IN THE COURT OF APPEALS OF IOWA
No. 17-0382
Filed August 1, 2018
MICHAEL KELLY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
The applicant appeals from the dismissal of his third application for
postconviction relief. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Stephen P. Dowil of McEnroe, Gotsdiner, Brewer, Steinbach & Rothman,
P.C., West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., McDonald, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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POTTERFIELD, Presiding Judge.
Michael Kelly appeals the dismissal of his third application for
postconviction relief (PCR).
I. Background Facts and Proceedings.
In 2005, Kelly was charged with sexual abuse in the third degree. At the
jury trial in his opening statement, Kelly’s trial counsel set forth the defense’s trial
strategy, stating: “We’re not saying there wasn’t sex. We’re not here today to deny
that [Kelly] had sex with [N.B.]. The question is whether it was consensual sex . .
. .” N.B. testified that she was incapable of consenting to the sex act due to her
extreme intoxication. Kelly did not testify.
The jury found Kelly guilty. As we summarized in a later opinion:
From the evidence presented at trial, a jury could have found
the following facts: On the evening of December 4, 2004, N.B.
attended a party at her coworker’s apartment. Michael Kelly, an
acquaintance of N.B.’s, also attended. N.B. drank heavily at the
party to the point of extreme intoxication. When N.B. began to
stumble about and pass out, N.B.’s friends put her in a bedroom to
sleep, alone.
N.B. awoke the next morning confused, hung-over, in pain,
and lying next to Kelly. N.B. became aware she had had sex the
night before. N.B. also determined she was missing about eighty
dollars from her pants pocket. She asked Kelly what had happened
the night before, and he responded: “Don’t you remember?” N.B.
then said to Kelly, “I’m not a virgin anymore, am I?” Kelly answered:
“Shit happens.” Kelly told her he would help her get her money back.
N.B. then drove home.
Kelly called N.B. later to tell her he had gotten her money.
The two met at a convenience store, and Kelly gave N.B. the money.
Kelly and N.B. exchanged a kiss, which N.B. described as a “peck.”
Later in the evening, after talking to family, friends, and a victims’
hotline, N.B. went to the hospital and reported she had been raped.
Kelly v. State, No. 09-1261, 2010 WL 3325622, at *1 (Iowa Ct. App. Aug. 25, 2010).
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Kelly filed a direct appeal claiming there was insufficient evidence to support
his conviction. A panel of our court affirmed his conviction. See State v. Kelly, No.
05-2078, 2006 WL 3314455, at *1 (Iowa Ct. App. Nov. 16, 2006). Kelly’s
application for further review was denied, and procedendo issued on January 22,
2007.
Kelly filed his first application for PCR in October 2007. In a later, amended
petition, Kelly maintained he had been denied effective assistance of trial counsel
in fifteen ways, including when counsel failed to file a motion in limine to exclude
“the missing money evidence”; failed to raise an intoxication defense; failed to
object to inadmissible hearsay testimony regarding statements by a crisis-center
worker; failed to have stricken from the record a witness’s statement that N.B.
could not consent to sexual intercourse; failed to object to the prosecutor’s
persistence in asking whether N.B. could consent after the court ruled the question
inadmissible; admitted N.B. was “stumbling drunk”; failed to object to the nurse’s
testimony about N.B.’s discomfort during the medical examination; failed to contest
whether Kelly and N.B. had sexual intercourse; failed to object to the prosecutor’s
closing argument that Kelly’s right to a fair trial ended prior to deliberation of the
verdict; failed to object to the prosecutor’s statement during closing argument that
the defense failed to bring evidence; failed to introduce exculpatory videotape
evidence of N.B. and Kelly after the sexual encounter; and failed to call three
witnesses who had exculpatory information. Additionally, Kelly maintained direct
appeal counsel had been ineffective for failing to raise the issues sooner.
Following a hearing in April 2009, the district court entered a written ruling
denying Kelly’s application and each of his sixteen claims of ineffective assistance.
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Kelly appealed, challenging the district court’s ruling on five of the claims involving
trial counsel and his claim regarding appellate counsel. A panel of our court
affirmed the decision of the district court. Kelly, 2010 WL 3325622, at *4. Kelly
did not file an application for further review.
Kelly filed his second application for PCR on December 11, 2011—more
than three years after procedendo issued on his direct appeal. In his second
application, Kelly maintained his first PCR counsel had provided ineffective
assistance by failing to file an application for further review of the court of appeal’s
ruling. The State responded by filing a motion to dismiss, arguing Kelly’s second
application was barred by the statute of limitations and by res judicata.
Following a hearing on the matter, the PCR court found that Kelly’s
application was time-barred, as no exception to the statute of limitations applied.
Kelly’s second application for PCR was dismissed, and he appealed.
In Kelly v. State, No. 12-0838, 2014 WL 4224731, at *1 (Iowa Ct. App. Aug.
27, 2014), our court affirmed the dismissal of Kelly’s second application, relying on
the “long-standing precedent” of Dible v. State, 557 N.W.2d 881, 883–84 (Iowa
1996). Kelly filed an application for further review, which our supreme court
denied.
Kelly filed his present, third application for PCR in November 2015. In his
application, Kelly again claimed his first appellate PCR counsel was ineffective in
failing to file an application for further review with the Iowa Supreme Court. He
claimed he was prejudiced because counsel’s failure prevented him from obtaining
habeas relief. He also claimed his first appellate counsel was ineffective for failing
to file a brief in support of Kelly’s pro se motion for limited remand and stay and for
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failing to notify Kelly he was withdrawing from representation. In addition, Kelly
claimed his trial attorney was ineffective for not obtaining expert testimony and for
failing to object to witness testimony.
The State filed a motion to dismiss Kelly’s third application, claiming it was
time-barred by the three-year statute of limitations “and res judicata as the claims
have been previously adjudicated on direct appeal and in” Kelly’s previous
applications for PCR.
In November 2016, Kelly filed a supplement to his application, adding the
claims that he received an illegal sentence; a lesser-included-offenses jury
instruction should have been given; and trial counsel, first PCR counsel, and
appellate PCR counsel were ineffective for not challenging the DNA evidence, not
having a DNA expert testify at trial, and not presenting evidence of an intoxication
defense. Kelly was allowed to amend his application, but his motion asking to be
transported for the hearing was denied.
In January 2017, the court heard argument on the motion to dismiss. Kelly
appeared by telephone; no evidence was presented.
In its written ruling, the PCR court granted the State’s motion to dismiss,
finding that the issues raised had been decided in the earlier applications for PCR
or waived under Iowa Code section 822.8, the claim of newly discovered evidence
was without merit and belied by the record, claims of denial of equal protection and
due process at the appellate level were without merit, and the statute of limitations
prevented the court from considering the merits of Kelly’s application.
Kelly appeals.
II. Standard of Review.
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“Generally, we review a grant of a motion to dismiss a PCR petition for
correction of errors at law.” Allison v. State, ___ N.W.2d ___, ___, 2018 WL
3198793, at *3 (Iowa 2018). “But when a PCR petitioner claims ineffective
assistance of PCR counsel, our review is de novo.” Id.
III. Discussion.
1. Third PCR Counsel.
Kelly maintains his third PCR counsel was ineffective for failing to “request
the hearing on the State’s motion to dismiss be continued until discovery
depositions could take place to adequately develop the record.” “To prevail on a
claim of ineffective assistance of counsel, the application must demonstrate both
ineffective assistance and prejudice.” Ledezma v. State, 626 N.W.2d 134, 142
(Iowa 2001). However, Kelly has not demonstrated in his appellate brief that
counsel would have been able to establish that newly discovered evidence existed
and could have been developed if such an extension was requested. Nor did Kelly
argue that the evidence he desired to obtain or the depositions he wanted to take
would prevent the dismissal of his PCR application on statute-of-limitations
grounds. Thus, Kelly has not established that he was prejudiced by third PCR
counsel’s alleged errors, and this claim fails. See id. (“If the claim lacks prejudice,
it can be decided on that ground alone without deciding whether the attorney
performed deficiently.”).
2. Timeliness of Third PCR Application.
“Iowa Code section 822.3 [(2015)] generally provides a three-year statute
of limitations for PCR claims.” Allison, 2018 WL 3198793, at *3. It states, in
pertinent part:
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A proceeding is commenced by filing an application verified
by the applicant with the clerk of the district court in which the
conviction or sentence took place. . . . All other 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. However, this limitation does not apply to a ground of fact or
law that could not have been raised within the applicable time period.
Iowa Code § 822.3. Until recently, our supreme court had ruled that ineffective
assistance of first PCR counsel was not a “ground of fact” within the exception to
the three-year statute of limitations found in section 822.3, regardless of whether
the defendant was aware of the ineffectiveness within the prescribed term. See
Dible, 557 N.W.2d at 884–85. In other words, a claim that first PCR counsel
provided ineffective assistance did not save an otherwise untimely application.
However, in Allison, our supreme court “qualified” Dible, noting its earlier
ruling “gave no consideration to the fundamental interests at stake when an
accused alleges ineffective assistance of trial counsel and the PCR proceeding is
the first opportunity to raise the issue.” Allison, 2018 WL 3198793, at *22. The
court created a narrow exception:
where a PCR petition alleging ineffective assistance of trial counsel
has been timely filed per section 822.3 and there is a successive
PCR petition alleging postconviction counsel was ineffective in
presenting the ineffective-assistance-of-trial-counsel claim, the
timing of the filing of the second PCR petition relates back to the
timing of the filing of the original PCR petition for purposes of Iowa
Code section 822.3 if the successive PCR petition is filed promptly
after the conclusion of the first PCR action.
Id. Still, Kelly’s third application is time-barred, as it does not fall within the narrow
confines of Allison. This is not Kelly’s second application but his third. His second
application, while claiming first PCR counsel was ineffective, did not claim that first
PCR counsel failed to effectively present his claims that trial counsel was
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ineffective but rather claimed first PCR counsel was ineffective for failing to
exhaust state remedies. Additionally, we cannot say Kelly’s applications have
been “promptly” filed, with his second PCR application being filed more than fifteen
months after our court affirmed the denial of his first application and his third
application being filed more than one year after procedendo issued on his appeal
of his second PCR action.1
3. Pro Se Claims.
Kelly maintains the PCR judge should have recused himself “due to bias.”
First, we note that Kelly did not ask the judge to recuse himself until after the motion
to dismiss had been granted, when Kelly filed a motion to reconsider. In support
of his claim, Kelly maintains “a reasonable person would believe” the judge was
biased based upon the judge’s refusal to allow Kelly to present evidence during
the hearing on the motion to dismiss and because “the motion to withdraw counsel
was denied as moot.” First, we are unclear what motion to withdraw counsel Kelly
refers to, as he has failed to cite to the record and we have been unable to locate
the complained of ruling. See Iowa R. App. P. 6.903(2)(g)(3) (requiring the
appellant to include in their argument “references to the pertinent parts of the
record”). Second, Kelly bears the burden for establishing the judge abused his
discretion when he declined to recuse himself. See State v. Milsap, 704 N.W.2d
426, 432 (Iowa 2005). But here, Kelly provides no authority to show that the two
1
Insofar as Kelly invites us to apply equitable tolling in a way other than the “variant”
outlined in Allison, we are bound by the precedent set by our supreme court. See State
v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990). In any event, the “tolling” variant
not adopted in Allison offers no help to Kelly, who allowed more than three years to expire
between procedendo on his direct appeal and the filing of his first PCR, the conclusion of
his first PCR and filing of his second PCR, and the conclusion of his second PCR and the
filing of his third PCR.
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instances he relies on were incorrect, let alone improper in such a way that we
may infer bias on the part of the judge. See id. (noting “the charges made in the
complaint—erroneous rulings on legal issues—are not the kind of charges that
would lead a reasonable person to question the judge’s impartiality
notwithstanding the defendant’s filing of the complaint”). We cannot say the PCR
judge abused his discretion in refusing to recuse himself after Kelly raised the issue
in a post-dismissal motion.
Finally, Kelly maintains the PCR court erred in dismissing his third
application in its entirety because he included a claim that he had received an
illegal sentence, which cannot be disposed of in a motion to dismiss. We agree
with Kelly “that claims of an illegal sentence are not barred by the statute of
limitations in Iowa Code section 822.3.” Veal v. State, 779 N.W.2d 63, 65 (Iowa
2010). An illegal sentence can be corrected at any time. See State v. Bruegger,
773 N.W.2d 862, 869 (Iowa 2009). Thus, we remand this claim to the district court.
See Veal, 779 N.W.2d at 65 (“Although not labeled as such, the district court on
remand should treat [the defendant’s] application for postconviction relief as a
challenge to an illegal sentence that is not subject to the three-year statute of
limitations in Iowa Code section 822.3.”).
IV. Conclusion.
Kelly’s claim that he received an illegal sentence is a claim that can be
brought at any time; thus, we reverse the PCR court’s dismissal of that claim and
remand to the PCR court. As for the rest of his third PCR application, Kelly has
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not established that any exception to the three-year statute of limitations applies,
and we agree with the PCR court that it is time-barred and must be dismissed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.