IN THE COURT OF APPEALS OF IOWA
No. 16-1561
Filed September 13, 2017
MICHAEL NAVARRO JONES,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
An applicant appeals the district court decision dismissing his petition 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 Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.
Michael Jones appeals the district court decision dismissing his petition for
postconviction relief on the ground it was untimely. We find Jones did not
preserve error on his claim the clerk of court exceeded the clerk’s duties and find
his application for postconviction relief is untimely. We find Jones is not entitled
to relief on his pro se issues. We affirm the decision of the district court.
I. Background Facts & Proceedings
Jones was convicted of robbery in the first degree and being a felon in
possession of a firearm, as a habitual offender, in violation of Iowa Code sections
711.2, 724.26, and 902.8 (2007). His convictions were affirmed on appeal. State
v. Jones, No. 08-1917, 2009 WL 4842500, at *3 (Iowa Ct. App. Dec. 17, 2009).
Procedendo was issued on February 17, 2010.
Jones’s first application for postconviction relief, claiming ineffective
assistance of counsel, was denied. The district court’s decision was affirmed on
appeal. See Jones v. State, No. 11-1033, 2012 WL 3590334, at *7 (Iowa Ct.
App. Aug. 22, 2012).
On February 11, 2013, Jones filed his second application for
postconviction relief, PCCV120985. The State filed a motion to dismiss on the
ground the issues raised in the second application had already been decided in
the ruling on the first application for postconviction relief. After a hearing, the
district court entered a decision on December 3, 2013, granting the motion to
dismiss, stating the issues raised in the second application were barred by the
doctrine of res judicata and the application was untimely under section 822.3.
The order stated Jones participated in the hearing by telephone.
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On January 8, 2016, Jones filed what he captioned as an amendment to
his application for postconviction relief in PCCV120985. The county clerk’s office
crossed out PCCV120985, wrote in PCCV128894, and treated the matter as a
new application for postconviction relief. The State filed a motion to dismiss,
claiming Jones’s third application for postconviction relief was time barred under
section 822.3. Jones resisted the State’s motion, stating he never received the
court’s ruling dismissing his second postconviction application.
A hearing on the motion to dismiss was held on August 29, 2016. Jones
testified he did not participate in a hearing on his second postconviction
application. He stated he was never notified of the hearing or the court’s ruling.
He testified if he had known of the dismissal he would have appealed. The
district court entered a ruling that day, granting the motion. The court found
Jones’s testimony he did not participate in the hearing on the second
postconviction application was not credible, and as a result , the court also found
he was not credible in his statement he did not receive the dismissal of his
second postconviction application. The court determined Jones did not timely
appeal the order dismissing his second postconviction application. The court
concluded the third postconviction application was untimely under the three-year
statute of limitations found in section 822.3. Jones now appeals the decision of
the district court.
II. Standard of Review
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
N.W.2d 509, 519 (Iowa 2003). We will affirm if the court’s findings of fact are
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supported by substantial evidence and the law was correctly applied. Id. at 520.
On a claim of ineffective assistance of counsel, our review is de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, an applicant must prove (1) counsel failed to perform an
essential duty and (2) prejudice resulted to the extent it denied the applicant a
fair trial. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).
III. Clerk of Court
Jones claims the clerk of court exceeded the clerk’s duties by crossing out
the number Jones put on his filing of January 8, 2016, and using a new case
number. This issue was not presented to the district court and we conclude it
has not been preserved for our review. See State v. Jefferson, 574 N.W.2d 268,
278 (Iowa 1997) (noting “issues must be presented to and passed upon by the
district court before they can be raised and decided on appeal”).
IV. Untimely Application
Jones claims the district court erred by finding his application for
postconviction relief, filed on January 8, 2016, was untimely. He states his
second application for postconviction relief was timely and claims his attempted
amendment to the second application should be considered timely. He states he
was not aware the second postconviction application had been dismissed.
The record shows a hearing on the second postconviction application was
held on November 22, 2013. An order filed that day states Jones participated by
telephone, his attorney was present, and the court was taking the matter under
advisement. The court entered an order on December 3, 2013, which again
stated Jones had participated in the hearing by telephone. The court dismissed
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the second postconviction application. We find the postconviction court did not
err in its conclusion Jones was not credible in his claim he did not receive notice
of the dismissal. Jones did not file a timely appeal of the order dismissing the
second application. Because there was no appeal, “it was therefore a finality and
no jurisdiction existed to amend the findings of fact and conclusions of law.” See
Iowa Pub. Serv. Co. v. Sioux City, 116 N.W.2d 466, 470 (Iowa 1962); see also
Weise v. Land O’Lakes Creameries, Inc., 191 N.W.2d 619, 622 (Iowa 1971)
(“There is no appeal from this determination and it is therefore a finality.”).
We additionally find the district court did not err in its conclusion the
document Jones filed on January 8, 2016, was a third application for
postconviction relief. There could be no amendment to the second
postconviction application because it was no longer a pending case. See Rife v.
D.T. Corner, Inc., 641 N.W.2d 761, 767 (Iowa 2002) (“Generally, a party may
amend a pleading at any time before a decision is rendered, even after the close
of the presentation of the evidence.”). Here, a final decision had been rendered
in the second postconviction action, and therefore, no amendments to the
application could be made. The third application for postconviction relief was
untimely because it was filed more than three years after procedendo was issued
in Jones’s direct appeal. See Iowa Code § 822.3.
V. Pro Se Issues
A. Jones claims he was denied due process and equal protection due
to the court’s application of the postconviction statute. He states the court did not
follow the proper process for the determination of his postconviction claims.
Jones does not state what procedures should have been followed or explain how
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his constitutional rights were violated. See Schaefer v. Schaefer, 795 N.W.2d
494, 502 n.2 (Iowa 2011) (citing Iowa R. App. P. 6.903(2)(g)(3)) (noting an issue
had not been properly raised because the appellants did not argue whether or
how they were prejudiced by the court’s action). We therefore decline to
consider this issue.
B. Jones also challenges the district court’s finding he was not a
credible witness. In postconviction actions, “we give weight to the lower court’s
findings concerning witness credibility.” Ledezma v. State, 626 N.W.2d 134, 141
(Iowa 2001). We find no error in the court’s conclusion. The court’s orders in the
second postconviction proceedings show Jones was not credible in his claim he
did not participate in the hearing, and this supports a finding he was not credible
in his claim he never received notice the second postconviction application was
dismissed.
C. Jones claims he received ineffective assistance from postconviction
counsel because counsel did not (1) raise his due process and equal protection
claims and (2) point out it was the State’s burden to show his claim was untimely.
Again, Jones does not make any arguments to support his constitutional claims
and we find his statements are too general in nature to address. See Dunbar v.
State, 515 N.W.2d 12, 15 (Iowa 1994). We also find the State met its burden to
show Jones’s third application for postconviction relief was untimely. We
conclude Jones has not shown he received ineffective assistance from
postconviction counsel.
We affirm the decision of the district court.
AFFIRMED.