                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-0008
                                Filed June 21, 2017


RAYMOND LEE THOMAS JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Des Moines County, Cynthia H.

Danielson, Judge.



       Raymond Thomas Jr. appeals the district court’s summary dismissal of his

fourth application for postconviction relief following his conviction for first-degree

murder. AFFIRMED.




       William R. Monroe of Law Office of William Monroe, Burlington, for

appellant.

       Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee State.




       Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.

       In 1995, a jury found Raymond Thomas Jr. guilty of first-degree murder.

This court affirmed his judgment and sentence in 1996, with procedendo issuing

the same year.     Eighteen years later, Thomas filed his fourth application for

postconviction relief.    The application, styled a “motion to correct illegal

sentence,” alleged “the brain is not fully developed until the age of 25” and

Thomas “was 21 years old when said crime was committed,” warranting

resentencing under recent precedent governing juvenile sentencing. The State

filed a motion for summary disposition asserting the application was time-barred

and exceptions to the time bar did not apply. The postconviction court granted

the motion, and this appeal followed.

       Postconviction relief 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.” Iowa Code § 822.3 (2015). “However, this

limitation does not apply to a ground of fact or law that could not have been

raised within the applicable time period.” Id. Thomas’ PCR application was

concededly filed outside the three-year limitations period.

       We turn to the “ground of fact” exception to the time-bar.             Thomas

preliminarily contends this exception was not raised by the State.            But the

exception, if it applies, inures to the benefit of the applicant, not the State. In any

event, the State raised the exception in its motion for summary disposition,

asserting: “The Applicant is not alleging any ground of fact or law that applies to

him. Applicant was 21 when he committed the offense.”
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       Thomas states he did indeed raise a ground of fact that could not have

been raised within the three-year limitations period—the delayed maturation of

brains in young adults. But this fact issue has only been applied to sentences

imposed on juvenile offenders, not to sentences imposed on adult offenders.

See State v. Sweet, 879 N.W.2d 811, 840 (Iowa 2016) (“[A] juvenile offender who

is resentenced based on evidence of rehabilitation acquired after full brain

development has occurred may present a far better case for parole than an

offender who has not completed brain development.”); State v. Lyle, 854 N.W.2d

378, 397 (Iowa 2014) (“The nub of at least some of these cases is that juveniles

are not fully equipped to make ‘important, affirmative choices with potentially

serious consequences.’” (quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979))).

Thomas concedes he was an adult when the crime was committed. Accordingly,

the “ground of fact” exception to the time-bar based on incomplete juvenile brain

development did not apply to him, and there was no basis for further developing

the record on this fact issue.

       Thomas also argues “the work of his Postconviction Attorney was not

effective” and his omissions amounted to “structural error.”    His argument is

based on counsel’s failure to file a motion for leave to amend the postconviction

relief application. The proposed amended application raised the same factual

issue as his original application—delayed brain development. Thomas cannot

“circumvent the three-year time-bar by claiming ineffective assistance of

postconviction counsel.” Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct. App.

1995); see also State v. Wilkins, 522 N.W.2d 822, 824 (Iowa 1994) (rejecting
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applicant’s attempt to label his claim an ineffective-assistance-of-counsel “in the

hope that the court will reach the merits”).

        Although Thomas’ postconviction relief application was untimely and did

not fall within the ground of fact exception to the time bar, he may “challenge the

legality of a sentence at any time.” State v. Graham, No. 15-1464, ___ N.W.2d

___, ___, 2017 WL 2291386, at *4 (Iowa 2017). As discussed, Thomas argues

his “sentence was illegal” under recent precedent. See Miller v. Alabama, 132 S.

Ct. 2455, 2475 (2012) (“[A] judge or jury must have the opportunity to consider

mitigating circumstances before imposing the harshest possible penalty for

juveniles. By requiring that all children convicted of homicide receive lifetime

incarceration without possibility of parole, regardless of their age and age-related

characteristics and the nature of their crimes, the mandatory-sentencing

schemes before us violate this principle of proportionality, and so the Eighth

Amendment’s ban on cruel and unusual punishment.”); Lyle, 854 N.W.2d at 400-

01 (holding “all mandatory minimum sentences of imprisonment for youthful

offenders are unconstitutional under the cruel and unusual punishment clause in

article I, section 17 of our constitution”).

       The Iowa Supreme Court has declined to extend Lyle to young adults.

Lyle, 854 N.W.2d at 403 (stating “our holding today has no application to

sentencing laws affecting adult offenders”); see also Sweet, 879 N.W.2d at 839

(holding “juvenile offenders may not be sentenced to life without the possibility of

parole” (emphasis added)). Because the precedent Thomas cites does not apply

to him, Thomas’ challenge to the legality of his sentence fails as a matter of law,
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and   the      district   court   did   not   err   in   summarily   disposing   of   the

application.

       AFFIRMED.
