IN THE COURT OF APPEALS OF IOWA
No. 17-0869
Filed June 20, 2018
TRACY LYNN HARDIN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Richard B. Clogg,
Judge.
Tracy Hardin appeals the dismissal of her second application for
postconviction relief. AFFIRMED.
Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
2
DANILSON, Chief Judge.
On July 16, 1995, Tracy Lynn Hardin broke into her husband’s house
through a window, shot and wounded her husband, ran upstairs, and fired four
more shots, three of which struck her husband’s girlfriend, killing her. Alfredo
Parrish represented Hardin during her trial on charges of first-degree murder and
attempted murder. See State v. Hardin, 569 N.W.2d 517, 519 (Iowa Ct. App.
1997). Hardin asserted the defenses of insanity and diminished responsibility. Id.
She was convicted of first-degree murder and willful injury. Id. at 522. On direct
appeal, Hardin raised issues concerning the physician-patient privilege, error in
granting a trial continuance to the State, jury admonition and instruction concerns,
and misconduct of counsel during closing arguments. Id. at 519-22. This court
affirmed her convictions, see id. at 522, and procedendo issued on October 10,
1997.
Hardin filed her first application of postconviction relief (PCR) in 1998, and
Unes J. Booth was appointed to represent her. Of the several issues initially
raised, PCR counsel pursued and presented evidence on three claims of
ineffective assistance of prior counsel:
(1) failure to object to misconduct by the prosecutor in presenting
false expert testimony regarding the sequence of the four shots fired
upstairs; (2) failure to investigate and present forensic evidence
regarding the order in which the shots were fired, and (3) failure to
request the court stop the trial and order a hearing to determine
Hardin’s competency to continue with the trial.
Hardin v. State, No. 03-1089, 2004 WL 2947440, at *1 (Iowa Ct. App. Dec. 22,
2004). After trial on the merits, the PCR court denied the application. Id.
3
Hardin appealed, and Theresa Wilson from the appellate defender’s office
was appointed to represent her. See id. On appeal, appellate counsel asserted
all new ineffectiveness issues:1
(1) failure of PCR trial counsel to have Hardin testify at the PCR trial,
(2) failure of trial and appellate counsel to object to [an expert
witness’s] testimony on the ultimate issues of insanity and
diminished responsibility, and (3) failure of trial and appellate counsel
to object to the jury instruction on insanity.
Id. The PCR ruling was affirmed on appeal, and procedendo issued on March 24,
2005.
In 2014, Hardin filed this PCR application, which raised a number of
ineffective-assistance claims aimed at her trial counsel, appellate counsel, first
PCR counsel, and first PCR appellate counsel. The PCR court found Hardin’s
claims were time-barred by Iowa Code section 822.3 (2014), and no exceptions
1
In this second PCR action, Wilson explained:
I don’t have a specific recollection of this particular case, but I can tell you
I would have looked at what was raised at the trial level, and as I recall, Al
Parrish did the trial and he’s a very thorough attorney. So I would have
looked at what issues had already been fairly well-litigated, whether or not
there was any avenue I thought that I could relitigate those issues. This
case, as I recall, was primarily a mental defense case, not a sufficiency
case, so the focus was on mental defenses.
....
Q. Would you agree with me that you didn’t raise any of the issues
that had been raised at the trial level post-conviction? A. I agree.
Q. Can you tell me why you handled the appeal in that way? A. I’d
have to recreate my mindset back then, but what I assume it was that the
issues addressed at trial—at the appeal had been fully litigated or required
additional record, is usually why I wouldn’t raise it, and was consistent with
the law at the time. The post-conviction, the only part that troubled me was
the fact that she wasn’t allowed to testify, and I tried to address that, and
unfortunately this was pre the case law that the applicant has a right to
present evidence at the post-conviction pro se.
So my guess is that on my review of the trial record and appellate
record, the initial appellate record, there was just no reasonable argument
to be made.
4
were applicable. Hardin appeals, contending the district court erred in finding her
claims time-barred.
We review a PCR dismissal applying summary judgment standards.
Schmidt v. State, 909 N.W.2d 778, 784 (Iowa 2018). Thus, summary judgement
is proper “if the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show . . . there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a matter of
law.” Iowa R. Civ. P. 1.981(3). The moving party bears the burden of showing
that no material fact exists. C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65,
73 (Iowa 2011). We view the record in the light most favorable to the nonmoving
party, including all legitimate inferences. Schmidt, 909 N.W.2d at 784.
The PCR statute provides that applications “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.” Iowa Code § 822.3. There is no
genuine issue of material fact that Hardin’s second PCR application was filed more
than three years after “the date the conviction or decision is final or, in the event of
an appeal, from the date the writ of procedendo is issued.” Id. § 822.3; see also
Iowa R. Civ. P. 1.981(3). She acknowledges “the filing of this current application
does fall outside the three-year statute of limitations” and that all of the issues
raised in it had previously been timely filed or could have been timely filed. See
Iowa Code § 822.3 (providing an exception for claims of “a ground of fact or law
that could not have been raised within the applicable time period”). Thus, her claim
is time-barred.
However, Hardin argues,
5
The [Iowa] State Public Defender system has invaded Hardin’s right
to effective counsel, her rights to equal protection, and her rights to
due process in violation of the Sixth and Fourteenth Amendments of
the United States Constitution, and article I, sections 6, 9, and 10 of
the Iowa Constitution, as such she has been unable to challenge her
murder conviction on postconviction relief.
In support of Hardin’s claim, she presented the affidavit and testimony of Gordon
Allen, who noted PCR applicants do not have the absolute right to substitute
counsel of their choosing and that resources for inmates to conduct their own legal
research are “extremely limited.”
In essence, Hardin contends the concept of equitable tolling should save
her petition. “Our court has repeatedly noted the doctrine of equitable tolling does
not apply to section 822.3.”2 Larimer v. State, No. 17-0276, 2018 WL 739301, at
*1 n.1 (Iowa Ct. App. Feb. 7, 2018) (application for further review seeking
recognition of equitable tolling denied Apr. 4, 2018). Although Hardin’s arguments
for adopting the doctrine have some appeal, because the supreme court has not
adopted the doctrine, we do not apply it now.
AFFIRMED.
2
See James v. State, 858 N.W.2d 32, 33 (Iowa Ct. App. 2014) (noting we have not applied
the equitable tolling doctrine to avoid the three-year time bar found in Iowa Code section
822.3); see also McCullough v. State, No. 17-0434, 2018 WL 346463, at *1 (Iowa Ct. App.
Jan. 10, 2018) (same); Long v. State, No. 16-1220, 2017 WL 2684345, at *2 (Iowa Ct.
App. June 21, 2017) (same); Harrington v. State, No. 16-0953, 2017 WL 2684340, at *1
(Iowa Ct. App. June 21, 2017) (same); Perdue v. State, No. 15-1237, 2016 WL 4036173,
at *1 (Iowa Ct. App. July 27, 2016) (same); Weatherly v. State, No. 15-0681, 2016 WL
1366827, at *1 (Iowa Ct. App. Apr. 6, 2016) (same); Everett v. State, No. 12-1032, 2014
WL 3749338, at *2 (Iowa Ct. App. July 30, 2014) (same); Majors v. State, No. 12-1090,
2013 WL 2637599, at *5 (Iowa Ct. App. June 12, 2013) (same); Fagan v. State, No. 10-
0739, 2012 WL 3854635, at *1 (Iowa Ct. App. Sept. 6, 2012) (same); Lawrence v. State,
No. 10-1238, 2011 WL 768785, at *2 (Iowa Ct. App. Mar. 7, 2011) (same); Stringer v.
State, No. 08-0188, 2008 WL 5235491, at *2 (Iowa Ct. App. Dec. 17, 2008) (same).