IN THE COURT OF APPEALS OF IOWA
No. 20-1056
Filed August 4, 2021
DEWANN MARQUISE STONE,
Petitioner-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Dewann Stone appeals the dismissal of his application for postconviction
relief. AFFIRMED.
Jessica M. Donels of Parrish Kruidenier Dunn Gentry Brown Bergmann &
Messamer L.L.P., for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee State.
Considered by Mullins, P.J., and May and Ahlers, JJ.
2
MULLINS, Presiding Judge.
In 2007, sentence was imposed upon Dewann Stone’s conviction of first-
degree murder. We affirmed on direct appeal, rejecting his claims the trial court
erred in excluding testimony about another suspect, allowing evidence of prior bad
acts, permitting improper rebuttal evidence, and denying his motion for a new trial.
State v. Stone, No. 07-1009, 2008 WL 4724865, at *1–6 (Iowa Ct. App. Oct. 29,
2008). We also rejected his claim his trial counsel was ineffective based on
cumulative error. Id. at *7. Procedendo issued in early 2009.
Stone filed his first application for postconviction relief (PCR) in late 2009,
arguing a constitutionally deficient jury instruction on reasonable doubt was
employed at his trial and his counsel at trial and on direct appeal were ineffective
in failing to raise the issue and to argue his constitutional rights relating to
discovery, confrontation, and due process were violated by the State’s withholding
of evidence. In a supplemental application, he also raised claims of newly
discovered evidence and ineffective assistance relating to prosecutorial
misconduct. The district court denied the application on the merits in late 2015.
We affirmed. See generally Stone v. State, No. 16-0136, 2017 WL 3077917 (Iowa
Ct. App. July 19, 2017). In addition to rejecting his claims of error by the PCR
court, we rejected his claims his PCR attorneys were ineffective in not
communicating with him, advocating against him in agreeing subpoenas should be
quashed, not establishing when trial counsel received certain evidence, and not
obtaining a ruling on a purported violation of Brady v. Maryland, 373 U.S. 83
(1963). Id. at *4–5. Procedendo issued in September 2017.
3
Stone filed the PCR application precipitating this appeal in March 2020. He
argued first PCR counsel was ineffective in failing to investigate “potential
exculpatory evidence,” the State committed Brady violations during the criminal
trial, the reasonable doubt instruction employed at trial was deficient, and
ineffective assistance of trial counsel. The State moved for summary disposition
based on the three-year statute of limitations, arguing Allison v. State1 did not save
the application, and claimed the issues were already litigated. In his response,
Stone argued reports dictated by a detective based on interviews with Derek
Thompson were not disclosed to him for several years after his first PCR
proceeding commenced and said reports “are the basis of the claims of ineffective
assistance of [PCR] counsel and Brady violations.” He also argued the claim was
not considered in the first PCR proceeding or in the ensuing appeal. At the ensuing
hearing, the State repeated its statute-of-limitations argument and added Stone’s
claim of ineffective assistance of prior PCR counsel cannot serve to toll the statute
of limitations because Allison was abrogated by statute in 2019 and is no longer
good law. See Iowa Code § 822.3 (2020).2 The State also pointed out the alleged
1 See 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a timely application is
filed within the statute of limitations alleging ineffective assistance of trial counsel,
the filing of a successive application that alleges ineffective assistance of
postconviction-relief counsel in presenting the ineffective-assistance-of-trial-
counsel claim, the filing of the second application relates back to the time of the
filing of the original application so long as the successive application is filed
promptly after the conclusion of the original action); see also Iowa Code § 822.3
(2020) (noting “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”).
2 Effective July 1, 2019, the following language was added to section 822.3,
presumably in response to the Allison decision: “An allegation of ineffective
assistance of counsel in a prior case under this chapter shall not toll or extend the
4
newly discovered evidence, the Thompson reports, were available to Stone no
later than 2015, so they do not serve as new grounds of fact as to his 2020
application to except Stone from the statute of limitations. After noting his review
of the record in the first PCR proceeding, second PCR counsel conceded he was
“not aware of any additional reports or other potentially exculpatory evidence that
was not provided to a previous court,” as the record showed the Thompson reports
were included in the record of the first proceeding. Counsel advised he had no
grounds to argue “that would qualify as an exception to the statute of limitations.”
Speaking on his own behalf, Stone himself agreed the reports were provided to
him during his first PCR proceeding. He stated his first PCR counsel did not raise
any arguments about the reports, but the issue was raised on appeal.
In its ruling, the court concluded the application was barred by the statute
of limitations and this court considered the issue regarding the Thompson reports
on appeal following denial of Stone’s first PCR application. The court granted
summary disposition, and this appeal followed.
Appellate review of PCR proceedings is typically for correction of errors at
law, but where claims of ineffective assistance of counsel are forwarded, our
review is de novo. See Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017).
First, Stone argues his application was timely under Allison “and paragraph
one of Iowa Code [section] 822.3.” He claims he “promptly” filed his second
application after the conclusion of the first proceeding within the meaning of
Allison. But three years is not prompt. See, e.g., Polk v. State, No. 18-0309, 2019
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. 149, § 8.
5
WL 3945964, at *2 (Iowa Ct. App. Aug. 21, 2019) (noting a gap in the neighborhood
of six months does not meet the definition of prompt); see also Johnson v. State,
No. 19-1949, 2021 WL 210700, at *2 (Iowa Ct. App. Jan. 21, 2021) (collecting
cases on the meaning of “filed promptly”). And, as the State points out, the version
of Iowa Code section 822.3 in effect when Stone’s application was filed and
decided, provides “An allegation of ineffective assistance of counsel in a prior case
under [chapter 822] 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.” Stone responds in his reply brief that the State’s argument concerning
the amendment was not raised below and is therefore waived. We disagree. At
the hearing on the motion for summary disposition, the State pointedly argued,
“this case was also filed after Allison was abrogated by statute on July 1st of 2019.
Allison is no longer good law as it relates to this case.” No contrary argument or
challenge to the statutory amendment was made by Stone below or on appeal.
While the district court did not specifically hang its hat on the amendment, we may
since the State raised it. See DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002)
(“We have in a number of cases upheld a district court ruling on a ground other
than the one upon which the district court relied provided the ground was urged in
that court.”). Statutory amendment aside, Stone’s application still does not fall
within the parameters of the Allison decision, because it was not promptly filed at
the conclusion of the original proceeding.
We affirm the dismissal of Stone’s PCR application.
AFFIRMED.