IN THE COURT OF APPEALS OF IOWA
No. 19-0322
Filed April 29, 2020
ERIC MEL THOMPSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
Eric Thompson appeals the dismissal of his third postconviction-relief
application. AFFIRMED.
Marti D. Nerenstone, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General and Darrel Mullins, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and May and Greer, JJ.
2
GREER, Judge.
Eric Thompson appeals the dismissal of his third postconviction-relief (PCR)
application involving his convictions for first-degree kidnapping and assault
causing bodily injury. On appeal, Thompson argues that the holding of Allison v.
State, 914 N.W2d 866, 891 (Iowa 2018), should be expanded to find the three-
year statute of limitations for filing a PCR is unconstitutional. Even if constitutional,
Thompson claims Allison affords him the guarantee of competent counsel and both
his trial and appellate counsels’ ineffective assistance warranted an exception to
the three-year time bar. The State maintains the statute of limitations prohibits this
third application for PCR even under the narrow lessons of Allison. We affirm the
dismissal of Thompson’s third PCR application.
I. Background Facts and Proceedings.
These charges arose out of a kidnapping on October 15, 1999, during which
Thompson sexually assaulted a child causing serious injury.1 Thompson was
charged with first-degree kidnapping and attempted murder. On March 2, 2000, a
jury convicted him of first-degree kidnapping and assault causing bodily injury, a
lesser-included offense of attempted murder. The trial court imposed a life
sentence. Thompson appealed,2 and we affirmed his conviction. Thompson, 2000
WL 1868961, at *1–2. Procedendo issued on the direct appeal on March 14, 2001.
With the direct appeal resolved, on December 17, 2002, Thompson timely
filed a PCR application followed by amended versions in October 2004 and
1 We rely on the extensive factual findings detailed in Thompson’s direct appeal
from the jury verdict without repeating them here. See State v. Thompson, Nos.
0-744, 00-0387, 2000 WL 1868961, at *1–2 (Iowa Ct. App. Dec. 22, 2000).
2 Thompson did not raise an ineffectiveness claim on direct appeal.
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January 2005. Among his claims, Thompson argued his trial counsel was
ineffective. The district court denied all of Thompson’s claims and summarily
dismissed his PCR application. We upheld that dismissal in Thompson v. State,
No. 05-1231, 2006 WL 2419128, at *5 (Iowa Ct. App. Aug. 23, 2006), and
procedendo issued in September 2006.
Undeterred, Thompson again filed a PCR application on July 30, 2012. In
this second PCR action, Thompson claimed his counsel in his first PCR was
ineffective. Reasoning that his application came more than three years after the
writ of procedendo on the direct appeal, the district court dismissed this second
PCR application. Thompson again appealed. Our court affirmed the district court
finding that Thompson’s claims were barred by the three-year statutory time limit.
See Thompson v. State, No. 13-0421, 2014 WL 970059, at *1 (Iowa Ct. App. Mar.
12, 2014). Procedendo on the second PCR action issued on April 11, 2014.
This procedural history brings us to the current filing, the third PCR
application. Included in this third PCR are claims of ineffectiveness of both trial
and prior PCR counsel. Different from the other applications, Thompson urged
that invoking the statute of limitations against him because of the failures of his
previous PCR counsel unconstitutionally violated his rights under Allison. He
argued the court should toll the three-year time limitation and consider his claims.
With these concerns before it, the district court found the application time-barred
and summarily dismissed Thompson’s third PCR application. Thompson appeals.
II. Scope of Review.
We review the denial of a PCR application for correction of errors at law.
Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). And when the applicant raises
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claims of ineffective assistance of PCR counsel, we review de novo. Lado v. State,
804 N.W.2d 248, 250 (Iowa 2011). Our review of constitutional issues is also de
novo. Perez, 816 N.W.2d at 356.
We treat a summary dismissal of a PCR under Iowa Code section 822.3
(2018) analogous to the procedures involving summary judgment under the Iowa
Rules of Civil Procedure. See Manning v. State, 654 N.W.2d 555, 559–60 (Iowa
2002).
III. Analysis.
Starting with the relevant statutory language, section 822.33 requires most
PCR applications 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.” See Sahinovic v. State, 940 N.W.2d 357, 359 (Iowa 2020) (stating
section 822.3 “establishes a general rule” of filing within that time period). The
“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. The legislative intent
behind this statute is to “limit[] postconviction litigation in order to conserve judicial
resources, promote substantive goals of the criminal law, foster rehabilitation, and
restore a sense of repose in our system of justice.” Schmidt v. State, 909 N.W.2d
778, 811 (Iowa 2018) (citation omitted).
3 Iowa Code section 822.3 provides,
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.
5
In Allison, the Iowa Supreme Court addressed whether successive PCR
applications based on ineffective-assistance-of-counsel claims affected the three-
year time bar:
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.
914 N.W.2d at 891.4
Thompson argues, using the logic of Allison, the three-year statute of
limitations is unconstitutional and, alternatively, that Allison permits his untimely
PCR application. We will address these issues in turn.
A. Constitutionality of Iowa Code section 822.3 after Allison. To begin,
Thompson argues that we should extend Allison and declare Iowa Code section
822.3 unconstitutional for violating his right to due process and his right to counsel
under both the United States and Iowa Constitutions. Thompson argues “[t]he
reluctance of the court to follow its intuition as set out in Allison should be
reconsidered.”
But, our role does not include revisiting or extending supreme court
precedent. See State v Beck, 853 N.W.2d 56, 64 (Iowa 2014) (“We are not at
4 We recognize recent legislation, effective July 1, 2019, arguably supersedes
Allison outright by amending section 822.3 to provide: “An allegation of ineffective
assistance of counsel in a prior case under this chapter shall not toll or extend the
limitation periods in this section nor shall such claim relate back to a prior filing to
avoid the application of the limitation periods.” 2019 Iowa Acts ch. 140 § 34
(codified at Iowa Code § 822.3 (2019)). Because we reject Thompson’s Allison
claims, we need not decide whether the amendment is retroactive.
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liberty to overrule controlling supreme court precedent.”). Second, the case law is
clear. See Perez, 816 N.W.2d at 360. Without qualification, in Perez our supreme
court confirmed the constitutionality of Iowa Code section 822.3. Id.; see also
Davis v. State, 443 N.W.2d 707, 710 (Iowa 1989) (addressing purposes of time
bars for PCRs and stating “due process requires that the interest of the state and
the defendant be balanced in determining the reasonableness” of the limitations
period). Likewise, Allison, with some qualifications in its application, did not hold
that the statute was unconstitutional. 914 N.W2d at 891.
So Thompson’s call for reconsideration of Allison fails. Thus his only
remaining avenue is to overcome the time bar to his third PCR petition. See Iowa
Code § 822.3.
B. Allison’s Applicability to Thompson’s PCR. Thompson argues he
has only had “bungling” attorneys in his case and thus he is entitled to at least one
competent attorney. Thompson argues his case falls under the exception to the
statute of limitations set forth in Allison.
As noted, Allison provided a relate-back exception to the statute of
limitations under Iowa Code section 822.3 for subsequent PCR actions if the
applicant claims his prior PCR counsel was ineffective in presenting an
ineffectiveness-of-trial-counsel claim. 914 N.W2d at 891. Put simply, “[u]nder this
equitable doctrine, the three-year statute of limitations is tolled from the time of the
filing of the first petition for PCR until the first PCR proceeding’s conclusion. Upon
the conclusion of the first action, the three-year statute of limitations commences
to run again.” Id.
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However, the statute of limitations is tolled only if “the successive PCR
petition is filed promptly after the conclusion of the first PCR action.” Id. The
operative word here is “promptly.”
While “promptly” is not defined, our cases addressing the parameters of
what is “prompt,” provide guidance. In Kelly v. State, we affirmed the dismissal of
a third PCR petition filed more than one year after procedendo issued on the denial
of his second application. Kelly v. State, No. 17-0382, 2018 WL 3650287, at *3–4
(Iowa Ct. App. Aug. 1, 2018) (“[W]e cannot say Kelly’s applications have been
‘promptly’ filed” noting the second PCR filing came fifteen months after the first
was denied and the third PCR came more than a year after denial of the second);
see also Fountain v. State, No. 17-2024, 2019 WL 5424928, at *3 n.9 (Iowa Ct.
App. Oct. 23, 2019) (waiting nearly two years to file not considered prompt); Polk
v. State, No. 18-0309, 2019 WL 3945964, at *1 (Iowa Ct. App. Aug. 21, 2019)
(waiting nearly six months was not prompt); Cook v. State, No. 17-1245, 2019 WL
719163, at *4 (Iowa Ct. App. Feb. 20, 2019) (concluding application filed more than
forty-six months after the resolution of first PCR action and more than twenty-nine
months after the conclusion of second PCR action was not prompt).
Having developed the standard for a “prompt” filing, we now review the
timing of Thompson’s PCR applications. When procedendo issued on the direct
appeal, the statute of limitations allowed a PCR petition to be filed on or before
March 14, 2003. Thompson timely filed the first PCR on December 17, 2002.
Procedendo on the appeal of the dismissal of the first PCR issued on September
27, 2006. Almost six years later, Thompson filed the second PCR petition. Denied
as untimely, procedendo issued on that appeal on April 11, 2014. After the
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passage of almost four years, Thompson applied for a third shot at relief. Now
Thompson requests we consider this third PCR action filed eighteen years after
the conviction and fifteen years after the expiration of the three-year statute of
limitations for PCR applications. Under Allison, his third PCR filing cannot meet
the “promptly” filed condition. 914 N.W.2d at 891.
IV. Conclusion.
Given the timing of Thompson’s third PCR application, we find no exception
to the three-year statute of limitations. After the passage of eighteen years since
his conviction, and fifteen years after the original three-year time bar, the district
court correctly dismissed this third PCR application. We affirm the district court
dismissal.
AFFIRMED.
Eric Mel Thompson v. State of Iowa
Combined Opinion