                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-0224
                             Filed December 20, 2017


CHARLES HENRY ARMSTRONG,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Susan K.

Christensen, Judge.



      Charles Armstrong appeals the summary dismissal of his second

postconviction   relief   application,   claiming   newly   discovered   evidence.

AFFIRMED.




      Drew H. Kouris, Council Bluffs, for appellant.

      Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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VAITHESWARAN, Presiding Judge.

       A jury found Charles Henry Armstrong guilty of second-degree murder in

the beating death of another man. This court affirmed his judgment and sentence

and procedendo issued in 2010. State v. Armstrong, No. 08-2065, 2009 WL

5125916, at *1 (Iowa Ct. App. Dec. 30, 2009). This court also affirmed the district

court’s denial of Armstrong’s first postconviction relief application. Armstrong v.

State, No. 13-1985, 2015 WL 4642164, at *4 (Iowa Ct. App. Aug. 5, 2015).

       Armstrong filed a second postconviction relief application in 2016. He

asserted newly discovered evidence “in the form of witness testimony from Hubert

Garrett” required the court to vacate his conviction. The State moved for summary

dismissal of the application. The State cited Iowa Code section 822.3 (2016),

which requires applications for postconviction relief to “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,” unless the application raises “a ground

of fact or law that could not have been raised within the applicable time period.”

The district court granted the State’s motion.

       On appeal, Armstrong essentially concedes the second postconviction relief

application was filed outside the three-year limitations period but reiterates his

assertion that newly discovered evidence should have precluded dismissal. A

newly discovered evidence claim could implicate the “ground-of-fact” exception to

the three-year limitations period. See Wilkins v. State, 522 N.W.2d 822, 824 (Iowa

1994). But “an applicant relying on section 822.3 must show the alleged ground

of fact could not have been raised earlier.” Harrington v. State, 659 N.W.2d 509,

520 (Iowa 2003).
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       Garrett’s testimony could have been raised earlier. Garrett was present at

the scene, was listed as a co-defendant, and pled guilty to crimes arising from the

incident. He was known to Armstrong. See Jones v. Scurr, 316 N.W.2d 905, 910

(Iowa 1982).

       We recognize Garrett could have invoked his right against self-incrimination

to avoid testifying in Armstrong’s trial and, if he had, he would have been

unavailable for trial. But known, unavailable exculpatory evidence “is not newly

discovered evidence.” Id.; see also State v. Fox, 491 N.W.2d 527, 534 (Iowa 1992)

(“It was clear in Jones—as here—that the defendant knew of the general nature of

the codefendant’s testimony at the time of the defendant’s trial.”).

       In any event, Garrett’s testimony was not exculpatory.             Following

Armstrong’s trial, Garrett submitted to a deposition in connection with a co-

defendant’s case in which he unequivocally implicated Armstrong in events leading

up to the murder. In a more recent deposition, he essentially reaffirmed his earlier

testimony and disavowed statements he made that might have been construed as

exculpating Armstrong.

       We conclude the district court did not err in finding Garret’s evidence was

not newly discovered and in concluding the ground-of-fact exception to the three-

year time bar was inapplicable. We affirm the court’s summary dismissal of

Armstrong’s second postconviction relief application.

       AFFIRMED.
