IN THE COURT OF APPEALS OF IOWA
No. 19-0331
Filed July 1, 2020
JOEL SMITHERMAN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Hardin County, James A. McGlynn,
Judge.
The applicant appeals the district court’s dismissal of his application for
postconviction relief. AFFIRMED.
Jessica Maffitt of Benzoni Law Office, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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SCHUMACHER, Judge.
Joel Smitherman appeals the district court’s dismissal of his fourth
application for postconviction relief (PCR). Smitherman is not entitled to relief
under the narrow exception set forth in Allison v. State, 914 N.W.2d 866, 891 (Iowa
2018). Also, he has not shown he received ineffective assistance from his PCR
counsel in this case. We affirm the decision of the district court.
I. Background Facts & Proceedings
Smitherman was convicted of first-degree murder for the death of Richard
Tasler. On April 8, 2005, Smitherman was sentenced to life in prison. He appealed
his conviction, claiming he received ineffective assistance from defense counsel
due to a conflict of interest and there was insufficient evidence to support the
verdict. State v. Smitherman, 733 N.W.2d 341, 343 (Iowa 2007). Smitherman’s
conviction was affirmed. Id. at 350.
Smitherman filed his first PCR application on July 5, 2007, claiming he
received ineffective assistance from defense and appellate counsel. The
application was denied. Smitherman’s appeal was dismissed as frivolous, and
procedendo was issued on July 14, 2010.
Smitherman’s second PCR application was filed on December 22, 2010.
He claimed the court had given an improper instruction on reasonable doubt and
he received ineffective assistance because defense and appellate counsel had not
previously raised this issue. The district court denied the application. Smitherman
appealed but the appeal was dismissed as frivolous. Procedendo was issued on
January 8, 2013.
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The third PCR application was filed on October 7, 2013. Smitherman
asserted the trial information was defective so the court did not have jurisdiction to
convict him. The court dismissed the application, determining it was barred by the
three-year time limitation in Iowa Code section 822.3 (2013). Smitherman’s appeal
of the district court’s decision was dismissed as frivolous. Procedendo was issued
on October 13, 2015.
This case involves Smitherman’s fourth PCR application, which was filed
on October 3, 2018. He claimed he received ineffective assistance from his first
PCR counsel and was entitled to relief under Allison, 914 N.W.2d at 891. The
State filed a motion to dismiss the application on the ground that it was barred as
untimely under section 822.3 (2018). On November 30, the district court entered
an order stating, “Having reviewed the State’s Motion to Dismiss, the Court now
indicates to the parties its intention to dismiss the application for the reasons set
forth in the State’s Motion to Dismiss.” Smitherman was given “through and
including December 14, 2018, to file a reply to the proposed dismissal.” The court
stated that if Smitherman failed to reply by that date, the court would enter an order
dismissing the case. On January 22, 2019, the court dismissed the PCR action,
noting Smitherman had never filed a reply to the proposed dismissal. The court
found the PCR application was barred by the three-year statute of limitations in
section 822.3.
Smitherman requested the appointment of different counsel. The court
denied the request, finding that because the case had been dismissed the court-
appointed counsel was relieved of his responsibilities and substitute counsel would
not be appointed. Smitherman filed a pro se motion pursuant to Iowa Rule of Civil
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Procedure 1.904(2). He asserted that he had not received a copy of the court’s
November 30, 2018 order. He blamed his most recent PCR counsel for not
responding to the court’s order by December 14 and asked to have his PCR action
reinstated. The court denied the motion, finding Smitherman had not shown any
reason why his application was not untimely. Smitherman now appeals.
II. Timeliness of PCR Application
Smitherman contends his PCR application is not untimely based on an
exception to the limitations period found in Allison, which held:
[W]here 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 second PCR petition relates back to the timing 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. “[T]he application of the relation-back doctrine ensures that
the right to effective assistance of counsel in PCR is not cut off by the running of
the statute of limitations.” Id.
“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). “When summary [disposition] is granted in a postconviction relief action,
we examine the record to determine if a genuine issue of fact exists and whether
the moving party is entitled to a judgment as a matter of law.” See Bugley v. State,
596 N.W.2d 893, 895 (Iowa 1999).
Smitherman asserts that he is raising a claim of ineffective assistance from
his first PCR counsel and states his present PCR application should relate back to
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the date he filed his first PCR action, which was timely under section 822.3. He
asserts that under Allison his present PCR application should not be barred as
untimely.
The rule in Allison permits a second PCR application to relate back to the
timing of the first application. Kelly v. State, No. 17-0382, 2018 WL 3650287, at
*4 (Iowa Ct. App. Aug. 1, 2018). It does not apply to a third or subsequent PCR
application. See id. (“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.”). If we were to allow an applicant’s third or subsequent PCR application to
relate back to the date of the first PCR application, it could enable an “endless
procession of postconviction actions.” See Dible v. State, 557 N.W.2d 881, 886
(Iowa 1996), abrogated on other grounds by Harrington v. State, 659 N.W.2d 509,
521 (Iowa 2003). Smitherman’s fourth PCR application does not come within the
tolling provision of Allison.
Furthermore, the tolling of the three-year statute of limitations under Allison
applies only if the successive PCR application is filed promptly after the first PCR
action. Thompson v. State, No. 19-0322, 2020 WL 2060310, at *3 (Iowa Ct. App.
Apr. 29, 2020); see also Wilder v. State, No. 19-0157, 2020 WL 1879703, at *3
(Iowa Ct. App. Apr. 15, 2020) (finding a successive PCR action filed three years
after the first PCR action was not “prompt” under Allison). Smitherman’s current
PCR application, filed thirteen years after his conviction for first-degree murder,
cannot be considered “prompt.” See Thompson, 2020 WL 2060310, at *4. On this
ground as well, Smitherman does not come within the exception in Allison.
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III. Ineffective Assistance
Smitherman asserts he received ineffective assistance from his counsel in
this PCR proceeding. He states his counsel should have filed a response to the
district court’s order of November 30, 2018, indicating the court intended to dismiss
the action unless Smitherman filed a response by December 14. Counsel for
Smitherman did not file a response. On January 22, 2019, the court dismissed the
PCR action, noting Smitherman had never filed a reply to the proposed dismissal.
Smitherman contends PCR counsel’s inaction led to the dismissal of his case.
On claims of ineffective assistance of counsel, our review is de novo.
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). To prevail on a claim of
ineffective assistance of counsel, the applicant must demonstrate by a
preponderance of the evidence both breach of an essential duty and prejudice.
State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012). “However, both elements do
not always need to be addressed. If the claim lacks prejudice, it can be decided
on that ground alone without deciding whether the attorney performed deficiently.”
Ledezma, 626 N.W.2d at 142. For the element of prejudice, there must be a
showing of “a reasonable probability that, but for counsel’s unprofessional errors,
the results of the proceeding would have been different.” Adams, 810 N.W.2d at
373.
Smitherman’s claim of ineffective assistance of counsel can be addressed
looking solely at the issue of prejudice. See Ledezma, 626 N.W.2d at 142. He
cannot show that but for counsel’s failure to file a response to the court’s indication
it intended to dismiss the case that the case would not have been dismissed. Even
if a response to the court’s order of November 30, 2018, had been filed, the case
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would still have been dismissed. Smitherman’s fourth PCR application is untimely
under section 822.3. We conclude Smitherman has not shown he received
ineffective assistance of counsel.
We affirm the decision of the district court.
AFFIRMED.