                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0726
                               Filed April 29, 2020


PETER KELLY LONG,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Webster County, Kurt L. Wilke,

Judge.



       Peter Long appeals from the dismissal of his third application for

postconviction relief. AFFIRMED.




       Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.



       Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
                                         2


SCHUMACHER, Judge.

       This appeal arises from a third postconviction relief (PCR) application

following a conviction for a class “A” felony. We agree with the district court’s

determination that this third application for PCR was untimely, and we reject the

argument that the judge presiding over Long’s third PCR action was required to

recuse himself. We therefore affirm.

       I.     Factual, Legal, and Procedural Background

       In 1996, Peter Long was convicted of two counts of lascivious acts with a

child. He pleaded guilty to the counts, and Judge Kurt L. Wilke presided at the

plea-taking. In 2011,1 Long was convicted of third-degree sexual abuse. Because

of his prior offenses, an enhanced penalty pursuant to Iowa Code section 902.14

(2011) was sought by the State. Judge Wilke presided over the trial. On the advice

of counsel, Long waived his right to a jury trial for purposes of the enhancement

stage of the trial, and those claims were presented to the bench, with Judge Wilke

presiding.   Judge Wilke found the enhancement warranted under Iowa Code

section 902.14 and enhanced Long’s conviction for third-degree sexual abuse to

a class “A” felony. Long appealed, and our supreme court affirmed the sentence

and conviction. State v. Long, 814 N.W.2d 572, 584 (Iowa 2012). Procedendo

issued on July 13, 2012.

       Long then filed an application for PCR on October 25, 2012, later amending

this application in March 2013. The amended application raised the claim that


1The 2011 conviction was the result of Long’s criminal conduct in February 2010
and the resulting trial information, which was filed on July 15, 2010. Because one
of Long’s arguments requires that we repeatedly refer to these proceedings, we
will, for the sake of simplicity, refer to the trial phase as the “2011 proceedings.”
                                          3


Judge Wilke should have recused himself, citing the fact that Judge Wilke presided

over both the Applicant’s 1996 guilty plea and the enhancement phase of the 2011

proceedings.

       Long also filed a supplement to the amended application in February 2015.

Long’s first PCR application was dismissed by the district court on June 30, 2015,

which noted that for “personal bias or prejudice, or personal knowledge to be

disqualifying, it must stem from an extrajudicial source.” The district court rejected

Long’s claim that Judge Wilke should have recused himself and dismissed the

application for PCR.

       Long appealed. On appeal from the dismissal of this first PCR application,

Long again raised the recusal argument in a pro se brief filed in late July 2016,

while the appeal from his first PCR proceeding was pending. In that brief, Long

alleged that Judge Wilke had “personal knowledge of the elements of the

enhancement, the identification and first hand case knowledge of the 1996 plea

and sentencing.” This argument was not specifically addressed during Long’s

appeal from the denial of his first application for PCR. Long v. State, No.15-1231,

2017 WL 514400 (Iowa Ct. App. Feb. 8, 2017). We affirmed the dismissal of the

first PCR application. Id. at *6. Procedendo issued on March 29, 2017.

       On April 26, 2017, Long filed a second PCR application, which was

dismissed on June 26, 2017. In a pro se resistance to the motion to dismiss, Long

raised the argument that Judge Wilke should have recused himself from the 2011

proceedings because he presided over Long’s 1996 plea hearings. In an order

granting the motion to dismiss the second PCR application, the district court

acknowledged and rejected Long’s claim that Judge Wilke should have recused
                                          4


himself, describing that claim as already having “been raised and rejected.” In

finding Long’s claims barred by the three-year limitation period set forth in Iowa

Code section 822.3, the court cited the rule of Dible v. State, which held that

ineffectiveness of appellate or postconviction counsel is not a “ground of fact”

within the meaning of section 822.3’s exception to the three-year limitations period

for PCR applications. 557 N.W.2d 881, 883–84 (Iowa 1996), abrogated on other

grounds by Harrington v. State, 659 N.W.2d 509, 520–21 (Iowa 2003).

       In July 2017, Long appealed the denial of his second PCR application, and

neither his counsel’s brief nor the pro se brief he filed mentioned the recusal

argument. While the appeal was pending, the Iowa Supreme Court decided Allison

v. State, 914 N.W.2d 866, 890 (Iowa 2018), which qualified Dible with a narrow

exception to section 822.3’s limitation period for claims of ineffective assistance of

postconviction counsel. Following the June 29, 2018, publication of Allison, this

court affirmed the denial of Long’s second PCR application. Long v. State, No. 17-

1049, 2018 WL 3302203, at *1 (Iowa Ct. App. July 5, 2018). Procedendo issued

on August 28, 2018.

       Long then filed a third PCR application on December 3, 2018, alleging his

PCR counsel was ineffective and seeking the protection of Allison to cure the

untimeliness of his filing. Although the matter was initially handled by Judge

Thomas Bice, the matter was transferred to Judge Wilke. While the record reflects

that a hearing was held on January 14, 2019, the record does not contain a

transcript and we are unable to discern whether Long renewed his argument from

earlier proceedings that Judge Wilke should recuse himself. On February 6, 2019,

Judge Wilke granted the State’s motion to dismiss Long’s third PCR application.
                                         5


       On February 14, 2019, Long filed a motion under Iowa Court Rule 1.904(2)

to amend and enlarge the verdict. This motion claimed that Judge Wilke was

biased toward Long based on having presided over the 1996 and 2011

proceedings.   Because of a procedural issue not relevant here, Judge Wilke

rescinded the dismissal order and allowed Long additional time to submit a reply

brief in response to the State’s motion to dismiss his application. Long submitted

a brief. Judge Wilke dismissed Long’s third PCR application on April 18, 2019.

Long filed a notice of appeal on May 3, 2019. Long’s counsel filed a brief and a

reply brief. The State filed a brief. Long also filed a pro se brief on November 25,

2019, alleging that Judge Wilke’s failure to recuse himself from the third PCR

proceedings was a violation of Iowa Code section 602.1606(1).

       We affirm the district court because we agree Allison is inapplicable. We

also reject the argument raised in Long’s supplemental pro se brief2 that Judge

Wilke should have recused himself.




2We consider the pro se brief as part of Smith’s appeal because this matter was
already pending when Iowa Code section 814.6A took effect on July 1, 2019. In
State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019), the Iowa Supreme Court
concluded that new legislation codified at sections 814.6 and 814.7 has no
application to direct appeals from any judgment and sentence entered before July
1, 2019. We have extended the supreme court’s reasoning to Iowa Code section
814.6A(1), which prohibits defendants from filing pro se briefs when represented
by counsel. State v. Syperda, No. 18-1471, 2019 WL 6893791 (Iowa Ct. App. Dec.
18, 2019); State v. Purk, No. 18-0208, 2019 WL 5790875 (Iowa Ct. App. Nov. 6,
2019). We therefore consider the pro se brief filed in this case where an appeal
was pending prior to July 1, 2019, even though the pro se brief was filed after such
date. See Risdal v. State, No. 19-0793, 2020 WL 1879588 (Iowa Ct. App. Apr. 15,
2020) (considering a supplemental pro se brief filed October 11, 2019).
                                           6


       II.     Standard of Review

       “[W]e review a grant of a motion to dismiss a PCR petition for correction of

errors at law.” Allison, 914 N.W.2d at 870. A trial court’s decision not to recuse

itself is reviewed for abuse of discretion. Taylor v. State, 632 N.W.2d 891, 893

(Iowa 2001).

       III.    Discussion

               a. Timeliness

       Iowa Code section 822.3 requires that PCR applications 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.” Following Long’s initial

appeal, procedendo issued on July 13, 2012, and thus Long was required to file a

PCR application three years from that date. Although Iowa Code section 822.3

provides that the limitations period “does not apply to a ground of fact or law that

could not have been raised within the applicable time period,” the Iowa Supreme

Court has held that ineffective assistance of PCR counsel is not a “ground of fact”

within the meaning of section 822.3’s exception to the three-year limitations period

for PCR applications. Dible, 557 N.W.2d at 884. However, the court later qualified

Dible in Allison, 914 N.W.2d at 891, where it created a narrow exception to the

limitations period:

       [W]here a PCR petition alleging ineffective assistance of trial counsel has
       been timely filed per section 822.3 and there is a successive PCR petition
       alleging postconviction counsel was ineffective in presenting the ineffective-
       assistance-of-trial-counsel claim, the timing of the filing of the second PCR
       petition relates back to the timing of the filing of the original PCR petition for
       purposes of Iowa Code section 822.3 if the successive PCR petition is filed
       promptly after the conclusion of the first PCR action.
                                           7

The court called this new rule “a variant of” equitable tolling.3 Allison, 914 N.W.2d

at 891.

       Long’s third PCR application does not fit into Allison’s narrow exception.

Allison allowed a second PCR petition to relate back to the timing of a first PCR

petition. Id. (“[T]he timing of the filing of the second PCR petition relates back to

the timing of the filing of the original PCR petition for purposes of Iowa Code

section 822.3 if the successive PCR petition is filed promptly after the conclusion

of the first PCR action.” (emphasis added)); Kelly v. State, No. 17-0382, 2018 WL

3650287, at *4 (Iowa Ct. App. 2018) (“Kelly’s third application is time-barred, as it

does not fall within the narrow confines of Allison. This is not Kelly’s second

application but his third.”). The instant PCR application is Long’s third; therefore,


3 The Allison court described equitable tolling as follows: “Under this equitable
doctrine, the three-year statute of limitations is tolled from the time of the filing of
the first petition for PCR until the first PCR proceeding’s conclusion. Upon the
conclusion of the first action, the three-year statute of limitations commences to
run again.” 914 N.W.2d at 891. However, the Allison court did not affirmatively
adopt the doctrine of equitable tolling. Id.; see Smith v. State, No. 19-0384, 2020
WL 110398, at *1 (Iowa Ct. App. Jan. 9, 2020) (discussing interpretations of Allison
but refusing to consider an argument for equitable tolling on error preservation
grounds); Fountain v. State, No. 17-2024, 2019 WL 5414928, at *3 n.7 (Iowa Ct.
App. Oct. 23, 2019) (refraining from considering whether Allison implemented a
doctrine of equitable tolling apart from the expressly adopted variant); Polk v.
State, No. 18-0309, 2019 WL 3945964, at *2 n.3 (Iowa Ct. App. Aug. 21, 2019)
(“We agree Allison discusses, but does not adopt, equitable tolling ‘during an
active PCR claim.’”); Cook v. State, No. 17-1245, 2019 WL 719163, at *4 n.7 (Iowa
Ct. App. Feb. 20, 2019) (“Allison references, but does not adopt, a tolling variant
where the three-year statute of limitations is tolled during an active PCR claim.”);
Kelly v. State, No. 17-0382, 2018 WL 3650287, at *4 n.1 (Iowa Ct. App. Aug. 1,
2018) (characterizing Allison as not having adopted equitable tolling); see also
McCullough v. State, No.17-0434, 2018 WL 346463, at *1 (Iowa Ct. App. Jan. 10,
2018) (collecting pre-Allison cases that take the position “the doctrine of equitable
tolling does not apply to section 822.3.”); but see Stechcon v. State, No. 17-1531,
2018 WL 3913126, at *2 (Iowa Ct. App. Aug. 15, 2018) (“The [Allison] court
essentially invoked an equitable tolling doctrine to permit consideration of a second
postconviction relief application.”).
                                          8

Allison does not apply. Id. If we were to allow Long’s third PCR application to

relate back to the date of his first, we would enable the “endless procession of

postconviction actions” feared in Dible. 557 N.W.2d at 886. We conclude Long’s

third PCR application was untimely and not saved by Allison.

              b. Recusal

       In a pro se brief filed in this third PCR, Long argues he was prejudiced by

having the same judge sit for his 1996 guilty plea, his 2011 proceedings, and the

proceedings related to his third PCR application. He alleges that Judge Wilke’s

failure to recuse himself was a violation of Iowa Code section 602.1606(1)(a).

                     i.   Error preservation

       Neither appellant’s counsel nor the State address Long’s recusal argument.

Upon consideration, we conclude Long’s argument is preserved.

       “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.” Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (quoting Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)). “When a district court fails to rule

on an issue 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.” Id.

       Judge Wilke sustained the State’s motion to dismiss Long’s third PCR

application on February 6, 2019. Long filed a motion under rule 1.904(2) on

February 14, 2019, raising the claim that Judge Wilke’s failure to recuse himself

despite bias resulted in prejudice to Long. Judge Wilke then rescinded the order

dismissing the PCR application and gave Long additional time to reply to the

State’s brief seeking dismissal. Long filed a brief and moved to strike the State’s
                                           9


brief. The court denied the motion to strike and granted the State’s motion to

dismiss.    The court did not specifically address the issue of recusal except

impliedly by denying Long’s third PCR application. We hold that error is preserved

by Long’s February 14, 2015, motion to amend and enlarge under rule 1.904(2).

                      ii. Merits

       Long’s pro se brief leaves unclear whether he thinks the recusal argument

he raised during his first PCR trial is separate and severable from the recusal

argument based on Judge Wilke presiding over the third PCR proceedings. If the

recusal claims are viewed as severable, we would find the claim regarding the

1996 plea and 2011 trial precluded.

       Issue preclusion prevents parties from relitigating issues that were raised

and resolved in a previous action. Employers Mut. Cas. Co. v. Van Haaften, 815

N.W.2d 17, 22 (Iowa 2012). The doctrine protects litigants from having to relitigate

identical issues with identical parties, and it furthers the interest of judicial economy

and efficiency. Id. Issue preclusion is established by the satisfaction of four

elements:

       (1) the issue in the present case must be identical, (2) the issue must have
       been raised and litigated in the prior action, (3) the issue must have been
       material and relevant to the disposition of the prior case, and (4) the
       determination of the issue in the prior action must have been essential to
       the resulting judgment.

Fischer v. City of Sioux City, 654 N.W.2d 544, 547 (Iowa 2002). With respect to

the recusal claim regarding the 2011 proceedings, all four of these elements are

plainly met. During the course of the first PCR proceedings, the court considered

and rejected the identical argument that Judge Wilke should have recused himself

from the 2011 trial and sentencing, finding no violation of Iowa Code section
                                         10


602.1606(1). That argument was litigated, it was highly material and relevant to

the case’s disposition, and its determination was essential to the resulting

judgment. We have said “PCR proceedings are “not intended as a vehicle for

relitigation, on the same factual basis, of issues previously adjudicated, and the

principle of [r]es judicata bars additional litigation” of previously adjudicated

issues. Miller v. State, No. 13-1240, 2015 WL 1815903, at *3 (Iowa Ct. App. Apr.

22, 2015) (quoting State v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971)). Thus, we

will not revisit this decided issue. Under the doctrine of issue preclusion, Long’s

argument is rejected to the extent it restates the claim that there was an abuse of

discretion or a violation of section 602.1606(1) when Judge Wilke refused to

recuse himself in 2011.

       We next consider the question of whether it was proper for Judge Wilke to

preside over Long’s third PCR proceedings. We note that this claim also raises

the specter of issue preclusion. As discussed in the Restatement (Second) of

Judgments,

       One of the most difficult problems in the application of the rule of [issue
       preclusion] is to delineate the issue on which litigation is, or is not,
       foreclosed by the prior judgment. The problem involves a balancing of
       important interests: on the one hand, a desire not to deprive a litigant of an
       adequate day in court; on the other hand, a desire to prevent repetitious
       litigation of what is essentially the same dispute.

Restatement (Second) of Judgments § 27 cmt. c (Am. Law. Inst. 1982). Such

difficulty of determining identicalness is present here. It is unclear from Long’s pro

se brief whether he argues that the sum of Judge Wilke’s experiences on Long’s

cases necessitated recusal in 2019 or, alternatively, that Judge Wilke’s presiding

over both the 2011 proceedings and the 2019 proceedings constituted separate
                                         11


violations of section 602.1606(1). Depending on how we were to resolve this

question, we might find that Long’s claim is identical to his recusal argument raised

during the first PCR proceedings. Regardless of the scope with which we interpret

Long’s claim, we conclude it must fail on the merits, and we therefore decline to

reach the issue-preclusion questions raised by Long’s recusal claim here on

appeal.

       As noted by the district court in its denial of Long’s first PCR application, a

judge need only recuse himself or herself if the alleged personal bias, prejudice,

or knowledge of disputed evidentiary facts stems from an extrajudicial source.

Iowa Code section 602.1606(1) (“A judicial officer is disqualified from acting in a

proceeding, except upon the consent of all of the parties, if any of the following

circumstances exists: a: The judicial officer has a personal bias or prejudice

concerning a party, or personal knowledge of disputed evidentiary facts concerning

the proceeding.”); State v. Smith, 282 N.W.2d 138, 142 (Iowa 1979) (“The alleged

bias and prejudice to be disqualifying must stem from an extrajudicial source and

result in an opinion on the merits on some basis other than what the judge learned

from his participation in the case.”) (quoting United States v. Grinnell Corp., 384

U.S. 563, 583 (1966)); In re J.A.P., No. 09-0486, 2009 WL 4241795, at *4 n.6 (Iowa

Ct. App. Nov. 25, 2009) (“Extrajudicial” means “Outside court; outside the

functioning of the court system.” (quoting Black’s Law Dictionary 606 (7th ed.

1999)); State v. Hunter, No. 01-1919, 2002 WL 31757491, at *3 (Iowa Ct. App.

2002) (“Only personal bias or prejudice stemming from an extrajudicial source and

resulting in an opinion on the merits on some basis other than what the judge
                                         12


learned from participation in the case ranks as a disqualifying factor; judicial

predilection does not.”).

        We applied this rule in the postconviction-relief context when we decided

Miller v. State, No. 13-1240, 2015 WL 1815903, at *1 (Iowa Ct. App. Apr. 22, 2015).

In that case, the PCR applicant had two trials, since the first ended in a mistrial.

Miller, 2015 WL 1815903, at *1. The same judge presided over both the second

trial and the PCR proceeding. Id. The applicant’s PCR counsel requested at the

PCR hearing that the judge recuse himself because the applicant “believed the

judge . . . may have had ‘some preconceived notions or biases.’” “[T]he judge

denied the recusal request on the record, explaining he did not ‘recall much’ about

Miller’s criminal trial, and he stated he believed he could be fair and unbiased and

had ‘no prejudice or bias whatsoever in regard to [the applicant] or any issues in

this case.’” In concluding it was no abuse of discretion to deny the recusal request,

we said,

        Mere speculation as to judicial bias is not sufficient to prove the grounds
        necessary for recusal, see State v. Mann, 512 N.W.2d 528, 532 (Iowa
        1994), nor is a judge’s perception or attitude arising from the judge’s
        participation a disqualifying factor. See Millsap, 704 N.W.2d [426,] 432
        [(Iowa 2005)]. Rather, personal bias or actual prejudice stemming from an
        extrajudicial source must be shown.

Id. at *5.

        Long raises no claim that Judge Wilke had any judicial bias or prejudice

toward him stemming from any source other than the judge’s prior encounters with

Long in the course of judicial proceedings. Further, Long has not proffered any

evidence showing that Judge Wilke had personal knowledge obtained in any

manner other than through his responsibilities as a court officer. Long’s conclusory
                                        13


statements that Judge Wilke was biased, prejudiced, or had impermissible

personal knowledge amount to either mere speculation or a misunderstanding of

Iowa law. See Smith, 282 N.W.2d at 142. Neither suffices to show a violation of

section 602.1606(1), and it was no abuse of discretion on Judge Wilke’s part to

refrain from recusal. We therefore reject Long’s claim.

Conclusion

       Because Long’s third PCR application was untimely and not saved by

Allison, the district court was correct to dismiss the application. Additionally, we

reject Long’s claim that Judge Wilke should have recused himself, since Long

offered no evidence that the judge had knowledge of Long’s cases other than from

the course of his judicial responsibilities. We find no abuse of discretion and no

violation of section 602.1606(1). We therefore affirm.

       AFFIRMED.
