                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0764
                               Filed February 22, 2017


BRIAN KELLY ALLISON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Keokuk County, Myron Gookin,

Judge.



      Brian Allison appeals the summary dismissal of his second application for

postconviction relief. AFFIRMED.




      Robert E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for

appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee State.




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

          This court affirmed Brian Allison’s convictions on three counts of third-

degree sexual abuse. State v. Allison, No. 11-0774, 2012 WL 2819324 (Iowa Ct.

App. July 11, 2012). Procedendo issued on September 6, 2012.

          In his first application for postconviction relief (PCR), Allison claimed trial

counsel was ineffective in not adequately investigating whether a juror was

biased. That claim was rejected by the district court, which ruling we affirmed on

appeal. Allison v. State, No. 14-0925, 2015 WL 5278968, at *2 (Iowa Ct. App.

Sept. 10, 2015) (finding Allison had failed to carry his burden of proof to show

defense counsel breached an essential duty).

          On November 5, 2015, Allison filed a second PCR application, claiming

both first postconviction counsel and subsequent appellate counsel were

ineffective. The State moved to dismiss the application as having been filed

more than three years after procedendo issued and, therefore, beyond the

limitations period of Iowa Code section 822.3 (2015).1 Allison resisted, filing an

amended PCR application in which he also asserted:

                 b. That there exists evidence of material facts, not previously
          presented or heard, that requires vacation of the conviction and
          sentence in the interest of justice. The Applicant has reason to
          believe that the victim and other witnesses have recanted their
          testimony thus taking away the factual basis for his conviction.
                 c. That changes in the law and particularly the admissibility
          of expert testimony that tends to invade the providence of the jury
1
    Section 822.3 provides PCR 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. However, this limitation does not apply to a ground of fact or law
          that could not have been raised within the applicable time period. Facts
          within the personal knowledge of the applicant and the authenticity of all
          documents and exhibits included in or attached to the application must be
          sworn to affirmatively as true and correct.
                                          3


       and attempting to bolster the credibility of child victims, would result
       in a change of verdict.

       An unreported hearing on the motion to dismiss was held. The PCR court

dismissed the action, noting the claim of ineffective assistance of PCR counsel is

not a “ground of fact” within the exception to the three-year statute of limitations

for postconviction actions. See Dible v. State, 557 N.W.2d 881, 883 (Iowa 1996),

abrogated on other grounds by Harrington v. State, 659 N.W.2d 509, 520 (Iowa

2003); see also Whiteside v. State, No. 15-0534, 2016 WL 4051578, at *3 (Iowa

Ct. App. July 27, 2016); Griggs v. State, No. 15-0510, 2016 WL 2746051, at *1

(Iowa Ct. App. May 11, 2016); Bergantzel v. State, No. 15-1273, 2016 WL

2745065, at *2 (Iowa Ct. App. May 11, 2016); Everett v. State, No. 12-1032,

2014 WL 3749338, at *2 (Iowa Ct. App. July 30, 2014). Stating “[t]here is no

question this second postconviction action was filed outside the three-year

statute of limitations,” the PCR court dismissed the action.

       Allison appeals, arguing Dible is of “questionable value as precedent” and

“needs to be revisited and reexamined.” That task is not ours. See State v.

Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014) (“While we reverse the judgment of

the district court and vacate the decision of the court of appeals, we acknowledge

both courts properly relied on our applicable precedent. Generally, it is the role

of the supreme court to decide if case precedent should no longer be followed.”);

State v. Eichler, 83 N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to

be overruled, we should ordinarily prefer to do it ourselves.”); State v. Hastings,

466 N.W.2d 697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn

Iowa Supreme Court precedent.”).
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       Allison also contends the PCR court did not address his additional claims

in his amended PCR application asserting new facts and law. Even ignoring the

fact that Allison’s failure to seek a ruling on this claim in the district court waives

his right to raise it here,2 his vague and unsupported statements are insufficient

to avoid a motion to dismiss. He does not even assert the new facts and law

“could not have been raised within the applicable time period.” See Iowa Code

§ 822.3. We affirm the dismissal of the untimely PCR application.

       AFFIRMED.




2
 See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“[I]ssues must ordinarily be
both raised and decided by the district court before we will decide them on appeal.”); see
also LaMasters v. State, 821 N.W.2d 856, 863-64 (Iowa 2012) (noting Iowa Rule of Civil
Procedure 1.904(2) “is one means, but not the only means, for requesting” a ruling on a
matter in order to preserve error).
