                   IN THE COURT OF APPEALS OF IOWA

                             No. 3-1163 / 13-0359
                             Filed February 5, 2014

LUCINDA GILLAM,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.



      A postconviction relief applicant appeals from a district court order

dismissing her application. AFFIRMED.



      John Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Kimberly A. Griffith,

Assistant County Attorney, for appellee.



      Considered by Vogel, P.J., and Mullins and McDonald, JJ.
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MULLINS, J.

       Lucinda Gillam appeals from the district court’s dismissal of her

application for postconviction relief due to untimeliness. She argues under Iowa

Code section 822.3 (2011), her new mental health diagnosis is a ground of fact

or law that could not have been raised within the three-year limitations period,

and therefore, her application for postconviction relief was timely, and she should

be permitted to proceed to an evidentiary hearing. We affirm the district court’s

dismissal.

I.     Background Facts and Proceedings.

       In 2002, Gillam was found guilty of robbery in the first degree by a jury.

She filed an appeal, but it was dismissed in August 2003 as frivolous. Gillam

filed her first application for postconviction relief in 2005, which was denied. The

denial was affirmed on appeal. Gillam v. State, No. 07-0534, 2008 WL 1887309,

at *1 (Iowa Ct. App. Apr. 30, 2008).

       Sometime in 2009 Gillam was diagnosed with a mental health disorder.

On October 30, 2012, Gillam filed the current application for postconviction relief.

At the February 13, 2013 hearing on the application, the State orally moved to

dismiss the action because it was brought after the statute of limitations for

postconviction relief actions had run.        Gillam waived time to file a written

response to the motion, and the district court immediately heard the parties’

arguments. The court granted the State’s motion to dismiss, finding Gillam knew

of her mental health condition prior to the original criminal trial, and therefore, the

exception to the statute of limitations did not apply.
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II.    Standard of Review.

       Our review of a district court’s dismissal of an application for

postconviction relief is for correction of errors at law. Harrington v. State, 659

N.W.2d 509, 519-20 (Iowa 2003). “[W]e will affirm if the trial court’s findings of

fact are supported by substantial evidence and the law was correctly applied.”

Id.

III.   Analysis.

       Iowa Code section 822.3 provides that applications for postconviction

relief must be filed within three years from the conviction or, if there is 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. The parties agree that Gillam’s

application for postconviction relief does not fall within three years of the August

2003 procedendo, but Gillam claims the exception applies to her case. The

State argues Gillam has not shown what her new mental health diagnosis is or

whether it was occurring at the time of the original criminal trial and therefore

cannot show that the diagnosis could change the outcome of the criminal trial.1

       The district court found that Gillam had been diagnosed and treated for

mental health problems prior to her original criminal trial.         In dismissing her

application for postconviction relief, the district court determined that a change in



1
  The State also asserts Gillam has waived this claim by failing to provide an adequate
record to decide the issue. While we do not have a record of the district court
proceeding, we do have the district court’s written ruling along with Gillam’s application
for postconviction relief. We find this record adequate to address the claim, and
therefore, we reject the State’s waiver argument.
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mental health diagnosis is not “a ground in fact or law that could not have been

raised” within the three-year statute of limitations because Gilliam was aware of

her mental health condition prior to the original criminal trial.

       When a party claims an exception to a statute of limitations, it must plead

and prove the exception. Cornell v. State, 529 N.W.2d 606, 610 (Iowa Ct. App.

1994). Gillam must prove, as the statute states, that her mental health diagnosis

and possible defenses coming from it “could not have been raised within the

applicable time period.” Iowa Code § 822.3. Additionally, Gillam must “show a

nexus between the asserted ground of fact and the challenged conviction.”

Harrington, 659 N.W.2d at 520. This, however, does not mean Gillam must show

the fact would likely or probably have changed the outcome of the original

criminal case. Id. at 521.

       Gillam conceded in the district court hearing on this motion to dismiss that

she had been diagnosed and treated for mental health problems before her

original criminal trial. In this case, Gillam is alleging that she received a new

mental health diagnosis in 2009. However, Gillam does not provide any facts to

show what her 2009 mental illness diagnosis is or whether it has any connection

or nexus to her mental health during the 2001 crime or 2002 criminal trial. See

id. at 520 (noting the postconviction relief applicant must show the alleged

ground of fact could not have been raised earlier and must show a nexus

between the asserted fact and the conviction). Gillam does not show whether

her 2009 diagnosis was a condition she suffered from during the 2001 crime or

whether it emerged after the trial.
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       Gillam claims on appeal that if all of the “ifs” and “unknowns” regarding her

2009 mental health diagnosis resolve themselves in her favor, the three-year

statute of limitations should not prevent her claim because her mental health

diagnosis was not knowable until after her new diagnosis in 2009. The problem

is that Gillam must plead and prove the exception to the statute of limitations for

her postconviction relief action to proceed. Although the hearing on the motion to

dismiss was not a full-blown evidentiary hearing, Gillam had an obligation at the

very least to present some offer of what she expected the evidence would show if

she were permitted to proceed to a hearing on the merits of her application. It is

unclear what information was provided to the district court regarding the new

mental health diagnosis, but Gillam only presents “ifs” and “unknowns” on appeal

from the district court’s decision. Gillam cannot survive the State’s motion to

dismiss as she has not presented sufficient proof that her new mental health

diagnosis was a new ground fact that could not have been discovered within the

three-year statute of limitations for postconviction relief actions. The district court

correctly determined her application was time-barred.

       AFFIRMED.
