                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1115
                            Filed September 10, 2015


TIMOTHY D. YOUNG,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      Timothy Young appeals from the dismissal of his second application for

postconviction relief. AFFIRMED.




      Eric D. Tindal of Nidey, Erdahl, Tindal, & Fisher, P.L.C., Williamsburg, for

appellant.

      Timothy D. Young, Fort Madison, pro se.

      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and Robert A. Hruska,

Assistant County Attorney, for appellee State.



      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, C.J.

       This is an appeal from the district court’s dismissal of Timothy Young’s

second application for postconviction relief in which he challenges his 1998

convictions for first-degree burglary and second-degree sexual abuse.

I. Background Facts.

       Young’s burglary and sexual-abuse convictions were affirmed on appeal.

State v. Young, No. 98-0422, 1999 WL 34774386 (Iowa Ct. App. Feb. 24, 1999).

       Young filed his first application for postconviction relief in May 2002 and

raised issues of ineffective assistance of his criminal trial and appellate counsel.

This court affirmed the district court’s rejection of those claims. See Young v.

State, No. 06-0763, 2007 WL 3376830 (Iowa Ct. App. Nov. 15, 2007).

       Young filed his second application for postconviction relief in June 2008.

His application alleged (1) the criminal trial jury instructions were erroneous,

(2) his criminal trial counsel was ineffective in failing to object to the erroneous

instructions, (3) appellate counsel was ineffective in failing to make that

ineffective-assistance-of-counsel claim, and (4) prior postconviction counsel was

ineffective in failing to raise these issues. Counsel was appointed to represent

Young, and an amended application for postconviction relief was filed on

December 8, 2009.       In the amended second application, Young asserts his

conviction is in violation of his right to due process in that the criminal trial court

failed to instruct the jury on lesser-included offenses and thus the jury

instructions were defective and Young was denied the effective assistance of

counsel because prior counsel failed to object to the trial court’s jury instructions

to preserve the error on the record.
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       On December 22, 2009, the State moved to dismiss the second

postconviction application.    The State noted this court previously rejected

Young’s claims regarding improper jury instruction.       The State asserted: “All

grounds for relief available to Applicant for postconviction relief must be raised in

the Applicant’s original, supplemental or amended application. Any ground either

finally adjudicated or not raised may not be the basis for a subsequent

application.”   Further, “absent a showing of sufficient reason to permit a

subsequent application, this action must be dismissed.”

       On February 3, 2010, the district court issued a ruling giving Young notice

it intended to dismiss the application “unless the Applicant can clarify for the

Court that the issues regarding jury instructions forming the basis for the pending

Application have not been finally disposed of by the Iowa Court of Appeals” in its

ruling on the appeal of his first application for postconviction relief. After Young

responded, the court found there were errors in the lesser-included-offense

instructions given at the criminal trial. The court observed the error was “subject

to harmless error analysis” and that it “must still determine whether the failure to

raise the errors in the instructions previously was the result of ineffective

assistance of counsel.” The court thus found the “State [was] not entitled to

summary disposition at this juncture.”

       A hearing was held on March 5, 2013.         Young’s criminal trial counsel

testified, and the transcripts from the criminal trial were submitted into evidence.

At the close of Young’s evidence, the State moved for a directed verdict on

grounds the application was barred by the three-year limitation period and that no

new fact or law had been shown. The postconviction court took the motion under
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advisement. The State then called Young as a witness. Both parties submitted

written posttrial briefs.

       On May 8, 2013, the court issued an extensive ruling dismissing Young’s

second application for postconviction relief. The court observed:

       [A]bsolutely no testimony was received in the Applicant’s case-in-
       chief referable to the jury instructions, the appropriate lesser
       included offenses, the nature of any other alleged instances of
       ineffective assistance of counsel either at the trial level, or the
       appellate level, (including postconviction relief counsel), the
       claimed resulting prejudice to Mr. Young, or any mention of any
       alleged Miranda violations. Perhaps more significantly, absolutely
       no evidence was presented referable to any changes in the law or
       any newly discovered evidence which could provide an arguable
       exception to the three-year statute of limitations contained in
       Section 822.3, Code of Iowa. Similarly, no testimony or evidence
       was presented which even addressed the issue of why Mr. Young’s
       present grounds for requested relief were not raised in his prior
       direct appeal or prior postconviction relief action.

The postconviction court concluded the claims made in Young’s second

application were barred by Iowa Code sections 822.3 and 822.8 (2007). The

court ruled, “The legaI and factual underpinning of this second postconviction

relief action were in existence during the three-year period of limitations and

could have been addressed in the Applicant’s direct appeal or first postconviction

action.” And further, “Mr. Young did, nominally, plead the exception [that he was

not or should not have been alerted to the potential claim] but utterly failed to

prove that this was a ground of fact or law which could not have been raised

within the three-year limitations period.”

       Nonetheless, the court addressed each of the application’s claims and

denied the application for postconviction relief. The court also ruled on Young’s
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pro se motion to enlarge findings and rejected additional claims made. Young

appeals.

II. Scope and Standard of Review.

               “We normally review postconviction proceedings for errors at
       law.” Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). “This
       includes summary dismissals of applications for postconviction
       relief.” Id. However, applications that allege ineffective assistance
       of counsel raise a constitutional issue that must be reviewed de
       novo.      Id.  In determining whether summary disposition is
       warranted, the moving party has the burden of establishing the
       material facts are undisputed. Id. We examine the facts in the light
       most favorable to the nonmoving party. Id.

Lopez-Penaloza v. State, 804 N.W.2d 537, 540-41 (Iowa Ct. App. 2011).

III. Discussion.

       Young asserts on appeal that the postconviction court erred in concluding

this second application is barred. He asserts the State waived the defense. He

also contends the court erred in finding he had suffered no prejudice as a result

of faulty jury instructions. In a pro se appellate brief, Young also maintains he

sufficiently alleged his first postconviction counsel and counsel on that appeal

were ineffective, which provides grounds to reach the merits of his claims—

improper lesser-included jury instructions, conviction by insufficient evidence, an

improper “dangerous weapon” instruction, and the criminal trial court lacked

subject matter jurisdiction as a result of due process violations.

       Iowa Code section 822.3 requires an individual seeking postconviction

relief to file an application within three years from the date the conviction is final.

“However, this limitation does not apply to a ground of fact or law that could not

have been raised within the applicable time period.” Iowa Code § 822.3. The

postconviction court did not err in concluding Young had failed to establish his
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claims could not have been raised within the applicable time period. See Perez

v. State, 816 N.W.2d 354, 360 (Iowa 2012) (noting to avoid the three-year

limitations period, the applicant must be asserting a ground of fact or law that

“could not have been raised” earlier); Lopez-Penaloz, 804 N.W.2d at 542 (same).

The defense was raised in sufficient time for Young to present additional

evidence and argument on the issue. Young did not ask for additional time to

present evidence, only additional time to submit a written brief on the issue—

which was granted. We therefore affirm the denial of his second application for

postconviction relief.

       AFFIRMED.
