Opinion
No. 3-647 / 02-1179
Filed September 24, 2003
Appeal from the Iowa District Court forDubuque County, Alan L. Pearson, Judge.
Gene Dryer appeals the district court's grant of summary judgment for the State on his application for postconviction relief. AFFIRMED.
Todd Klapatauskas of Reynolds Kenline, L.L.P., Dubuque, for applicant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, and Fred McCaw, County Attorney, for respondent.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Gene Dryer appeals the district court's grant of summary judgment for the State on his application for postconviction relief. We affirm.
Background Facts and Proceedings. In April 1994 Dryer was convicted of kidnapping in the first degree and four counts of assault with a dangerous weapon in violation of Iowa Code sections 710.2 and 708.1(3) (Supp. 1993). The district court sentenced Dryer to life in prison on the kidnapping charge and four consecutive two-year terms on the assault charges. Dryer appealed, and this court affirmed his conviction in October 1995. See State v. Dryer, No. 94-0837 (Iowa Ct.App. Oct. 31, 1995). In June 1996 and June 1998, Dryer filed pro se applications for postconviction relief, and both were dismissed by the postconviction court. Subsequently, Dryer sought federal habeaus corpus relief, and the United States District Court for the Northern District of Iowa dismissed Dryer's application on December 18, 1998.
In his present pro se application for postconviction relief, Dryer alleges his trial counsel provided ineffective assistance of counsel: (1) by failing to investigate and present evidence in support of his diminished capacity defense and (2) by failing to raise the issue that he was not competent to stand trial. Dryer further alleges that the Iowa Supreme Court, subsequent to his appeal, changed the law on kidnapping and, thus, it should be retroactively applied to his case. On December 10, 2001, the State filed a motion for summary disposition, which Dryer resisted. The postconviction court granted the State's motion. Dryer appeals.
Standard of Review. Our review of postconviction relief proceedings can be for errors at law or de novo. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999). When the action implicates constitutional issues, our review is de novo. Id. We review dismissal of an application for postconviction relief for errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998).
Alleged Ineffective Assistance of Counsel. The State argues that Dryer's ineffective assistance of counsel claims are barred by the three-year statute of limitations in Iowa Code section 822.3. Dryer concedes that his postconviction application was not filed within the applicable time period. However, he argues the three-year time limit should not apply to his case because he was incompetent at the time of trial and has remained incompetent since. A defendant's competency is strongly presumed, and he bears the burden of proving otherwise. State v. Rieke, 542 N.W.2d 577, 580 (Iowa Ct.App. 1995). We conclude Dryer is unable to overcome the presumption of his own competency. Prior to Dryer's trial, psychologist Dr. Howard Barton, examined him at defense counsel's request. Dr. Barton concluded that Dryer was within the low-average range of intelligence, but was not mentally retarded. He further noted while Dryer was unsophisticated and may "miss some nuances," he was able to participate in his own defense and understand court proceedings. Furthermore, the postconviction court stated and we agree:
In summary, the applicant has failed to demonstrate a trial court context suggesting a factual basis for his ineffective assistance claims. He failed to preserve the issues on direct appeal, he raised his ineffective assistance claims in prior postconviction relief proceedings which were resolved adversely and he raises his current claims well outside the applicable statute of limitations. As his excuse for all these shortcomings, he asserts the prior ineffectiveness of all his varied counsel. Secondly, he argues that he was not competent and, therefore, cannot be held responsible for the shortcomings and the failure to behave timely.
Mr. Dyer's lack of competence cannot be accepted as an excuse for this late filing. He timely filed a prior postconviction relief and a prior federal habeas corpus action, both raising ineffective assistance of counsel. Obviously, he was sufficiently competent to pursue both filings and the claim on a timely basis.
It is a logical possibility that all of the defendant's prior attorneys have been ineffective. However, he has had separate attorneys for trial, appeal and each postconviction relief action. The likelihood of ineffective assistance by all of these separately acting attorneys is so small that the argument cannot be given credence without some demonstrated factual basis. It is far more likely that Mr. Dryer is churning his claims. That is, he is reasserting the same worn-out allegations time and again with no new facts.
Alternatively, Dryer argues his trial, appellate, and postconviction counsel were ineffective for failing to file his ineffective assistance of counsel claims within the three-year time period. Before we can excuse Dryer's failure to file these claims, we must first find that an issue of material fact remains on each of his claims precluding summary disposition. See Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993). After a de novo review of the record, we find Dryer has failed to carry his burden of showing that a material issue of fact exists with regard to any of his claims. The only conflict in the record is the legal consequences flowing from the undisputed facts. The undisputed facts fail to demonstrate any act or omission by trial, appellate, or postconviction counsel that amounts to performance below an objective standard of reasonableness. Accordingly, we find Dryer's ineffective assistance of counsel claims are barred by the statute of limitations.
Change in the Law. Dryer argues the law applicable to kidnapping was changed after his convictions and appeals and, therefore, it should be retroactively applied to his case. See State v. Griffin, 564 N.W.2d 370 (Iowa 1997); State v. Davis, 584 N.W.2d 913 (Iowa Ct.App. 1998). The State argues the cases cited by Dryer do not change the law on kidnapping. After carefully reviewing the cases cited by Dryer, we agree with the State that the law pertaining to kidnapping has not changed. Even assuming, as did the postconviction court, Dryer's assertions were correct, his claim must fail. In reaching this conclusion, we rely on the same language as the postconviction court did from Bryant v. State, 309 N.W.2d 401 (Iowa 1981):
We come down, then, to the crux of the case: if a criminal sentence and judgment against a defendant becomes final under a certain interpretation of a statute, and if the interpretation is subsequently changed in another case so that, if the subsequent interpretation had been applied originally the first defendant could not have been convicted, is that defendant entitled to be discharged in a postconviction proceeding? We answered this question negatively in Everett v. Brewer, 215 N.W.2d 244 (Iowa 1974). We adhere to that decision.
Bryant, 309 N.W.2d at 404. In addition, the postconviction court stated and we agree:
Apart from the explicitness of the holding in Bryant,common sense suggests that Mr. Dryer's argument cannot have merit. If defendants were allowed to collaterally attack prior convictions every time the legislature changed a penal statute or the Supreme Court issued a decision changing prior law, few convictions would ever be final. The courts would be swamped in revolving litigation for the same offense. Each defendant is entitled to a full and complete fair trial. This right does not extend to a new trial every time the law subsequently changes.
Therefore, we find Dryer is not entitled to postconviction relief and affirm the district court's grant of summary judgment.