                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1561
                               Filed September 13, 2017


MICHAEL NAVARRO JONES,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       An applicant appeals the district court decision dismissing his petition for

postconviction relief on the ground it was untimely. AFFIRMED.




       Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.




       Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       Michael Jones appeals the district court decision dismissing his petition for

postconviction relief on the ground it was untimely.         We find Jones did not

preserve error on his claim the clerk of court exceeded the clerk’s duties and find

his application for postconviction relief is untimely. We find Jones is not entitled

to relief on his pro se issues. We affirm the decision of the district court.

       I.     Background Facts & Proceedings

       Jones was convicted of robbery in the first degree and being a felon in

possession of a firearm, as a habitual offender, in violation of Iowa Code sections

711.2, 724.26, and 902.8 (2007). His convictions were affirmed on appeal. State

v. Jones, No. 08-1917, 2009 WL 4842500, at *3 (Iowa Ct. App. Dec. 17, 2009).

Procedendo was issued on February 17, 2010.

       Jones’s first application for postconviction relief, claiming ineffective

assistance of counsel, was denied. The district court’s decision was affirmed on

appeal. See Jones v. State, No. 11-1033, 2012 WL 3590334, at *7 (Iowa Ct.

App. Aug. 22, 2012).

       On February 11, 2013, Jones filed his second application for

postconviction relief, PCCV120985. The State filed a motion to dismiss on the

ground the issues raised in the second application had already been decided in

the ruling on the first application for postconviction relief. After a hearing, the

district court entered a decision on December 3, 2013, granting the motion to

dismiss, stating the issues raised in the second application were barred by the

doctrine of res judicata and the application was untimely under section 822.3.

The order stated Jones participated in the hearing by telephone.
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       On January 8, 2016, Jones filed what he captioned as an amendment to

his application for postconviction relief in PCCV120985. The county clerk’s office

crossed out PCCV120985, wrote in PCCV128894, and treated the matter as a

new application for postconviction relief. The State filed a motion to dismiss,

claiming Jones’s third application for postconviction relief was time barred under

section 822.3. Jones resisted the State’s motion, stating he never received the

court’s ruling dismissing his second postconviction application.

       A hearing on the motion to dismiss was held on August 29, 2016. Jones

testified he did not participate in a hearing on his second postconviction

application. He stated he was never notified of the hearing or the court’s ruling.

He testified if he had known of the dismissal he would have appealed. The

district court entered a ruling that day, granting the motion. The court found

Jones’s testimony he did not participate in the hearing on the second

postconviction application was not credible, and as a result , the court also found

he was not credible in his statement he did not receive the dismissal of his

second postconviction application. The court determined Jones did not timely

appeal the order dismissing his second postconviction application. The court

concluded the third postconviction application was untimely under the three-year

statute of limitations found in section 822.3. Jones now appeals the decision of

the district court.

       II.     Standard of Review

       We review a district court’s ruling finding an application for postconviction

relief was untimely for the correction of errors at law. Harrington v. State, 659

N.W.2d 509, 519 (Iowa 2003). We will affirm if the court’s findings of fact are
                                        4

supported by substantial evidence and the law was correctly applied. Id. at 520.

On a claim of ineffective assistance of counsel, our review is de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must prove (1) counsel failed to perform an

essential duty and (2) prejudice resulted to the extent it denied the applicant a

fair trial. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).

      III.   Clerk of Court

      Jones claims the clerk of court exceeded the clerk’s duties by crossing out

the number Jones put on his filing of January 8, 2016, and using a new case

number. This issue was not presented to the district court and we conclude it

has not been preserved for our review. See State v. Jefferson, 574 N.W.2d 268,

278 (Iowa 1997) (noting “issues must be presented to and passed upon by the

district court before they can be raised and decided on appeal”).

      IV.    Untimely Application

      Jones claims the district court erred by finding his application for

postconviction relief, filed on January 8, 2016, was untimely.      He states his

second application for postconviction relief was timely and claims his attempted

amendment to the second application should be considered timely. He states he

was not aware the second postconviction application had been dismissed.

      The record shows a hearing on the second postconviction application was

held on November 22, 2013. An order filed that day states Jones participated by

telephone, his attorney was present, and the court was taking the matter under

advisement. The court entered an order on December 3, 2013, which again

stated Jones had participated in the hearing by telephone. The court dismissed
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the second postconviction application. We find the postconviction court did not

err in its conclusion Jones was not credible in his claim he did not receive notice

of the dismissal. Jones did not file a timely appeal of the order dismissing the

second application. Because there was no appeal, “it was therefore a finality and

no jurisdiction existed to amend the findings of fact and conclusions of law.” See

Iowa Pub. Serv. Co. v. Sioux City, 116 N.W.2d 466, 470 (Iowa 1962); see also

Weise v. Land O’Lakes Creameries, Inc., 191 N.W.2d 619, 622 (Iowa 1971)

(“There is no appeal from this determination and it is therefore a finality.”).

       We additionally find the district court did not err in its conclusion the

document Jones filed on January 8, 2016, was a third application for

postconviction relief.      There could be no amendment to the second

postconviction application because it was no longer a pending case. See Rife v.

D.T. Corner, Inc., 641 N.W.2d 761, 767 (Iowa 2002) (“Generally, a party may

amend a pleading at any time before a decision is rendered, even after the close

of the presentation of the evidence.”). Here, a final decision had been rendered

in the second postconviction action, and therefore, no amendments to the

application could be made. The third application for postconviction relief was

untimely because it was filed more than three years after procedendo was issued

in Jones’s direct appeal. See Iowa Code § 822.3.

       V.     Pro Se Issues

       A.     Jones claims he was denied due process and equal protection due

to the court’s application of the postconviction statute. He states the court did not

follow the proper process for the determination of his postconviction claims.

Jones does not state what procedures should have been followed or explain how
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his constitutional rights were violated. See Schaefer v. Schaefer, 795 N.W.2d

494, 502 n.2 (Iowa 2011) (citing Iowa R. App. P. 6.903(2)(g)(3)) (noting an issue

had not been properly raised because the appellants did not argue whether or

how they were prejudiced by the court’s action).        We therefore decline to

consider this issue.

       B.     Jones also challenges the district court’s finding he was not a

credible witness. In postconviction actions, “we give weight to the lower court’s

findings concerning witness credibility.” Ledezma v. State, 626 N.W.2d 134, 141

(Iowa 2001). We find no error in the court’s conclusion. The court’s orders in the

second postconviction proceedings show Jones was not credible in his claim he

did not participate in the hearing, and this supports a finding he was not credible

in his claim he never received notice the second postconviction application was

dismissed.

       C.     Jones claims he received ineffective assistance from postconviction

counsel because counsel did not (1) raise his due process and equal protection

claims and (2) point out it was the State’s burden to show his claim was untimely.

Again, Jones does not make any arguments to support his constitutional claims

and we find his statements are too general in nature to address. See Dunbar v.

State, 515 N.W.2d 12, 15 (Iowa 1994). We also find the State met its burden to

show Jones’s third application for postconviction relief was untimely.         We

conclude Jones has not shown he received ineffective assistance from

postconviction counsel.

       We affirm the decision of the district court.

       AFFIRMED.
