John Lewis Arthur Anderson, Applicant-Appellant v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 15-1809
Filed December 21, 2016

JOHN LEWIS ARTHUR ANDERSON,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Paul Scott, Judge.

John Anderson appeals from the summary dismissal of his second

application for postconviction relief. AFFIRMED.

Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.

Considered by Danilson, C.J., and Mullins and Bower, JJ.
2

DANILSON, Chief Judge.

John Anderson appeals from the summary dismissal of his second

application for postconviction relief (PCR).1 We review for errors of law. See

Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010).

Iowa Code section 822.3 (2015) provides, in relevant part, PCR

applications must be filed within three years from the date the conviction or

decision is final. It further provides the three-year limitation does not apply to a

“ground of fact or law that could not have been raised within the applicable time

period.” Iowa Code § 822.3.

John Anderson was convicted of first-degree burglary and first-degree

robbery in 2010. His convictions were affirmed on direct appeal. See State v.

Anderson, No. 10-0802, 2011 WL 2419797 (Iowa Ct. App. June 15, 2011).

Anderson’s application for further review was denied and procedendo issued on

August 18, 2011. Anderson filed his first application for postconviction relief

(PCR) on February 20, 2012, in which he asserted ineffective assistance of trial

and appellate counsel. His application was denied, which denial was affirmed on

appeal by this court. Anderson v. State, No. 13-0057, 2013 WL 6662514, at *1

(Iowa Ct. App. Dec. 18, 2013). On January 9, 2015, Anderson filed this second

PCR application, alleging, in part, his first PCR counsel was ineffective.

This PCR application was filed several months after the three-year period

from the filing of procedendo and is time-barred. See Iowa Code § 822.3.

Anderson does not assert he could not have filed his claim of ineffective

1
While the State argues the notice of appeal was untimely, the supreme court entered
an order concluding the appeal was timely and transferred the case to this court.
3

assistance of first PCR counsel by August 18, 2014, when the three-year

limitations ran.2

Anderson’s PCR application also summarily asserts, “There exists

evidence of material facts, not previously presented and heard, that requires

vacation of the conviction and sentence in the interest of justice.” While the

three-year limitation “does not apply to a ground of fact or law that could not have

been raised within the applicable time period,” see id., even on appeal, Anderson

continues to fail to identify or assert any specific ground of fact or law that might

constitute such an exception. See Davis v. State, 443 N.W.2d 707, 710 (Iowa

1989) (stating the three-year bar applies where the applicant offers no excuse to

the district court in either his pleadings or his resistance to the motion to dismiss

to explain why the three-year limitation does not apply). The district court did not

err in summarily dismissing the application. We therefore affirm.

AFFIRMED.

2
Anderson contends the limitations began anew upon the conclusion of the first PCR
proceeding. This court has rejected similar arguments in the past. See Hemm v. State,
No. 14-0779, 2015 WL 1331337, at *1 (Iowa Ct. App. Mar. 25, 2015); Holmes v.
State, No. 02–1100, 2004 WL 893338, at *3 (Iowa Ct. App. Apr. 28, 2004).