                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0998
                           Filed September 10, 2015


BERTRUM BURKETT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



      An applicant appeals the summary dismissal of his application for

postconviction relief. AFFIRMED.



      Nathan A. Mundy of Carney & Appleby, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, John P. Sarcone, County Attorney, and Celene Gogerty, Assistant

County Attorney, for appellee State.




      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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VAITHESWARAN, P.J.

        Generally, an application for postconviction relief “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

(2013). There is an exception for “a ground of fact or law that could not have

been raised within the applicable time period.” Id.

        Bertrum Burkett filed a postconviction-relief application twenty-nine years

after his appeal from his conviction and sentence for first-degree murder became

final. See State v. Burkett, 357 N.W.2d 632 (Iowa 1984). To circumvent the

time-bar, he argued a 2006 opinion, State v. Heemstra, 721 N.W.2d 549 (Iowa

2006), changed the substantive law applicable to his case and a 2013 opinion,

Nguyen v. State, 829 N.W.2d 183 (Iowa 2013), authorized retroactive application

of Heemstra. In his view, Nguyen stated a “ground of law that could not have

been raised within the applicable time period.” Iowa Code § 822.3. Burkett filed

his application shortly after Nguyen was decided.

        The district court granted the State’s motion for summary disposition. The

court concluded Burkett could not avail himself of the “ground of law” exception

to the three-year time bar and his application was untimely.           This appeal

followed.

   I.       Heemstra and Nguyen

        In Heemstra the defendant challenged a jury instruction allowing the State

to prove first-degree murder either by establishing premeditation or by

establishing “[t]he defendant was participating in [w]illful [i]njury.” 721 N.W.2d at

552-53. With respect to the second alternative, the court held “if the act causing
                                        3


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 felony-

murder purposes.” Id. at 558. The court overruled precedent reaching a contrary

conclusion and stated:

       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.

Id. Because the court did not know whether the jury found guilt under the felony

murder instruction or under the premeditated murder instruction, the court

reversed Heemstra’s conviction and remanded the case for a new trial. Id. at

559.

       In Nguyen the court considered a postconviction-relief application filed

“more than three years after procedendo had issued on his original direct appeal,

but less than three years after Heemstra.” 829 N.W.2d at 186. Nguyen argued

the Heemstra holding amounted to “a ground of . . . law that could not have been

raised within the applicable time period.”     Id. at 186-87.   The district court

concluded “the line of cases” leading up to Heemstra would have alerted counsel

to the argument. Id. at 186. The Iowa Supreme Court disagreed, stating:

       [A] ground of law that had been clearly and repeatedly rejected by
       controlling precedent from the court with final decision-making
       authority is one that “could not have been raised” as that phrase is
       used in section 822.3. . . . [S]ection 822.3 must incorporate the
       notion that there had to be a possibility of success on the claim. It
       must envision a category of legal claims that were viewed as
       fruitless at the time but became meritorious later on. We believe a
       claim that Nguyen's felony-murder instruction was improper falls
       into this category.
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Id. at 188. The court reversed the district court’s summary dismissal of Nguyen’s

postconviction-relief application and remanded the case “for further proceedings

on whether retroactive application 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.”

Id. at 189.

   II.        Implied Time Bar on Raising “Ground of Law” Exception

         As noted at the outset, Iowa Code section 822.3 imposes a three-year

time bar unless the applicant raises “a ground of . . . law that could not have

been raised within the applicable time period.” The statute says nothing about a

deadline for raising the “ground of law” exception.

         The Iowa Supreme Court broached this issue in Nguyen but did not

explicitly resolve it. As noted, the court made reference to the fact Nguyen filed

his application within three years of the change of law announced in Heemstra.

Id. at 186 (“Nguyen applied again for postconviction relief on April 2, 2009, more

than three years after procedendo had issued on his original direct appeal, but

less than three years after Heemstra.”). The implication, then, is that the “ground

of law” exception premised on Heemstra could be raised only within three years

of the filing of Heemstra.

         This court held just that in Thompson v. State, No. 14-0138, 2015 WL

1332352, at *1 (Iowa Ct. App. Mar. 25, 2015); see also 4A B. John Burns, Iowa

Practice Series, Criminal Procedure § 33:3, at 637-38 n.12 (2015 ed.) (citing

Heemstra and Nguyen for proposition that “[u]nder some circumstances, an

otherwise time-barred petition may be filed within three years of an appellate
                                        5

decision creating a substantial right that represents a clear break in the law that

could not have been anticipated at the time the defendant’s case was pending”

(emphasis added)).     Faced with a postconviction-relief application raising a

Heemstra challenge but filed well after Thompson’s direct appeal became final

and more than three years after Heemstra, we read Nguyen as “implicit[ly]”

imposing “the requirement that the postconviction-relief application asserting

such a claim be filed within three years of the Heemstra decision.” Thompson,

2015 WL 1332352, at *1. Because Thompson did not file his application within

this time-frame, we affirmed the district court’s summary dismissal of the

application as time-barred. Id.

      This implicit three-year limitation on raising the ground-of-law exception

makes sense. In part, the purpose of section 822.3 is to “restore a sense of

repose in our criminal judicial system.” Cornell v. State, 529 N.W.2d 606, 610-11

(Iowa Ct. App. 1994). The purpose of “the escape clause of section 822.3 is to

provide relief from the limitation period when an applicant had ‘no opportunity’ to

assert the claim before the limitation period expired.” Id. at 611. These purposes

would be frustrated if an applicant had an unlimited amount of time to raise the

“ground of law” exception. Nguyen suggests an applicant should have to raise a

change in the law within a reasonable period after the change is announced and

the opinion implies the reasonable period is three years.

      Burkett essentially concedes the applicability of this implied limitation

period. He acknowledges his application was filed more than three years after

Heemstra but argues, just as Heemstra changed the law, so did Nguyen,
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triggering a new implied limitation period. Specifically, he asserts until Nguyen,

he “had no reason to anticipate that Heemstra would be applied retroactively.”

       Contrary to Burkett’s assertion, Nguyen did not hold Heemstra could be

applied retroactively. Nguyen simply held Heemstra was a “ground of law that

could not have been raised within the applicable time period” under section

822.3. This principle of allowing review of a conviction where there has been a

change in the law affecting the validity of a conviction was recognized decades

ago in State v. Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989). Nguyen did

not change the landscape.

       We acknowledge similar terminology is used in applying a retroactivity

analysis and the “ground of law” exception contained in section 822.3.         See

Perez v. State, 816 N.W.2d 354, 360 (Iowa 2012). But, as the court explained in

Perez, the concepts of retroactivity and the “ground of law” exception are distinct.

Id. at 360-61. One allows for retroactive application of an opinion which did not

change the law and the other allows for circumvention of the three-year time bar

if an opinion changed the law. Id. at 360 (noting it would be contradictory to

argue an opinion was merely an application of preexisting law for retroactivity

purposes but a change in law for purposes of the “ground of law” exception).

       Nguyen left intact Heemstra’s limited application of its holding “to the

present case and those cases not finally resolved on direct appeal in which the

issue has been raised in the district court.” The court only remanded the case to

the district court to consider whether certain constitutional provisions required

retroactive application of Heemstra.
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       Because Nguyen did not announce a change in the law, we conclude

Burkett’s attempt to avail himself of an implied limitation period to raise a “ground

of law” exception to the statutory time-bar, beginning on the date Nguyen was

decided, necessarily fails. Burkett’s postconviction-relief application was time-

barred, and the district court did not err in dismissing it.1

       AFFIRMED.




1
  Even if Burkett could avail himself of the ground-of-law exception, we have repeatedly
rejected equal protection challenges to the prospective-only application of Heemstra.
Langdeaux v. State, No. 10–1625, 2012 WL 1439077, at *6-7 (Iowa Ct. App. Apr. 25,
2012); Dixon v. State, No. 10–1691, 2011 WL 5867929, at *2–3 (Iowa Ct. App. Nov. 23,
2011); Herrarte v. State, No. 08-1295, 2011 WL 768763, at *2 (Iowa Ct. App. Mar. 7,
2011). We find those opinions persuasive. See also Goosman v. State, 764 N.W.2d
539, 544-45 (Iowa 2009) (rejecting defendant’s federal due process challenge).
