Terrance Burnett v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 17-0865
Filed May 2, 2018

TERRANCE BURNETT,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Richard H.

Davidson, Judge.

Applicant challenges the dismissal of his second application for

postconviction relief. AFFIRMED.

Marti D. Nerenstone, Council Bluffs, for appellant.

Thomas J. Miller, Attorney General, and Benjamin M. Parrott, Assistant

Attorney General, for appellee State.

Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

Terrance Burnett appeals from the dismissal of his second application for

postconviction relief. He contends the district court erred in dismissing his

application as time barred. This court has twice laid out the facts in Burnett’s case,

see Burnett v. State, No. 14-1128, 2016 WL 530130, at *1 (Iowa Ct. App. Feb. 10,

2016); State v. Burnett, No. 11-0361, 2012 WL 836656, at *1–2 (Iowa Ct. App.

Mar. 14, 2012), and they need not be repeated herein.

On review for the correction of legal error, see Dible v. State, 557 N.W.2d

881, 883 (Iowa 1996), abrogated on other grounds by Harrington v. State, 659

N.W.2d 509 (Iowa 2003), we conclude the district court did not err in dismissing

Burnett’s untimely second application for postconviction relief. Iowa Code section

822.3 (2016) requires postconviction-relief applications “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” absent a ground of fact or law that could

not have been raised within the statutory period. It is not disputed Burnett’s second

application is untimely. Burnett contends his untimely application should be

excused because his postconviction appellate counsel was ineffective in not

seeking further review of this court’s decision affirming the dismissal of his first

application for postconviction relief. The ineffective assistance of postconviction

appellate counsel is not a ground of fact or law excusing an untimely application

for postconviction relief. See Dible, 557 N.W.2d at 886; Greenup v. State, No. 16-

0826, 2017 WL 3505293, at *1 (Iowa Ct. App. Aug. 16, 2017) (“However, the

ineffective assistance of postconviction relief counsel is not a ‘ground of fact’ within

the meaning of section 822.3. Consequently, it cannot serve as an exception to
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the three-year statute of limitations found in that statute.”); Allison v. State, No. 16-

0764, 2017 WL 706330, at *1–2 (Iowa Ct. App. Feb. 22, 2017) (holding the

ineffective assistance of postconviction counsel is not a “ground of fact” within the

exception to the three-year statute of limitations); Kelly v. State, No. 12-0838, 2014

WL 4224731, at *1 (Iowa Ct. App. Aug. 27, 2014) (holding the “ineffective

assistance of postconviction appellate counsel” was not an exception to the statute

of limitations); Jackson v. State, No. 12-1496, 2013 WL 4505114, at *2 (Iowa Ct.

App. Aug. 21, 2013) (“Jackson argues his case is distinguishable as he is claiming

his postconviction appellate counsel is ineffective, but our case law is clear that

postconviction counsel's conduct does not have a direct impact on the validity of

the criminal conviction and does not qualify as a ground of fact that will avoid the

limitations period.”). The district court correctly dismissed Burnett’s application for

postconviction relief as time barred.

AFFIRMED.