Esteban Velazquez-Ramirez v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-0316
Filed January 12, 2022

ESTEBAN VELAZQUEZ-RAMIREZ,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Crawford County, Zachary Hindman,

Judge.

Esteban Velazquez-Ramirez appeals the dismissal of his second

application for postconviction relief. AFFIRMED.

Priscilla E. Forsyth, Sioux City, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.

Considered by Mullins, P.J., and May and Ahlers, JJ.
2

MAY, Judge.

Esteban Velazquez-Ramirez appeals the dismissal of his second

application for postconviction relief (PCR). We affirm.

In 2004, a jury convicted Velazquez-Ramirez of first-degree murder.

Velazquez-Ramirez appealed. This court affirmed his conviction, as did the

supreme court on further review. See generally State v. Valazquez, No. 04-0728,

2005 WL 724172 (Iowa Ct. App. Mar. 31, 2005), aff’d on further review 2005 WL

3556252 (Iowa Dec. 30, 2005). Procedendo issued in January 2006.

Then Velazquez-Ramirez filed his first PCR action, which the district court

denied. Velazquez-Ramirez appealed, but we affirmed. See generally Velazquez-

Ramirez v. State, No. 10-1819, 2012 WL 1438981 (Iowa Ct. App. Apr. 25, 2012).

Procedendo issued in August 2012.

Almost six years later, in June 2018, Velazquez-Ramirez filed the current

PCR action. The State filed a motion to dismiss. The PCR court granted the

motion.1 Velazquez-Ramirez appeals. Our review “is for correction of errors of

law.” Nguyen v. State, 829 N.W.2d 183, 186 (Iowa 2013) (quoting Harrington v.

State, 659 N.W.2d 509, 519 (Iowa 2003)).

In general, Iowa Code section 822.3 (2018) requires a PCR action to 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.” Velazquez-

1In litigating the State’s motion, both the State and Velazquez-Ramirez referred to
matters outside the pleadings. So the court treated the State’s motion as seeking
summary judgment. We mention this only for the sake of clarity. The parties do
not contend, and we do not believe, that this procedural nuance impacts the proper
outcome of this appeal.
3

Ramirez filed this action in 2018, more than twelve years after his murder

conviction became final. At first glance, then, it appears this action is time-barred.

As Velazquez-Ramirez correctly notes, though, section 822.3 includes an

exception for claims based upon “a ground of fact or law that could not have been

raised within” three years after a conviction becomes final. And here, Velazquez-

Ramirez asserts claims based on State v. Jonas, 904 N.W.2d 566 (Iowa 2017),

which held that reversal of a conviction is required “when (1) the district court

improperly denies a challenge for cause; (2) the defendant ‘specifically ask[s] for

an additional peremptory challenge of a particular juror after exhausting his

peremptory challenges’ under the Iowa Rules of Criminal Procedure; and (3) ‘the

district court denies the additional peremptory challenge.’” Jandreau v. State,

No. 19-1323, 2020 WL 7868235, at *1 (Iowa Ct. App. Dec. 16, 2020) (quoting

Jonas, 904 N.W.2d at 583). Velazquez-Ramirez argues that, because Jonas was

not decided until 2017, Jonas was a “ground of . . . law that could not have been

raised within three years” after his conviction became final in 2006. So, he

contends, this PCR was timely because it was filed within three years after Jonas.

See Penticoff v. State, No. 19-0975, 2020 WL 5229186, at *2 (Iowa Ct. App. Sept.

2, 2020) (collecting cases requiring a PCR action filed in response to a change in

the law be filed within three years of the change); id. at *5 n.8 (May, J. dissenting)

(discussing development of the requirement).

As the district court recognized, however, Velazquez-Ramirez could only

take advantage of Jonas if it applies retroactively. See Perez v. State, 816 N.W.2d

354, 355 (Iowa 2012) (noting that if “Padilla[ v. Kentucky, 559 U.S. 356 (2010),]

does not apply retroactively, [then] Perez may not rely upon it to set aside an earlier
4

conviction”). And “new rules of procedure generally do not apply retroactively.”

Thongvanh v. State, 938 N.W.2d 2, 11 (Iowa 2020). So Velazquez-Ramirez

cannot benefit from Jonas, a case about the procedures governing jury selection

and related appeals.2

Velazquez-Ramirez also argues that Allison v. State, 914 N.W.2d 866, 891

(Iowa 2018), requires us to conclude this PCR action was timely filed. In Allison,

our supreme court held that

where a PCR petition alleging ineffective assistance of trial counsel
has been timely filed per section 822.3 and there is a successive
PCR petition alleging postconviction counsel was ineffective in
presenting the ineffective-assistance-of-trial-counsel claim, the
timing of the filing of the second PCR petition relates back to the
timing of the filing of the original PCR petition for purposes of Iowa
Code section 822.3 if the successive PCR petition is filed promptly
after the conclusion of the first PCR action.

914 N.W.2d at 891. The crucial words are: “filed promptly after the conclusion of

the first PCR action.” Id. (emphasis added). “Since Allison, our court has had

several opportunities to consider the phrase ‘filed promptly.’” Johnson v. State,

No. 19-1949, 2021 WL 210700, at *2 (Iowa Ct. App. Jan. 21, 2021). “And we have

repeatedly concluded that ‘delays [of] one year or more’ are not sufficiently

‘prompt.’” Id. (alteration in original) (citation omitted). Velazquez-Ramirez did not

file this second PCR action “promptly” after the first—he waited six years. So

Allison cannot assist Velazquez-Ramirez.

2 We acknowledge there may be an exception for truly “watershed” procedural
changes. But see Edwards v. Vannoy, 141 S. Ct. 1547, 1560 (2021) (announcing
the watershed exception is “moribund”). But Velazquez-Ramirez provides no
argument that Jonas could qualify as a “watershed” procedural change. And we
decline to make an argument on his behalf.
5

Velazquez-Ramirez responds that—because, he claims, Allison itself

constitutes a “new ground of . . . law” for purposes of section 822.3—this case only

needed to be filed “promptly” after Allison was decided. We disagree. For one

thing, we do not believe Allison qualifies as a “new ground of . . . law” for purposes

of section 822.3. Rather, we agree with the State that the “new ground of . . . law”

must form a basis of the applicant’s substantive claims, that is, their claims about

alleged flaws in their criminal conviction. At a minimum, the “new ground of . . .

law” must have some connection—some “nexus”—with the conviction. See

Harrington, 659 N.W.2d at 520 (noting “the applicant must also show a nexus

between the asserted ground of fact and the challenged conviction”). And we see

no possible nexus between Allison—a case about time limits in PCR actions—and

Velazquez-Ramirez’s murder conviction.

In any event, Allison says what it says. Nothing in Allison suggests that the

clock for second PCRs runs from the filing of Allison. Rather, by its plain terms,

Allison only applies to second PCRs “filed promptly after the conclusion of the first

PCR action.” 914 N.W.2d at 891 (emphasis added). So, because Velazquez-

Ramirez did not file his second PCR “promptly after the conclusion of the first PCR

action,” Allison cannot assist him. Cf. Williams v. State, No. 19-1939, 2021 WL

1400336, at *3 (Iowa Ct. App. Apr. 14, 2021) (“The limitations period in section

822.3 ensures the criminal process ‘end[s] within reasonable time limits.’

Extending Allison’s limited exception to include challenges of decades-old

convictions and PCR actions would defeat the purpose of a limitations period.”

(alteration in original) (citation omitted)).
6

The PCR court correctly dismissed Velazquez-Ramirez’s second PCR

application.

AFFIRMED.