IN THE COURT OF APPEALS OF IOWA
No. 16-0371
Filed May 3, 2017
JAMES DEAN RAYMOND,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, DeDra L.
Schroeder, Judge.
An applicant appeals the district court’s denial of his second
postconviction-relief proceeding. AFFIRMED.
Sarah A. Reindl of Reindl Law Firm, Mason City, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
2
VOGEL, Judge.
James Raymond was convicted of first-degree murder in 2006.
Procedendo from his direct appeal from his conviction was issued April 1, 2008.
See State v. Raymond, No. 06-2059, 2008 WL 141184, at *1 (Iowa Ct. App. Jan.
16, 2008). Raymond filed his first postconviction-relief (PCR) proceeding in
November 2008. Following a bench trial, the district court denied the PCR
application, and we affirmed that denial on appeal. See Raymond v. State, No.
12-1174, 2013 WL 4474479, at *1 (Iowa Ct. App. Aug. 21, 2013). Subsequently,
on March 3, 2014, Raymond filed a second PCR application. On January 6,
2016, the district court denied that action following a bench trial. Raymond once
again appeals1 claiming the district court erred in concluding his second PCR
action is time-barred and that a Brady2 violation did not occur during his criminal
proceeding.
For a PCR action to be timely, it must be filed within three years of the
date the conviction was final or the date the writ of procedendo was issued if the
conviction was appealed. See Iowa Code § 822.3 (2014). “However, this
limitation does not apply to a ground of fact or law that could not have been
raised within the applicable time period.” Id. While Raymond’s second PCR
action was clearly filed outside the three-year limitation, he asserts newly
1
The State contends this appeal is untimely because Raymond’s posttrial motion under
Iowa Rule of Criminal Procedure 1.904(2) was improper. We conclude the properly filed
posttrial motion in this case tolled the appeal deadline. Baur v. Baur Farms, Inc., 832
N.W.2d 663, 669 (Iowa 2013) (“[W]hen used to obtain a ruling on an issue that the court
may have overlooked, or to request the district court enlarge or amend its findings when
it fails to comply with rule 1.904(1), the motion [under rule 1.904(2)] is proper and will toll
the time for appeal.”).
2
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding prosecutors have a duty to
disclose material evidence to the accused upon request)
3
discovered evidence, specifically polygraph-examination reports of two of the
State’s witnesses—Charles Gallmeyer and Michael Gallmeyer—and a video of
Charles Gallmeyer’s polygraph examinations, tolls the statute of limitations under
the new-ground-of-fact exception.3 See id. To establish the exception to the
three-year statute of limitations, Raymond “must show the alleged ground of fact
could not have been raised earlier” and “must show the ground of fact is relevant
to the challenged conviction.” Harrington v. State, 659 N.W.2d 509, 520–21
(Iowa 2003).
Our appellate courts have previously observed that the objective of
the escape clause of section 822.3 is to provide relief from the
limitation period when an applicant had “no opportunity” to assert
the claim before the limitation period expired. . . . [T]he focus of our
inquiry has been whether the applicant was or should have been
“alerted” to the potential claim before the limitation period expired.
Cornell v. State, 529 N.W.2d 606, 611 (Iowa Ct. App. 1994) (citations omitted).
Raymond asserts that it was only through the “dogged pursuit” of his
second PCR counsel in this proceeding that he was able to obtain both the
polygraph-examination reports and the video recording from the State. However,
it is clear from a review of the trial transcript that defense counsel was aware the
witnesses in question underwent polygraph examinations and questioned
witnesses regarding the results of those examinations at trial. While counsel
3
The State also asserts Raymond did not preserve error on this claim. Raymond did
raise the new-ground-of-fact exception in his trial reply brief before the district court in
response to the State’s claim in its trial brief that this PCR action was barred by the
three-year statute of limitations. While the district court did not rule on the new-ground-
of-fact exception to the statute of limitations in its PCR decision, Raymond again raised
the issue in his posttrial motion under rule 1.904(2), which was denied by the district
court. We thus conclude the issue was preserved for appellate review. See Lamasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“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.”).
4
may not have the polygraph-examination reports or the video of the examination
at the time of trial, counsel was at least “alerted” to the potential existence of
these items. See id. Assuming the polygraph-examination reports and the
polygraph-interview video were withheld by the prosecution at the time of trial,
nothing prevented Raymond from obtaining the reports and video within the
three-year PCR period. Prior PCR counsel’s ineffectiveness does not satisfy the
new-ground-of-fact exception to the three-year statute of limitations. Smith v.
State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995) (“[A]n applicant for
postconviction relief cannot circumvent the effect of the three-year time bar by
merely claiming the ineffective assistance of postconviction counsel.” (citing
Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994))).
In addition, we agree with the district court’s alternate holding that even
assuming Raymond can avoid the application of the statute of limitations, he
cannot prove a Brady violation because defense counsel knew of the essential
facts that the witnesses underwent polygraph examinations and that in particular
Charles Gallmeyer’s polygraph examination indicated he was being deceptive;
defense counsel questioned Charles Gallmeyer and the investigating officer
regarding the deception. Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988)
(“Exculpatory evidence is not ‘suppressed’ if the defendant either knew or should
have known of the essential facts permitting him to take advantage of the
evidence.”).
We thus conclude the district court correctly denied Raymond’s second
PCR application.
AFFIRMED.
James Dean Raymond, Applicant-Appellant v. State of Iowa
Combined Opinion