IN THE COURT OF APPEALS OF IOWA
No. 3-243 / 02-1204
Filed May 14, 2003
EDWARD WAYNE DON,
STATE OF IOWA,
Appeal from the Iowa District Court for Mahaska County, Michael
R. Mullins, Judge.
Applicant appeals from the district court's order denying his
application for postconviction relied. AFFIRMED.
Martha McMinn, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney
General, and John Schroeder, County Attorney, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
On July 9, 1980, Edward Don was convicted of first-degree murder, in
violation of Iowa Code section 690.1 (1975), and was sentenced to life in
prison without parole. Don's conviction was affirmed on direct appeal in
State v. Don, 318 N.W.2d 801 (Iowa 1982). Don's conviction was again
affirmed by this court in a postconviction proceeding, and in a federal
habeas corpus action in Don v. Nix, 886 F.2d 203 (8th Cir. 1989).
Prior to July 1, 1984, an application for postconviction relief could
be filed at any time. Iowa Code § 663A.3 (1983). On July 1, 1984, the
statute governing postconviction relief proceedings was amended. 1984 Iowa
Acts ch. 1193, § 1. The amended statute provides an 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.
Iowa Code § 822.3 (2001). All potential postconviction applicants whose
convictions became final prior to July 1, 1984, were required to file their
applications for postconviction relief on or before June 30, 1987, or be
barred from relief. Brewer v. Iowa Dist. Court, 395 N.W.2d 841, 844 (Iowa
In March 2001, Don filed a second application for postconviction
relief. The district court denied Don's application on June 27, 2002,
finding his claims were barred by section 822.3. Don appeals. However, we
agree the legal and factual underpinnings of Don's postconviction claims
were in existence prior to June 30, 1987 and could have been addressed
during his appellate and postconviction proceedings. He claims trial
counsel was ineffective for failing to move for a directed verdict of
acquittal because his confession was not accompanied by other proof as
required by Iowa Rule of Criminal Procedure 2.21(4). Appellate counsel and
prior post conviction counsel are also alleged to be ineffective for
failing to raise this argument. He claims their ineffectiveness should
excuse him from the bar of section 822.3. This claim clearly could have
been timely raised and accordingly, section 822.3 bars Don's claim. See
Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995).