Johnny Lee Johnson v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-1949
Filed January 21, 2021

JOHNNY LEE JOHNSON,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Guthrie County, Thomas P. Murphy,

Judge.

Johnny Johnson appeals the summary dismissal of his application for

postconviction relief. AFFIRMED.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee State.

Considered by Mullins, P.J., and May and Schumacher, JJ.
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MAY, Judge.

The district court dismissed Johnny Johnson’s second application for post-

conviction relief (PCR) because it was filed outside of the three-year statute of

limitations. On appeal, Johnson contends: (1) the district court misapplied the

supreme court’s teachings in Allison v. State, 914 N.W.2d 866 (Iowa 2018); (2) the

three-year limitation on PCR actions violates the Sixth Amendment to the United

States Constitution; and (3) we should adopt equitable tolling in PCR cases. We

affirm.

I. Facts and Procedural Background

One evening, Johnson shot and killed two people. State v. Johnson,

No. 08-0320, 2009 WL 4842480, at *1 (Iowa Ct. App. Dec. 17, 2009). The next

morning, Johnson confessed to police about both shootings. Id. at *2. A jury found

Johnson guilty of two counts of first-degree murder as charged. Id. Johnson

appealed. Id. This court affirmed on December 17, 2009. Id. at *1. Johnson

sought further review, which the supreme court denied, and procedendo issued on

March 11, 2010.

On February 25, 2011, Johnson filed his first PCR action. The district court

granted relief, but this court reversed and remanded for further proceedings.

Johnson v. State, 860 N.W.2d 913, 922 (Iowa Ct. App. 2014). On remand, the

district court denied relief. Following Johnson’s subsequent appeal, this court

concluded “the district court properly denied Johnson’s ineffective-assistance-of-

counsel claims against both his trial and appellate counsel.” Johnson v. State,

No. 15-0776, 2016 WL 4803734, at *6 (Iowa Ct. App. Sept. 14, 2016). We also

denied Johnson’s claim of structural error. Id. at *5. And so we affirmed the district
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court’s denial of relief. Id. at *6. We issued our opinion on September 14, 2016.

Id. at *1. Procedendo issued on March 9, 2017.

Well over two years later, on June 28, 2019, Johnson filed this action, his

second PCR case. The State moved for summary dismissal pursuant to Iowa

Code section 822.3 (2019). Johnson resisted. The district court granted the

State’s motion and dismissed. This appeal follows.

II. Standard of Review

PCR actions are normally reviewed for errors at law. Castro v. State, 795

N.W.2d 789, 792 (Iowa 2011). But our review of constitutional issues is de novo.

Id.

III. Analysis

PCR actions are governed by Iowa Code chapter 822. We find the Code’s

meaning in its words. See Doe v. State, 943 N.W.2d 608, 610 (Iowa 2020) (noting

“in questions of statutory interpretation, ‘[w]e do not inquire what the legislature

meant; we ask only what the statute means’” and “[t]his is necessarily a textual

inquiry as only the text of a piece of legislation is enacted into law” (first alteration

in original) (citation omitted)); State v. Childs, 898 N.W.2d 177, 184 (Iowa 2017)

(“Our court ‘may not . . . enlarge or otherwise change the terms of a statute as the

legislature adopted it.’ ‘When a proposed interpretation of a statute would require

the court to “read something into the law that is not apparent from the words

chosen by the legislature,” the court will reject it.’” (citations omitted)); Hansen v.

Haugh, 149 N.W.2d 169, 172 (Iowa 1967) (“It is not the function of courts to

legislate and they are constitutionally prohibited from doing so.” (citing Iowa Const.

art. III, § 1)); Holland v. State, 115 N.W.2d 161, 164 (Iowa 1962) (“Ours not to
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reason why, ours but to read, and apply. It is our duty to accept the law as the

legislative body enacts it.”); Moss v. Williams, 133 N.W. 120, 121 (Iowa 1911) (“We

must look to the statute as it is written . . . .”).

Section 822.3 contains a time limit for PCR actions.1 It states in relevant

part:

All [PCR2] 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.

Iowa Code § 822.3.

Through this text, the legislature required most PCR claims 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.” Id. But the legislature

created an exception for claims based on “ground[s] of fact or law that could not

have been raised within the” three-year period. Id. The three-year “limitation does

not apply” to those claims. See id. But see Penticoff v. State, No. 19-0975, 2020

WL 5229186, at *2 (Iowa Ct. App. Sept. 2, 2020) (citing cases that recognize an

implied limitation period that runs from the appearance of a new ground of fact or

law).

1 The limitation contained in section 822.3 was enacted in 1984. See Sahinovic v.
State, 940 N.W.2d 357, 359 (Iowa 2020) (citing 1984 Iowa Acts ch. 1193, § 1 (then
codified at Iowa Code § 663A.3 (1985))); Brewer v. Iowa Dist. Ct., 395 N.W.2d
841, 842 (Iowa 1986). Before then, there was “no deadline for” PCR claims. See
Sahinovic, 940 N.W.2d at 359.
2 There is a special exception for applicants “seeking relief under section 822.2,

subsection 1, paragraph ‘f.’” Iowa Code § 822.3. Because Johnson does not seek
relief under section 822.2(1)(f), this exception is not relevant here.
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For Johnson, the three-year period began in 2010, when his unsuccessful

direct appeal became final. This action was not filed until 2019. And Johnson

does not claim the exception for new “ground[s] of fact or law” applies. So it

appears this action is barred by section 822.3.

Johnson responds that this second PCR action “relates back” to the timely

filing of his first PCR action. As authority, Johnson relies on Allison, 914 N.W.2d

at 891. There 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.

Allison, 914 N.W.2d at 891 (emphasis added).

As this excerpt makes clear, Allison provided for relation back but only in

limited circumstances. Among other things, relation back can only apply if “the

successive PCR petition [was] 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.” Thompson v. State, No. 19-0322, 2020 WL 2060310, at *3 (Iowa

Ct. App. Apr. 29, 2020) (collecting cases). We have focused on the word

“promptly,” which means “in a prompt manner; at once; immediately, quickly.”

Maddox v. State, No. 19-1916, 2020 WL 5230367, at *3 (Iowa Ct. App. Sept. 2,

2020) (quoting Cook v. State, No. 17-1245, 2019 WL 719163, at *4 n.6 (Iowa Ct.

App. Feb. 20, 2019). And we have repeatedly concluded that “delays [of] one year
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or more” are not sufficiently “prompt.” Id. at *2–3 (noting “[w]here a defendant

delays one year or more in filing a PCR application after procedendo issues, we

have determined that such a delay precludes the application of Allison” and

collecting cases). Indeed, in Polk v. State, we concluded an applicant who “waited

nearly six months to file his second PCR petition” did not “meet the ‘prompt’ filing

mandate in Allison.” No. 18-0309, 2019 WL 3945964, at *1 (Iowa Ct. App. Aug.

21, 2019). More recently, in Maddox, we concluded “the 121-day delay in

Maddox’s filing a second PCR application resulted in the application not being ‘filed

promptly’ within the meaning of Allison.” 2020 WL 5230367, at *3; see also

Harlston v. State, No. 19-0267, 2020 WL 4200859, at *1 (Iowa Ct. App. July 22,

2020) (finding delay of more than six months was not prompt); Wilder v. State,

No. 19-0157, 2020 WL 1879703, at *3 (Iowa Ct. App. Apr. 15, 2020) (“Because

Wilder waited more than three years to file his second PCR action after conclusion

of his first PCR action, he did not meet the ‘prompt’ filing mandate in Allison.”).

Here, over two years passed between the issuance of procedendo in

Johnson’s first PCR appeal on March 9, 2017, and Johnson’s filing of this second

PCR action on June 28, 2019. Consistent with our prior cases, we conclude this

second PCR action was not promptly filed for purposes of Allison. So the district

court was right to grant summary dismissal.

But Johnson argues our opinion in McCullum v. State could support a

different result. See No. 17-1603, 2019 WL 1762804, at *3 (Iowa Ct. App. Feb. 6,

2019). In McCullum, the applicant’s direct appeal was complete in 2010, his first
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PCR action was complete in 2015,3 and his second PCR action was filed in July

2017. Id. at *1–2. The district court summarily dismissed the second PCR action

because, among other reasons, it was barred by the three-year limitation period.

Id. at *2. Our court reversed, citing Allison. Id. at *3.

We think it is significant, though, that McCullum did not expressly hold the

second PCR application had been “filed promptly.” Rather, the court left that

question open by “remand[ing] to the district court for further proceedings,

including a determination of whether 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.” Id.

In any event, assuming McCullum supports the conclusion that a two-year-

delayed application could meet Allison’s requirement of prompt filing, we decline

to follow McCullum. Cf. Iowa R. App. P. 6.904(2)(c) (“Unpublished opinions or

decisions shall not constitute controlling legal authority.”). Instead, we follow our

many other opinions which, as already explained, have held that delays of a single

year—or even 121 days—are too long. We think those holdings are more

consistent with Allison’s teaching that relation back can only apply if an application

is filed “promptly,” that is, “in a prompt manner; at once; immediately, quickly.” See

Maddox, 2020 WL 5230367, at *3 (citation omitted).

A final note on relation back: In 2019, our legislature amended section 822.3

to include this statement: “An allegation of ineffective assistance of counsel in a

3Our opinion issued on March 25, 2015. McCullum v. State, No. 13-1665, 2015
WL 1331660, at *1 (Iowa Ct. App. Mar. 25, 2015). McCullum sought further review,
which our supreme court denied, and procedendo issued on July 20, 2015.
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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 (codified at Iowa Code

§ 822.3 (Supp. 2019)) (emphasis added). This amendment appears to abrogate

Allison. See Maddox, 2020 WL 5230367, at *2 n.3; Wilder, 2020 WL 1879703, at

*1 n.1; Polk, 2019 WL 3945964, at *1 n.2. There is a question, however, as to

whether the amendment applies to Johnson’s case, which was filed in June 2019.

The State takes no position on the issue. Rather, the State simply maintains that,

“[u]nder either the previous [pre-2019 amendment] version of section 822.3 or the

current one, Johnson’s second [PCR] application was late.” We agree.

As a fallback position, Johnson contends we should rule that the “three year

limitation on PCR [a]pplications is unconstitutional” under the Sixth Amendment to

the United States Constitution. “In the alternative,” Johnson suggests we should

“outright adopt an equitable tolling rule to diminish the adverse effects of the

arbitrary [sic] three year statute of limitations.”

We begin with the Sixth Amendment to the United States Constitution,

which provides:

In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his
defense.

Johnson does not identify—and we cannot find—anything in the text of the

Sixth Amendment that would prohibit a statutory time limit on PCR actions. And
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Johnson does not cite, and we have not found, any case that has recognized such

a prohibition. Instead, our courts have refused to hold section 822.3

unconstitutional. See, e.g., Thompson, 2020 WL 2060310, at *3 (declining to

“declare Iowa Code section 822.3 unconstitutional for violating [the applicant’s]

right to due process and his right to counsel under both the United States and Iowa

Constitutions”). Johnson has shown no good reason to do otherwise.

As for equitable tolling, “this court has frequently held that equitable tolling

does not apply to section 822.3.” See Smith v. State, No. 19-0384, 2020 WL

110398, at *1 & n.2 (Iowa Ct. App. Jan. 9, 2020) (collecting cases). And Johnson

has shown no reason to take a different path.

IV. Conclusion

The district court was correct to summarily dismiss Johnson’s PCR

application.

AFFIRMED.