                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-2103
                            Filed November 9, 2016


MICHAEL A. DAVIS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire,

Judge.



      Michael Davis appeals from the district court order dismissing his

application for postconviction relief. AFFIRMED.




      Christopher M. Soppe of Pioneer Law Office, Dubuque, for appellant.

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

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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DANILSON, Chief Judge.

      Michael Davis appeals from the district court order dismissing his

application for postconviction relief (PCR). The hearing on the application was

held on December 1, 2014.       Davis was convicted of first-degree kidnapping,

second-degree sexual abuse, and aggravated assault in 1997. Davis filed this

second PCR application on August 25, 2014, asserting the judgment entered

upon his conviction is void because the kidnapping statute is unconstitutionally

vague. The State filed a motion to dismiss the PCR application for failure to file

within the three-year statute of limitations. See Iowa Code § 822.3 (2013). Davis

argued the statute of limitations did not apply because his claims were based on

a new ground of law and could not have been raised within the requisite three-

year period.

      Davis’ PCR application asserted Hatter v. Warden, Iowa Men’s

Reformatory, 734 F. Supp. 1505, 1512-13 (N.D. Iowa 1990)—holding the

kidnapping statute was not unconstitutionally vague as interpreted by the Iowa

Supreme Court—“was very new law” at the time of the 1997 trial. Therefore, trial

counsel would not have raised the issue regarding the vagueness of the

kidnapping statute. However, in light of “drastic changes in recent years” to Iowa

criminal law, Davis requested the district court consider whether the kidnapping

statute provisions were unconstitutionally vague. The district court dismissed

Davis’ PCR application, holding:

      In both [Davis’] prior direct appeal and his prior postconviction-relief
      action constitutional issues were asserted and argued and his
      present constitutional claim was available then. No new legal
      authority suggests his sentence was in any way illegal or that the
      sentencing court lacked ‘inherent power’ to impose the sentence it
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       did. No constitutional issue is presented that suggests a new basis
       for relief. Nothing in this new postconviction case rises to the level
       of a fact or law that could not have been raised within the
       applicable time period, and the court concludes there is no genuine
       issue of material fact and the State is entitled to judgment as a
       matter of law.

       We agree the PCR application was untimely, and affirm the district court

order dismissing the application.

       To the extent Davis now raises arguments on appeal based on the holding

in State v. Robinson, 859 N.W.2d 464 (Iowa 2015), error is not preserved.

Robinson was decided in 2015 and was not raised before or addressed by the

district court. Thus, we will not consider the issue on appeal. See Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.”).

       On our review for correction of errors at law, Nguyen v. State, 829 N.W.2d

183, 186 (Iowa 2013), we find the district court did not err in dismissing Davis’

PCR application. We therefore affirm.

       AFFIRMED.
