Dwight Tyrone McCall v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-0859
Filed August 9, 2023

DWIGHT TYRONE McCALL,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.

The applicant appeals the summary dismissal of his seventh application for

postconviction relief. AFFIRMED.

Michael J. Jacobsma of Jacobsma Law Firm, P.C., Orange City, for

appellant.

Brenna Bird, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.

Considered by Ahlers, P.J., Badding, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
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POTTERFIELD, Senior Judge.

Dwight McCall appeals from the summary dismissal of his seventh

postconviction-relief (PCR) application challenging his 2007 convictions for first-

degree criminal mischief and third-degree burglary. He argues the district court’s

dismissal of his action was premature.

I. Background Facts and Proceedings.

As we previously set forth the underlying facts:

In August of 2006, Dwight McCall and his wife Dalila were in
the process of obtaining a divorce. A protective order was in place
and Dalila was living in the home with their children. Dalila testified
while she was at work on the evening of August 8, 2006, McCall
called her and asked if he could stay in their home to which she
replied no. When Dalila arrived home after work, she noticed the
back door was open, most of the furniture in the home was
destroyed, and water was leaking from the ceiling.
Dalila called the police and an officer arrived to investigate.
The officer testified the refrigerator door was ripped off and furniture
was tipped over with the legs broken off. Upstairs, a water bed had
been slashed open and the smell of bleach permeated the area. The
ceiling downstairs collapsed from the weight of the water spilling from
the water bed. There was no damage to the children's rooms. Dalila
received a phone call while the officer was there and she confirmed
to the officer McCall was the caller. McCall apparently made
incriminating statements during the call although at trial, McCall
presented witnesses who testified that he was at a different
residence on August 7 and 8 of 2006.

State v. McCall, 754 N.W.2d 868, 870 (Iowa Ct. App. 2008).

The jury found McCall guilty of first-degree criminal mischief and third-

degree burglary. He was later sentenced to ten years and five years, respectively,

and ordered to serve the two sentences concurrently.

McCall appealed his convictions, arguing the trial court erred when it revised

two jury instructions in response to a question submitted by the jury during

deliberations. We affirmed. See id.
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Six unsuccessful PCR actions preceded this one, which McCall filed in

March 2022—more than thirteen years after procedendo issued on his direct

appeal.1 The State responded with a pre-answer motion to dismiss, asserting

(1) McCall’s application was time-barred because it was outside the three-year

statute of limitations provided in Iowa Code section 822.3 (2022) and (2) McCall

raised the same issues in a previous unsuccessful PCR proceeding, so res

judicata prevented the additional litigation.

At a hearing on the motion to dismiss, McCall asserted he “would be arguing

actual innocence in this case” because “he just found out that at his trial, he had

some alibi witnesses . . . [and] when they came to court, they were turned away by

the State and in particular [the prosecutor].” Through his attorney, McCall

explained that he was requesting an investigator “to find these witnesses and talk

to them and find out what exactly happened.” The State resisted, arguing McCall

would have known if he intended to call alibi witnesses so the facts he now alleged

supported his claim were discoverable within the three-year window—meaning

they could not be the basis for a claim under the “ground of fact” exception.

The district court concluded McCall’s application was time-barred under

section 822.3, which states in relevant part:

All . . . 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. However, this limitation does
not apply to a ground of fact or law that could not have been raised
within the applicable time period.

It summarily dismissed McCall’s application, which he challenges on appeal.

1 Procedendo issued on August 8, 2008.
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II. Standard of Review.

Our review of a district court’s decision dismissing a PCR application on the

ground it is untimely is for correction of errors at law. Harrington v. State, 659

N.W.2d 509, 519 (Iowa 2003). “Thus, we will affirm if the trial court’s findings of

fact are supported by substantial evidence and the law was correctly applied.” Id.

III. Discussion.

The question before us is whether the district court’s dismissal of McCall’s

seventh PCR application was premature. For the State to prevail on a motion to

dismiss, it must meet the standards for summary judgment in a civil proceeding.

Manning v. State, 654 N.W.2d 555, 559 (Iowa 2002) (“[T]wo methods are available

for disposition of [PCR] applications without a trial on the merits. . . . Disposition

under [section 822.6(3)] is ‘analogous to the summary judgment procedure’ in Iowa

Rules of Civil Procedure [1.981–1.983].” (citations omitted)); see also Iowa Code

§ 822.6(3). In other words, a PCR application may be dismissed when “there is

no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law.” Manning, 654 N.W.2d at 560 (quoting Iowa Code § 822.6(3)). “A

motion to dismiss should only be granted if the allegations in the petition, taken as

true, could not entitle the plaintiff to any relief.” Sanchez v. State, 692 N.W.2d 812,

816 (Iowa 2005).

It is undisputed that McCall’s PCR application was filed more than three

years after procedendo issued in his direct appeal. So to avoid the statute of

limitations, McCall has to prove the facts he now alleges as the basis for relief—

that he had alibi witnesses who were prevented from testifying—could not have

been raised within the applicable time period. See Schmidt v. State, 909 N.W.2d
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778, 799 (Iowa 2018); see also Quinn v. State, 954 N.W.2d 75, 76 (Iowa Ct. App.

2020) (“[T]he ground-of-fact exception only overcomes the statute of limitations if

it could not have been raised within the limitations period.”). A fact could have

been raised within the limitations period if it was either available to the applicant or

it could have been discovered with the exercise of due diligence during the statute-

of-limitations window. See Quinn, 954 N.W.2d at 76.

Taking McCall’s allegations as true, he had multiple witnesses who could

testify in support of his alibi—that he was elsewhere at the time the damage to

Dalila’s home was done—and those witnesses were prevented from testifying in

his defense. As the district court recognized, McCall was aware of his alibi

witnesses and, in fact, he listed several on his notice (and amended notice) whom

he intended to call at trial.2 And, by at least the end of the trial, he would have

known those witnesses were supposed to show up and testify but failed to do so.

Armed with both of those facts, we conclude that with the exercise of due diligence,

McCall would have learned what caused those anticipated witnesses not to appear

sometime during the four-plus years between his 2007 trial—when they did not

testify—and the running of the statute of limitations in 2011. Because he could

have discovered that his witnesses were prevented from testifying with the

2 McCall complains that the district court went beyond the face of his petition,

reviewing records from the underlying criminal file and McCall’s many other PCR
actions when deciding the State’s motion. Section 822.6A provides:
The underlying trial court record containing the conviction for
which an applicant seeks postconviction relief, as well as the court
file containing any previous application filed by the applicant relating
to the same conviction, . . . automatically become part of the record
in a claim for postconviction relief under this chapter.
And the district court is allowed to review it. See, e.g., Moon v. State, No. 19-2037,
2021 WL 610195, at *3 (Iowa Ct. App. Feb. 17, 2021).
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exercise of due diligence, McCall’s claim does not fall within the ground-of-fact

exception to the statute of limitations. So, McCall’s application is time-barred, and

summary dismissal was appropriate.

AFFIRMED.