(dissenting).
I respectfully dissent. The majority opinion’s narrow interpretation of Iowa Code section 822.3 effectively denies petitioner Dible any opportunity to have his postconviction claims heard. I believe the provisions of that section can be given effect without producing such a harsh result.
I. The effect of Dible’s ineffective counsel.
As the majority correctly notes, the respondent State’s motion to dismiss Dible’s petition admits all well-pleaded facts in the petition, see Harryman v. Hayles, 257 N.W.2d 631, 633 (Iowa 1977), and we therefore must assume that attorney Sikma rendered ineffective assistance in Dible’s first postconviction action by allowing it to be dismissed under Iowa Rule of Civil Procedure 215.1. However, the majority fails to acknowledge the import of attorney Sikma’s substandard performance. Once counsel was appointed for Dible pursuant to Iowa Code section 822.5, Dible had a right to effective assistance of that counsel. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994); Schertz v. State, 380 N.W.2d 404, 412 (Iowa 1985) (stating that right to effective assistance of counsel applies to appeals and post-conviction actions as well as at trial).
Instead, Dible’s first postconviction action was dismissed due to his counsel’s failure to timely prosecute it or seek a continuance. Furthermore, because of counsel’s ineffectiveness and failure to communicate the dismissal of the petition to Dible, Dible was unable to timely avail himself of other means, such as an appeal from the dismissal of his first action (within thirty days of dismissal) or a motion for reinstatement under rule 215.1 (within six months of dismissal), to save his first posteonviction petition. Thus, despite his right to effective assistance of counsel, Dible was never given a hearing and had “no opportunity to test the validity of the conviction in relation to the ground of fact or law” alleged in his first postconviction action. See Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).
II. Time bar exception allowable under section 8%2.3.
Under section 822.3, Dible should not be barred from obtaining relief. Dible could not raise the claim of ineffective assistance, based on attorney Sikma’s inaction in the first postconviction case, within the required three-year period from the time Dible’s conviction became final in March 1989; the first postconviction action was not dismissed until January 1993, and Dible did not learn of the dismissal until the summer of 1994. Section 822.3 allows for exceptions to the three-year time limit in cases where there is “a ground of fact or law that could not have been raised within the applicable time period.” I believe the legislature clearly intended that postcon-vietion relief applicants should not be precluded from bringing their claims before a court unless any untimeliness was due to their own inaction. Cf. Schertz, 380 N.W.2d at 412 (noting that “[b]y a proper showing that all previous counsel were ineffective, a *887path may be forged to permit issues of error at trial to be raised before this court for the first time”).
III. Criminal case result could have been changed.
The majority emphasizes a distinction between the ineffective assistance of trial counsel and the ineffective assistance of appellate or postconviction counsel, asserting that “even if Sikma had competently represented Dible in his first postconviction action, the result of Dible’s criminal trial would not have been different.” That distinction is overstated. In this case, if attorney Sikma had competently represented Dible in his first postconviction action, Dible’s claims of newly-discovered evidence and ineffective assistance of trial counsel at least would have received a hearing and possibly could have changed the result of the underlying criminal case. However, the result of our decision today is that Dible is not afforded the effective assistance of postconviction counsel previously guaranteed by our cases and section 822.5.
IV. Conclusion.
In attempting to establish a bright-line rule, the majority’s decision leads to an unfair result in this case and deprives Dible of a hearing on his claims. I would affirm the decision of the court of appeals reinstating Dible’s second application for posteonviction relief and remand for further proceedings.
CARTER, NEUMAN, and SNELL, JJ., join this dissent.