IN THE COURT OF APPEALS OF IOWA
No. 20-0044
Filed January 12, 2022
SPENCER ANTOWYN PIERCE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.
Spencer Antowyn Pierce appeals the summary disposition of his second
application for postconviction relief. AFFIRMED.
Nicholas Einwalter, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by May, P.J., Schumacher, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2021).
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SCHUMACHER, Judge.
Spencer Antowyn Pierce appeals the summary disposition of his second
application for postconviction relief (PCR) regarding his conviction for conspiracy to
deliver a controlled substance. He argues Allison v. State, 914 N.W.2d 866, 891 (Iowa
2018), permits him to bring his claims of ineffective assistance against his first PCR
counsel outside of time limit set forth in Iowa Code section 822.3 (2019). Given the
narrow constraints of Allison, we affirm the dismissal of Pierce’s second PCR application.
I. Facts & Proceedings
On June 7, 2013, police officers executed a search warrant at Pierce’s apartment
and discovered marijuana, methamphetamine, and drug paraphernalia. Police
subsequently arrested Pierce on five drug-related charges.1 Based on information later
provided by a confidential informant, law enforcement obtained and executed a search
warrant on a vehicle Pierce drove and found several bags containing methamphetamine
hidden inside. That discovery resulted in an additional three drug-related charges. Pierce
pled guilty to conspiracy to deliver a controlled substance in return for the dismissal of the
remaining charges. His judgment was finalized December 9, 2013. He did not file a direct
appeal.
Pierce filed his first PCR application in January 2014, raising several grounds of
ineffective assistance of his trial counsel. He alleged his trial counsel was ineffective by
1 A jury in a separate case found Pierce guilty of first-degree murder and first-degree
robbery, for which the trial court sentenced him to concurrent sentences of life and twenty-
five years in prison, respectively. The court ordered Pierce’s sentence for the conspiracy
to deliver conviction of twenty-five years in prison to run concurrently to the murder and
robbery sentences. This court reversed the murder and robbery convictions on direct
appeal after finding insufficient evidence to support the verdicts. See State v. Pierce, No.
13-2004, 2015 WL 3613329, at *5 (Iowa Ct. App. June 10, 2015).
3
failing to seek suppression of evidence discovered during the stop and seizure of his
person, which he also claimed was illegal. He further argued counsel was ineffective by
failing to seek suppression of evidence discovered during the search of his apartment,
suggesting the warrant application contained intentionally false statements in violation of
Franks.2 Finally, he alleged his counsel failed to investigate and obtain police reports and
the interview of the confidential informant that the State suppressed in violation of Brady
v. Maryland, 373 U.S. 83, 87 (1963).
The first PCR court denied relief on the merits of Pierce’s application. The court
determined Pierce’s statements were voluntary and did not violate Miranda, that trial
counsel made a strategic decision to raise only those discrepancies counsel believed had
merit, and even if the discrepancies Pierce complained of were excised from the warrant
application, the remainder of the application showed probable cause. The court also
found Pierce was not prejudiced because he failed to show the information withheld by
the State was favorable to him. This court affirmed the denial of Pierce’s first PCR
application on appeal. See Pierce v. State, No. 17-0960, 2019 WL 2150806, at *1 (Iowa
Ct. App. May 15, 2019).
Pierce filed a second PCR application while the appeal of his first PCR was
pending, claiming ineffective assistance of his PCR counsel. The claims relevant to this
appeal relate to the legality of the initial stop, the alleged Franks violation in the first
2In Franks v. Delaware, 438 U.S. 154, 171–72 (1978), the United States Supreme Court
held that if false information is used to obtain a search warrant, “the offensive material
must be deleted and the remainder of the warrant reviewed to determine whether
probable cause existed.”
4
warrant application, and the alleged Brady violation regarding the State’s failure to provide
Pierce with the interview of the confidential informant.
At the time Pierce filed his second PCR application on March 12, 2019, Iowa Code
section 822.3 (2019) required applicants to file their PCR applications within three years
of the date their conviction became final. In Allison v. State, 914 N.W.2d 866, 891 (Iowa
2018), our supreme court held that a second PCR application filed after the expiration of
that three-year limitation period could be considered if it alleged ineffective assistance of
first PCR counsel in presenting claims of ineffective assistance of trial counsel, provided
the applicant filed the first PCR application within the limitation period and the second
PCR application was filed promptly after the conclusion of the first PCR action.
Following Pierce’s second PCR application but before the court entered judgment,
the legislature amended the applicable code section, which appears to abrogate Allison.3
The amendment to section 822.3 now reads: “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 (Supp.
2019)).
Pierce filed his second application as a self-represented litigant. He was appointed
counsel, but later moved to terminate their services, requesting that he be permitted to
3 There remains questions regarding what affect the amendment has on PCR actions
where, as is the case here, the application was pending when the amendment went into
effect. See, e.g., Moon v. State, No. 19-2037, 2021 WL 610195, at *4 n.6 (Iowa Ct. App.
Feb. 17, 2021) (“This amendment appears to abrogate Allison, although it is not yet clear
what PCR applications the amended legislation affects.”); Johnson v. State, No. 19-1949,
2021 WL 210700, at *3 (Iowa Ct. App. Jan. 21, 2021) (“There is a question, however, as
to whether the amendment applies to Johnson’s case, which was filed in June 2019.”).
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represent himself. The motion was granted. The State moved for summary judgment,
arguing Pierce’s petition was untimely. Pierce did not resist the State’s motion. Instead,
Pierce responded with a motion to take depositions, a motion for a private investigator, a
motion to compel, a motion for discovery, and two separate motions to amend his initial
application.4 The court granted the State’s motion for summary judgment. Pierce
appeals.
II. Scope of Review
We review summary dismissals of PCR applications for errors at law. Schmidt v.
State, 909 N.W.2d 778, 784 (Iowa 2018). We apply the same standard to summary
disposition as summary judgment. Id. Accordingly, summary disposition is proper if “the
pleadings, depositions, answers to interrogatories, and admissions on file together with
the affidavits, if any, show . . . there is no genuine issue of material fact and . . . the moving
party is entitled to judgment as a matter of law.” Id. (quoting Davis v. State, 520 N.W.2d
319, 321 (Iowa Ct. App. 1994)).
III. Analysis
Pierce attempts to save his second PCR application with the ruling in Allison,
contending the PCR court erred in determining his second PCR application did not relate
back to the first. The Allison court determined that in order to relate back to an earlier
PCR application to avoid the time limitation of section 822.3, a PCR applicant must (1) file
the initial PCR application within three years of final conviction, (2) file a second PCR
application that alleges first PCR counsel was ineffective in presenting ineffective
4Both motions to amend the postconviction application were filed after the effective date
of the amendment to Iowa Code section 822.3, and the dismissal of the amendments are
not challenged in this appeal.
6
assistance of trial counsel claims, and (3) file the second PCR action “promptly” after the
conclusion of the first. 914 N.W.2d at 891. Significantly, Pierce agrees his second PCR
application does not specifically allege his PCR counsel was ineffective in presenting
claims of ineffective assistance of trial counsel. Pierce’s claims in his second application
assert:
1. PCR counsel was ineffective in failing to take depositions of the State witnesses;
2. PCR counsel was ineffective in failing to subpoena Detective McTaggert to the
PCR hearing;
3. PCR counsel was ineffective for not subpoenaing county attorney Voogt to the
PCR hearing;
4. PCR counsel was ineffective for not subpoenaing county attorney Cox to the PCR
hearing;
5. PCR counsel was ineffective for not properly examining the witnesses at the PCR
hearing;
6. There was prosecutorial misconduct equating Brady violations; and
7. PCR counsel was ineffective for not calling Pierce’s trial attorney as a witness at
the PCR hearing.
The ineffective assistance of PCR counsel claims Pierce raises in his second PCR
application do not relate back to the ineffective assistance of his PCR counsel in the
original PCR action. He does not allege his PCR counsel was ineffective in presenting
claims of ineffective assistance of trial counsel. Pierce’s allegations concern only the
performance of his PCR counsel, and therefore cannot relate back to the filing of the first
PCR, if indeed Allison could still be used to save his second application. To the extent
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Pierce asserts prosecutorial misconduct relating to a Franks violation, this claim was
already litigated in his first PCR filing.5
Pierce asserts, and the dissent determines, that he meets all three of the
requirements of Allison because he filed his first PCR application less than one month
after the trial court entered judgment on his conviction, he filed his second PCR
application while his first was pending on appeal, and that by reading Pierce’s second
application in context with the first, he alleges ineffective assistance of his trial counsel by
attacking his appellate PCR counsel. However, Allison is clear that there must be “a
successive PCR petition alleging postconviction counsel was ineffective in presenting the
ineffective-assistance-of-trial-counsel claim.” 914 N.W.2d at 891 (emphasis added).
Allison does not appear to contemplate searching outside of the second petition to find
support for a claim of ineffective assistance of PCR counsel for their failure to assert trial
counsel was ineffective.
Pierce’s petition fails to set out a claim that his first PCR counsel was ineffective in
pursuing the ineffective assistance of trial counsel claim. Accordingly, the order granting
summary disposition in favor of the State is affirmed.
AFFIRMED.
May, P.J., concurs; Carr, S.J., dissents.
5Pierce’s claim was addressed by this court on appeal, which determined “even if we
were to excise these statements from the affidavit, probable cause still supports the
warrant” and any motion to suppress that raised a Franks violation would have failed.
Pierce, 2019 WL 2150806, at *5.
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CARR, Senior Judge (dissenting).
The question before us is whether the claims raised in Pierce’s second PCR
application can be deemed to relate back sufficiently to the filing of his first, bringing them
within the narrow, and now closed, window of relief under Allison v. State, 914 N.W.2d
866 (Iowa 2018), to avoid the three-year statute of limitations. Like the majority, I assume
without deciding that Senate File 589 (the Omnibus Crime Bill),6 which amended Iowa
section 822.3 (2019) to abrogate Allison, does not apply to Pierce’s second PCR action,
which was pending when the legislation became effective. Because the claims in the
second PCR action impliedly allege Pierce’s first PCR counsel was ineffective in
advancing claims in his first PCR action, I would find his second PCR action falls within
the Allison exception and reverse.
Iowa Code section 822.7 provides that rules governing civil proceedings govern
PCR proceedings. See Linn v. State, 929 N.W.2d 717 (Iowa 2019). As the moving party,
the State bears the burden of showing there is no triable issue of fact. See Allison, 914
N.W.2d at 892. In considering the application, the court shall take account of substance
regardless of defects of form. Iowa Code § 822.6. The State’s motion for summary
disposition advanced only one point: the statute of limitations under section 822.3 had
expired and Allison did not apply to save it. The motion, and the trial court in sustaining
it, relied only on the allegations in the application and the noticed record of the prior
proceedings. In affirming, the majority focuses solely on the allegations in the second
application without considering their relationship to the first PCR action. Pierce’s first
6See generally 2019 Iowa Acts ch. 140, § 34 (effective July 1, 2019) (codified at Iowa
Code § 822.3 (Supp. 2019)).
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PCR action advanced claims of ineffective assistance of trial counsel in several
particulars, all centered on the warranted search of his apartment following his detention
soon after the murder and a later warranted search of his Durango motor vehicle after a
tip from a jailhouse informant. Pierce’s second PCR, now before us, alleges failures of
his first PCR counsel in presenting those claims.
Pierce concedes that his second PCR application does not explicitly state that his
first PCR counsel was ineffective in presenting claims of ineffective assistance of trial
counsel. But reading his claims in context with the prior PCR action, it is clear Pierce is
attacking his PCR counsel’s performance in raising ineffective-assistance-of-trial-counsel
claims. Pierce’s second PCR application alleges his PCR counsel was ineffective by:
(1) failing to subpoena a detective to the PCR hearing “to prove the cops unlawfully
detain[ed him] and the officers lacked probable cause to arrest”; (2) failing to properly
examine a detective at the PCR trial to show a Franks violation by allowing him to testify
that a phone number was registered to his codefendant in a different case when it was
but “was put in the search warrant application to ma[k]e it look like such”; (3) failing to
subpoena prosecutors to establish they violated Brady because they knew about the file
on the confidential informant and deliberately concealed it; and (4) failing to depose the
witnesses that testified in the first PCR trial because doing so would have allowed PCR
counsel to obtain the confidential informant file before trial to show it contained evidence
favorable to Pierce. In addition, at the summary disposition hearing, Pierce clarified that
he was “raising ineffective assistance of my original trial counsel and ineffective
assistance of the PCR counsel for how he failed to argue the ineffective assistance of the
original trial counsel.”
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When I look to the “substance” of Pierce’s claims and disregard “defects of form”
as directed by section 822.6, I think he has adequately pled a claim for relief and should
be allowed to proceed. Therefore, I respectfully dissent.