IN THE COURT OF APPEALS OF IOWA
No. 13-0960
Filed July 30, 2014
CHAD KAMMERUDE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
Applicant appeals the decision of the district court granting summary
judgment to the State on his application for postconviction relief. AFFIRMED.
Samuel M. Degree of Drake Law Firm, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Ralph Potter, County Attorney, and Brigit Barnes, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., Doyle, J., and Sackett, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2
SACKETT, S.J.
The applicant appeals the decision of the district court granting summary
judgment to the State on his application for postconviction relief. The application
for postconviction relief is untimely because it was filed more than three years
after the applicant was sentenced and does not raise a ground of law or fact that
could not have been raised within the applicable time period. We affirm the
decision of the district court granting summary judgment to the State on the
ground the application is barred as untimely.
I. Background Facts & Proceedings
On May 24, 2007, a Dubuque police officer arrested Chad Kammerude for
driving while barred. Subsequent to the arrest, the officer searched
Kammerude’s vehicle and found a plastic bag containing 470.8 grams of
marijuana. Kammerude pled guilty to possession of marijuana with intent to
deliver, in violation of Iowa Code section 124.401(1)(d) (2007), and driving while
revoked, in violation of section 321J.21(1). On October 25, 2007, Kammerude
was sentenced to five years in prison. The sentence was suspended, and he
was placed on probation.1 Kammerude did not appeal.
On May 14, 2012, Kammerude filed an application for postconviction
relief. He recognized that his application was outside the three-year statute of
limitations found in section 822.3 (2011), but argued the United States Supreme
Court case of Arizona v. Gant, 556 U.S. 332 (2009), created a new ground of law
which extended the limitations period. Kammerude argued that under Gant, 556
1
Kammerude’s probation was later revoked for probation violations, and he was
ordered to serve his sentence of five years in prison.
3
U.S. at 351, the search of his vehicle violated his Fourth Amendment rights and
his conviction for possession of marijuana with intent to deliver should be
reversed.
The State filed a motion for summary judgment, claiming Kammerude’s
application for postconviction relief was untimely under section 822.3. After a
hearing, the district court determined the application was untimely and dismissed
the application for postconviction relief. Kammerude now appeals.
II. Standard of Review
We review a district court’s grant of summary judgment in a postconviction
relief action for the correction of errors of law. Castro v. State, 795 N.W.2d 789,
792 (Iowa 2011). To the extent, however, an application raises a constitutional
claim, such as ineffective assistance of counsel, our review is de novo. Id.
III. Merits
Section 822.3 provides, in part:
All other 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 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.
Kammerude was sentenced on October 25, 2007, and his criminal case
was final at that time because he did not appeal. His application for
postconviction relief was filed on May 14, 2012, more than four years later. His
application is therefore untimely under section 822.3 unless his application
comes within the exception for a ground of fact or law “that could not have been
raised within the applicable time period.”
4
Kammerude claims that the mandate for Gant was issued on May 27,
2009. He asserts Gant represented a new ground of law and a new three-year
time period commenced from that date. He claims his application, filed on May
14, 2012, was filed within this three-year period and thus is timely. Kammerude’s
theory is not supported by legal precedent and does not comport with the
language of the statute.
The exception in section 822.3 applies to “a ground of fact or law that
could not have been raised within the applicable time period.” (Emphasis
added.) “A reasonable interpretation of the statute compels the conclusion that
exceptions to the time bar would be, for example, newly-discovered evidence or
a ground that the applicant was at least not alerted to in some way.” Perez v.
State, 816 N.W.2d 354, 360 (Iowa 2012). The exception does not apply to
issues that were in existence during the three-year period and were available to
be addressed. Lopez-Penaloza v. State, 804 N.W.2d 537, 542 (Iowa Ct. App.
2011).
As noted above, Kammerude was sentenced on October 25, 2007. He
thus had until October 25, 2010, to file an application for postconviction relief
concerning all issues that were in existence during that three-year time period.
See id. The decision in Gant was filed on April 21, 2009, well within the
applicable time limitation.2 Setting aside the issue of whether Gant, 556 U.S. at
351, expressed a new rule of law, it does not represent a ground of law “that
2
We do not accept Kammerude’s arguments concerning using the date the mandate
was issued, rather than the filing date. See State v. Harris, 741 N.W.2d 1, 9 (Iowa 2007)
(noting opinions are binding on the day they are filed). Even if the date the mandate was
issued, May 27, 2009, was used, however, this is still within the three-year time period
after Kammerude was sentenced.
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could not have been raised within the applicable time period.” See Iowa Code
§ 822.3. Kammerude’s claims based on Gant could have been raised within the
three-year limitations period. His claims do not come within the exception to the
limitations period found in section 822.3, and we conclude his application for
postconviction relief was untimely.
Likewise, Kammerude’s claim he received ineffective assistance because
defense counsel did not file a motion to suppress evidence collected in the
search of his vehicle is barred by the three-year statute of limitations. His claims
of ineffective assistance of counsel could have been raised within the applicable
time period. See Fuhrmann v. State, 433 N.W.2d 720, 723 (Iowa 1988); Lopez-
Penaloza, 804 N.W.2d at 542.
We affirm the decision of the district court granting summary judgment to
the State on Kammerude’s application for postconviction relief on the ground the
application is barred as untimely.
AFFIRMED.