                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-2024
                               Filed October 23, 2019


EURIC ABRAY FOUNTAIN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.



       Euric Fountain appeals the summary disposition of his seventh application

for postconviction relief.   AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.




       R. Ben Stone of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann, LLP, Des Moines, for appellant.

       Euric Fountain, Fort Madison, pro se appellant.

       Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee State.



       Considered by Bower, C.J., Mullins, J., and Vogel, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                              2


MULLINS, Judge.

       Euric Fountain appeals the summary disposition of his seventh1 application

for postconviction relief (PCR). The primary issue we consider on appeal is

whether the district court erred in concluding Fountain’s application was barred by

the three-year statute of limitations contained in Iowa Code section 822.3 (2017)

because the information presented by Fountain did not amount to newly

discovered evidence.2

I.     Background Facts and Proceedings

       The record, when viewed in the light most favorable to Fountain and

affording him all legitimate inferences, discloses the following. Fountain and two

other men, William Ridley and Will Howard, were charged with first-degree murder

in relation to the 1987 death of Theodore Wilt. A jury found Fountain guilty of first-

degree murder, Howard was separately convicted, and Ridley pled guilty to a

charge of second-degree murder.3 This court affirmed Fountain’s conviction on

direct appeal. Procedendo issued in 1990.




1
   Fountain filed his first application in 1993. It was denied by the district court, which was
affirmed by this court on appeal in an unreported decision. He filed his second application
in 1996. It was dismissed for failure to prosecute. The third application was filed in 2002.
It was denied by the district court. We affirmed the denial. Fountain v. State, No. 04-
0629, 2005 WL 3298058, at *1–2 (Iowa Ct. App. Dec. 7, 2005). A fourth application was
filed in 2009. The application was dismissed by the district court. The supreme court
dismissed the subsequent appeal as frivolous. Application number five was filed in 2012.
We affirmed the district court’s dismissal. Fountain v. State, No. 14-0670, 2016 WL
718916, at *1 (Iowa Ct. App. Feb. 24, 2016). Fountain filed his sixth application in 2016.
The district court dismissed it and no appeal was taken.
2
   Fountain lodges a host of other arguments on appeal. We will address those additional
arguments where necessary.
3
   Ridley testified on behalf of the State at Fountain’s trial. Howard did not testify at the
trial.
                                          3


       In 1996, Howard sent the attorney representing Fountain in the appeal of

the denial of his first PCR application a letter, in which Howard stated his

willingness to testify, under oath, that Fountain was not involved in Wilt’s death.4

Also in 1996, Fountain filed his second PCR application, citing Howard’s purported

testimony as newly discovered evidence.          In 1997, the attorney representing

Fountain in relation to his second PCR application wrote a letter asking Fountain

whether he wanted to pursue a new trial upon Howard’s statements, which

“completely vindicates [Fountain] and indicates [he was] not even a participant in

the murder.” The attorney advised he did not believe Howard’s testimony, alone,

would result in a new trial for Fountain. The attorney also advised if he pursued a

new trial using Howard’s testimony, there was a possibility he could not use it in

conjunction with other new evidence uncovered in the future. Fountain agreed to

not pursue a new trial upon Howard’s testimony, and the second application was

ultimately dismissed for failure to prosecute.

       At the murder trial in 1988, Dennis Daggett testified Ridley came to his

residence and reported he and his cousin Euric had killed someone. Blanch Carr

testified she saw Fountain, Howard, and Ridley at a bar she worked at the evening

of the murder. She further testified at around 8:00 p.m., the three left the bar

together. Carr testified the three returned to the bar together around midnight.

While speaking with Howard thereafter, Carr observed dark spots on Howard’s

clothing that he reported was blood, and Howard indicated to her that they had

killed someone. Carr also observed a blood smear on Howard’s palm. Ridley and


4
 The letter was undated. At the PCR hearing, counsel for Fountain agreed the letter was
exchanged in 1996.
                                           4


Fountain left the bar together about thirty or forty-five minutes after their return.

Ridley unequivocally testified that he, Howard, and Fountain were involved in the

murder. Ridley’s remaining trial testimony was generally in line with that of Carr

and Daggett.

       In 2015, Carr and Daggett authored affidavits in which they recanted some

of their testimony. Daggett’s affidavit is somewhat illegible, but he appears to have

asserted he was coached to tell police and later testify Fountain was involved in

the murder.5 Carr recanted her testimony that Fountain left the bar with Ridley and

Howard prior to the murder. However, she did state she later observed the three

return to the bar together. She also recanted her testimony that Howard told her

about a murder and that she observed blood on him. Howard also authored an

affidavit in which he again stated Fountain was not involved in Wilt’s death.6

       In 2017, Fountain filed the instant PCR application in which he argued new

evidence of material facts require vacation of his conviction. In a subsequent brief,

he argued the alleged new evidence supported a claim of actual innocence. The

State moved for summary disposition on statute-of-limitations grounds. The court

granted the motion, concluding the information from Howard was not newly

discovered and the 2015 affidavits were not credible. As noted, Fountain appeals.

II.    Standard of Review

       Appellate review of summary-disposition rulings in a PCR proceeding is for

legal error. Schmidt v. State, 909 N.W.2d 778, 784 (Iowa 2018). Summary




5
 Daggett’s brother also authored an affidavit corroborating Daggett’s recantation.
6
 The affidavit is signed by Howard but is not notarized or dated. The record suggests it
was also authored in 2015.
                                          5


disposition is appropriate if “there is no genuine issue of material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Id. (ellipsis in original)

(quoting Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct. App. 1994)); see also Iowa

R. Civ. P. 1.981(3). The record is viewed “in the light most favorable to the

nonmoving party,” and we “draw all legitimate inferences from the evidence in favor

of the nonmoving party.” Schmidt, 909 N.W.2d at 784.

III.   Analysis

       First, Fountain argues the district court erred in failing to conclude the

information presented amounted to newly discovered evidence sufficient to toll the

statute of limitations. PCR 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.” Iowa Code § 822.3. “However, this limitation

does not apply to a ground of fact . . . that could not have been raised within the

applicable time period.” Id. Indeed, “[n]ewly discovered evidence would constitute

a ‘ground of fact’ under the statute.” Whitsel v. State, 525 N.W.2d 860, 863 (Iowa

1994) (citations omitted).

       As to the information received from Howard, the district court found the

proffered evidence was not newly discovered because Fountain knew of the

information for many years and chose not to act upon it. We agree. It is undisputed

that Fountain became aware of Howard’s purported testimony that would

completely vindicate Fountain more than two decades ago. Assuming without

deciding that it amounted to newly discovered evidence at that time, it was required

to be brought within three years of its discovery. See, e.g., Martin v. State, No. 17-

1543, 2018 WL 3655092, at *2 (Iowa Ct. App. Aug. 1, 2018); Hanegan v. State,
                                           6

No. 15-1775, 2016 WL 4803964, at *1 (Iowa Ct. App. Sept. 14, 2016); Blackwell v.

State, No. 10-0681, 2012 WL 836766, at *4 (Iowa Ct. App. Mar. 14, 2012).

Because it was not, it does not serve to toll the statute of limitations. See Iowa

Code § 822.3. Howard’s republication of the same in more detail in 2015 does not

breathe second life into the information as newly discovered. See Wilkins v. State,

522 N.W.2d 822, 824 (Iowa 1994) (noting exception is limited to “a ground that the

applicant was at least not alerted to in some way”). We affirm the district court on

this point.

       Fountain goes on to argue equitable tolling should be adopted and applied

to toll the statute of limitations. The argument seems to be that, because his

attorney advised him in 1997 that Howard’s testimony would not be enough to get

him a new trial and he followed the advice of counsel, equity requires the statute

of limitations be tolled. He alternatively argues not allowing equitable tolling under

Iowa Code chapter 822 is unconstitutional. The equitable-tolling arguments were

not raised or decided below, and we will not consider them for the first time on

appeal. See, e.g., Meier v. Senecaut, 641 N.W.2d 532, 538 (Iowa 2002) (“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.”); see also

Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 322 (Iowa 2013) (“Even issues implicating

constitutional rights must be presented to and ruled upon by the district court in

order to preserve error for appeal.”).7


7
 We also note our prior holdings that equitable tolling does not apply to section 822.3.
See, e.g., McCullough v. State, No. 17-0434, 2018 WL 346463, at *1 (Iowa Ct. App. Jan.
10, 2018); Long v. State, No. 16-1220, 2017 WL 2684345, at *2 (Iowa Ct. App. June 21,
2017); Harrington v. State, No. 16-0953, 2017 WL 2684340, at *1 (Iowa Ct. App. June 21,
                                               7


       Next, we reject Fountain’s appellate pro se8 claim of ineffective assistance

of counsel in relation to his first two PCR applications as untimely under both

former and current law. Compare Dible v. State, 557 N.W.2d 881, 886 (Iowa 1996)

(holding ineffective assistance of PCR counsel “cannot serve as an exception to

the three-year statute of limitations”), abrogated on other grounds by Harrington v.

State, 659 N.W.2d 509, 520 (Iowa 2003), with Allison, 914 N.W.2d at 891 (allowing

a claim of ineffective assistance of PCR counsel to be excepted from statute of

limitations if “filed promptly after the conclusion of the first PCR action” (emphasis

added)).9


2017); Perdue v. State, No. 15-1237, 2016 WL 4036173, at *1 (Iowa Ct. App. July 27,
2016); Weatherly v. State, No. 15-0681, 2016 WL 1366827, at *1 (Iowa Ct. App. Apr. 6,
2016); James v. State, 858 N.W.2d 32, 33 (Iowa Ct. App. 2014); Everett v. State, No. 12-
1032, 2014 WL 3749338, at *2 (Iowa Ct. App. July 30, 2014); Majors v. State, No. 12-
1090, 2013 WL 2637599, at *5 (Iowa Ct. App. June 12, 2013); Fagan v. State, No. 10-
0739, 2012 WL 3854635, at *1 (Iowa Ct. App. Sept. 6, 2012); Lawrence v. State, No. 10-
1238, 2011 WL 768785, at *2 (Iowa Ct. App. Mar. 7, 2011); Stringer v. State, No. 08-0188,
2008 WL 5235491, at *2 (Iowa Ct. App. Dec. 17, 2008).
         And, Fountain makes no argument our supreme court’s recent opinion in Allison v.
State, 914 N.W.2d 866 (2018) adopted equitable tolling under chapter 822. Compare Polk
v. State, No. 18-0309, 2019 WL 3945964, at *2 & n.3 (Iowa Ct. App. Aug. 21, 2019) (noting
Allison may have adopted a “variant” of the equitable-tolling doctrine), with Kelly v. State,
No. 17-0382, 2018 WL 3650287, at *4 n.1 (Iowa Ct. App. Aug. 1, 2018) (noting Allison did
not adopt a variant of equitable tolling). In any event, as noted, the arguments were not
preserved for our review.
8
  Recent legislation, effective July 1, 2019, foreclosed our ability to consider pro se
materials when, as here, a defendant is represented by counsel. 2019 Iowa Acts ch. 141,
§ 30 (codified at Iowa Code § 814.6A(1) (2019)). While the supreme court has ruled other
legislation enacted contemporaneously does “not apply to a direct appeal from a judgment
and sentence entered before July 1, 2019,” see State v. Macke, ___ N.W.2d ___, ___,
2019 WL 4382985, at *1 (Iowa 2019) (discussing new sections 814.6 and 814.7), the
applicability of new section 814.6A has not been decided. Because we reject or do not
consider Fountain’s pro se claims, we find it unnecessary to decide whether the new
provision applies to this appeal.
9
  Allison was decided after the denial of the application resulting in this appeal. We reject
Fountain’s argument that Allison should apply to his seventh application to relate the time
of filing back to his first application for PCR because he acted “promptly” after receiving
the affidavits. Fountain did not file his application until nearly two years after receiving the
2015 affidavits. We do not consider this “prompt.” See, e.g., Polk, 2019 WL 3945964, at
*2 (noting a gap in the neighborhood of six months does not fit the definition of prompt).
In any event, the seventh application made absolutely no allegation of ineffectiveness of
                                                8


        We also reject Fountain’s request that we convert and consider his

application as a freestanding claim of actual innocence under caselaw decided

after the denial of the instant PCR application. See generally Schmidt, 909 N.W.2d

at 781–800. As the State points out, Schmidt only really changed or clarified the

law as to PCR applicants who plead guilty. See 909 N.W.2d at 790 (overruling

prior “cases that do not allow defendants to attack their pleas based on extrinsic

grounds when they claim actual innocence”).                Individuals convicted of public

offenses by ways other than a plea of guilty have long been allowed to attempt to

prove up their actual innocence under chapter 822, and previously chapter 663A.

See generally 1970 Iowa Acts ch. 1276, §§ 1–11 (enacting postconviction-relief

procedure); see also Poulin v. State, 525 N.W.2d 815, 816 (Iowa 1994) (noting

chapter 663A was transferred to chapter 822 by the code editors in 1993). That is

exactly what Fountain’s application was aimed at.

        We turn to the 2015 affidavits of recantation by Daggett and Carr stating

that they provided false testimony upon being pressured by law enforcement and

the prosecution. The district court concluded, on the merits, that the affidavits

lacked credibility and the recanted testimony generally had no effect on Fountain’s

murder trial. The court made no express finding as to whether the information

contained in the affidavits amounted to grounds of fact that could not have been


prior PCR counsel. In fact, Fountain’s brief in support of the application opined his
attorney’s advice to not pursue a new trial upon Howard’s purported testimony at that time
was “sound.”
         We also note our recognition of recent legislation, effective July 1, 2019, arguably
superseding Allison outright by amending section 822.3 to provide: “An allegation of
ineffective assistance of counsel in a prior case under this chapter shall not toll or extend
the limitation periods in this section nor shall such claim relate back to a prior filing to avoid
the application of the limitation periods.” 2019 Iowa Acts ch. 140 § 34. Because we reject
Fountain’s Allison claims, we need not decide whether the amendment is retroactive.
                                              9

raised within the limitations period. See Iowa Code § 822.3. Instead, the court

concluded on the merits that the evidence would not change the result if a new trial

was granted, given the other evidence of guilt presented. See Cornell v. State,

430 N.W.2d 384, 387 (Iowa 1988) (listing required elements to prevail on claim of

newly discovered evidence). Our supreme court has “explicitly and ‘specifically

reject[ed] any requirement that an applicant must show the ground of fact would

likely or probably have changed the outcome of the underlying criminal case in

order to avoid a limitations defense.’”           Schmidt, 909 N.W.2d at 799 (quoting

Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003)). Courts are not to “reach

the merits of a claim based on a new ground of fact in deciding whether the

exception to the three-year statute of limitations applies.” Id. That is exactly what

the district court did here, which we conclude was error. For that reason, we

reverse the summary disposition ruling as to the 2015 affidavits, and we remand

the matter to the district court to properly determine whether the affidavits amount

to newly discovered evidence and thereafter proceed in accordance with Iowa

law.10

         AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




10
  We take no position on whether the 2015 affidavits qualify as newly discovered evidence
sufficient to toll the statute of limitations. We do not consider Fountain’s additional pro se
claims of a Brady violation and that he is entitled a limited remand to pursue discovery on
the same, that his PCR attorney had insufficient time to review his case, and that he should
have been allowed depositions prior to summary disposition. A claim of a Brady violation
was never made below. While Fountain did move for depositions, the motion was never
ruled upon, and neither he nor counsel objected at the time of hearing on insufficient time
or insufficient discovery grounds.
