                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0527
                                Filed April 8, 2015


DEMONT MOORE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.



       Defendant appeals from the dismissal of his third application for

postconviction relief. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, MIchael J. Walton, County Attorney, and Amy Devine, Assistant County

Attorney, for appellee State.




       Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, C.J.

          Demont Moore appeals from the dismissal of his third application for

postconviction relief (PCR) as being time-barred.          Moore maintains his PCR

counsel was ineffective for failing to develop a record regarding newly discovered

evidence. Because Moore’s counsel has no duty to raise a meritless issue, we

affirm.

I. Background Facts and Proceedings.

          On July 21, 2002, Deanna Shipp was shot and killed in a drive-by shooting

in Davenport, Iowa. During the investigation, a number of guns, bullets, and shell

casings were seized and tested. A lab report detailing the results of tests on the

various items was included with the minutes of testimony filed with the trial

information. Moore was among a number of people who were arrested and

charged with involvement in the shooting. He was charged with murder in the

first degree, willful injury, and terrorism with intent.

          Pursuant to a plea agreement, Moore pled guilty to attempted murder on

January 14, 2003. On February 3, 2003, he was sentenced to an indeterminate

term of incarceration not to exceed twenty-five years.

          Moore filed a direct appeal from his conviction, but he later withdrew it.

          He filed his first application for PCR on January 23, 2004. The district

court denied the application, and Moore appealed. The appeal was dismissed as

untimely.

          Moore filed his second application for PCR on October 6, 2005. The

application was also denied. Moore appealed, and we affirmed the denial in
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Moore v. State, No. 07-0420, 2008 WL 2357730, at *1 (Iowa Ct. App. June 11,

2008).

         On November 23, 2011, Moore filed his third application for PCR, which is

the subject of this appeal. Moore claimed the State withheld information about

three Remington shell casings that were exculpatory. 1 In its answer, the State

denied the allegations and urged dismissal of the application as time-barred.

         The district court held a hearing on the application on February 8, 2014.

The court found that the evidence Moore maintained was newly discovered was

not in fact new, and thus Moore’s application was time-barred. The court granted

the State’s request for summary disposition on March 14, 2014. Moore appeals.

II. Standard of Review.

         We typically review postconviction-relief proceedings on error. Ledezma

v. State, 626 N.W.2d 134, 141 (Iowa 2001).          However, when the applicant

asserts claims of a constitutional nature, our review is de novo. Id. Thus, here

we review the applicant’s claim of ineffective assistance de novo. Id.

III. Discussion.

         It is undisputed Moore’s third application for PCR was filed outside of the

three-year statute of limitations. See Iowa Code § 822.3 (“All other applications

must 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.”

However, Moore maintains his application was not untimely because of newly

discovered exculpatory evidence. See id. (“This limitation does not apply to a

1
  Moore also claimed the judge who presided over his original plea and sentencing
should not have been allowed to preside over his PCR action because of a conflict of
interest. Moore does not re-assert the claim on appeal, and we consider it waived.
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ground of fact or law that could not have been raised within the applicable time

period.”). He maintains PCR counsel was ineffective for failing to develop a

record on the issue of newly-discovered evidence, which would have excused his

otherwise untimely application.

      In order to prevail on his ineffective-assistance claim, Moore must show

“(1) counsel failed to perform an essential duty and (2) prejudice resulted.”

Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006). Both elements must be

proved by a preponderance of the evidence. State v. Null, 836 N.W.2d 41, 48

(Iowa 2013). If Moore fails to prove either element, his claim must fail. See

State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003).

      Moore claims his attorney failed to create a record that proved his

application for postconviction relief was not time-barred. PCR counsel examined

Moore at the hearing, and it is clear Moore’s theory, related to or arising from the

shell casing, was not new evidence because the shell casings were listed as

exhibits in the minutes of testimony attached to the trial information. Because

counsel has no duty to raise a meritless issue, Moore’s ineffective claim fails.

See State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[C]ounsel has no duty

to raise an issue that has no merit.”) We affirm.

      AFFIRMED.
