                IN THE SUPREME COURT OF IOWA
                              No. 17–1997

                         Filed December 6, 2019


DAVID PALMER DEWBERRY,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Decatur County, John D.

Lloyd, Judge.



      The appellant appeals from the summary dismissal of his

application for postconviction relief. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT AFFIRMED.


      Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for

appellant.



      Thomas J. Miller, Attorney General, and Thomas J. Ogden,

Assistant Attorney General, for appellee.
                                      2

McDONALD, Justice.

      Eight years ago David Dewberry stood in open court with his counsel

and pleaded guilty to robbery in the first degree, in violation of Iowa Code

section 711.2 (2011).    In this postconviction-relief case, Dewberry now

claims he is actually innocent of robbery in the first degree and seeks to

vacate his conviction. “Dispositive to this case” is a “fundamental fact:

[Dewberry] is not innocent, in any sense of the word.” Herrera v. Collins,

506 U.S. 390, 419, 113 S. Ct. 853, 870 (1993) (O’Connor, J., concurring).

                                      I.

      Dewberry’s conviction arises out of a home invasion he perpetrated

in July 2011. The facts and circumstances of the home invasion were set

forth in a prior decision affirming the denial of Dewberry’s first application

for postconviction relief, and we need not repeat them at any great length

herein. See Dewberry v. State, No. 14-1198, 2015 WL 7567514, at *1–2

(Iowa Ct. App. Nov. 25, 2015). In short, Dewberry burst through the front

door of a single-family residence in the middle of the night. He wore a

black ski mask and carried what looked like a black handgun.            After

Dewberry burst in, he grabbed one of the family members by the neck,

threatened to shoot her, and demanded money. Rather than give in to

Dewberry’s demand, the family physically resisted Dewberry. During the

ensuing physical altercation, Dewberry and two of the family members

tumbled down a staircase. Dewberry then ran back up the staircase, put

his gun in another’s face, and screamed, “Give me your money.” By that

point, one of the family members had retrieved a 12-gauge shotgun. He

pointed the shotgun at Dewberry’s head, and Dewberry fled out the front

door. When officers arrived at the scene, they found three duffel bags in a

field near the home filled with tape, twine, and garbage bags.
                                      3

      Dewberry was caught shortly thereafter. The evidence against him

was overwhelming. Dewberry was charged with one count of burglary in

the first degree, three counts of robbery in the first degree, one count of

assault while participating in a felony, and one count of going armed with

intent. In total, Dewberry faced up to 110 years’ incarceration. Pursuant

to a plea agreement, Dewberry pleaded guilty to one count of robbery in

the first degree and was sentenced to an indeterminate term of

incarceration not to exceed twenty-five years. In exchange for Dewberry’s

guilty plea, the State agreed to dismiss the remaining charges.

      The plea colloquy was thorough.       The court asked Dewberry to

explain what he did:

            THE DEFENDANT: Well, Your Honor, on the day of
      July 16, 2011, I was going to commit a theft, and in doing so,
      I entered a residence that was not mine nor had any
      permission to enter and used the BB gun to put fear or
      threaten the residents of the home.

           THE COURT: Can you describe for me further what this
      gun was that you used?

               THE DEFENDANT: It was just a BB gun.

               THE COURT: Was it a spring-loaded BB gun, or was it
      C02?

            THE DEFENDANT: It was just a spring-loaded, I think.
      It might have been C02. I don’t know. I never shot it.

               THE COURT: Well, can you describe what it looked like?

               THE DEFENDANT: It was black.

               THE COURT: Can you describe it further as to the shape
      of it?

               THE DEFENDANT: It looked like a gun.

               THE COURT: Have you ever seen a real gun before?

               THE DEFENDANT: Yeah.

               THE COURT: Did it look like a real gun?
                                      4
            THE DEFENDANT: Pretty close.

             THE COURT: Mr. Dewberry, one of the prongs, if you
      will, of a definition of a dangerous weapon is any instrument
      or device of any sort whatsoever which is actually used in such
      manner as to indicate that the defendant intends to inflict
      death or serious injury upon the other and which when so
      used is capable of inflicting death upon a human being. Did
      the gun that you described fit that definition?

            THE DEFENDANT: Yes, Your Honor.

The court also gave Dewberry the opportunity to dispute facts in the

minutes of testimony.

             THE COURT: Now, Mr. Dewberry, along with the trial
      information that was filed in this case, there were what’s
      called minutes of testimony, and the minutes of testimony are
      written statements that the county attorney expects those
      persons identified would testify to at the time of trial. Did you
      read those minutes of testimony?

            THE DEFENDANT: Yes, Your Honor.

             THE COURT: Did you go over those with [your counsel]
      in this case?

            THE DEFENDANT: Yes, Your Honor.

            THE COURT: Is there anything in those minutes of
      testimony that is not true?

            THE DEFENDANT: No, Your Honor.

Finally, the court asked Dewberry if he was pleading guilty for any reason

other than he committed the offense:

            THE COURT: Mr. Dewberry, are you pleading guilty in
      this case for any reason other than the fact that you
      committed the crime that you’re charged with?

            THE DEFENDANT: No, Your Honor.

The district court accepted Dewberry’s guilty plea and entered judgment.

      In 2013, Dewberry filed his first application for postconviction relief.

Dewberry   claimed    his   counsel   provided    constitutionally   deficient

representation in allowing Dewberry to plead guilty without a factual basis
                                      5

for the plea. Specifically, Dewberry argued there was no factual basis to

show the BB gun was a “dangerous weapon.” Iowa Code § 711.2 (“A person

commits robbery in the first degree when, while perpetrating a robbery,

the person purposely inflicts or attempts to inflict serious injury, or is

armed with a dangerous weapon.”).          The district court denied the

application, and the court of appeals affirmed. See Dewberry, 2015 WL

7567514, at *4 (“There was a sufficient factual basis in the record to show

Dewberry committed robbery while armed with a dangerous weapon.”).

      This case arises out of Dewberry’s second application for

postconviction relief. In this application, at least as presented on appeal,

Dewberry contended he was actually innocent of robbery in the first degree

because the BB gun was not a dangerous weapon. On the State’s motion,

the district court summarily dismissed Dewberry’s second application for

postconviction relief without an evidentiary hearing.     Dewberry timely

appealed the decision, and the court of appeals reversed the decision of

the district court.   The court of appeals concluded the district court’s

summary dismissal of the application deprived Dewberry of the

opportunity to prove up his claim of actual innocence. We granted the

State’s application for further review.

                                     II.

      “We review summary dismissals of postconviction-relief applications

for errors at law.” Schmidt v. State, 909 N.W.2d 778, 784 (Iowa 2018).

“[F]or a summary disposition to be proper, the State must be able to prevail

as if it were filing a motion for summary judgment in a civil proceeding.”

Id.   Applying summary judgment principles, summary disposition is

proper

      if the pleadings, depositions, answers to interrogatories, and
      admissions on file, together with the affidavits, if any, show
                                      6
      that there is no genuine issue as to any material fact and that
      the moving party is entitled to a judgment as a matter of law.

Iowa R. Civ. P. 1.981(3).      To the extent Dewberry’s claim of actual

innocence raises constitutional questions, our review is de novo. See Moon

v. State, 911 N.W.2d 137, 142 (Iowa 2018) (“We generally review

postconviction    proceedings,     including   summary      dismissals     of

postconviction-relief applications, for errors at law. [However, w]hen the

basis for relief implicates a violation of a constitutional dimension, our

review is de novo.” (citation omitted)).
                                     III.

      It had long been the law of this state that

      [w]hen a defendant voluntarily and intelligently enter[ed] a
      plea of guilty with actual knowledge of the existence of his
      constitutional rights, full understanding of their meaning and
      clear comprehension of direct consequences of their waiver,
      he acknowledge[d] guilt thereby supplying both evidence and
      verdict ending the controversy.

State v. Kobrock, 213 N.W.2d 481, 482–83 (Iowa 1973). Although a guilty

plea and subsequent entry of judgment usually terminated a criminal

proceeding, our caselaw did allow a defendant to challenge a plea based

on grounds intrinsic to the plea—that is “the voluntary and intelligent

character of the guilty plea.” State v. Utter, 803 N.W.2d 647, 651 (Iowa

2011), overruled on other grounds by Schmidt, 909 N.W.2d at 790.

However, our caselaw foreclosed any challenge to a guilty plea based on

grounds extrinsic to the plea. See id.

      Last year, in Schmidt, this court “overrule[d its] cases that d[id] not

allow defendants to attack their pleas based on extrinsic grounds when

they claim[ed] actual innocence.” 909 N.W.2d at 790. This court held

“freestanding claims of actual innocence permitted by the Iowa

Constitution are available to applicants even though they pled guilty.” Id.
                                       7

at 795.    This court grounded the actual innocence exception in two

provisions of the Iowa Constitution: (1) “Article I, section 9 of the Iowa

Constitution[,] prohibit[ing] the deprivation of liberty without due process

of law”; and (2) “Article I, section 17 of the Iowa Constitution[,] prohibit[ing]

cruel and unusual punishment.” Id. at 793–94.

      While Schmidt recognized a postconviction-applicant’s right to

assert a claim of actual innocence, Schmidt also recognized a claim of

actual innocence was limited. See id. at 793 (“Thus, there are limits on

actual-innocence claims.”). An applicant must first meet the procedural

requirements governing the presentation of postconviction-relief claims as

set forth in Iowa Code chapter 822.         For example, the applicant must

comply with the statute of limitations or prove a statutory exception

thereto. See id. at 798–99 (discussing the statute of limitations under

Code section 822.3). By way of another example, an applicant must also

meet the procedural bar set forth in Code section 822.8 or prove a

statutory exception thereto.

      Upon satisfying the statutory requirements for the presentation of

postconviction-relief claims, an applicant “must meet the demanding

actual-innocence standard to prove the validity of [his or her] actual-

innocence claims.” Id. at 793. An applicant must show “by clear and

convincing evidence that, despite the evidence of guilt supporting the

conviction, no reasonable fact finder could convict the applicant.” Id. at

797. Schmidt adopted this demanding standard because “an applicant

bringing a freestanding claim of actual innocence is claiming he or she is

factually and actually innocent, despite a fair, constitutionally compliant

trial or plea colloquy free of constitutional defects.” Id. (emphasis added).

The demanding standard also “balance[d] the interest of an innocent

defendant and that of the state.”          Id.   In particular, the demanding
                                     8

standard balanced the liberty interest of a factually innocent person to be

free from conviction and criminal sanction against the state’s legitimate

interests in finality and the conservation of judicial resources. See id. at

791, 797.

      Here, Dewberry contends he is actually innocent of robbery in the

first degree. Specifically, he contends the BB gun was not a dangerous

weapon within the meaning of Code section 711.2. He also contends he

was entitled to a postconviction trial to prove up his claim of actual

innocence. While Dewberry contends he is actually innocent of robbery in

the first degree, he concedes, as he must, he is guilty of robbery in some

lesser degree.

      We conclude the district court did not err in dismissing Dewberry’s

application for postconviction relief.   First, it is questionable whether

Dewberry even asserted a claim of actual innocence in the district court.

In his application for postconviction relief, Dewberry did not claim he was

actually innocent of robbery in the first degree. Instead, he claimed his

plea counsel was ineffective in not obtaining an expert witness to examine

the BB gun. This later morphed into a claim that Dewberry wanted an

expert witness to examine the BB gun to, at best, create a fact issue on

whether the BB gun was a dangerous weapon within the meaning of the

statute.    The following exchange during the hearing on the motion to

dismiss is illustrative:

      Our position is that Mr. Dewberry is entitled to have someone
      at l[e]ast take an actual look at the weapon. The weapon was
      seized. There’s been various descriptions of the weapon
      throughout. . . . The truth is I don’t know whether it’s an
      Airsoft weapon or not. I know that’s what postconviction
      counsel described it as. I know law enforcement seized a
      weapon. . . . [A]t least we have photographs of that weapon
      and . . . we could have someone take a look at it and decide
      objectively and factually whether or not—as an objective fact
      whether or not that weapon is capable of inflicting death.
                                     9

After the district court granted the State’s motion to dismiss, Dewberry

filed a motion to reconsider. In that motion, Dewberry explicitly identified

his claim as a claim of actual innocence of robbery in the first degree. The

district court denied the motion to reconsider, denying that claim on the

merits. As this claim was first presented to the district court, it was not a

claim of actual innocence.     Instead, it was merely a contention that

examination of the BB gun might have created a fact issue on whether the

BB gun was a dangerous weapon. More pointedly, it was simply a belated

request to go to trial.

      Second, Dewberry’s claim, as presented to the district court, was not

a new issue.    Whether there was a triable issue of fact regarding the

weapon was specifically discussed during the plea colloquy:

            THE COURT: Do you know of any defense that
      Mr. Dewberry would have to this charge, other than a general
      denial?

             MR. GREENWOOD: No. . . . We discussed all of the
      affirmative defenses available to Mr. Dewberry, specifically
      including diminished responsibility, also the collateral
      defense of asserting that the gun used is not the equivalent of
      a dangerous weapon, and having explored all of those issues
      and discussed those with Mr. Dewberry, we believe that based
      on our review of the state’s discovery compliance that there is
      sufficient evidence to refute each of those defenses, and we
      would then assert a general denial defense.

The factual basis supporting Dewberry’s guilty plea was also litigated in

Dewberry’s first application for postconviction relief and affirmed on

appeal. See Dewberry, 2015 WL 7567514, at *4. We cannot conclude the

district court erred in summarily dismissing Dewberry’s most recent

attempt to repackage and relitigate the same issue.

      Third, even assuming Dewberry asserted a claim that he was

actually innocent of robbery in the first degree, he is still not entitled to

any relief. The purpose of allowing an applicant to present a freestanding
                                    10

actual innocence claim is to provide a safety-valve for those convicted of

an offense but “who ha[ve] committed no crime.” Schmidt, 909 N.W.2d at

793. “[A]n applicant bringing a freestanding claim of actual innocence is

claiming he or she is factually and actually innocent.” Id. at 797 (emphasis

added). Factual and actual innocence requires an applicant to prove he

or she was actually innocent of the offense for which he or she was

convicted, including any lesser included offenses. See id. at 793 (“We see

no reason why article I, section 9 would not be enforceable for purposes of

vindicating defendants who prove they are factually innocent and believe

their incarceration triggers the due process clause.”). Thus, in Schmidt,

the defendant asserted a potentially viable claim of actual innocence where

he wholly denied the offense occurred. See id. at 783, 793 (presenting

evidence that the alleged victim recanted). Dewberry makes no such claim

here. His claim thus fails as a matter of law.

      Our understanding of actual innocence is consistent with the United

States Supreme Court’s approach to actual innocence.         The Supreme

Court has “not resolved whether a prisoner may be entitled to habeas relief

based on a freestanding claim of actual innocence.” McQuiggin v. Perkins,

569 U.S. 383, 392, 133 S. Ct. 1924, 1931 (2013); see Schmidt, 909 N.W.2d

at 790 (stating the Supreme Court has not yet recognized a freestanding

claim of actual innocence). Instead, the Supreme Court has recognized “a

gateway claim of actual innocence such that the petitioner may obtain

review of the underlying constitutional merits of his or her procedurally

defaulted claim.” Schmidt, 909 N.W.2d at 790 (citing Herrera, 506 U.S. at

404, 113 S. Ct. at 862 (majority opinion), and In re Davis, 557 U.S. 952,

955, 130 S. Ct. 1, 3 (2009) (Scalia, J., dissenting)).   In discussing the

concept of actual innocence in this context, the Court has made clear it is

referring to factual innocence:
                                        11
          A prototypical example of “actual innocence” in a colloquial
          sense is the case where the State has convicted the wrong
          person of the crime. Such claims are of course regularly made
          on motions for new trial after conviction in both state and
          federal courts, and quite regularly denied because the
          evidence adduced in support of them fails to meet the rigorous
          standards for granting such motions. But in rare instances it
          may turn out later, for example, that another person has
          credibly confessed to the crime, and it is evident that the law
          has made a mistake. In the context of a noncapital case, the
          concept of “actual innocence” is easy to grasp.

Sawyer v. Whitley, 505 U.S. 333, 340–41, 112 S. Ct. 2514, 2519–20

(1992). In Bousley v. United States, the Court stated “ ‘actual innocence’
means factual innocence, not mere legal insufficiency.” 523 U.S. 614, 623,

118 S. Ct. 1604, 1611 (1998). This understanding of actual innocence is

consistent with the Court’s pronouncement that “substantial claim[s] of

actual innocence are extremely rare.” Schlup v. Delo, 513 U.S. 298, 321,

115 S. Ct. 851, 864 (1995); see also McQuiggin, 569 U.S. at 386, 133 S. Ct.

at 1928 (cautioning that “tenable actual-innocence gateway pleas are

rare”).

          Our conclusion that actual innocence requires proof of factual

innocence with respect to the challenged conviction, including any lesser

included offenses, aligns with Iowa’s innocence-related policy as expressed

by the legislature. For example, Iowa Code section 81.10 (2019) provides

“[a] defendant who has been convicted of a felony or aggravated

misdemeanor . . . may make a motion to the court for an order to require

that DNA analysis be performed on evidence collected in the case for which

the person stands convicted.” In Schmidt, this court explained this statute

set a “policy that the state should not incarcerate actually innocent people

if DNA evidence exonerates them, regardless of their pleas.” Schmidt, 909

N.W.2d at 789. DNA exoneration goes to factual innocence—i.e., whether

a crime was committed, and if so, who committed it. It does not at all bear
                                    12

on legal innocence related to degrees of guilt. “We see no reason why we

should treat people exonerated by DNA evidence differently from people

exonerated by other reliable means.” Id.

       Similarly, Iowa Code chapter 663A establishes a cause of action for

damages for a wrongfully imprisoned person. To obtain relief under the

statute, an individual must prove he or she was actually innocent. That

is, the individual must show that “the offense for which the individual was

convicted, sentenced, and imprisoned, including any lesser included

offenses, was not committed by the individual.” Iowa Code § 663A.1(2)(a).

By enacting the wrongful imprisonment statute, the legislature has

expressed a policy in favor of providing economic relief for those persons

convicted of an offense where no offense was actually committed or where

the defendant did not actually commit it. Like chapter 81 regarding DNA,

the wrongful imprisonment statute expresses a policy preference for those

factually innocent rather than legally innocent of degrees of criminal

liability.

       In support of his argument that he is actually innocent of robbery

in the first degree, Dewberry asserts that several states recognize

freestanding claims of actual innocence.     But that assertion does not

advance his argument. It is not disputed that several states have rules or

statutes authorizing freestanding claims of actual innocence. See Ariz. R.

Crim. P. 32.1(h) (Westlaw through Aug. 15, 2019 amendments); Ark. Code

Ann. §§ 16-112-201 to -208 (West, Westlaw through 2019 Reg. Sess.); Del.

Code Ann. tit. 11, § 4504 (West, Westlaw through ch. 219 of 2019–2020

Legis. Sess.); D.C. Code Ann. § 22-4135 (West, Westlaw through Sept. 11,

2019 legislation); Me. Rev. Stat. Ann. tit. 15, § 2138(10) (West, Westlaw

through 2019 1st Reg. Sess. and ch. 531 1st Spec. Sess.); Md. Code Ann.,

Crim. Proc. § 8-301 (West, Westlaw through 2019 Reg. Sess.); Minn. Stat.
                                      13

Ann. § 590.01 (West, Westlaw through Legis. effective Jan. 1, 2020); Ohio

Rev. Code Ann. § 2953.21 (West, Westlaw through Files 1 to 18 of 2019–

2020 General Assemb.); Tenn. Code Ann. § 40-30-117(2) (West, Westlaw

through 2019 1st Extraordinary Sess.); Utah Code Ann. §§ 78B-9-

301, -402 (West, Westlaw through 2019 1st Spec. Sess.); Va. Code Ann.

§ 19.2-327.10:1 (West, Westlaw through 2019 Reg. Sess.). It is also not

disputed   that   several   states   have    judicial   decisions   authorizing

freestanding claims of actual innocence. See In re Bell, 170 P.3d 153, 157

& n.2 (Cal. 2007); Miller v. Comm’r of Corr., 700 A.2d 1108, 1110 (Conn.

1997); State ex rel. Amrine v. Roper, 102 S.W.3d 541, 543 (Mo. 2003) (en

banc); Marble v. State, 355 P.3d 742, 748–49 (Mont. 2015); Montoya v.

Ulibarri, 163 P.3d 476, 487 (N.M. 2007). The fact that other states have

authorized freestanding claims of actual innocence does not address the

relevant question in this case: whether a claim of actual innocence

encompasses a claim in which the defendant admits criminal liability for

the offense but contests only the degree of criminal liability for the offense.

On this more limited question, Dewberry does not cite any authority

supporting his contention.

      Our review of the persuasive authority relevant to this question

shows a claim of actual innocence does not encompass a claim in which

the defendant admits criminal liability but contests only the degree of

criminal liability.   Federal courts addressing actual innocence claims

require the applicant to show he or she is factually innocent of the offense,

including lesser included offenses.         In Rozzelle v. Secretary, Florida

Department of Corrections, the United States Court of Appeals for the

Eleventh Circuit stated the “Supreme Court’s categorical language in

actual innocence cases does not suggest that it is narrowly slicing the

various degrees of wrongdoing.” 672 F.3d 1000, 1016 (11th Cir. 2012).
                                      14

The court ultimately held the “actual innocence ‘gateway’ does not extend

to petitioners . . . who did the killing and whose alleged ‘actual innocence’

of a non-capital homicide conviction is premised on being guilty of only a

lesser degree of homicide.” Id. at 1015. Other federal courts agree with

this interpretation. See, e.g., Lampon v. LaValley, No. 11-895-pr, 2012 WL

5935349, at *2–3 (2d Cir. Nov. 28, 2012) (“Insofar as [Defendant] claims

that he acted under extreme emotional distress sufficient to preclude him

from forming the requisite intent, he demonstrates only a triable issue of

fact, which is not the same as a likelihood that ‘no reasonable juror would

have convicted him,’ on either theory of second degree murder as

necessary to establish factual innocence.” (quoting Schlup, 513 U.S. at

327, 115 S. Ct. at 867)); Whitener v. Snyder, Nos. 00–6380, 00–6394, 2001

WL 1178302, at *1 (6th Cir. Sept. 24, 2001) (“At most they have shown

legal insufficiency, not the factual innocence necessary” for relief.);

Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000) (“[The defendant]

does not claim that he is innocent of killing [the victim]. Rather, he claims

that he is not guilty of first degree murder because he was intoxicated and

acted in self-defense. However, these arguments go to legal innocence, as

opposed to factual innocence.”); Aviles v. Ryan, No. CV-16-01863-PHX-

GMS (ESW), 2018 WL 4190147, at *5 (D. Ariz. Feb. 27, 2018) (“Petitioner

does not dispute that he shot the victim, but asserts that it was in the heat

of passion. Petitioner asserts that his second-degree murder conviction

‘must be corrected to conform to the . . . evidence that the Plaintiff is guilty

of manslaughter a crime not of malice but rather that of passion.’ . . .

Therefore, to the extent Petitioner presents a Schlup gateway claim, it is

without merit.”); Danielson v. Lee, No. 09 Civ. 3839 (LAP), 2015 WL

4879140, at *4 (S.D.N.Y. Aug. 13, 2015), (“Petitioner does not argue that

he is innocent of causing [the victim’s] death; only that he is innocent of
                                      15

the legal crime of depraved indifference murder. . . .           Under these

circumstances, continued incarceration is not a case of manifest

injustice.”), aff’d, 715 F. App’x 45, 49 (2d Cir. 2017). But see Glass v.

Vaughn, 65 F.3d 13, 16 (3d Cir. 1995) (“The Supreme Court has not

decided whether the actual innocence test is applicable in a noncapital

case when there is evidence that defendant committed the crime but

argues that he or she was responsible for a lesser degree of guilt. For

purposes of this opinion, we will assume arguendo that the actual

innocence test applies.”).

      Where they have answered the question, other states have also

concluded actual innocence requires the defendant be factually innocent

rather than legally innocent of a degree of criminal liability. See, e.g., State

v. De La Rosa, No. 2 CA–CR 2012–0294–PR, 2012 WL 4356222, at *2 (Ariz.

Ct. App. Sept. 24, 2012) (stating the applicant must show innocence with

respect to the “underlying offense”); Miller, 700 A.2d at 1128 n.26 (“We

note that ‘factual’ and ‘actual’ innocence have the same meaning and are

used interchangeably in this opinion.”); People v. Moore, 115 N.E.3d 463,

470 (Ill. App. Ct. 2018) (“Second, we agree . . . that a defendant’s claim of

second degree murder does not constitute a claim of actual innocence

under Illinois law. Rather, to constitute a claim of actual innocence, a

defendant’s claim has to be able to completely exonerate defendant of the

offense in question and all related offenses.” (citation omitted)); People v.

Barnslater, 869 N.E.2d 293, 301 (Ill. App. Ct. 2007) (recognizing that

“actual innocence requires that a defendant be free of liability not only for

the crime of conviction, but also of any related offenses”); Reeves v. Nooth,

432 P.3d 1105, 1116 (Or. Ct. App. 2018) (rejecting claim where petitioner

asserted he was “legally innocent, not factually innocent of the crimes for

which he was convicted”); Ex parte Kussmaul, 548 S.W.3d 606, 641 (Tex.
                                     16

Crim. App. 2018) (“We have held ‘that the term “actual innocence” shall

apply, in Texas state cases, only in circumstances in which an accused

did not, in fact, commit the charged offense or any of the lesser-included

offenses.’ ” (quoting State v. Wilson, 324 S.W.3d 595, 598 (Tex. Crim. App.

2010))).

      Our requirement that an applicant prove factual innocence with

respect to the challenged offense, including any lesser included offenses,

“balances the interest of an innocent defendant and that of the state.”

Schmidt, 909 N.W.2d at 797. Specifically, it balances the liberty interest

of an actually innocent person to be free from conviction and criminal

sanction with the state’s legitimate interests in conserving judicial

resources, maintaining the integrity of convictions, and bringing finality to

the criminal process. See id. at 791, 797; Clayton v. Iowa Dist. Ct., 907

N.W.2d 824, 829 (Iowa Ct. App. 2017) (“[T]he State has a strong policy

interest both in maintaining the integrity of sentences that were valid when

imposed and in promoting the finality of sentences.”).

      By expanding the actual innocence claim to claims of legal

innocence regarding the degree of offense, as Dewberry requests, we would

upset that balance. Under Dewberry’s understanding, almost all crimes

would be subject to collateral attack:

            Allowing claims of actual innocence to be brought
      whenever a habeas petitioner argues that he was convicted of
      an erroneous degree of crime, as in this case, would
      substantially expand the scope of the actual innocence
      exception. Almost all crimes with degrees could face similar
      challenges.

Rozelle, 672 F.3d at 1016. We find Dewberry’s position impractical and

untenable.

      We thus hold a postconviction-relief applicant can establish a claim

of actual innocence only upon clear and convincing evidence he or she was
                                  17

factually innocent of the offense of conviction, including any lesser

included offenses thereof.

                                  IV.

      For these reasons, we conclude the district court did not err in

dismissing Dewberry’s claim without an evidentiary hearing. We vacate

the judgment of the court of appeals, and we affirm the judgment of the

district court.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.
