Simon Curtis Tunstall, Applicant-Appellant v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 16-0990
Filed July 6, 2017

SIMON CURTIS TUNSTALL,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.

An applicant appeals the dismissal of his application for postconviction

relief. AFFIRMED.

Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux

City, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee State.

Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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VOGEL, Presiding Judge.

Simon Tunstall appeals from the district court’s dismissal of his application

for postconviction relief (PCR) as time-barred. In 1987, Tunstall and two

codefendants were convicted of first-degree murder, in violation of Iowa Code

section 707.2(2) (1985) and first-degree burglary, in violation of Iowa Code

sections 713.1 and 713.3. Tunstall’s conviction was affirmed on direct appeal in

1989, and his two prior applications for PCR were denied. Tunstall v. State, No.

05-0858, 2006 WL 929321 (Iowa Ct. App. Apr. 12, 2006); Tunstall v. State, No.

94-1354 (Iowa Ct. App. June 27, 1996); State v. Tunstall, No. 87-507, 1989 WL

73817 (Iowa Ct. App. Jan. 26, 1989). In his 2015 PCR application, Tunstall

claimed he was entitled to a new trial based on our supreme court’s ruling in

State v. Smith, 739 N.W.2d 289 (Iowa 2007). The district court concluded

Tunstall’s application was time-barred.

We find no error of law in the district court’s ruling. See Castro v. State,

795 N.W.2d 789, 792 (Iowa 2011) (“We normally review postconviction

proceedings for errors at law. This includes summary dismissals of applications

for postconviction relief.” (citation omitted)). Iowa Code section 822.3 (2015)

provides for a three-year time-bar for PCR applications unless the application is

based on “a ground of . . . law that could not have been raised within the

applicable time period.” In Nguyen v. State, our supreme court implied an

applicant bringing a claim based on a ground-of-law exception must bring the

application within three years after the change is announced. 829 N.W.2d 183,

186 (Iowa 2013) (“Nguyen applied again for postconviction relief on April 2, 2009,

more than three years after procedendo had issued on his original direct appeal,
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but less than three years after Heemstra.”). Thus, even if Tunstall is correct

about Smith’s application to his case, he was required to file his application within

three years of Smith being filed. See id. Accordingly, we affirm the dismissal of

Tunstall’s application for PCR without further opinion. See Iowa Ct. R.

21.26(1)(a), (b), (e).

AFFIRMED.