Opinion
No. 4-149 / 02-1100
April 28, 2004.
Appeal from the Iowa District Court for Des Moines County, William L. Dowell, Judge.
Defendant appeals from the summary dismissal of his second application for postconviction relief. AFFIRMED.
Philip Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Patrick Jackson, County Attorney, and Amy Snook, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
John Holmes appeals from the summary dismissal of his second application for postconviction relief. He contends the district court erred in concluding his application was procedurally barred under Iowa Code section 822.3 (2001) because it was not filed within the three-year statute of limitations. We affirm.
I. Background Facts and Procedures.
LuAnn Simms was found murdered in her apartment on June 13, 1992. She had been bludgeoned to death by a blunt object. It was determined that she had been killed on her bed, but that her body and bedding had been moved around the room after the murder.
Following Simms's murder, John Holmes told numerous people he was responsible for her death. Holmes related details of the crime that were not generally known to the public, including (1) the types of floor covering and bed in the apartment, (2) the fact Simms was in her bed when the attack occurred, (3) the presence of a light on in the apartment, (4) his choking of Simms, and (5) the movement of her body and bedding after the murder. Holmes told four people he had burned his blood-stained clothing in his neighbor's yard. The neighbor found two burned areas in her lawn while mowing on June 13. An eyewitness also identified Holmes as the man she saw walking by Simms's apartment complex at 1:30 a.m. on June 13.
Holmes was tried to a jury and convicted in March 1993. Holmes appealed, claiming there was insufficient evidence to establish corroboration of his inculpatory statements. He also claimed the district court erred in not allowing him to offer evidence he had denied killing Simms. This court rejected his direct appeal on November 28, 1994. The Iowa Supreme Court denied Holmes's application for further review on February 3, 1995. Procedendo issued February 9, 1995.
On December 21, 1995, Holmes filed his first application for postconviction relief. He argued his trial counsel inadequately handled pretrial investigation, trial preparation, and witnesses. He also claimed his counsel was ineffective in failing to make an offer of proof, and in failing to preserve errors. He likewise claimed ineffective assistance of appellate counsel for failing to preserve errors. His claims were denied and his application was dismissed. On July 31, 1998, this court affirmed the postconviction court, noting the "overwhelming evidence of Holmes' guilt." Procedendo issued September 15, 1998. However, Holmes contends the court did not notify him or his counsel of its decision until October 18, 2000.
On November 17, 2001, Holmes mailed his second application for postconviction relied, which was filed November 26, 2001. In his application, Holmes contended his trial counsel was ineffective in failing to conduct DNA testing of hair found in Simms's hands and blood found under her fingernails. He also alleged his first postconviction counsel should have requested DNA testing to support the claim of ineffective assistance of trial counsel.
On April 19, 2002, the State filed a motion for summary disposition of Holmes's claim, arguing his claim was barred under Iowa Code sections 822.3 and 822.8. On June 14, 2002, the district court granted the State's motion, finding his claim was barred under both sections 822.3, which institutes a three-year statute of limitations on postconviction claims, and 822.8, which requires the applicant to show "sufficient reason" for failure to raise claims in prior proceedings.
II. Scope of Review.
Postconviction proceedings are law actions ordinarily reviewed for errors of law. Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003). But when the basis for relief is a constitutional violation, our review is de novo. Id.
Our review of the court's ruling on the State's statute-of-limitations defense is for correction of errors of law. Id. We will affirm if the trial court's findings of fact are supported by substantial evidence and the law was correctly applied. Id. III. Analysis.
Iowa Code section 822.3 provides that a postconviction application 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.
Holmes does not contend his underlying claim for relief rests on a ground of fact or law that could not have been raised within the three-year limitation period. Accordingly, Holmes had three years from February 9, 1995, the date procedendo issued, in which to file an application for postconviction relief. However, Holmes did not file his application until November 26, 2001, over six years from the date procedendo issued.
Holmes argues his second application for postconviction relief is not time barred for several reasons: (1) the statute of limitations should be tolled during the pendency of his first postconviction proceeding; (2) the statute of limitations should be tolled from the time this court ruled on the first postconviction appeal until notice was received by Holmes of the decision; (3) strict application of the statute of limitations deprives him of due process; and (4) DNA testing specifically should not be barred by the statute of limitations. We address each of Holmes's arguments in turn.
Holmes first asserts the statute of limitations should be tolled during the pendency of his first postconviction action. He notes the legislature intended to have the statute begin running after a procedendo has been issued following a direct appeal. Holmes then argues the statute of limitation involving a second postconviction relief action should exclude all time during which a defendant is actively pursuing relief from a conviction, including the first postconviction action. Holmes cites Barber Asphalt Paving Co. v. City of Des Moines, 191 Iowa 762, 768, 183 N.W. 456, 458-59 (Iowa 1921) to support his contention that the statute of limitations is tolled during the pendency of other litigation regarding the same matter. However, Barber involves a civil claim that could not have been maintained until a related claim was resolved. Barber, 191 Iowa at 768, 183 N.W. at 458. Holmes's situation is not comparable. The only option Holmes has is to urge some "ground of fact or law that could not have been raised within the applicable time period." Iowa Code § 822.3.
Holmes also argues the statute of limitations should be tolled during the pendency of his first postconviction action because he is entitled to effective assistance of postconviction counsel. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). Holmes contends that if postconviction counsel renders ineffective assistance, the applicant must bring a second postconviction action. Due to the length of time involved in postconviction proceedings, Holmes argues the statute of limitations has often expired by the end of the first postconviction action, thereby barring a defendant from raising a claim of ineffective assistance of postconviction counsel in a second postconviction action. Our supreme court has rejected the notion that ineffectiveness of postconviction counsel provides relief from the three-year statute of limitations where an applicant was or should have been aware of the claim he seeks to raise before the running of the statute of limitations had expired. Dible v. State, 557 N.W.2d 881, 884 (Iowa 1996) (abrogated on other grounds by Harrington, 659 N.W.2d at 521.). Holmes admits he wanted his postconviction counsel to raise the DNA issue in his first postconviction action.
It is the failure to raise the issue in a timely manner that results in the statute of limitations running. Therefore, the statute of limitations is not tolled during the time period in which his first postconviction action was pending.
Holmes next contends the statute of limitations should be tolled between the time procedendo issued from his postconviction appeal and the time he was notified of the decision. He cites Bensely v. State, 468 N.W.2d 444, 447-48 (Iowa 1991) to support the proposition that the statute is tolled when notice is not given. Bensley is distinguishable. It involved a claim under Iowa Code section 25A.13 (1981), which expressly provided the statute of limitations governing a tort claim against the State would not begin to run until the state appeal board gave the claimant notice his claim had been denied. Bensley, 468 N.W.2d at 446. Here, section 822.3 in no way provides for the tolling of the three-year statute of limitations until notice of procedendo of a post conviction action has been issued.
Holmes also contends strict application of the statute of limitations deprived him of due process. He argues that because the State created a right to effective assistance of postconviction counsel, an individual must have meaningful access to the courts in connection with the consideration of this right. Holmes notes that by the time an individual has finished a postconviction action, the three-year statute of limitations may have expired.
Because the legislature chose to bestow the right to postconviction counsel, it is also free to determine the parameters of this right. Dible, 557 N.W.2d at 885. Merely cutting off the remedy, after a lapse of time, within which time an applicant is free to assert the remedy, does not offend against due process if a reasonable time is granted within which process can be had. See Brewer v. Iowa Dist. Ct., 395 N.W.2d 841, 843 (Iowa 1986). The legislature enacted the three-year statute of limitations on postconviction relief actions to reduce injustices occurring as a result of lost witnesses for (a) resolution of factual disputes arising in the postconviction proceedings and (b) the retrial of cases in which convictions are overturned. Id. This three-year time period is a reasonable time in which an applicant can file for postconviction relief. Accordingly, due process has not been violated.
Finally, Holmes asserts there should be an exception to the statute of limitations for DNA testing. Iowa Code section 822.3 only recognizes one exception to the statute of limitations for claims that could not have been raised within the applicable time period. Holmes's DNA testing claim clearly could have been brought within the time period. Had the legislature intended to allow an exception for DNA testing, it could have explicitly stated the exception. It did not. Accordingly, we are not at liberty to read such an exception into section 822.3. See Dible, 557 N.W.2d at 885. The statute of limitations and its exceptions are a matter of legislative enactment, and a court is not privileged to amend the law. See In re Evan's Will, 193 Iowa 1240, 1245, 188 N.W. 774, 776 (1922). As it is written, it is written. Id.
Because the statute of limitations for filing Holmes's application for postconviction relief has expired, and because his claim does not fall within a recognized exception to the statute of limitations, we affirm the district court's dismissal of his second application for postconviction relief. Id. AFFIRMED.