IN THE COURT OF APPEALS OF IOWA
No. 16-0463
Filed June 21, 2017
KEITH C. WALKER,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J.
Dryer, Judge.
Keith Walker appeals the district court’s dismissal of his application for
postconviction relief. AFFIRMED.
Tod J. Deck of Deck Law, Sioux City, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
2
VAITHESWARAN, Judge.
Keith Walker was found guilty of first-degree murder in 1990, and his
conviction was affirmed in 1992. He filed his fifth application for postconviction
relief in 2013. The State moved to dismiss the application as time-barred.
Following a hearing, the district court concluded, “All of Mr. Walker’s claims are
barred by the statute of limitations.” Walker appealed.
Iowa Code section 822.3 (2013) requires most postconviction relief
applications 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.” Walker’s fifth application was filed twenty-one years after
procedendo issued. It was untimely.
Walker “now asserts that the statute of limitations is an affirmative defense
that was waived when not raised in a timely manner by the [S]tate.” He relies on
Iowa Code section 822.6, which states: “Within thirty days after the docketing of
the application, or within any further time the court may fix, the state shall
respond by answer or by motion . . . .” We decline to address this argument
because it was not asserted below. See Nguyen v. State, 829 N.W.2d 183, 187
(Iowa 2013); Top of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa
2000) (“In view of the range of interests protected by our error preservation rules,
this court will consider on appeal whether error was preserved despite the
opposing party’s omission in not raising this issue at trial or on appeal.”).
Walker also contends his “application has merit and he was not sufficiently
informed of the district court’s intention to summarily dispose of his application.”
To the contrary, the district court afforded Walker the opportunity to resist the
3
motion and granted a hearing on the motion at which Walker voiced his own
views in addition to the views expressed by his attorney.
Walker next argues “summary judgment was improper . . . because [his]
application state[d] issues of material fact,” “[t]he law under which [he] was
convicted has changed significantly,” and “he should be afforded an opportunity
to be heard on the merits of his application.” Walker makes no further argument
on this point. Reading between the lines, we assume he disputes the
postconviction court’s conclusion that his Heemstra challenge to a felony-murder
jury instruction fell outside the limitations period. See State v. Heemstra, 721
N.W.2d 549, 558 (Iowa 2006) (holding “if the act causing willful injury is the same
act that causes the victim’s death, the former is merged into the murder and
therefore cannot serve as the predicate felony for felony-murder purposes”); see
also Iowa Code § 822.3 (stating “limitation does not apply to a ground of fact or
law that could not have been raised within the applicable time period”); Nguyen,
829 N.W.2d at 188 (holding the three-year limitations period in section 822.3 did
not bar the applicant’s constitutional challenge to his felony-murder instruction
based on the holding of Heemstra because Heemstra constituted a ground of law
that could not have been raised within the applicable time period).
We discern no error in the postconviction court’s conclusion. Although the
Iowa Supreme Court recognized that a Heemstra-style challenge could fall within
the “ground of law” exception to the three-year time bar, the court essentially held
such a challenge would need to be raised within three years of Heemstra. See
Nguyen v. State, 878 N.W.2d 744, 749-50 (Iowa 2016) (“Since Nguyen had filed
his application for postconviction relief within three years, his claims as to
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retroactivity were not time-barred.”); see, e.g., Burkett v. State, No. 14-0998,
2015 WL 5278970, at *1-3 (Iowa Ct. App. Sept. 10, 2015); Thompson v. State,
No. 14-0138, 2015 WL 1332352, at *1 (Iowa Ct. App. Mar. 25, 2015). Walker’s
fifth postconviction application was not filed within three years of the Heemstra
opinion. His claim based on Heemstra is time-barred.1
We turn to Walker’s pro se arguments based on Lado v. State, 804
N.W.2d 248 (Iowa 2011). In Lado, the supreme court held a postconviction
attorney’s failure to seek a continuance or to have a postconviction relief
application reinstated following the issuance of a notice of automatic dismissal
under Iowa Rule of Civil Procedure 1.944 constituted a breach of an essential
duty and amounted to structural error. 804 N.W.2d at 251-53. Walker raised the
identical issue in his first application for postconviction relief, which preceded the
filing of Lado. The Iowa Supreme Court rejected the argument. See Walker v.
State, 572 N.W.2d 589, 589-90 (Iowa 1997). Having finally adjudicated the
issue, Walker is barred from raising the same ground for relief. See Iowa Code §
822.8 (“Any ground finally adjudicated . . . may not be the basis for a subsequent
application, unless the court finds a ground for relief asserted which for sufficient
reason was . . . inadequately raised in the original . . . application”).2 The State
1
In addition, we previously rejected this claim. See Walker v. State, No. 07-0541, 2008
WL 2357720, at *3 (Iowa Ct. App. June 11, 2008). And, the Iowa Supreme Court
rejected Walker’s constitutional challenge to prospective application of Heemstra, stating
“the nonretroactive application of Heemstra does not violate the due process, separation
of powers, or equal protection clauses of the Iowa Constitution or the Equal Protection
Clause of the United States Constitution.” Nguyen, 878 N.W.2d at 759.
2
Based on Lado, this court reversed the automatic dismissal of postconviction relief
applications in Hrbek v. State, No. 13-1619, 2015 WL 6087572, at *3 (Iowa Ct. App. Oct.
14, 2015) and Friedley v. State, No. 11-1782, 2013 WL 988628, at *2 (Iowa Ct. App.
Mar. 13, 2013). However, the applicants in those cases had not previously adjudicated
the issue and obtained final appellate opinions.
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raised this alternative basis for dismissing the Lado claim in the district court. We
affirm the district court on this ground.
Finally, Walker argues his postconviction attorney was ineffective in
declining to pursue his Lado argument. As noted, the postconviction court gave
Walker the opportunity to supplement his attorney’s statements. Walker spoke
extensively about Lado, structural error, and the effect of Lado on his case.
Accordingly, he cannot establish Strickland prejudice. See Strickland v.
Washington, 466 U.S. 668, 687, 691-96 (1984).
We affirm the dismissal of Walker’s postconviction relief application.
AFFIRMED.