                    IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0269
                                Filed April 29, 2020


VINCENT NDIKUMANA,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,

Judge.



      An applicant appeals the district court decision dismissing his applications

for postconviction relief. AFFIRMED.




      Fred Stiefel, Victor, for appellant.

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

General, for appellee State.




      Considered by Mullins, P.J., Schumacher, J., and Danilson, S.J.*

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

(2020).
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DANILSON, Senior Judge.

       Vincent Ndikumana appeals the district court decision dismissing his

applications for postconviction relief (PCR). We find further development of the

record was not necessary before the court determined the applications should be

dismissed. We conclude the district court did not err by dismissing Ndikumana’s

PCR application because they were not filed within the three-year time period

prescribed by Iowa Code section 822.3 (2018). We affirm the decision of the

district court.

       I.         Background Facts & Proceedings

       Ndikumana pled guilty to gathering where controlled substances are

unlawfully used. The judgment and sentence for this conviction was filed on

September 6, 2013. He also pled guilty to burglary in the third degree and theft in

the third degree. The judgment and sentencing order was filed on February 5,

2014. Ndikumana did not appeal his convictions.

       On October 1, 2018, Ndikumana filed PCR applications in these cases,

claiming he received ineffective assistance because his defense counsel did not

adequately explain the immigration consequences of his pleas. The State filed a

pre-answer motion to dismiss on the ground Ndikumana’s applications were barred

by the three-year time limit found in section 822.3. In his resistance to the motion

to dismiss, Ndikumana claimed the case Diaz v. State, 896 N.W.2d 723, 732 (Iowa

2017), created a new ground of law concerning counsel’s duty to advise a client

concerning the immigration consequences of a guilty plea. Ndikumana asserted

his PCR applications were timely because they were filed within three years after

Diaz was decided.
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      The district court found, “The Diaz court created no new rule, imposed new

obligations, and broke no new ground.” The court determined the Iowa Supreme

Court was following United States Supreme Court precedent found in Padilla v.

Kentucky, 559 U.S. 356, 374 (2010). The court concluded Ndikumana failed to

show his applications were timely because they were based upon a new ground

of law or fact. The court dismissed the PCR applications as untimely.

      Ndikumana filed a posttrial motion pursuant to Iowa Rule of Civil Procedure

1.904(2). The district court denied the motion. Ndikumana now appeals.

      II.    Standard of Review

      We review a district court’s decision dismissing a PCR application on the

ground it is untimely for the correction of errors at law. Harrington v. State, 659

N.W.2d 509, 519 (Iowa 2003). “Thus, we will affirm if the trial court’s findings of

fact are supported by substantial evidence and the law was correctly applied.” Id.

      III.   Discussion

      A.     Ndikumana claims the district court erred by granting the State’s

motion to dismiss. He states the court should have permitted him to conduct

discovery and develop the record before ruling on the motion to dismiss. He

asserts the record should be developed to show what information he received

about the immigration consequences of his guilty pleas.

      A PCR application may be dismissed when “there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law.”

Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002) (quoting Iowa Code §

822.6(3)). “There is no requirement that summary judgment cannot be entered

until after the completion of discovery.” Winesberry v. State, No. 15-2058, 2017
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WL 3524719, at *2 (Iowa Ct. App. Aug. 16, 2017). The record Ndikumana sought

to develop is not pertinent to the question of whether his applications were timely.

Further development of the record was not necessary before the court determined

the applications should be dismissed because they were untimely.

       B.     Ndikumana also claims the district court erred by dismissing his PCR

applications on the ground they were untimely under the three-year statute of

limitations found in section 822.3. He asserts Diaz, 896 N.W.2d at 732, created a

new legal rule and his applications were timely because they were filed within three

years after Diaz was decided.

       We have determined “Diaz is not a change in law but rather an application

of the existing law found in Padilla.” Ramirez v. State, No. 16-1893, 2018 WL

2727707, at *5 (Iowa Ct. App. June 6, 2018); see also Garcia v. State, No. 18-

2021, 2019 WL 5063328, at *3 (Iowa Ct. App. Oct. 9, 2019); Zacarias v. State,

No. 18-0686, 2019 WL 3714815, at *2 (Iowa Ct. App. Aug. 7, 2019). For this

reason, Diaz “does not qualify as a new-ground-of-law exception to the three-year

time-bar of Iowa Code section 822.3.” Garcia, 2019 WL 5063328, at *3.

       We conclude the district court did not err by dismissing Ndikumana’s PCR

applications because they were not filed within the three-year time period

prescribed by section 822.3. We affirm the decision of the district court.

       AFFIRMED.
