Joshua Frank McCoy v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-1286
Filed February 5, 2025

JOSHUA FRANK MCCOY,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Coleman McAllister,

Judge.

The applicant appeals the district court’s dismissal of his second application

for postconviction relief. AFFIRMED.

Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,

for appellant.

Brenna Bird, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee State.

Heard by Greer, P.J., and Langholz and Sandy, JJ.
2

GREER, Presiding Judge.

In March 2023, Joshua McCoy applied a second time for postconviction

relief (PCR), alleging ineffective assistance of counsel in his first PCR, which

related to his 2014 convictions for first-degree murder and first-degree robbery.

The district court concluded McCoy’s second PCR application was untimely, as it

was required to be filed within three years after procedendo issued on his direct

appeal on August 13, 2016. McCoy appeals the district court’s dismissal, asking

this court to apply equitable tolling to avoid the application of the statute of

limitations for PCR actions found in Iowa Code section 822.3 (2023). To do so,

McCoy argues that either the 2019 amendment to Iowa Code section 822.31 did

not foreclose the variant of equitable tolling adopted in State v. Allison, 914 N.W.2d

866, 891 (Iowa 2019) or that the 2019 amendment is unconstitutional. After our

review, we conclude section 822.3 abrogated Allison and McCoy has not

established the amendment is unconstitutional; as a result, we conclude the district

court properly dismissed McCoy’s PCR application as time-barred.

I. Background Facts and Proceedings.

The facts leading to McCoy’s original conviction were previously

summarized as follows:

[Christopher] Byers was shot and killed in his living room while selling
marijuana to [Joshua] McCoy and Marquice Morris. When Byers
pulled out the bag of marijuana, McCoy and Morris pulled out guns.
After the guns came out, one of the men shot at the floor and the
other shot Byers in the chest. A criminalist testified that it was most
likely McCoy's 9mm gun that shot Byers. An informant testified
McCoy and Morris intended to rob Byers. They brought the guns to
scare him into handing over money and drugs.

1 See 2019 Iowa Acts ch. 140, § 34.
3

McCoy v. State, No. 22-0378, 2023 WL 2395710, at *1 (Iowa Ct App. Mar. 8,

2023). Byers died as a result of his injuries. Because of McCoy’s role in Byers’s

death, McCoy was charged with murder in the first degree, in violation of Iowa

Code sections 707.1 and 707.2 (2013), and robbery in the first degree, in violation

of sections 711.1 and 711.2. A jury found McCoy guilty on both counts. The district

court sentenced McCoy to life in prison for first-degree murder and twenty-five

years in prison for first-degree robbery, to be served concurrently. McCoy

appealed his convictions, arguing the district court improperly excluded evidence

and his trial counsel failed to raise and request the appropriate jury instructions.

See State v. McCoy, No. 14-0918, 2016 WL 3269458, at *3–6 (Iowa Ct. App. June

15, 2016). We affirmed his convictions on direct appeal. Id. at 7. And procedendo

issued on August 30, 2016.

On October 17, 2016, McCoy filed his first PCR application. After

successive continuances, McCoy’s amended application for PCR was denied on

February 6, 2022. McCoy appealed. Agreeing with the PCR court that McCoy did

not prove ineffective assistance of trial counsel, we affirmed the denial of his

application. See McCoy, 2023 WL 2395710, at *2. Even before procedendo

issued, McCoy filed this second PCR application on March 22, 2023—more than

six years after procedendo issued on his direct appeal. The State filed a motion

to dismiss, alleging that McCoy’s second PCR filing was untimely. After a hearing,

the district court granted the State’s motion to dismiss, finding McCoy’s claims

were barred by the three-year statute of limitations in section 822.3. McCoy

appeals the dismissal.
4

II. Standard of Review.

“Our standard of review for a district court’s ruling on a motion to dismiss is

for correction of errors at law.” Hedlund v. State, 875 N.W.2d 720, 724 (Iowa

2016). “For purposes of reviewing a ruling on a motion to dismiss, we accept as

true the petition’s well-pleaded factual allegations, but not its legal conclusions.”

Shumate v. Drake Univ., 846 N.W.2d 503, 507 (Iowa 2014). “A motion to dismiss

may be granted when the petition’s allegations, taken as true, fail to state a claim

upon which relief may be granted.” Mueller v. Wellmark, Inc., 818 N.W.2d 244,

253 (Iowa 2012).

As a part of his equitable-tolling argument, McCoy challenges the

constitutionality of Iowa Code section 822.3, focusing on the language that was

added as part of the 2019 amendment of the statute. See 2019 Iowa Acts ch. 140,

§ 34 (“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.”).

Iowa appellate courts “review constitutional challenges to a statute de novo. In

doing so, we must remember that statutes are cloaked with a presumption of

constitutionality. The challenger bears a heavy burden, because it must prove the

unconstitutionality beyond a reasonable doubt.” Star Equip., Ltd. v. State, 843

N.W.2d 446, 457 (Iowa 2014) (citation omitted).

III. Discussion.

McCoy makes one central argument on appeal—that we should apply

equitable tolling to his otherwise time-barred second PCR application. This is not

a novel argument; we have addressed similar requests before. Before June 2018,
5

Iowa appellate courts consistently declined to apply equitable tolling to

section 822.3.2 The Iowa Supreme Court changed course in Allison v. State,

adopting some “variant” of equitable tolling. 914 N.W.2d 866, 891 (Iowa 2018).

Only one year later, in 2019, the legislature amended section 822.3:

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. Facts within the personal
knowledge of the applicant and the authenticity of all documents and
exhibits included in or attached to the application must be sworn to
affirmatively as true and correct. The supreme court may prescribe
the form of the application and verification. The clerk shall docket
the application upon its receipt and promptly bring it to the attention
of the court and deliver a copy to the county attorney and the attorney
general.

Iowa Code § 822.3 (Supp. 2019) (emphasis added to highlight amendment). Since

this amendment, our courts have declined to apply any type of equitable tolling to

avoid the time-bar in section 822.3, regardless, McCoy now argues either that

section 822.3 did not abrogate Allison or the statute is unconstitutional following

the addition of the language prohibiting equitable tolling.3 Essentially, he asks us

2 James v. State, 858 N.W.2d 32, 33 (Iowa Ct. App. 2014); McCullough v. State,

No. 17-0434, 2018 WL 346463, at *1 (Iowa Ct. App. Jan. 10, 2018); Long v. State,
No. 16-1220, 2017 WL 2684345, at *2 (Iowa Ct. App. June 21, 2017); Harrington
v. State, No. 16-0953, 2017 WL 2684340, at *1 (Iowa Ct. App. June 21, 2017);
Perdue v. State, No. 15-1237, 2016 WL 4036173, at *1 (Iowa Ct. App. July 27,
2016); Weatherly v. State, No. 15-0681, 2016 WL 1366827, at *1 (Iowa Ct. App.
Apr. 6, 2016); Everett v. State, No. 12-1032, 2014 WL 3749338, at *2 (Iowa Ct.
App. July 30, 2014); Majors v. State, No. 12-1090, 2013 WL 2637599, at *5 (Iowa
Ct. App. June 12, 2013); Fagan v. State, No. 10-0739, 2012 WL 3854635, at *1
(Iowa Ct. App. Sept. 6, 2012); Rieflin v. State, No. 11-1044, 2012 WL 3590453,
at *2 (Iowa Ct. App. Aug. 22, 2012); Friedrich v. State, No. 10-1250, 2011 WL
2112783, at *2 (Iowa Ct. App. May 25, 2011); Lawrence v. State, No. 10-1238,
2011 WL 768785, at *2 (Iowa Ct. App. Mar. 7, 2011);Stringer v. State, No. 08-
0188, 2008 WL 5235491, at *2 (Iowa Ct. App. Dec. 17, 2008).
3 McCoy asks this court to implement equitable tolling for PCR ineffective-

assistance-of-counsel claims on policy grounds. We decline to address McCoy’s
6

to conclude a variant of equitable tolling survived the 2019 amendment and

remains good law.

McCoy relies on the tenets of Allison, advocating for this court to apply some

version of “equitable tolling.” See 914 N.W.2d at 891. Allison, according to McCoy,

“did not expressly adopt a strict equitable tolling rule,” but instead the holding

supported a “‘variant’ of equitable tolling that was not undone by the legislature’s

2019 amendment to section 822.3.” As this court did in a published case in 2022,

we reject McCoy’s argument. See Brooks v. State, 975 N.W.2d 444, 446 (Iowa

Ct. App. 2022). The intent of the legislature is clear, the 2019 amendment to

section 822.3 abrogated Allison, ending any application of a “variant” of equitable

tolling. But to clear any haze on the subject, in Brooks, we stated, “[The 2019

amendment to section 822.3] abolished the relation-back doctrine for ineffective-

assistance claims in second PCR proceedings. Our court has repeatedly noted

that the amendment to section 822.3 ‘appears to abrogate Allison.’ Today we are

definitive: the amendment invalidated Allison as applied to [the applicant’s] belated

PCR application.” 975 N.W.2d at 446 (internal citations omitted); see also

Sandoval v. State, 975 N.W.2d 434, 436 (Iowa 2022) (recognizing “the general

assembly amended section 822.3 and abrogated Allison”). We are bound by this

precedent; Allison was definitively abrogated by the 2019 amendment to

section 822.3.

arguments to why this court should adopt equitable tolling as “[w]e cannot judicially
revise the Iowa Code in the guise of interpretation.” In re Det. of Geltz, 840 N.W.2d
273, 280 (Iowa 2013). “Policy arguments to amend the statute should be directed
to the legislature.” In re Est. of Whalen, 827 N.W.2d 184, 194 (Iowa 2013).
7

Having found that the variant of equitable tolling under Allison is no longer

good law given the legislative change, we address McCoy’s constitutional

arguments. As he frames it, without the availability of equitable tolling in his

situation, section 822.3 cannot square with Sixth and Fourteenth Amendments of

the United States Constitution and article I, section 10 of the Iowa Constitution.

McCoy invites us to find section 822.3 unconstitutional in light of the discussion in

Allison over the entitlement to effective assistance of PCR counsel.4 See 914

N.W.2d at 890–91. But, as the Allison dissent noted, the “winding road” analysis

of the constitutional issues “leads nowhere because the majority acknowledge[d]

the result it reach[ed] [was] not constitutionally compelled.” Id. at 896 (Waterman,

J., dissenting). Because, as the State points out, McCoy’s right to effective

assistance on PCR comes not from a constitutional right, but from a statute. See

Lado v. State, 809 N.W.2d 248, 250 (Iowa 2011); see also Iowa Code § 822.5.

And Allison did not expressly overrule the previous cases that squarely

addressed the constitutionality of section 822.3, upholding “the constitutionality of

4 Counsel at oral arguments addressed the delays occurring in PCR cases across

our state and referenced a footnote in the dissent of Ruiz v. State, No. 24-0085,
2024 WL 3887241, at *3 n.5 (Iowa Ct. App. Aug. 21, 2024) (Tabor, C.J.,
dissenting), where the dissent quoted from our chief justice’s 2023 Condition of the
Judiciary address stating that the shortage of state public defender contract
attorneys “delays justice.” In the 2025 Condition of the Judiciary address, the chief
justice again emphasized the unresolved problem by noting “our chief judges
across the state are imploring Iowa attorneys to sign up for court appointed work
with little success because, we are told, attorneys won’t work at our low state rate
when they have clients who can pay a competitive hourly rate.” Susan Larson
Christensen, Chief Justice of the Iowa Supreme Court, 2025 Condition of the
Judiciary (Jan. 15, 2025), https://perma.cc/AD56-SJ37. While we cannot solve this
issue here—nor does it affect our constitutional analysis—we agree that a strong
stable of contract attorneys and public defenders remains critically important to
provide effective assistance to indigent Iowans in PCR cases, just as in other court-
appointed cases.
8

[section 822.3],” including its three-year time bar for PCR applications. Perez v.

State, 816 N.W.2d 354, 360 (Iowa 2012) (citing Davis v. State, 443 N.W.2d 707,

710 (Iowa 1989)). Separately, the court upheld statutory time limits in chapter 822,

finding “[a] legitimate concern is that the process . . . end[s] within [a] reasonable

time limit[]” and recognizing “that due process requires that the interest of the

[S]tate and the defendant be balanced in determining the reasonableness of a

period of limitations.” Davis, 443 N.W.2d at 710. After completing that balancing

test, our supreme court concluded that limiting a PCR applicant to a three-year

window “provides a valid opportunity for persons to challenge their convictions”

and did not violate the applicant’s federal or state due process rights. Id. at 710–

11.

Before the 2019 amendment, both Perez and Davis specifically upheld

section 822.3 as constitutional; a provision which did not afford PCR applicants

relief through equitable tolling. Perez, 816 N.W.2d at 360; Davis, 443 N.W.2d at

711. It was Allison that implemented some subspecies of equitable tolling, yet

before Allison, this court found section 822.3 constitutional while repeatedly

declining to apply equitable tolling to section 822.3.

McCoy asserts without direct authority that the current iteration of

section 822.3 violates the Sixth and Fourteenth Amendments to the United States

Constitution and article I, section 10 of the Iowa Constitution. On a similar

challenge discussed in Johnson v. State, we observed:

Johnson does not identify—and we cannot find—anything in
the text of the Sixth Amendment that would prohibit a statutory time
limit on PCR actions. And Johnson does not cite, and we have not
found, any case that has recognized such a prohibition. Instead, our
courts have refused to hold section 822.3 unconstitutional. See, e.g.,
9

Thompson[ v. State, No. 19-0322], 2020 WL 2060310, at *3 [(Iowa
Ct. App. Apr. 29, 2020)] (declining to “declare Iowa Code
section 822.3 unconstitutional for violating [the applicant’s] right to
due process and his right to counsel under both the United States
and Iowa Constitutions”). Johnson has shown no good reason to do
otherwise.
As for equitable tolling, “this court has frequently held that
equitable tolling does not apply to section 822.3.” See Smith v. State,
No. 19-0384, 2020 WL 110398, at *1 & n.2 (Iowa Ct. App. Jan. 9,
2020) (collecting cases). And Johnson has shown no reason to take
a different path.

No. 19-1949, 2021 WL 210700, at *4 (Iowa Ct. App. Jan. 21, 2021) (third alteration

in original); see also Quinn v. State, No. 20-0918, 2022 WL 947002, at *3 (Iowa

Ct. App. Mar. 30, 2022) (discussing Johnson and other cases). Because McCoy

failed to set forth a test or specific constitutional provision as a lens for our court to

view the legislative action, we decline to provide one for him. So, we apply the

language of section 822.3 as we did before Allison; noting our binding precedent

suggests this application has been consistent with state and federal constitutional

law. See Lado, 804 N.W.2d at 250 (“Lado, however, has a statutory, not

constitutional right to effective assistance of counsel on postconviction relief.”); see

also Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988) (“[W]e detect no state

or federal constitutional grounds for counsel in such a proceeding.”).

IV. Conclusion.

Because the 2019 amendment to section 822.3 abrogated Allison and

McCoy has not established the amendment is unconstitutional, the district court

did not err when granting the State motion to dismiss McCoy’s second PCR

application as time-barred. In sum, we affirm the decision of the district court.

AFFIRMED.