IN THE COURT OF APPEALS OF IOWA
No. 18-0078
Filed February 6, 2019
AMBUS RAY DAVIS, III,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
Appeal from the summary dismissal of a second application for
postconviction relief as time-barred. AFFIRMED.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Aaron Rogers, Assistant Attorney
General, for appellee State.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.
In 2005, following a bench trial, Ambus Davis was convicted “of first-degree
murder, in violation of Iowa Code sections 707.1, 707.2(1), and 707.2(2) (2005);
willful injury, in violation of section 708.4(1); and going armed with intent, in
violation of section 708.8 in the shooting death of Jalon Thomas.” State v. Davis,
No. 06-0148, 2007 WL 601829, at *1 (Iowa Ct. App. Feb. 28, 2007). This court
affirmed his conviction on direct appeal. Id. The supreme court denied Davis’s
application for further review, and procedendo issued April 20, 2007. Davis filed
an application for postconviction relief in which he contended, among other things,
his trial counsel was ineffective for failing to argue that willful injury could not be
used as the predicate felony for the felony-murder rule. The district court denied
Davis’s application for postconviction relief, and this court affirmed the denial on
appeal. See Davis v. State, No. 13-1630, 2015 WL 4642053, at *1 (Iowa Ct. App.
Aug. 5, 2015). In June 2016, Davis filed a second application for postconviction
relief, which the district court summarily dismissed as barred by the statute of
limitations. Davis timely filed this appeal.
“Our review of the court’s ruling on the State’s statute-of-limitations defense
is for correction of errors of law.” Harrington v. State, 659 N.W.2d 509, 519 (Iowa
2003). To the extent Davis raises constitutional claims, our review is de novo. See
id. A statutory claim of ineffective assistance of postconviction counsel is also
reviewed de novo. See Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).
There is no constitutional right to postconviction relief. See Williams v.
Pennsylvania, 136 S. Ct. 1899, 1921 (2016) (Thomas, J., dissenting); Montgomery
v. Louisiana, 136 S. Ct. 718, 746 (2016) (Thomas, J., dissenting). As such, the
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availability of postconviction relief and the terms and conditions of the same are
wholly creatures of statute subject to legislative control. The statute at issue here
is Iowa Code section 822.3 (2016). It provides an application 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
a ground of fact or law that could not have been raised within the
applicable time period.
Iowa Code § 822.3.
Davis concedes his second application for postconviction relief was filed
more than three years after procedendo issued in his direct appeal. He contends,
however, that Welch v. United States, 136 S. Ct. 1257 (2016), is a new ground of
law that could not have been asserted within the relevant time period. Like the
district court, we disagree. The “narrow question” presented in Welch was whether
the court of appeals erred in denying Welch’s application for a certificate of
appealability under the Antiterrorism and Effective Death Penalty Act of 1996. 136
U.S. at 1263-64. In answering that question, the Supreme Court discussed and
applied Teague v. Lane, 489 U.S. 288 (1989), to determine whether a new rule of
constitutional dimension would be applicable to “those cases which have become
final before the new rule[ ] [is] announced.” Id. at 1264 (quoting Teague, 489 U.S.
at 310)). Welch simply has no application to this case. The district court did not
err in concluding the same.
Even if not time-barred, Davis’s claims fare no better on the merits. The
gravamen of Davis’s application for postconviction relief is that the rule announced
in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), should be applied
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retroactively to his case. He has stuffed this substantive claim into several different
envelopes—ineffective assistance of counsel, equal protection, and illegal
sentence. The different envelopes all arrive at the same destination: the claims
fail on the merits. See Iowa Code § 822.3; Nguyen v. State, 878 N.W.2d 744, 758
(Iowa 2016) (“We agree with the State that defendants whose convictions became
final before the law changed in Heemstra are not similarly situated to defendants
charged after Heemstra. Nguyen was not denied equal protection of the laws
under the Iowa Constitution.”); Goosman v. State, 764 N.W.2d 539, 545 (Iowa
2009) (holding the “limitation of retroactivity announced in Heemstra to cases on
direct appeal where the issue has been preserved did not violate federal due
process”); Tindell v. State, 629 N.W.2d 357, 360 (Iowa 2001) (“His claim of
procedural error is not a claim of illegal sentence, and therefore, it is precluded by
our normal error-preservation rules.”); Wright v. State, No. 16-0275, 2017 WL
1401475, at *4 (Iowa Ct. App. Apr. 19, 2017) (“Our supreme court had the authority
to limit the retroactive application of Heemstra. It has done so, distinguishing those
cases on appeal where error was preserved and a potentially meritorious legal
claim was presented and those cases where error was not preserved and no legal
claim or no meritorious legal claim was presented. The equal protection clause
does not require that these dissimilar cases be treated the same.”); Pickett v. State,
No. 14-2053, 2015 WL 5970034, at *2 (Iowa Ct. App. Oct. 14, 2015) (“Pickett’s
motion for correction of an illegal sentence was, at its core, yet another attempt to
have Heemstra applied retroactively to his case—a claim that was rejected by the
Iowa Supreme Court in his appeal from the dismissal of his second postconviction-
relief application.”); Hillman v. State, No. 14-0158, 2015 WL 5278929, at *2-3 (Iowa
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Ct. App. Sept. 10, 2015) (rejecting a claim that Heemstra should be applied
retroactively based on due process and separation of powers under the Iowa
Constitution and equal protection under the Iowa and federal constitutions); Davis,
2015 WL 4642053, at *2 (rejecting the claim counsel was ineffective in failing to
raise the felony-murder issue subsequently decided in Heemstra); Memmer v.
State, No. 11-0513, 2012 WL 2406129, at *2 (Iowa Ct. App. June 27, 2012)
(rejecting Heemstra-illegal-sentence claim as “simply his prior ineffective-
assistance-of-counsel claim recast”).
We have considered each of Davis’s arguments whether or not set forth in
full herein, and we find no error. We affirm the district court’s dismissal of Davis’s
second application for postconviction relief.
AFFIRMED.