                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1919
                               Filed June 17, 2020


LAWRENCE LARRY McCOY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      Lawrence McCoy appeals the dismissal of his application for postconviction

relief. AFFIRMED.




      Thomas Hurd of Greenberg & Hurd, LLP, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., Doyle and May, JJ.
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MAY, Judge.

         Lawrence McCoy appeals the summary dismissal of his second action for

postconviction relief (PCR). We affirm.

         McCoy was convicted of first-degree murder and willful injury for the 2002

killing of Jonathan Johnson. In 2003, this court affirmed his conviction. State v.

McCoy, No. 02-1516, 2003 WL 22899507, at *1 (Iowa Ct. App. Dec. 10, 2003).

Procedendo issued soon after.

         McCoy then filed his first PCR action. The district court denied relief.

McCoy v. State, No. 09-326, 2010 WL 1578780, at *1 (Iowa Ct. App. Apr. 21,

2010). This court affirmed. Id. at *4.

         In 2010, McCoy filed this case, his second PCR action. He claims newly

discovered evidence entitles him to relief.          The State moved for summary

disposition citing Iowa Code sections 822.3 and 822.8 (2010). In a detailed ruling,

the district court granted the State’s motion and dismissed McCoy’s application.1

McCoy appeals.

         “We generally review postconviction proceedings, including summary

dismissals of [PCR] applications, for errors at law.” Moon v. State, 911 N.W.2d

137, 142 (Iowa 2018).

         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 . . . there
         is no genuine issue of material fact and . . . the moving party is
         entitled to a judgment as a matter of law.” The moving party bears
         the burden of showing that no material fact exists. We view the
         record in the light most favorable to the nonmoving party. We also
         draw all legitimate inferences from the evidence in favor of the
         nonmoving party.

1   Iowa Code section 822.6 authorizes summary dismissal of PCR applications.
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Schmidt v. State, 909 N.W.2d 778, 784 (Iowa 2018) (citations omitted).

       On appeal, McCoy claims summary disposition was incorrect for three

reasons. First, he claims there is a fact question as to whether the State committed

a Brady violation2 by failing to disclose important details of a witness’s juvenile

record, namely, that the record included offenses involving violence and

dishonesty.   McCoy notes “crimes of dishonesty would be . . . impeachable.”

Moreover, McCoy contends, “the violent juvenile offenses would have aided [his]

defense because” his trial strategy was that the witness was involved in the

murder.

       But as the State points out, McCoy failed to preserve error on this claim. It

is true the district court determined McCoy “w[as] well aware of” the witness’s

“juvenile record at the time of both the underlying criminal trial and” McCoy’s first

PCR action. But the court did not address McCoy’s claim regarding acts of

dishonesty or violence by the witness.3 Nor did McCoy request an expanded

ruling. So this claim was not preserved for our review. 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. . . . When a district court fails to rule on an issue




2 To establish a Brady violation occurred, McCoy would have to “prove by a
preponderance of the evidence ‘(1) the prosecution suppressed evidence; (2) the
evidence was favorable to [McCoy]; and (3) the evidence was material to the issue
of guilt.’” DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011) (quoting Harrington
v. State, 659 N.W.2d 509, 516 (Iowa 2003)).
3 The district court’s ruling on this issue appears at pages six through nine of its

order.
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properly raised by a party, the party who raised the issue must file a motion

requesting a ruling in order to preserve error for appeal.” (citations omitted)).

       So we turn to McCoy’s two preserved claims. McCoy contends there are

fact questions as to whether the State failed to disclose an agreement with a

witness to discharge his juvenile delinquency cases in exchange for his testimony.

And McCoy contends there are fact questions as to whether the State improperly

fed the witness coerced statements from another defendant to serve as a basis for

his testimony.

       Before addressing the substance of McCoy’s claims, we must address two

statutory limitations on PCR actions. Iowa Code section 822.3 provides PCR

“applications must be filed within three years from the date of 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.” Iowa Code § 822.3.

       McCoy filed this current PCR application well beyond the three-year period

contemplated by section 822.3. But McCoy provides us no reason to believe he

could not have raised his claims within the required period.

       Moreover, section 822.8 provides:

       All grounds for relief available to an applicant under this chapter must
       be raised in the applicant’s original, supplemental or amended
       application. Any ground finally adjudicated or not raised, or
       knowingly, voluntarily, and intelligently waived in the proceeding that
       resulted in the conviction or sentence, or in any other proceeding the
       applicant has taken to secure relief, may not be the basis for a
       subsequent application, unless the court finds a ground for relief
       asserted which for sufficient reason was not asserted or was
       inadequately raised in the original, supplemental, or amended
       application.
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Again, McCoy provides us no explanation as to why he did not raise his current

claims in his first PCR action. To the contrary, the State has provided a report

from the private investigator McCoy retained during his first PCR action. It shows

that McCoy’s investigator interviewed the witness at issue and, indeed, inquired

whether the witness was promised anything in exchange for his testimony. And

the witness’s credibility was at issue in McCoy’s first PCR action. See McCoy,

2010 WL 1578780, at *2. So we see no reason why McCoy’s present claims were

not brought in his first PCR action.

       Because McCoy failed to bring his claims both within the three-year

limitations period and in his first PCR action, sections 822.3 and 822.8 required

dismissal. But even without those statutory bars, no fact question stood in the way

of summary disposition.

       In support of its motion, the State provided affidavits from the prosecuting

attorney, the assigned police detective, and an investigating police officer. They

all testified (1) the witness was not promised anything in exchange for his

testimony and (2) the witness was not used as a “strawman witness” to testify to

the statements made by another defendant. The State also provided a statement

signed by the witness. He stated (1) he had no agreement to testify in exchange

for a favorable disposition of his juvenile cases and (2) he was not told what to

testify to other than the truth. Finally, the State provided an affidavit from the

witness’s juvenile court officer stating the witness did not receive favorable

dispositions of his juvenile cases in exchange for his testimony.

       Although McCoy filed a resistance to the State’s motion, he could not rebut

the State’s evidentiary showing. On our review, the record contains no evidence
                                         6

suggesting the State manipulated the witness’s testimony at all. Cf. Castro v.

State, 795 N.W.2d 789, 795–96 (Iowa 2011) (noting the petitioner’s allegations,

without supporting evidence, “were insufficient to withstand summary adjudication

under the circumstances”).

       But McCoy argues that, because the witness’s statement was not notarized,

one could infer that the statement is false or was prepared by someone else

entirely. This, McCoy suggests, is enough to create a fact issue.

       We disagree. In our view, McCoy’s proposed inferences are no more than

speculation. And speculation cannot prevent summary disposition. McGee v.

State, No. 07-1516, 2008 WL 4531417, at *3 (Iowa Ct. App. Oct. 1, 2008).

       At the same time, we do not ignore the statement’s lack of a notary

certification. Because the statement is neither notarized nor certified under penalty

of perjury, we do not treat it as part of the record. See Susie v. Family Health Care

of Siouxland, P.L.C., No. 17-0908, 2018 WL 5848998, at *8 (Iowa Ct. App. Nov. 7,

2018) (McDonald, J., dissenting), majority vacated 942 N.W.2d 333 (Iowa 2020).

We treat it as “a nullity.” See Eagleman v. Diocese of Rapid City, 862 N.W.2d 839,

851 n.3 (S.D. 2015) (“For summary judgment purposes, an unsigned and unsworn

affidavit is a nullity.”). As a result, the statement cannot support any factual

inferences—including any inference of wrongdoing by the State. So, again, it

cannot preclude summary disposition.

       The district court was correct in dismissing McCoy’s PCR application.

       AFFIRMED.

       Doyle, J., concurs; Vaitheswaran; P.J., concurs specially.
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VAITHESWARAN, Presiding Judge (concurring specially)

      I specially concur. I, too, would affirm the summary dismissal of McCoy’s

postconviction-relief application under Iowa Code section 822.3 (2010). I would

find it unnecessary to address section 822.8, which presumes a timely filed

application. See Wilkins v. State, 522 N.W.2d 821, 823 (Iowa 1994).
