IN THE COURT OF APPEALS OF IOWA
No. 1-354 / 10-1250
Filed May 25, 2011
TIMOTHY DELANO FRIEDRICH,
STATE OF IOWA,
Appeal from the Iowa District Court for Des Moines County, John G. Linn,
postconviction relief. AFFIRMED.
Frank Santiago of Santiago Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and Amy K. Beavers, Assistant
County Attorney, for appellee State.
Considered by Sackett, C.J., and Doyle and Danilson, JJ. Tabor, J., takes
postconviction relief as untimely. Although he admits his application was not
timely filed and concedes he has no newly discovered evidence, he contends
dismissal of his application as untimely denies his “constitutional unalienable
As a remedy to this alleged denial, he suggests that the applicable
statute of limitations be tolled. Further, he seeks to “re-open” his first-degree
murder conviction so he may engage in a discovery process he hopes will turn
up new evidence that would exculpate him. We decline his invitation and affirm
dismissal of the application.
On November 19, 1996, a jury found Friedrich guilty of first-degree
murder. Judgment of conviction was entered December 9, 1996, and Friedrich
was sentenced to life in prison. He appealed, contending he received ineffective
assistance of counsel because his trial counsel (1) failed to object to evidence of
his refusal to waive extradition and (2) elicited evidence of Friedrich’s prior
This court affirmed his conviction and sentence and
preserved for postconviction relief Friedrich’s claims of ineffective assistance of
State v. Friedrich, No. 96-2204 (Iowa Ct. App. April 24, 1998).
Procedendo issued on June 22, 1998.
On December 23, 2009, some eleven and a half years later, Friedrich filed
his application for postconviction relief. He contended his conviction was not
supported by the evidence and he received ineffective assistance of counsel
when his counsel opened the door at trial to Friedrich’s previous convictions.
The State filed a motion for summary disposition asserting Friedrich’s
application was eight and a half years too late and thus time barred by the threeyear statute of limitations set forth in Iowa Code section 822.3 (2009). At the
hearing, Friedrich admitted his application was not timely filed, but contended the
new evidence exception to the statute of limitations applied. See Iowa Code
§ 822.3 (providing that its statute of limitations “does not apply to a ground of fact
or law that could not have been raised within the applicable time period”).
However, he conceded he had no new evidence. Instead, he argued “there is a
need for a discovery process to take place that would produce the new evidence
that is required to renew [his] claim.”
The district court found Friedrich failed to file his application within the
three-year window to do so. The court further found Friedrich failed to argue or
prove any exception that would allow his application to move forward. The court
granted the State’s motion and dismissed the application.
Friedrich now appeals. He claims dismissal of his application denied him
his unalienable constitutional rights to life, liberty, and pursuit of happiness, and
he suggests tolling the statute of limitations as a remedy. As he argued before
the district court, Friedrich, conceding he has no newly discovered evidence,
asserts a need for a discovery process that would produce new evidence that
would exculpate him from his murder conviction.
Friedrich asserts he preserved error by filing a timely notice of appeal.
“While this is a common statement in briefs, it is erroneous, for the notice of
appeal has nothing to do with error preservation.” Thomas A. Mayes & Anuradha
Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on
Present Practice, 55 Drake L. Rev. 39, 48 (Fall 2006) (explaining that “[a]s a
general rule, the error preservation rules require a party to raise an issue in the
trial court and obtain a ruling from the trial court”) (internal footnote omitted).
However, the serious error preservation issue here is the fact the district court did
not address the issues Friedrich now presents to us on appeal. Friedrich made
no request in his application, or at the hearing, that the applicable statute of
limitations be tolled. His request to open up a discovery process was raised for
the first time at the hearing. The district court made no ruling addressing the
tolling or discovery issues. “It is a fundamental doctrine of appellate review that
issues must ordinarily be both raised and decided by the district court before we
will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002). Further, Friedrich made no motion for enlargement of the court’s findings.
See Iowa R. Civ. P. 1.904(2). “When a district court fails to rule on an issue
properly raised by a party, the party who raised the issue must file a motion
requesting a ruling in order to preserve error for appeal.” Meier, 641 N.W.2d at
537. Friedrich has thus waived error on these issues.
Regardless of whether or not error was preserved, Friedrich’s arguments,
although creative, are not sufficiently supported in law to warrant court-made
equitable tolling of the applicable statute of limitations or implementation of some
sort of discovery process.
Friedrich essentially asserts there should be an
exception to the statute of limitations for his claims. Had the legislature intended
to allow an exception for claims of the nature Friedrich asserts, it could have
explicitly stated so. It did not.
Section 822.31 expressly provides that “[a]ll . . . applications 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 or procedendo is issued.” “It is clear the
legislative intent of section 822.3 was to conserve judicial resources, promote
substantive goals of criminal law, foster rehabilitation, and restore a sense of
repose in our criminal judicial system.” Cornell v. State, 529 N.W.2d 606, 610
(Iowa Ct. App. 1994). We are simply not at liberty to read exceptions into section
822.3 not otherwise provided by the legislature. See Dible v. State, 557 N.W.2d
881, 885 (Iowa 1996), abrogated on other grounds by Harrington v. State, 659
N.W.2d 509, 521 (Iowa 2003); see also Leach v. Commercial Sav. Bank of Des
Moines, 205 Iowa 1154, 1166-67, 213 N.W. 517, 522 (1927) (“The statutes of
limitation . . . are founded in public needs and public policy—are arbitrary
enactments by law-making power.”); In re Evan’s Will, 193 Iowa 1240, 1245, 188
N.W. 774, 776 (1922) (“It is a matter of legislative enactment, and a court is not
privileged to amend the law. As it is written, it is written.”).
In closing, we agree with the observation made by the State in its brief:
There is certainly no doubt that all convicted defendants would like
to find evidence that demonstrates their actual innocence, but
expressing the desire for such evidence without any reliable factual
allegation that evidence does exist does not entitle one to avoid a
statute of limitations bar.
For these reasons, we affirm the district court’s dismissal of his application for
We note that the language of section 822.3 has not substantively changed