                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0463
                               Filed June 21, 2017


KEITH C. WALKER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Dryer, Judge.



      Keith Walker appeals the district court’s dismissal of his application for

postconviction relief. AFFIRMED.



      Tod J. Deck of Deck Law, Sioux City, for appellant.

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

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.

       Keith Walker was found guilty of first-degree murder in 1990, and his

conviction was affirmed in 1992. He filed his fifth application for postconviction

relief in 2013.   The State moved to dismiss the application as time-barred.

Following a hearing, the district court concluded, “All of Mr. Walker’s claims are

barred by the statute of limitations.” Walker appealed.

       Iowa Code section 822.3 (2013) requires most postconviction relief

applications to 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.” Walker’s fifth application was filed twenty-one years after

procedendo issued. It was untimely.

       Walker “now asserts that the statute of limitations is an affirmative defense

that was waived when not raised in a timely manner by the [S]tate.” He relies on

Iowa Code section 822.6, which states: “Within thirty days after the docketing of

the application, or within any further time the court may fix, the state shall

respond by answer or by motion . . . .” We decline to address this argument

because it was not asserted below. See Nguyen v. State, 829 N.W.2d 183, 187

(Iowa 2013); Top of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa

2000) (“In view of the range of interests protected by our error preservation rules,

this court will consider on appeal whether error was preserved despite the

opposing party’s omission in not raising this issue at trial or on appeal.”).

       Walker also contends his “application has merit and he was not sufficiently

informed of the district court’s intention to summarily dispose of his application.”

To the contrary, the district court afforded Walker the opportunity to resist the
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motion and granted a hearing on the motion at which Walker voiced his own

views in addition to the views expressed by his attorney.

      Walker next argues “summary judgment was improper . . . because [his]

application state[d] issues of material fact,” “[t]he law under which [he] was

convicted has changed significantly,” and “he should be afforded an opportunity

to be heard on the merits of his application.” Walker makes no further argument

on this point.    Reading between the lines, we assume he disputes the

postconviction court’s conclusion that his Heemstra challenge to a felony-murder

jury instruction fell outside the limitations period. See State v. Heemstra, 721

N.W.2d 549, 558 (Iowa 2006) (holding “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 felony-murder purposes”); see

also Iowa Code § 822.3 (stating “limitation does not apply to a ground of fact or

law that could not have been raised within the applicable time period”); Nguyen,

829 N.W.2d at 188 (holding the three-year limitations period in section 822.3 did

not bar the applicant’s constitutional challenge to his felony-murder instruction

based on the holding of Heemstra because Heemstra constituted a ground of law

that could not have been raised within the applicable time period).

      We discern no error in the postconviction court’s conclusion. Although the

Iowa Supreme Court recognized that a Heemstra-style challenge could fall within

the “ground of law” exception to the three-year time bar, the court essentially held

such a challenge would need to be raised within three years of Heemstra. See

Nguyen v. State, 878 N.W.2d 744, 749-50 (Iowa 2016) (“Since Nguyen had filed

his application for postconviction relief within three years, his claims as to
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retroactivity were not time-barred.”); see, e.g., Burkett v. State, No. 14-0998,

2015 WL 5278970, at *1-3 (Iowa Ct. App. Sept. 10, 2015); Thompson v. State,

No. 14-0138, 2015 WL 1332352, at *1 (Iowa Ct. App. Mar. 25, 2015). Walker’s

fifth postconviction application was not filed within three years of the Heemstra

opinion. His claim based on Heemstra is time-barred.1

        We turn to Walker’s pro se arguments based on Lado v. State, 804

N.W.2d 248 (Iowa 2011).         In Lado, the supreme court held a postconviction

attorney’s failure to seek a continuance or to have a postconviction relief

application reinstated following the issuance of a notice of automatic dismissal

under Iowa Rule of Civil Procedure 1.944 constituted a breach of an essential

duty and amounted to structural error. 804 N.W.2d at 251-53. Walker raised the

identical issue in his first application for postconviction relief, which preceded the

filing of Lado. The Iowa Supreme Court rejected the argument. See Walker v.

State, 572 N.W.2d 589, 589-90 (Iowa 1997).             Having finally adjudicated the

issue, Walker is barred from raising the same ground for relief. See Iowa Code §

822.8 (“Any ground finally adjudicated . . . may not be the basis for a subsequent

application, unless the court finds a ground for relief asserted which for sufficient

reason was . . . inadequately raised in the original . . . application”).2 The State


1
  In addition, we previously rejected this claim. See Walker v. State, No. 07-0541, 2008
WL 2357720, at *3 (Iowa Ct. App. June 11, 2008). And, the Iowa Supreme Court
rejected Walker’s constitutional challenge to prospective application of Heemstra, stating
“the nonretroactive application of Heemstra does not violate the due process, separation
of powers, or equal protection clauses of the Iowa Constitution or the Equal Protection
Clause of the United States Constitution.” Nguyen, 878 N.W.2d at 759.
2
   Based on Lado, this court reversed the automatic dismissal of postconviction relief
applications in Hrbek v. State, No. 13-1619, 2015 WL 6087572, at *3 (Iowa Ct. App. Oct.
14, 2015) and Friedley v. State, No. 11-1782, 2013 WL 988628, at *2 (Iowa Ct. App.
Mar. 13, 2013). However, the applicants in those cases had not previously adjudicated
the issue and obtained final appellate opinions.
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raised this alternative basis for dismissing the Lado claim in the district court. We

affirm the district court on this ground.

       Finally, Walker argues his postconviction attorney was ineffective in

declining to pursue his Lado argument. As noted, the postconviction court gave

Walker the opportunity to supplement his attorney’s statements. Walker spoke

extensively about Lado, structural error, and the effect of Lado on his case.

Accordingly, he cannot establish Strickland prejudice.           See Strickland v.

Washington, 466 U.S. 668, 687, 691-96 (1984).

       We affirm the dismissal of Walker’s postconviction relief application.

       AFFIRMED.
