IN THE COURT OF APPEALS OF IOWA
No. 15-0853
Filed August 17, 2016
CECIL WATSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Petitioner appeals the district court decision denying his application for
postconviction relief on the ground it was untimely. AFFIRMED.
Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
2
BOWER, Judge.
Cecil Watson appeals the district court decision denying his application for
postconviction relief on the ground it was untimely. We find Watson’s application
was not filed within three years after procedendo was issued in his direct appeal,
and because his claims do not fall within the exception for a ground of fact or law
that could not have been raised within the applicable time period, we affirm the
decision of the district court.
Watson was convicted of conspiracy to deliver crack cocaine, possession
of crack cocaine with the intent to deliver, and failure to possess a drug tax
stamp. On appeal, we vacated Watson’s conviction for conspiracy to deliver
crack cocaine and affirmed his other convictions. See State v. Watson, No. 08-
0339, 2009 WL 1492690, at *4 (Iowa Ct. App. May 29, 2009). Procedendo was
issued on August 3, 2009.
Watson filed the present application for postconviction relief on
September 25, 2014.1 The State filed a motion for summary judgment, claiming
the application was untimely under Iowa Code section 822.3 (2013). Watson
resisted the motion. The district court granted summary judgment, finding
Watson’s application was filed more than three years after procedendo was
issued in his direct appeal. Watson appeals.
We review a district court’s ruling finding an application for postconviction
relief was untimely for the correction of errors at law. Harrington v. State, 659
1
Watson filed an earlier application for postconviction relief, claiming he received
ineffective assistance of counsel. The district court denied his application, and we
affirmed on appeal. See Watson v. State, No. 11-1833, 2013 WL 99862, at *8 (Iowa Ct.
App. Jan. 9, 2013).
3
N.W.2d 509, 519 (Iowa 2003). We will affirm if the court’s findings of fact are
supported by substantial evidence and the law was correctly applied. Id. at 520.
When a party has filed a direct appeal of a criminal conviction, an
application for postconviction relief must be filed within three years from the date
the writ of procedendo was issued. Iowa Code § 822.3. “However, this limitation
does not apply to a ground of fact or law that could not have been raised within
the applicable time period.” Id.
On appeal, Watson has raised a new issue, claiming his application for
postconviction relief comes within the exception found in section 822.3 because it
involves an issue of law “that could not have been raised within the applicable
time period.” See id. In Watson’s direct appeal we stated:
On August 30, 2007, police officers obtained a warrant to
search Cecil Watson’s residence and person. Watson was not at
home when officers arrived to search his residence. Later that day,
officers received a tip that Watson would be driving to CiCi’s Pizza
and waited for him in unmarked vehicles. When Watson pulled into
the parking lot, officers blocked in the vehicle driven by Watson and
converged on the vehicle to execute the warrant.
Watson, 2006 WL 1492690, at *1.
Watson claims the officers improperly stopped his vehicle based upon a
tip. He relies upon State v. Kooima, 833 N.W.2d 202, 210–11 (Iowa 2013),
which states:
Accordingly, we hold a bare assertion by an anonymous
tipster, without relaying to the police a personal observation of
erratic driving, other facts to establish the driver is intoxicated, or
details not available to the general public as to the defendant's
future actions does not have the requisite indicia of reliability to
justify an investigatory stop. Such a tip does not meet the
requirements of the Fourth Amendment.
4
Watson states he was unable to raise this issue until Kooima was decided in
2013, and therefore, his claim comes within the exception in section 822.3.
Even if Kooima applied retroactively, we determine it does not apply to the
factual situation here. Kooima involved an investigatory stop based on the bare
assertions of an anonymous tipster. 833 N.W.2d at 210–11. Watson’s case
does not involve an investigatory stop based only on a tip. Rather, the officers
had a warrant to search his residence and person, and the tip related only to
Watson’s location at the time he was stopped by the officers. Watson, 2009 WL
1492690, at *1. Because Kooima is not factually applicable, we conclude the
Iowa Supreme Court’s holding in Kooima does not provide Watson with a ground
of law “that could not have been raised within the applicable time period.” See
Iowa Code § 822.3.
Because Watson’s claims do not come within the exception found in
section 822.3, we determine his application is untimely because it was not filed
within three years after procedendo was issued in his direct appeal. See id. We
affirm the decision of the district court.
AFFIRMED.