Larry Dean Boring v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 20-0129
Filed June 16, 2021

LARRY DEAN BORING,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Jones County, Lars Anderson,

Judge.

Larry Boring appeals the denial of his application for postconviction relief.

APPEAL DISMISSED.

Anne K. Wilson of Viner Law Firm, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2

VAITHESWARAN, Presiding Judge.

In this appeal from the denial of a postconviction-relief application, we must

consider the effect of certain pro se filings.

Larry Dean Boring was convicted of second-degree sexual abuse and

lascivious acts with a child in 2005. Boring appealed his conviction, raising several

ineffective-assistance-of-counsel claims. The court of appeals affirmed the

convictions and preserved the claims for postconviction relief. See State v. Boring,

No. 05-2054, 2007 WL 1063037, at *1 (Iowa Ct. App. Apr. 11, 2007).

Boring filed a postconviction-relief application. The district court denied the

application, and the court of appeals affirmed the denial. See Boring v. State,

No. 12-2000, 2014 WL 955385, at *1 (Iowa Ct. App. Mar. 12, 2014).

Boring filed a second postconviction-relief application on July 3, 2019. The

State moved to dismiss the application on the ground that “[m]ore than three years

has passed since both the entry of final judgment in the underlying felony, and the

initial claim of post-conviction relief,” and the claims were “time-barred.” The

district court granted Boring’s application for court-appointed counsel.

Counsel filed a resistance to the State’s motion to dismiss the application.

Three days later, Boring filed a “Motion for Extension Time to File Resistance (Pro

Se).” The district court ruled that a recently enacted statute prohibited the filing of

any pro se document except “a pro se motion seeking disqualification of counsel.”

See Iowa Code § 822.3A (2019). The court determined Boring’s pro se filing did

“not seek the disqualification of counsel,” and accordingly, the court could not

consider it.
3

Boring’s attorney followed up with a motion to extend the time to supplement

her initial resistance to the State’s dismissal motion. The district court granted the

extension motion. Counsel ultimately did not supplement her resistance. The

district court granted the State’s dismissal motion “[f]or the reasons stated and

authority provided in the Motion to Dismiss filed by the State.”

Boring filed a pro se “motion for expanded findings of fact and conclusions

of law pursuant to Iowa R. Civ. P. 1.904.” The district court denied the motion “for

the reasons stated in its initial order.” Boring filed a pro se notice of appeal from

the initial order.

The State has moved to dismiss the appeal on the ground that the notice

was not filed within thirty days of the district court’s initial dismissal order.1 See

Iowa R. App. P. 6.101(1)(b) (“A notice of appeal must be filed within 30 days after

the filing of the final order or judgment.”). The State acknowledges that the Iowa

Rules of Appellate Procedure contain an exception to the thirty-day deadline where

“a motion is timely filed under Iowa R. Civ. P. 1.904(2) or Iowa R. Civ. P. 1.1007.”

Iowa R. App. P. 6.101 (1)(c). The exception allows a notice of appeal to be filed

“within 30 days after the filing of the ruling on such motion.” Id. The State asserts

Boring may not avail himself of the exception because section 822.3A prohibits pro

se filings such as his rule 1.904(2) motion “while he was still represented by

counsel.” In the State’s view, “Boring’s prohibited pro se motion is essentially a

nullity and did not revive his appeal deadline notwithstanding rule 6.101(1)(c).”

1 The supreme court ordered the motion considered with the appeal.
4

Iowa Code section 822.3A, enacted on July 1, 2019—two days before

Boring filed his second postconviction-relief application2—states:

1. An applicant seeking relief under section 822.2 who is
currently represented by counsel shall not file any pro se document,
including an application, brief, reply brief, or motion, in any Iowa
court. The court shall not consider, and opposing counsel shall not
respond to, such pro se filings.
2. This section does not prohibit an applicant for
postconviction relief from proceeding without the assistance of
counsel.
3. A represented applicant for postconviction relief may file a
pro se motion seeking disqualification of counsel, which a court may
grant upon a showing of good cause.

The supreme court recently considered a constitutional challenge to the

provision. See Hrbek, 779 N.W.2d at 784–88. The court concluded “there is no

constitutional right of any sort to file pro se supplemental documents in

postconviction-relief proceedings and postconviction appeals.” Id. at 785. The

court reasoned:

In enacting section 822.3A, the legislative department determined
that postconviction relief applicants represented by counsel shall no
longer be allowed to file pro se supplemental documents and instead
must speak through their counsel. This amendment to the
postconviction statute was within the legislative department’s
constitutional authority “to provide for a general system of practice in
all the courts of this state.”

2 Because the postconviction-relief application was filed after the effective date of
the statute, retroactive application is not an issue. In any event, the supreme court
recently stated, “The event of legal consequence is the filing of pro se
supplemental documents. The new law went into effect on July 1, 2019, but all of
the events of legal consequence occur after that date.” Hrbek v. State, 958 N.W.2d
779, 783 (Iowa 2021).
5

Id. at 789 (citation omitted). Hrbek resolves the constitutionality of the provision.3

We turn to the language of the statute.

Section 822.3A(1) prohibited Boring from filing “any pro se document,”

including a “motion,” and prohibited the district court from “consider[ing]” the filing.

By its terms, Boring’s post-dismissal filing was a “motion” and it was filed pro se

while Boring was represented by counsel.

Boring responds by citing section 822.3A(3). He contends his motion

should have been treated as a request for disqualification of counsel under that

provision.

Boring’s prayer for relief sought “an ORDER acknowledging the

abandonment of counsel” and an order “reopening this action with appointment of

new counsel” or “[i]n the alternative,” an “ORDER acknowledging the

abandonment of counsel” and an “ORDER mandating [his current trial attorney]

file the Notice of Appeal.” Because Boring’s rule 1.904(2) motion essentially asked

to disqualify counsel, we conclude it was an authorized filing under Iowa Code

section 822.3A(3) rather than a “nullity” under section 822.3A(1). See Peoples Tr.

& Sav. Bank v. Baird, 346 N.W.2d 1, 2 (Iowa 1984) (“Although our rules do not

expressly authorize a motion for rehearing, we look to the substance of the motion

and not its title. We conclude the motion for rehearing was in essence a motion

for enlarged and amended findings under Iowa Rule of Civil Procedure [1.904(2)].”

(citations omitted)).

3 Boring challenges the statute under the First Amendment to the United States
Constitution. Assuming the issue was preserved and not waived, the broad
language of Hrbek precludes the challenge.
6

That said, the district court did not treat the motion as a motion to disqualify

counsel under section 822.3A(3), a provision it was clearly cognizant of, having

cited it in a previous order. Instead, the court treated it as it was styled—a motion

for enlarged findings and conclusions—and denied it for the reasons stated in the

original order. Implicit in the court’s ruling was a rejection of Boring’s assertion

that his attorney “abandon[ed]” him. See Hubby v. State, 331 N.W.2d 690, 695

(Iowa 1983) (“[W]e assume as fact an unstated finding that is necessary to support

the judgment against plaintiff.”).

Because the court “considered” and denied the motion for enlarged findings

and conclusions notwithstanding its pro se nature, we will assume without deciding

that the ruling extended the time for filing a notice of appeal. Boring’s notice was

filed within thirty days of the denial of that motion. However, the notice of appeal

was again filed pro se while Boring was still represented by counsel. Accordingly,

it was a document that could not be considered. It was a nullity, as the State

claims. For that reason, the appeal is dismissed.4

APPEAL DISMISSED.

Greer, J., concurs; Schumacher, J., concurs specially.

4The pro se notice of appeal references Boring’s “abandon[ment] by counsel.”
Assuming without deciding the notice should be treated as a motion to disqualify
counsel, we discern no good cause for doing so.
7

SCHUMACHER, Judge (concurring specially)

Although the end result provides no alternative relief for Boring, I write

separately from the majority opinion to address a different path to reach such end

result. The majority concludes that Boring’s appeal should be dismissed, as his

pro se notice of appeal could not be considered as Boring was represented by

counsel, citing Iowa Code section 822.3A, enacted on July 1, 2019. As set forth

by the majority, the new code section controls pro se filings when the applicant for

postconviction relief is represented by counsel as follows:

1. An applicant seeking relief under section 822.2 who is
currently represented by counsel shall not file any pro se document,
including an application, brief, reply brief, or motion, in any Iowa
court. The court shall not consider, and opposing counsel shall not
respond to, such pro se filings.
2. This section does not prohibit an applicant for
postconviction relief from proceeding without the assistance of
counsel.
3. A represented applicant for postconviction relief may file
a pro se motion seeking disqualification of counsel, which a court
may grant upon a showing of good cause.

Iowa Code § 822.3A.

Our supreme court recently considered a constitutional challenge to the

provision. See Hrbek v. State, 958 N.W.2d 779,784–88 (Iowa 2021). The court

concluded, “there is no constitutional right of any sort to file pro se supplemental

documents in postconviction-relief proceedings and postconviction appeals.” Id.

at 785. The court reasoned:

In enacting section 822.3A, the legislative department determined
that postconviction relief applicants represented by counsel shall no
longer be allowed to file pro se supplemental documents and instead
must speak through their counsel. This amendment to the
postconviction statute was within the legislative department’s
constitutional authority “to provide for a general system of practice in
all the courts of this state.”
8

Id. at 789 (citation omitted).

In the instant postconviction-relief proceeding, the district court dismissed

Boring’s pro se motion to reconsider, following dismissal of the postconviction

application. In the motion to reconsider, Boring expressed displeasure with the

performance of his trial counsel and asked for appointment of new counsel. Like

the majority, I agree this motion should have been considered by the district court

and tolled the appeal deadline. The district court did not rule on Boring’s request

for new counsel.

Boring filed a pro se notice of appeal on January 23, 2019, apparently

believing he was without counsel after the conclusion of his district court action, as

on the same date, he filed a motion for appointment of appellate counsel. An order

was entered on January 30, appointing appellate counsel for Boring. As part of

that order, the district court stated, “It shall be the responsibility of the State

Appellate Defender’s Office to file the notice of appeal with the Clerk of Court and

serve the copy on the Attorney General.” This does not appear to have been

completed, leaving the only notice of appeal filed of record being the pro se notice

filed by Boring on January 23, 2019. Accordingly, the notice of appeal, as asserted

by the State, should not be considered a nullity.

However, the district court’s dismissal of the postconviction application on

statute of limitation grounds should be affirmed.5 Boring was convicted of sexual

5 The district court order dismissed the application “for the reasons stated and
authority provided in the Motion to Dismiss filed by the State on July 26, 2019 . . .
.” The State’s resistance contained a recitation of the dates of the original
judgment, Boring’s first postconviction-relief application, and the procedendo dates
relating to each filing.
9

abuse and lascivious acts in 2005. He appealed, and procedendo issued on the

direct appeal in May 2007. Boring filed his first application for postconviction relief

in 2007 and amended the same in June 2008. The district court denied the

application and the denial was affirmed on appeal, with procedendo issuing in

August 2014. The instant appeal was filed approximately five years after the

issuance of procedendo on his first application for postconviction relief—more than

twelve years after the procedendo issued on his direct appeal. Further, on the face

of the current application for postconviction relief, Boring fails to state any ground

that could not have been raised within the applicable time standard. As to his

generic assertions on an actual innocence claim, Boring failed to provide reliable

evidence by way of an affidavit or otherwise in resistance to the State’s motion to

dismiss. Accordingly, I would affirm the district court’s denial of Boring’s second

application for postconviction relief.