decided and thirty-five months after procedendo issued on the denial of his first PCR.

         On July 31, 2017, Morris filed his third PCR application. Consequently, this PCR application was filed seventeen years after procedendo issued on the appeal from his conviction. It was filed nine years and eleven months after procedendo issued on the appeal of his first PCR application.

         The State moved for summary judgment, asserting Morris's claims in this third PCR application were previously litigated or time-barred pursuant to Iowa Code section 822.3 (2017) (providing a three-year limitation period unless the applicant raises a "ground of fact or law that could not ...


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