IN THE COURT OF APPEALS OF IOWA
No. 16-1220
Filed June 21, 2017
DANNY RAY LONG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.
Larson, Judge.
Danny Long appeals the district court’s dismissal of his application for
postconviction relief. AFFIRMED.
Patrick A. Sondag of Sondag Law, Council Bluffs, 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
VAITHESWARAN, Judge.
A jury found Danny Long guilty of two counts of first-degree robbery. This
court affirmed his conviction in its entirety. See generally State v. Long, No. 99-
1429, 2000 WL 1827178, at *1-6 (Iowa Ct. App. Dec. 13, 2000). Thirteen years
after procedendo issued, Long filed his second postconviction relief application.
The State moved for summary dismissal. The district court granted the motion
after concluding Long “failed to file his application within the three-year statute of
limitations provided under Iowa Code section 822.3” (2015) and “failed to raise a
ground of fact or law that could not have been raised within the statute of
limitations period.”
Long filed a “motion for expanded findings and relief” pursuant to Iowa
Rule of Civil Procedure 1.904. The district court denied the motion, and this
appeal followed.
I. Timeliness of Appeal
As a preliminary matter, the State argues Long’s appeal is untimely
because it was not “filed within 30 days after the filing of the final order or
judgment.” Iowa R. App. P. 6.101(1)(b). The State acknowledges Long filed a
postjudgment motion to enlarge or amend that could extend the time for filing an
appeal notice. See id. (“[I]f a motion is timely filed under Iowa R. Civ. P. 1.904(2)
. . . , the notice of appeal must be filed within 30 days after the filing of the ruling
on such motion.”). But, in the State’s view, the motion was not “proper.” See In
re Marriage of Okland, 699 N.W. 2d 260, 265-66 (Iowa 2005) (“[A]n . . . improper
rule 1.904(2) motion cannot extend the time for appeal.” (footnote omitted)).
3
The State is correct that a rule 1.904(2) motion is not available under
certain circumstances and the filing of an improper motion will not toll the time for
appeal. Id. at 265-66, 265 n.2.1 But, “when 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),” which requires
written findings of fact and conclusions of law where the court is trying an issue
of fact without a jury, “the motion is proper and will toll the time for appeal.” Baur
v. Baur Farms, Inc., 832 N.W.2d 663, 669 (Iowa 2013).
The district court filed a succinct dismissal order. In his rule 1.904(2)
motion, Long pointed to testimony and exhibits admitted at the dismissal hearing
that, in his view, generated issues of material fact with respect to the legal issues
he raised. In filing the motion, Long reasonably could have believed the court
overlooked these facts. We conclude the motion was proper, the motion
extended the time for filing a notice of appeal, and the notice of appeal was
timely. Moreover, rule 1.904 was amended effective March 1, 2017, as was Iowa
Rule of Appellate Procedure 6.101, to permit an appeal within thirty days of a
ruling on such a motion without the necessity of examining the propriety of the
motion. See Iowa R. Civ. P. 1.904 & cmt. (2017); Iowa R. App. P. 6.101 & cmt.
(2017).
II. Summary Dismissal
Generally, applications for postconviction relief
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
1
As will be discussed, this case law has been superseded by rule.
4
a ground of fact or law that could not have been raised within the
applicable time period.
Iowa Code § 822.3. Long concedes his postconviction relief application was filed
well outside the three-year limitations period but relies on the “ground of fact”
exception to the time-bar to raise a challenge to certain jury instructions. In his
view, this exception applies because “he knew absolutely nothing about the
instructional errors made during his trial within his limitations period.”
Lack of awareness is not a basis for circumventing the time-bar. See
Lopez-Penaloza v. State, 804 N.W.2d 537, 542 (Iowa Ct. App. 2011) (concluding
subsequent discovery of matters that existed within limitations period, and thus
available to be addressed then, are not a ground for exception from the statute of
limitations); State v. Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989) (“[H]is
claimed lack of knowledge is not . . . a ground for exception from the effects of
the statute of limitations.”).
Long next argues his trial attorney was ineffective in failing to challenge
the instructions at trial. Claimed ineffective assistance does not allow him to
avoid the limitations period. See State v. Wilkins, 522 N.W.2d 822, 824 (Iowa
1994) (rejecting applicant’s attempt to label his claim an ineffective-assistance-of-
counsel claim “in the hope that the court will reach the merits”); Smith v. State,
542 N.W.2d 853, 854 (Iowa Ct. App. 1995) (stating applicant could not
“circumvent the three-year time-bar by claiming ineffective assistance of
postconviction counsel”). As this court stated in Smith, “The legal and factual
underpinnings of each of Smith’s claims were in existence during the three-year
period . . . .” 542 N.W.2d at 854.
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We also find no basis for Long’s claim that “the errant [jury] instructions”
generated structural error and this type of error should constitute an exception to
the time-bar. The court of appeals rejected a similar assertion in Avina v. State,
where we concluded section 822.3 “does not provide an exception for . . .
‘structural errors.’” No. 11-1780, 2013 WL 1452949, at *3 (Iowa Ct. App. Apr. 10,
2013). We also declined to shoehorn a structural error analysis into the “ground
of fact” exception to the time-bar because the applicant “knew, within the
limitations period” of the underlying basis for the claimed structural error. Id.
Avina is persuasive authority in support of our conclusion.
Finally, Long invokes the equitable tolling doctrine to avoid the time-bar.
“We have not applied this doctrine to section 822.3.” James v. State, 858
N.W.2d 32, 33 (Iowa Ct. App. 2014).
We affirm the summary dismissal of Long’s postconviction relief
application.
AFFIRMED.