                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0469
                              Filed March 22, 2017


TIMMIE DURRELL COLE,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      Timmie Cole appeals the summary disposition of his postconviction relief

application. AFFIRMED.




      Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
                                         2


VAITHESWARAN, Judge.

       Timmie Cole filed a postconviction relief application in 2014, challenging

his 1995 convictions for two counts of delivery of cocaine. The State moved for

summary disposition on the ground that the application was barred by a three-

year statute of limitations. See Iowa Code § 822.3 (2016) (stating 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”). The district court granted the motion.

       On appeal, Cole argues a United States Supreme Court opinion, Padilla v.

Kentucky, 559 U.S. 356 (2010), “announced a new rule.” In his view this new

rule “is an exception to the three-year statute of limitations.” See Iowa Code

§ 822.3 (providing an exception for “a ground of fact or law that could not have

been raised within the applicable time period”).

       Cole conflates two concepts: (1) retroactive application of a new rule of

law and (2) the statutory exception to the three-year limitations period for a

ground of law. See Perez v. State, 816 N.W.2d 354, 355 (Iowa 2012).

       Padilla did indeed announce a new rule of law. See Chaidez v. United

States, 133 S. Ct. 1103, 1111 (2013) (“Padilla thus announced a ‘new rule.’”).

But this development does not assist Cole because “Padilla does not have

retroactive effect.” Id. at 1105. In other words, “a person whose conviction is

already final may not benefit from the decision in a habeas or similar

proceeding.” Id. at 1107. As the Iowa Supreme Court stated in an opinion

predating Chaidez, if Padilla does not apply retroactively, the defendant could

“not rely upon it to set aside an earlier conviction.” See Perez, 816 N.W.2d at
                                          3

355; see also Avina v. State, No. 11-1780, 2013 WL 1452949, at *4 (Iowa Ct.

App. Apr. 10, 2013) (“As a new rule, [the applicant] may not avail himself of

Padilla in this proceeding.”).

       We turn to the ground-of-law exception to the three-year statute of

limitations. See Iowa Code § 822.3. Although Padilla announced a new rule that

might fit within the “ground of law” exception to the limitations period, the Iowa

Supreme Court implicitly recognized that a postconviction claim based on a

change in the law must be filed within three years of that change. See Nguyen v.

State, 829 N.W.2d 183, 186 (Iowa 2013) (noting the applicant applied for

postconviction relief based on an opinion changing the law less than three years

after the opinion was filed).

       Padilla was filed in 2010.      Cole did not file his postconviction relief

application until 2014. His application was untimely. We affirm the summary

disposition of Cole’s postconviction relief application.

       AFFIRMED.
