from the Iowa District Court for Black Hawk County, Kellyann
M. Lekar, Judge.
person seeking postconviction relief appeals the dismissal of
his second petition as untimely.
J. O'Flaherty of O'Flaherty Law Firm, Bettendorf, for
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
question here is timing. The district court dismissed Chester
Polk Jr.'s second petition for postconviction relief
(PCR) as beyond the statute of limitations. The dismissal
predated Allison v. State, 914 N.W.2d 866, 891 (Iowa
2018). Allison held the filing of a second PCR
petition-alleging ineffective assistance of first PCR
counsel-relates back to the date of the original petition if
"filed promptly" after the first PCR action. 914
N.W.2d at 891. On appeal, Polk argues Allison
"appears to encompass [his] situation."
Polk waited nearly six months to file his second PCR petition
after the voluntary dismissal of his first PCR action, he did
not meet the "prompt" filing mandate in
Allison. We thus affirm the
means Polk's forgery conviction stays in place. Polk
pleaded guilty to forgery as a habitual offender. The
district court entered judgment on that conviction on
February 3, 2014. Polk received a suspended sentence. But in
June 2015, the court revoked his probation and sent him to
prison for the indeterminate fifteen-year term. Polk then
filed a notice of appeal from his conviction that the supreme
court dismissed as untimely. Because Polk's direct appeal
was not viable, the three-year clock for filing a PCR
application started on the date of his conviction.
See Iowa Code § 822.3 (2017). The parties agree
the statute of limitations expired on February 3, 2017.
2015, well within the three-year limitations period, Polk
filed his first PCR application. The district court denied
relief. Polk timely appealed but voluntarily dismissed that
appeal before our appellate courts could weigh in. Procedendo
issued on November 15, 2016, a little more than two months
before the three-year limitations period expired.
six months passed before Polk filed his second PCR petition
on May 8, 2017. In that petition, he alleged both his
criminal and PCR counsel provided ineffective assistance. In
January 2018, the district court dismissed Polk's second
PCR application as untimely, citing Dible v. State,
557 N.W.2d 881 (Iowa 1996), abrogated in part on other
grounds by Harrington v. State, 659 N.W.2d 509, 521
(Iowa 2003). Dible held ineffectiveness of first PCR
counsel did not fit within the "ground of fact"
exception to the section 822.3 statute of limitations, and
thus did not excuse filing a second PCR after three years.
557 N.W.2d at 885.
2018, the supreme court issued Allison. While not
outright overruling Dible, the Allison
majority opted to "qualify Dible" by
allowing a second PCR application to relate back to the time
of filing the first PCR where three conditions existed.
Allison, 914 N.W.2d at 890. First, the original PCR
petition alleging ineffective assistance of trial counsel had
to be "timely filed per section 822.3."
Id. at 891. Second, the successive PCR petition must
allege "postconviction counsel was ineffective in
presenting the ineffective-assistance-of-trial-counsel
claim." Id. And third, the successive petition
must be "filed promptly after the conclusion of the
first PCR action." Id.
failed to meet that third condition. A gap of almost six
months between his voluntary dismissal of the first PCR
appeal and filing the second PCR petition does not fit the
definition of prompt. See Cook v. State, No.
17-1245, 2019 WL 719163, at *4 n.6 (Iowa Ct. App. Feb. 20,
2019) (noting Webster's Third New International
Dictionary 1816 (unabr. ed. 2002), defines
"promptly" as "in a prompt manner; at once;
appeal, Polk references the "filed promptly"
language from Allison. But he does not argue with
any detail how the timing of his second petition satisfied
that standard. After he voluntarily dismissed his first
appeal, he still had more than two months before the statute
of limitations expired on February 3, 2017. He then waited
until May 8, 2017, before filing his second PCR petition.
Those months of delay belie the quick action Allison
envisioned when adopting its "variant" on the
equitable tolling doctrine.See 914 N.W.2d at 891;
see also Kelly v. State, No. 17-0382, 2018 WL
3650287, at *4 (Iowa Ct. App. ...