Roy Alan Finch v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-1982
Filed March 3, 2021

ROY ALAN FINCH,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Coleman McAllister,

Judge.

Roy Finch appeals the dismissal of his application for postconviction relief.

AFFIRMED.

Colin McCormack of Van Cleaf & McCormack Law Firm, Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.

Considered by Doyle, P.J., May, J., and Scott, S.J.*

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

(2021).
2

SCOTT, Senior Judge.

Roy Finch was convicted of first-degree murder in 1990. His conviction was

affirmed by this court in 1991 and procedendo issued shortly thereafter. Finch filed

the application precipitating this appeal, his fourth,1 in June 2019. Among other

things, he raised a claim of ineffective assistance of prior postconviction counsel

and stated he was forwarding a “claim under Allison v. State,”2 which our supreme

court decided roughly a year before Finch filed his application. The State filed a

motion to dismiss, asserting Finch’s application was time-barred by the statute of

limitations. Following a hearing in November 2019, the court granted the State’s

motion to dismiss on statue-of-limitations grounds.

Finch appeals. He only claims the “court should have allowed [his] case to

proceed to adjudication on the merits.” This argument is premised on his assertion

that Allison excepts him from the statute of limitations.

This successive application was filed nearly twenty years after the

conclusion of the original postconviction proceeding.3 Under former law,

ineffective assistance of postconviction counsel could not “serve as an exception

1 Finch previously filed applications in 1994, 1999, and 2003, all of which were
dismissed.
2 See Allison v. State, 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a

timely application is filed within the statute of limitations alleging ineffective
assistance of trial counsel, the filing of a successive application that alleges
ineffective assistance of postconviction-relief counsel in presenting the ineffective-
assistance-of-trial-counsel claim, the filing of the second application relates back
to the time of the filing of the original application so long as the successive
application is filed promptly after the conclusion of the original action); see also
Iowa Code § 822.3 (2019) (noting “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”).
3 It was also filed between roughly fifteen and twenty years after the conclusion of

the other two postconviction proceedings.
3

to the three-year statute of limitations” and allow for the filing of a second

application outside of the limitations period. See Dible v. State, 557 N.W.2d 881,

886 (Iowa 1996), abrogated on other grounds by Harrington v. State, 659 N.W.2d

509, 520 (Iowa 2003). In 2018, the Allison court ruled successive applications are

timely if filed “promptly” after the conclusion of the original action. 914 N.W.2d at

891. Finch’s application was not filed promptly after the conclusion of the original

proceeding, so the time of filing of the successive application does not relate back.

See, e.g., Polk v. State, No. 18-0309, 2019 WL 3945964, at *2 (Iowa Ct. App. Aug.

21, 2019) (noting a gap in the neighborhood of six months does not meet the

definition of prompt); see also Johnson v. State, No. 19-1949, 2021 WL 210700,

at *2 (Iowa Ct. App. Jan. 21, 2021) (collecting cases on the meaning of “filed

promptly).4

We affirm the dismissal of Finch’s application for postconviction relief. 5

AFFIRMED.

4 Finch makes no claim Allison amounts to a new ground of law he could not have
raised within the applicable limitations period.
5 We note our recognition of recent legislation, which became effective July 1,

2019, while Finch’s application was still pending, arguably superseding Allison
outright by amending section 822.3 to provide: “An allegation of ineffective
assistance of counsel in a prior case under this chapter shall not toll or extend the
limitation periods in this section nor shall such claim relate back to a prior filing to
avoid the application of the limitation periods.” 2019 Iowa Acts ch. 140, § 34.
Because we reject Finch’s Allison claim, we need not decide whether the
amendment applies to his application.