IN THE COURT OF APPEALS OF IOWA
No. 22-0320
Filed June 7, 2023
DOUGLAS PAUL BEERY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
The applicant appeals the denial of his application for postconviction relief.
AFFIRMED.
Adrienne Loutsch of Benzoni & Maffit Law Office, P.L.C., (until withdrawal)
and Erin M. Carr, Des Moines, for appellant.
Brenna Bird, Attorney General, and Benjamin Parrott, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ. Tabor,
J., takes no part.
2
GREER, Judge.
Douglas Beery was convicted of first-degree murder and assault with intent
to inflict serious injury in 1996. We have previously outlined the underlying facts
as follows:
Beery, his brother and several others, after having been
asked to leave a bar for causing a disturbance, began fighting.
During the fracas, two passing vehicles were kicked by Beery or his
brother. After having her car kicked, Dawn Ray returned with her
husband, Jackie, and three other men. A brawl ensued and Beery
pulled his knife. He stabbed one individual, Dennis Link, four times,
including a fatal wound to the chest. He also stabbed Jackie Ray in
the chest.
Beery v. State, Nos. 0-797, 00-0015, 2001 WL 98382, at *1 (Iowa Ct. App. Feb. 7,
2001).
In the beginning of the legal proceedings defining this case, Beery did not
contest that he stabbed Link and Ray; he argued he was justified in his actions
because it was self-defense. The jury was not persuaded, and it convicted Beery
for the stabbing of each. Beery challenged his convictions on direct appeal, we
affirmed, and procedendo issued in 1997.
Beery filed and was unsuccessful in three separate postconviction-relief
(PCR) actions. See id.; Beery v. State, No. 13-0203, 2014 WL 956006 (Iowa Ct.
App. March 12, 2014); Beery v. State, No. 14-0031, 2015 WL 9450405 (Iowa Ct.
App. Dec. 23, 2015). He filed the current action—his fourth—more than twenty
years after his initial conviction. Switching from his previous theme of self-defense,
Beery now asserted he was not the person who stabbed Link. He claimed “newly
discovered evidence” that his brother Jimmy had admitted stabbing and killing
Link. He also argued all of his prior attorneys provided ineffective assistance
3
because his first counsel “effectively conceded [his] guilt during the trial without
[his] consent[;] counsel placed the knife in [his] hands and contended [he] acted in
self-defense or with justification.”
The district court held a full evidentiary hearing on Beery’s fourth PCR
application. Afterward, the court ruled that the statements Beery sought to offer of
third parties allegedly reporting Jimmy’s admissions to Link’s killing were not
statements against interest (under Iowa Rule of Evidence 5.804(b)(3)) because
the purported statements were “so implausible as to fail to meet the corroboration
requirement.” The court ruled the statements were not admissible. Alternatively,
the court determined that “[e]ven if somehow the statements attributed to Jimmy
were admissible, they do not rise to the level of newly discovered evidence under
Iowa Code [section] 822.3.” It denied Beery’s application, and he appeals. Beery
contends the court erred in (1) failing to find trial counsel ineffective for arguing
self-defense, (2) failing to admit the statements of his deceased brother, Jimmy
Beery, as statements against interest, and (3) failing to find Jimmy’s statements
qualified as newly discovered evidence.
To cut to the core issue, we begin by considering whether Beery can avoid
the statute of limitations for PCR actions.1 Iowa Code section 822.3 (2019)
provides, in relevant part:
1 In Moon, our supreme court reiterated that “[t]he onus is on the applicant” asking
for PCR outside the statute of limitations to “meet the ‘obvious requirement’ that
he or she could not have raised the ground of fact within the limitations period.”
Moon v. State, 911 N.W.2d 137, 143 (Iowa 2018) (quoting Harrington v. State, 659
N.W.2d 509, 515, 520 (Iowa 2003)). And the court “again emphasize[d] the
ground-of-fact exception pursuant to section 822.3 is not the same as a
substantive claim for postconviction relief based on newly discovered evidence
pursuant to section 822.2(1)(d).” Id.
4
All . . . 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.
So, to avoid the three-year statute of limitations—which ran in 2000—Beery must
show he could not have raised the grounds of fact he sought to offer (that his trial
counsel argued self-defense against his wishes and his brother’s alleged
statements that he was actually Link’s killer) within the applicable time period. See
Schmidt v. State, 909 N.W.2d 778, 798 (Iowa 2018). “Additionally, ‘a [PCR]
applicant relying on the ground-of-fact exception must show the ground of fact is
relevant to the challenged conviction.’ This is the nexus requirement.” Id. (citation
omitted). “[A] ground of fact is ‘relevant’ if it is the type of fact ‘that has the potential
to qualify as material evidence for purposes of a substantive claim under section
822.2.’” Id. at 798–99 (citations omitted). Only if the applicant can meet the
threshold, procedural issue should the court consider the substantive claim for
relief. See Harrington, 659 N.W.2d at 521.
Beery’s assertions that trial counsel argued justification against his wishes
is not based on new facts that could not have been raised during the three-year
window allowed for PCR actions. Assuming his claim is factually accurate—that
counsel argued for self-defense against his wishes—Beery would have been
aware of the fact since the time of his criminal trial; his testimony at this PCR
hearing establishes as much—he said
Q. Okay. So you, of course, knew way back when this offense
first took place, you knew whether or not you stabbed Dennis Link;
right? A. Definitely.
5
Q. And it’s your position today that you didn’t stab him; right?
A. No, I did not stab Dennis Link, and I did not stab Jackie Ray. I did
not have a knife on me at that time, sir.
Q. Okay. And you would have known that before your trial
took place; right? A. Definitely. And that’s what I tried to tell my
attorney. He wasn’t trying to hear it.
Q. Okay. A. He was trying to tell the [self-defense] story.
Q. At trial it was the defense position that you did stab the
victim but that you did it in self-defense? A. And that’s part—and that
was part of my complaint on here about my attorney pleading me
guilty.[2] That’s what blew me away when he said that. He’s like just
be patient. Because he was telling me just be patient, let me do—or
basically let me do this because you’ll be home by baseball season.
You know, I got this. He kept telling me this and kept telling me, so
I believed him.
Q. But the trial took place 25 years ago; right? A. Yes, sir.
Q. And— A. Twenty-six, it was.
Q. So any dissatisfaction that you had with your trial attorney
you knew about that 25 years ago; right? A. Yeah. But I was
ultimately convicted of murder and then I had—what do I do? I start
appealing.
This claim is not premised on a new ground of fact, so it does not fall within the
exception to the statute of limitations. We do not consider it further.
Next, we consider Beery’s claim that Bobby Joe Snow, Don Ockenfels, and
Nikki Beery had recently come forward stating that Beery’s now-deceased brother
Jimmy3 confessed to fatally stabbing Link. Snow testified at the PCR hearing that
he told Beery about Jimmy’s statements—made to Snow in the late 1990s—
around 2017 or 2018. Ockenfels testified Jimmy explained his involvement in the
crimes in 2017 and that he (Ockenfels) told Beery about Jimmy’s statements
during the COVID-19 pandemic. Nikki—Beery’s wife as of 2018—testified Jimmy
2 Beery did not plead guilty; we understand this statement to refer to the fact that
his trial counsel told the jury (during both the opening and closing statement) that
Beery inflicted the wounds to Link and Ray.
3 Jimmy died in September 2019; his death is unrelated to the incidents described
in this case.
6
told her about his involvement in 2003 or 2004 and again in 2014 or 2015; she
passed that information to Beery in 2018. Here, we differentiate between Jimmy’s
purported confessions.4 The statement made to Snow in the late 1990s was
available (even if not actually known by Beery) before the statute of limitations ran
in 2000. So this is not a new ground of fact, and we remove it from our
consideration. Cf. Schmidt, 909 N.W.2d at 799 (finding a recantation was a new
ground of fact when it “was not available to [the applicant] within the three-year
period following the date of his conviction and [the applicant] could not have
discovered the recantation earlier than he did in the exercise of due diligence.”).
But Jimmy’s confession to Ockenfels and Nikki came after the three-year
window following the issuance of procedendo, so Beery could not have brought
the confessions to the court’s attention within the statute of limitations. Cf. id. at
799. And another person’s confession to the crime is the type of evidence that has
the potential to qualify as material evidence for relief under a newly-discovered-
evidence claim, so it is relevant. See Iowa Code § 822.2; see also Moon v. State,
911 N.W.2d 137, 143 (Iowa 2018). This is enough to meet the ground-of-fact
exception for the evidence from Ockenfels and Nikki, so this claim is not time-
4 We have considered lumping Jimmy’s confessions together, as the important fact
is that he confessed at all—not to whom he confessed or the number of different
times. If we did so, we would conclude that Jimmy took responsibility for the
stabbing of Link before the PCR statute of limitations ran (when he purportedly
confessed to Snow in the late 1990s) and find the fact that Jimmy confessed is not
a new ground of fact. That would end our analysis. But here, we are considering
each of Jimmy’s confessions as a separate piece of evidence (as the court would
in determining whether the statement is hearsay or relevant and if the individual
witnesses were credible in their testimony of Jimmy’s statements), so we consider
when each confession occurred and whether Beery could have raised the fact of
that individual confession to the court.
7
barred. See Moon, 911 N.W.2d at 143 (“We explicitly and ‘specifically reject[ed]
any requirement that an applicant must show the ground of fact would likely or
probable have changed the outcome of the underlying criminal case in order to
avoid a limitations defense.’” (quoting Harrington, 659 N.W.2d at 521) (alteration
in original)).
So, we turn to the question of whether Beery can prevail on the substance
of his newly-discovered-evidence claim. See id. at 145. To do so, Beery must
show:
(1) that the evidence was discovered after the verdict; (2) that it could
not have been discovered earlier in the exercise of due diligence;
(3) that the evidence is material to the issues in the case and not
merely cumulative or impeaching; and (4) that the evidence probably
would have changed the result of the trial.
Id. at 151.
Jimmy’s confessions to Ockenfels and Nikki were purported to have taken
place after Beery’s trial. But the contents of Jimmy’s confession—that he was the
person who stabbed Link—could have been discovered earlier with the exercise
of due diligence by Beery. See id. (“The obvious fact is that Boone’s 2011 affidavit
came after Moon’s 2000 trial. [But] [t]he question is whether Moon discovered the
contents of Boone’s affidavit after the verdict.”). Since Beery always knew5 he was
not at the scene at the time of the stabbing and was not the person who committed
the act, it should have been clear his brother was one of just a few candidates who
could have stabbed Link. Moreover, the evidence Beery would actually seek to
5 This line of thought puts aside the fact that Beery admitted at his underlying
criminal trial, his direct appeal, and his first three PCR actions that he was at the
scene of the stabbing and, in fact, was the person who stabbed Link.
8
offer at a new trial, the hearsay statements of his now-wife and Ockenfels that his
deceased brother is actually the killer, in direct contradiction to years of Beery’s
own claims he acted in self-defense and the eyewitnesses from the criminal trial
who named Beery as the actor, is not the type of evidence that is likely to change
the result. As the district court concluded, “The [fourth PCR action] is ultimately
not based on newly discovered evidence, but more realistically newly created
evidence. It relies almost entirely on a claim against a convenient scapegoat, the
now-deceased Jimmy.” And the “fact” that Jimmy—not Beery—was the person
who stabbed Link is contradicted by much of the evidence from the underlying
criminal trial. Multiple witnesses at the underlying criminal trial—uncontroverted at
the time—stated Jimmy got into Link’s blue station wagon and left the scene before
Link was stabbed. Physical evidence supports this, as Jimmy’s blood was found
in the station wagon.6 Plus, as the district court noted:
Beery was identified as the assailant by both Ray (the survivor of the
first stabbing, who identified Beery in open court) and Wimber (the
witness to the fight between Beery and Link, who put Beery at the
scene at the time of the fatal stabbing). [And] Beery’s contention that
he was the one who left the scene prior to the stabbings with Wimber
and Milani has no factual support whatsoever; neither Wimber nor
Milani supported that version of events in the testimony and
recitations offered during the criminal trial, and neither of them
testified during the postconviction trial in an effort to recant their prior
versions; namely, that Beery left with them after the fatal stabbing,
not before.
(Footnote omitted). Beery is not entitled to a new trial based on his claim of newly
discovered evidence. We affirm the district court.
AFFIRMED.
6 Before Link and Ray arrived, Jimmy sustained a wound in his leg.