IN THE COURT OF APPEALS OF IOWA
No. 13-0670
Filed April 30, 2014
LONZO HOWARD,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,
Judge.
Lonzo Howard appeals from the order dismissing his third application for
postconviction relief. AFFIRMED.
Alexander Smith of Burdette Law Firm, P.C., Clive, for appellant.
Lonzo Howard, Anamosa, pro se.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney
General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County
Attorney, for appellee State.
Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013)
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MAHAN, S.J.
Lonzo Howard appeals from the order dismissing his third application for
postconviction relief (PCR). Howard contends the district court erred in granting
the State’s motion for summary disposition. Because Howard’s PCR action is
time-barred, we affirm its dismissal.
Howard was convicted in 2003 of second-degree sexual abuse, and this
court affirmed his direct appeal the following year. State v. Howard, No. 03-
0734, 2004 WL 894127, at *4 (Iowa Ct. App. April 28, 2004). Two PCR actions
and one habeas corpus action followed without success. See Howard v. State,
No. 05-1878, 2007 WL 108904, at *1 (Iowa Ct. App. Jan. 18, 2007) (affirming the
denial of Howard’s first PCR action without opinion). In his petition for habeas
corpus, Howard alleged in part that there is insufficient evidence to support his
conviction. The federal district court’s determination that Howard never
challenged the sufficiency of the evidence supporting his conviction in state
court—and thereby failed to exhaust his remedies, precluding habeas corpus
relief—leads to the present action.
In December of 2011, more than seven years after procedendo was
issued in his direct appeal, Howard filed a third PCR action. In his application, he
alleged his trial, appellate, and PCR counsel were all ineffective in failing to
challenge the sufficiency of the evidence supporting his conviction. The State
moved for summary disposition, alleging the action fell outside the three-year
statute of limitations found in Iowa Code section 822.3 (Iowa 2011) and his claim
did not fall under a recognized exception to the time limitation. After initially
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denying the motion, the district court reconsidered, sustained the motion, and
dismissed the action.
We review the court’s ruling on the State’s statute-of-limitations defense
for correction of errors at law and affirm if the trial court’s fact-findings are
supported by substantial evidence and were correctly applied. See State v.
Harrington, 659 N.W.2d 509, 519 (Iowa 2003). There is no dispute that Howard’s
action falls outside the statute of limitations provided in section 822.3. However,
the time limit 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. To meet this
exception, there must be a possibility of success on the claim. Nguyen v. State,
829 N.W.2d 183, 188 (Iowa 2013).
Howard cannot show a possibility of success on his claim trial counsel
was ineffective in failing to raise a sufficiency-of-the-evidence claim where, as
here, a bench trial was held. See State v. Petithory, 702 N.W.2d 854, 856 (Iowa
2005) (“The district court’s finding of guilt necessarily includes a finding that the
evidence was sufficient to sustain [the defendant]’s conviction.”). Nor can
Howard show he was unable to raise a claim of ineffective assistance of counsel
based on insufficient evidence within the three-year limitation period because the
basis for such a claim existed during that time frame. See Smith v. State, 542
N.W.2d 853, 854 (Iowa Ct. App. 1995) (holding applicant cannot circumvent the
three-year time-bar by claiming ineffective assistance of counsel because
grounds existed and could have been raised within the applicable time period).
In fact, Howard himself filed a motion to enlarge or amend the court’s findings in
his first PCR action, alleging in part that there was insufficient evidence to
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support his conviction. Although the motion was untimely and therefore not ruled
upon, it shows Howard had the ability to raise this claim in a prior, timely PCR
action.
Because the State is entitled to judgment as a matter of law on the
undisputed facts before us, the district court properly granted summary
disposition. See Manning v. State, 654 N.W.2d 555, 559 (Iowa 2002) (noting
court may grant summary disposition when “it appears from the pleadings,
depositions, answers to interrogatories, and admissions and agreements of fact,
together with any affidavits submitted, that there is no genuine issue of material
fact and the [State] is entitled to judgment as a matter of law”). Accordingly, we
affirm.
AFFIRMED.