IN THE COURT OF APPEALS OF IOWA
No. 13-1010
Filed May 14, 2014
RODERICK DWAYNE CHISLEY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Michael S.
Walsh, Judge.
An applicant appeals the dismissal of his second application for
postconviction relief. AFFIRMED.
Rees Conrad Douglas, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, and Patrick Jennings, County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mullins, JJ.
2
MULLINS, J.
Roderick Chisley appeals the district court’s denial of his second
application for postconviction relief (PCR). He asserts his appellate counsel on
his first PCR application rendered ineffective assistance by telling him that he did
not need to seek further review of our court’s affirmance of the district court’s
denial of his first PCR application in order to seek habeas corpus relief in the
federal court. His habeas corpus application was denied based in part on his
failure to exhaust state remedies. In his second PCR action, he sought a new
trial on his first PCR application in order to exhaust his state remedies on those
claims so that he can again seek habeas corpus relief.
The district court denied his current PCR application based on the three-
year statute of limitations for PCR actions found in Iowa Code section 822.3
(2011). The court found the claim he now raises does not fit within the exception
to the three-year bar because the claim does not involve any new evidence or
involve any new legal claims that relate to or affect his conviction. See
Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003) (“[T]he applicant must also
show a nexus between the asserted ground of fact and the challenged
conviction.”). In addition, the court concluded section 822.8 barred Chisley’s
second application. This section provides:
All grounds for relief available to an applicant under this
chapter must be raised in the applicant’s original, supplemental or
amended application. Any ground finally adjudicated or not raised,
or knowingly, voluntarily, and intelligently waived in the proceeding
that resulted in the conviction or sentence, or in any other
proceeding the applicant has taken to secure relief, may not be the
basis for a subsequent application, unless the court finds a ground
for relief asserted which for sufficient reason was not asserted or
3
was inadequately raised in the original, supplemental, or amended
application.
Iowa Code § 822.8.
In federal court Chisley already raised the issue of his PCR appellate
counsel’s erroneous advice—that he did not need to file for further review in
order to pursue his habeas corpus claim—when he was faced with a motion for
summary judgment. The federal court rejected the claim that counsel’s
ineffectiveness excused his failure to exhaust his state remedies, concluding
because there is no constitutional right to an attorney in PCR proceedings, he
cannot claim ineffective assistance excused his procedural default. See
Armstrong v. Iowa, 418 F.3d 924, 927 (8th Cir. 2005) (holding that an attorney’s
error does not constitute cause to excuse a procedural default unless the
attorney’s performance was constitutionally deficient and confirming there is no
Sixth Amendment right to the effective assistance of postconviction counsel); see
also Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011) (noting a PCR applicant as
a statutory, not constitutional, right of effective assistance of counsel on
postconviction relief).
Because we agree with the district court that Chisley’s second application
is untimely under section 822.3 and he is precluded by section 822.8 from
reasserting the same claims, we affirm the district court’s decision pursuant to
Iowa Court Rule 21.26(1)(d).
AFFIRMED.