IN THE COURT OF APPEALS OF IOWA
No. 17-0224
Filed December 20, 2017
CHARLES HENRY ARMSTRONG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Susan K.
Christensen, Judge.
Charles Armstrong appeals the summary dismissal of his second
postconviction relief application, claiming newly discovered evidence.
AFFIRMED.
Drew H. Kouris, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
2
VAITHESWARAN, Presiding Judge.
A jury found Charles Henry Armstrong guilty of second-degree murder in
the beating death of another man. This court affirmed his judgment and sentence
and procedendo issued in 2010. State v. Armstrong, No. 08-2065, 2009 WL
5125916, at *1 (Iowa Ct. App. Dec. 30, 2009). This court also affirmed the district
court’s denial of Armstrong’s first postconviction relief application. Armstrong v.
State, No. 13-1985, 2015 WL 4642164, at *4 (Iowa Ct. App. Aug. 5, 2015).
Armstrong filed a second postconviction relief application in 2016. He
asserted newly discovered evidence “in the form of witness testimony from Hubert
Garrett” required the court to vacate his conviction. The State moved for summary
dismissal of the application. The State cited Iowa Code section 822.3 (2016),
which requires applications for postconviction relief 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,” unless the application raises “a ground
of fact or law that could not have been raised within the applicable time period.”
The district court granted the State’s motion.
On appeal, Armstrong essentially concedes the second postconviction relief
application was filed outside the three-year limitations period but reiterates his
assertion that newly discovered evidence should have precluded dismissal. A
newly discovered evidence claim could implicate the “ground-of-fact” exception to
the three-year limitations period. See Wilkins v. State, 522 N.W.2d 822, 824 (Iowa
1994). But “an applicant relying on section 822.3 must show the alleged ground
of fact could not have been raised earlier.” Harrington v. State, 659 N.W.2d 509,
520 (Iowa 2003).
3
Garrett’s testimony could have been raised earlier. Garrett was present at
the scene, was listed as a co-defendant, and pled guilty to crimes arising from the
incident. He was known to Armstrong. See Jones v. Scurr, 316 N.W.2d 905, 910
(Iowa 1982).
We recognize Garrett could have invoked his right against self-incrimination
to avoid testifying in Armstrong’s trial and, if he had, he would have been
unavailable for trial. But known, unavailable exculpatory evidence “is not newly
discovered evidence.” Id.; see also State v. Fox, 491 N.W.2d 527, 534 (Iowa 1992)
(“It was clear in Jones—as here—that the defendant knew of the general nature of
the codefendant’s testimony at the time of the defendant’s trial.”).
In any event, Garrett’s testimony was not exculpatory. Following
Armstrong’s trial, Garrett submitted to a deposition in connection with a co-
defendant’s case in which he unequivocally implicated Armstrong in events leading
up to the murder. In a more recent deposition, he essentially reaffirmed his earlier
testimony and disavowed statements he made that might have been construed as
exculpating Armstrong.
We conclude the district court did not err in finding Garret’s evidence was
not newly discovered and in concluding the ground-of-fact exception to the three-
year time bar was inapplicable. We affirm the court’s summary dismissal of
Armstrong’s second postconviction relief application.
AFFIRMED.