Joe Willie Cannon, Applicant-Appellant v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 13-1661
Filed September 10, 2015

JOE WILLIE CANNON,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, John M.

Wright, Judge.

An applicant appeals a summary dismissal of his postconviction-relief

application as time-barred. AFFIRMED.

William W. C. Glass, Keosauqua, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Stephanie Koltookian, Student Legal Intern, and Amy Beavers, County

Attorney, for appellee State.

Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

Postconviction-relief “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.” Iowa Code § 822.3 (2013). Joe Willie Cannon

filed his fourth postconviction-relief application almost eighteen years after

procedendo issued. The district court summarily dismissed the application as

time-barred.

On appeal, Cannon concedes his claims “would normally be timed barred

by Iowa Code Section 822.3,” but argues they “must be viewed in the context of

the history of [his] case noted in the State’s motion for summary judgment.”

The history of Cannon’s case has scant bearing on the time-bar. The

fourth application was untimely on its face and summary dismissal was

appropriate unless Cannon raised “a ground of fact or law that could not have

been raised within the applicable time period.” Id. He did not.

Cannon challenges the sufficiency of the trial information and the minutes

of testimony. These documents were at his disposal from the outset. See

generally Gonzalez v. State, No. 11-0684, 2013 WL 263356, at *3 (Iowa Ct. App.

Jan. 24, 2013) (“Gonzalez would have known at the time of the underlying

criminal proceeding if the trial information was not sufficiently specific to apprise

him of the crime charged in order to permit him to prepare a defense.” (citing

State v. Griffin, 386 N.W.2d 529, 531 (Iowa Ct. App. 1986))).

Cannon suggests his challenges implicated the subject matter jurisdiction

of the district court, an issue that can be raised at any time. See DeVoss v.

State, 648 N.W.2d 56, 62 (Iowa 2002). Our appellate courts have rejected this
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argument. See State v. Taggart, 430 N.W.2d 423, 426 (Iowa 1988); see also

Washington v. State, No. 14-0923, 2015 WL 4158810, at *2-3 (Iowa Ct. App. July

9, 2015); Armstrong v. State, No. 13-1930, 2015 WL 3884170, at *3 (Iowa Ct.

App. June 24, 2015); State v. Robinson, No. 12-1323, 2014 WL 251909, at *3

(Iowa Ct. App. Jan. 23, 2014), vacated on other grounds by State v. Robinson,

859 N.W.2d 464 (Iowa 2015); Brown v. State, No. 13-0244, 2014 WL 3511741,

at *1 (Iowa Ct. App. July 16, 2014); Frasier v. State, No. 12-1957, 2014 WL

69671, at *3 (Iowa Ct. App. Jan. 9, 2014); Neal v. State, No. 12-1725, 2014 WL

69529, at *1 (Iowa Ct. App. Jan. 9, 2014).

Finally, Cannon suggests his prior attorneys were ineffective in failing to

raise challenges to the trial information and minutes. Ineffective assistance is not

“a claim that ‘could not have been raised within the applicable time period’ under

section 822.3.” Whitsel v. State, 525 N.W.2d 860, 864-65 (Iowa 1994).

We affirm the district court’s summary dismissal of Cannon’s fourth

postconviction-relief application.

AFFIRMED.