                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1817
                               Filed March 8, 2017


ENRIQUE ABOITES GARCIA,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Rebecca Goodgame

Ebinger, Judge.



      Enrique Garcia appeals from the district court’s dismissal of his third

application for postconviction relief. AFFIRMED.




      Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., Vaitheswaran, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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DANILSON, Chief Judge.

       Enrique Garcia appeals from the district court’s dismissal of his third

application for postconviction relief (PCR).     Garcia contends the district court

erred in granting the State’s motion for summary judgment on the basis the PCR

application was not filed within the three-year statute of limitations. We conclude

the district court did not err in dismissing the PCR application as time-barred.

       Garcia was convicted of first-degree murder in 1998. Garcia appealed,

the conviction was affirmed by the supreme court, see State v. Garcia, 622

N.W.2d 512 (Iowa 2000), and procedendo issued December 21, 2000. Garcia

filed his first PCR application in 2001, see Garcia v. State, No. 05-1013, 2009 WL

1066520 (Iowa Ct. App. Apr. 22, 2009), and second in 2010, see Garcia v. State,

No. 12-0690, 2013 WL 4506509 (Iowa Ct. App. Aug. 21, 2013), both of which

were denied. Garcia filed this PCR application on September 12, 2014, and filed

the amended PCR application on March 16, 2015. In a March 18, 2015 motion

for summary judgment, the State asserted the PCR application was not timely

pursuant to Iowa Code section 822.3 (2014).           Section 822.3 provides PCR

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.

       Garcia argued Nguyen v. State, 829 N.W.2d 183 (Iowa 2013), and Jones

v. State, No. 12-0706, 2013 WL 4506167 (Iowa Ct. App. Aug. 21, 2013), created

a new ground of law regarding the limitations period upon which Garcia may now

assert a claim related to the jury instructions given in his criminal trial under State
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v. Smith, 739 N.W.2d 289 (Iowa 2007). However, the district court determined

“Garcia’s arguments are based on the holding of Smith, decided in 200[7], rather

than Nguyen, decided in 2013.” The court found Garcia’s claims based on Smith

were time-barred and granted the State’s motion for summary judgment. Garcia

now appeals.

      Garcia asserts his argument that Smith should apply retroactively to his

conviction could not have been successfully raised prior to the holdings of Jones

and Nguyen. Therefore, Garcia contends his PCR application, filed within three

years of Jones and Nguyen, is not time-barred.

      However, this court has previously determined in Burkett v. State that

Nguyen did not create a change in law for purposes of the section 822.3 statute

of limitations. No. 14-0998, 2015 WL 5278970, at *3 (Iowa Ct. App. Sept. 10,

2015). In Burkett, the court held, “Because Nguyen did not announce a change

in the law, we conclude [PCR applicant]’s attempt to avail himself of an implied

limitation period to raise a ‘ground of law’ exception to the statutory time-bar,

beginning on the date Nguyen was decided, necessarily fails.” Id.

      Further, Jones stands for the proposition that “[a]n opinion that clarifies the

law could be applied retroactively but, because it is simply a clarification rather

than the announcement of a new rule of law, it could have been anticipated and

raised within the three-year limitations period.” 2013 WL 4506167, at *3. Under

this reasoning, if Smith was only a clarification of law, claims based on the

holding in Smith could only have been raised by Garcia within three years of the
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issuance of procendendo and are now barred by section 822.3.1 Conversely, if

Smith created a new ground of law, Garcia could have raised a claim based on

Smith within three years of the decision.

       It is notable that Garcia did not raise claims related to the holding in Smith

in his 2010 PCR application. Moreover, Garcia filed this PCR application nearly

fifteen years after the issuance of procedendo and nearly six years after the

decision in Smith. Jones and Nguyen did not create a new ground of law upon

which Garcia may base this PCR application asserting claims relying on the

holding of Smith. The new-ground-of-law exception does not apply to circumvent

the three-year statute of limitations in this case.

       On our review for correction of errors at law, see Harrington v. State, 659

N.W.2d 509, 519 (Iowa 2003), we conclude the district court did not err in

granting the State’s motion for summary judgment and dismissing Garcia’s PCR

application on the basis it was barred by the section 822.3 statute of limitations.2

       AFFIRMED.




1
  But of course, Garcia could not have raised this issue within three years of the
procedendo as Smith was filed in 2007, well after the filing of the procedendo.
2
  We have also reviewed the arguments stated in the pro se supplemental brief and pro
se supplemental reply brief and conclude they are without merit.
