JIMMY LEE ALLEN, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA No. 2-560 / 11-0209 Filed October 31, 2012 JIMMY LEE ALLEN, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. The applicant appeals the denial of his application for postconviction relief as untimely. AFFIRMED. Kevin E. Hobbs, West Des Moines, for appellant. Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Joe Weeg, Assistant County Attorney, for appellee State. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Tabor, J., takes no part. 2 VAITHESWARAN, P.J. Jimmy Allen appeals the dismissal of his application for postconviction relief as untimely. I. Background Proceedings Allen was found guilty of first-degree murder in 1982. In the ensuing thirty years, he made several efforts to have his judgment and sentence set aside. That procedural history is detailed in this court s previous opinion, Allen v. State, No. 07-1116, 2008 WL 2200054, at *1 (Iowa Ct. App. May 29, 2008). Allen s prior appeal raised a challenge to the district court s summary dismissal of his second application for postconviction relief. Allen argued the district court failed to consider 141 pages of newly discovered evidence that he contended fell within the ground-of-fact exception to the applicable threeyear time bar. Iowa Code § 822.3 (2003). This court partially agreed with Allen and remanded the case to the district court for an evidentiary hearing on . . . the applicability of the ground-of-fact exception and, specifically, whether those records could have been discovered within the applicable time period in the exercise of due diligence. Allen, 2008 WL 2200054, at *5. On remand, the district court held an evidentiary hearing to determine what was included in the 141 pages and to decide whether the documents could have been discovered during the three-year limitations period. After reviewing the pages Allen identified, the court concluded that all of the documents could have been discovered during that period. The court dismissed the application as untimely, and this appeal followed. 3 II. Ground-of-Fact Exception Iowa Code section 822.31 requires applications for postconviction relief to 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. 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. A ground of fact would present itself if, for example, newly-discovered evidence became known, and it appeared that it was of the type that would be relevant. State v. Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989). The district court characterized Allen s newly discovered evidence as a moving target. We agree with this characterization. In 2001, the Des Moines Police Department identified 141 pages that were responsive to a request for documents submitted by Allen. The department sent those documents to Allen. At the remand hearing, the prosecutor attempted to pin Allen down on the documents he believed were newly discovered. His efforts amounted to an exercise in futility. At the end of the hearing, it became clear that the documents were not newly discovered. First, a list prepared by Allen and titled the 141 pages of documents that were obtained from the Des Moines Police Department in September of 2001, identified far more than 141 pages.2 1 Although this statute was enacted after Allen s conviction and appeal became final, our supreme court held in Brewer v. Iowa District Court, 395 N.W.2d 841, 844 (Iowa 1986), that all potential postconviction applicants whose convictions became final prior to July 1, 1984, must file their applications for postconviction relief on or before June 30, 1987, or be barred from relief. 2 The list was admitted at the postconviction relief hearing and is attached to this opinion. 4 Second, the packet of documents purportedly received from the department contained papers that were not generated by the department, such as a summary of provisions from the 1981 Iowa Code in an identical font as the font used by Allen in his pro se filings and a copy of an envelope postmarked April 1, 2006, and addressed to a district court judge, with the return address listed as the Fort Dodge Correctional Facility. Third, Allen s first postconviction attorney confirmed that he did indeed see the documents included in the 141 pages at the time of the first postconviction hearing. He categorically stated that he obtained every police report and further testified, I know that I was aware of all of the information that appears in my review of the 141 pages. Cf. Harrington v. State, 659 N.W.2d 509, 517 18 (Iowa 2003) (determining police reports were newly discovered evidence where postconviction counsel testified he had never seen the reports before despite requesting them from the police department). He also contradicted Allen s testimony that certain medical records included in the packet were not known within the limitations period. Finally, while Allen initially denied seeing any of the 141 pages (except the material witness complaint) before they were produced by the department in 2001, a 1988 pro se filing belies this assertion. In that filing, he cited a police report authored by an officer identified as Shaver, statements taken from Sally and Karen Galageous, and a statement taken from Craig Olson, all of which were in the department s 2001 production. Notably, the 141 pages presented to the district court on remand also included documents that were introduced as deposition exhibits in 1988 during Allen s first postconviction relief proceeding 5 and were marked with exhibit stickers. And, of even greater note, Allen ultimately admitted he could not say for sure whether some of the documents were produced by the county attorney and were in the possession of his attorneys. Allen attempts to overcome these hurdles by arguing, It is probable that if [postconviction counsel] had received all of the police reports contained in the 141 pages he would have used the relevant reports to further support one of his arguments. However, we have stated that when a claim could have been discovered upon reasonable investigation, failure to timely pursue it is not excused merely because the evidence ultimately discovered might have strengthened the claim. Cornell v. State, 529 N.W.2d 606, 611 (Iowa Ct. App. 1994). Allen had the burden of establishing that his claim fell within the ground-offact exception to the three-year time bar. See id. at 610 ( A party claiming an exception to a normal limitations period must plead and prove the exception. ). On this record, we have no trouble concluding he failed to satisfy his burden. We conclude the 141 pages did not implicate the ground-of-fact exception to the three-year time bar set forth in section 822.3. Accordingly, we affirm the district court s dismissal of Allen s second postconviction relief application as untimely.3 AFFIRMED. 3 Allen alternately asks us to overrule an Iowa Supreme Court opinion, Dible v. State, 557 N.W.2d 881, 886 (Iowa 1996) abrogated on other grounds by Harrington, 659 N.W.2d at 521. There, the court held that ineffective assistance of postconviction relief counsel is not a ground of fact within the meaning of section 822.3. Id. This is not our prerogative. See State v. Eichler, 83 N.W.2d 576, 578 (Iowa 1957) (stating it was the prerogative of the supreme court, rather than the lower court, to determine the law and if previous holdings are to be overruled, we should ordinarily prefer to do it ourselves ). 6 7
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