                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2053
                             Filed October 14, 2015


DONALD LEE PICKETT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Paul L. Macek,

Judge.



      The applicant appeals the district court’s denial of his motion to correct an

illegal sentence. AFFIRMED.



      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Tyler J. Buller,

Assistant Attorneys General, and Michael J. Walton, County Attorney, for

appellee.



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

       A jury found Donald Pickett guilty of first-degree murder and willful injury.

This court affirmed his judgment and sentences in 1996. State v. Pickett, No. 95-

1074 (Iowa Ct. App. Sept. 30, 1996).

       Ten years after Pickett’s direct appeal became final, the Iowa Supreme

Court announced a change in the law relating to willful injury as the predicate

felony for first-degree murder. See State v. Heemstra, 721 N.W.2d 549, 558

(Iowa 2006). The court held, “if the act causing willful injury is the same act that

causes the victim’s death, the former is merged into the murder and therefore

cannot serve as the predicate felony for felony-murder purposes.” Id. The court

limited the retroactive application of this new rule “to the present case and those

cases not finally resolved on direct appeal in which the issue has been raised in

the district court.” Id.

       Notwithstanding this limitation on retroactivity and the passage of time

after his direct appeal became final, Pickett filed a postconviction-relief

application seeking the benefit of Heemstra’s substantive holding.1 The district

court dismissed the 2007 application, noting “Pickett had no appeal pending at

the time of the Heemstra decision” and “[t]he crime and sentence was authorized

by statute at the time it was imposed.” The Iowa Supreme Court affirmed by

motion the decision based on the limited retroactivity language in Heemstra,

which was reaffirmed in Goosman v. State, 764 N.W.2d 539 (Iowa 2009).




1
 Pickett filed an earlier postconviction-relief application, which was also dismissed, as
was the appeal. Pickett also filed two habeas corpus actions, which were dismissed.
                                         3



       Not satisfied with this outcome, Pickett filed a motion to correct an illegal

sentence, again raising the applicability of Heemstra’s substantive holding and

arguing that, because the issue would affect his sentence, it could be raised at

any time. See State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009) (noting a

claim that a sentence “is inherently illegal, whether based on constitution or

statute,” can be raised at any time).

       The district court concluded Pickett “had his day in court on the issue of

retroactivity of Heemstra and this is the law of the case.” See State v. Ragland,

812 N.W.2d 654, 658 (Iowa 2012) (“The law of the case doctrine ‘represents the

practice of courts to refuse to reconsider what has once been decided.’” (citing

State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987))). In the alternative, the

court concluded Pickett’s “constitutional arguments fail.” The court denied his

motion to correct an illegal sentence.

       On appeal, Pickett argues he raised a Double Jeopardy challenge to his

sentence that was not addressed in prior opinions and, accordingly, the district

court erred in invoking the law of the case doctrine.        Pickett’s argument is

unpersuasive.

       As noted, Pickett raised a Heemstra challenge in his 2007 postconviction-

relief application.   He supported his application with a citation to the Double

Jeopardy Clause of the United States Constitution and attendant case law. By

ruling against Pickett, the district court and Iowa Supreme Court necessarily

rejected this supporting authority.
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      Pickett’s motion for correction of an illegal sentence was, at its core, yet

another attempt to have Heemstra applied retroactively to his case—a claim that

was rejected by the Iowa Supreme Court in his appeal from the dismissal of his

second postconviction-relief application.     Accordingly, the law of the case

doctrine precluded relitigation of the claim.   Additionally, as the district court

stated, Pickett’s constitutional claims failed on the merits. See, e.g., Goosman,

764 N.W.2d at 545 (concluding limitation of retroactivity announced in Heemstra

did not violate federal due process); Hillman v. State, No. 14-0158, 2015 WL

5278929, at *2-3 (Iowa Ct. App. Sept. 10, 2015) (rejecting a claim that Heemstra

should be applied retroactively based on due process, equal protection, and

separation of powers of the Iowa and federal constitutions).

      We affirm the district court’s denial of Pickett’s motion to correct an illegal

sentence.

      AFFIRMED.
