                   IN THE COURT OF APPEALS OF IOWA

                                   No. 12-1396
                               Filed May 14, 2014


DANIEL M. CLAYBON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Dryer, Judge.



      Daniel Claybon appeals from the dismissal of his third application for post-

conviction relief. AFFIRMED.




      John J. Wolfe of Wolfe Law Office, Clinton, for appellant.

      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

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

County Attorney, for appellee State.




      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
                                         2


DANILSON, C.J.

       Daniel Claybon appeals from the dismissal of his third application for

postconviction relief (PCR) as being time-barred. Because the issues raised on

appeal were not first presented to the district court, they are not properly before

us. We affirm.

       I. Standard of Review. Generally, we review the district court’s dismissal

of a postconviction action on the grounds it was time-barred for the correction of

errors at law.   State v. Harrington, 659 N.W.2d 509, 519 (Iowa 2003).          We

consider whether the district court’s findings of fact are supported by substantial

evidence, and whether the law was correctly applied. Id. at 520. However, for

applications that raise a constitutional challenge, we review de novo. Id.

       II. Facts and Issues Raised in Application for Postconviction Relief. In

1990 Daniel Claybon was charged with first-degree murder on alternative bases:

premeditated murder and felony murder. His trial counsel moved to dismiss the

felony-murder alternative insofar as it alleged the death occurred as a result of

willful injury, asserting that “[t]o allow an enhanced charge of Murder in the First

Degree without requiring the State to prove either an independent felony or

premeditation and willful and deliberate killing denies the Defendant due process

of law and allows cruel and unusual punishment in violation of the U.S. and Iowa

Constitutions.” Based on then precedent, the district court denied the motion to

dismiss.

       The jury was instructed in “Alternative A” on premeditated murder and in

“Alternative B” on felony murder with the felony being “willful injury and/or
                                                3


robbery.”1 The jury specifically found Claybon guilty of first-degree murder under

Alternative B.

          Claybon’s conviction was affirmed on direct appeal. State v. Claybon,

No. 90-1605 (Iowa Ct. App. Feb. 25, 1992).                  The appeal did not raise the

argument that willful injury could not be the predicate offense for first-degree

murder; rather, defendant asserted the trial court erred in denying his motion for

change of venue and in admitting evidence of other criminal acts. Id. slip op.

at 2.

          Claybon filed his first application for PCR alleging ineffective assistance

based on counsel’s failure to challenge the jury selection process and trial court

errors, including denial of Claybon’s motion for a change of venue and admission

of prior bad acts evidence. See Claybon v. State, No. 96-2252, slip op. at 2

(Iowa Ct. App. Apr. 24, 1998). The denial of his PCR application was affirmed.

See id.

          On August 25, 2006, the Iowa Supreme Court issued its decision in State

v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), in which it held that “if the act

causing willful injury is the same act that causes the victim’s death, the former is

merged into the murder and therefore cannot serve as the predicate felony for


1
    The instruction under Alternative B provided:
                   The State must prove all of the elements of Murder in the First
          Degree in either:
                   ....
                   1. On or about the 11th day of March, 1990, the defendant
          participated in the offense of Willful Injury and/or Robbery.
                   2. That while so participating, the defendant shot Jeffrey Dean
          Wood with malice aforethought.
                   3. That Jeffrey Dean Wood died as a result of said injury.
                   If the State has proved all of the elements, in either Alternative “A”
          or “B”, the defendant is guilty of Murder in the First Degree.
                                            4

felony-murder purposes.”        The Heemstra opinion states, “The rule of law

announced in this case regarding the use of willful injury as a predicate felony for

felony-murder purposes shall be applicable only to the present case and those

cases not finally resolved on direct appeal in which the issue has been raised in

the district court.” 721 N.W.2d at 558.

       On September 26, 2006, Claybon filed his second PCR application

asserting the trial court erred in instructing the jury on felony murder with willful

injury as the predicate offense and prior counsel were ineffective in failing to

preserve the issue. On June 6, 2007, the district court dismissed this second

PCR application, reasoning, “Heemstra by its very wording does not apply to

petitioner.   Petitioner’s case was not on direct appeal when Heemstra was

decided. Indeed, petitioner’s appeal was decided 14 to 15 years prior to the

Heemstra decision.” The Iowa Supreme Court upheld that dismissal, concluding

“the appeal is frivolous.” Claybon v. State, No. 07-1089 (Iowa June 2, 2010).

Procedendo issued on June 25, 2010.

       On July 5, 2011, Claybon filed his third PCR application, alleging his

sentence was illegal and challenging the adequacy of the trial information and

the jury instructions regarding the theories of joint criminal conduct and aiding

and abetting. The district court ruled his sentence was not illegal,2 and these

“challenges to the jury instructions and the sufficiency of the trial information”

should have been raised within three years of the conviction. See Iowa Code


2
 An illegal sentence can be raised at any time and is not subject to the limitations period
of Iowa Code section 822.3. Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010) (“Consistent
with the State’s concession, we conclude that the time restrictions that apply in ordinary
postconviction relief actions do not apply in illegal sentence challenges.”).
                                            5


§ 822.3 (2011) (requiring most PCR applications to be filed within three years

from the date the writ of procedendo is issued, but stating “this limitation does not

apply to a ground of fact or law that could not have been raised within the

applicable time period”).

       III. Issues Raised on Appeal.        On appeal Claybon argues, “This case

should be remanded to the Black Hawk County District Court for a determination

as to whether retroactive applications of Heemstra is required by the equal

protection, due process and separation of powers clauses of the Iowa

Constitution, or the equal protection clause of the United States Constitution.”3

Claybon thus raises an issue not presented to the district court.

       We decline to reach the issues now raised, which were not raised below.4

See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (“[W]e will not consider a

substantive or procedural issue for the first time on appeal.”); accord Phuoc

Thanh Nguyen v. State, 829 N.W.2d 183, 187 (Iowa 2013).

       AFFIRMED.

3
   He first asserts, “Heemstra resulted in a change in the law regarding the felony murder
offense and therefore a new limitation period began to run on that issue with the court’s
ruling in Heemstra.” He also contends, “Claybon’s failure to have effective counsel as
guaranteed by section 10, article one of the Iowa Constitution and the Sixth Amendment
to the United States Constitution is adequate reason why his post-conviction proceeding
should not be dismissed under the authority of § 822.3, Iowa Code.”
4
   In any event, in Nguyen v. State, 829 N.W.2d 183, 187 (Iowa 2013), the supreme court
ruled an April 2, 2009 PCR application—in which Nguyen had argued that denying
retroactive application of Heemstra violated equal protection, due process, and
separation of powers clauses of the Iowa Constitution, or the Equal Protections Clause
of the United States Constitution—was not time-barred under section 822.3 despite his
2002 conviction because the claim could not have been made until Heemstra was
decided—in August 2006. Thus, Nguyen’s PCR was filed within three years of when his
claim arose. Claybon already raised a Heemstra claim in his 2006 PCR application and
did not then contend that the denial of retroactive application violated his constitutional
rights. Nor did he make that claim in his third PCR application filed July 2011. Even if
he had made the claim in this third application, it would have been time-barred as it was
filed more than three years after Heemstra was decided.
