                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-1813
                               Filed December 18, 2019


DWIGHT MURRAY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Sean W. McPartland,

Judge.



      Dwight Murray appeals the dismissal of his application for postconviction

relief. AFFIRMED.




      John J. Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.*

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


GAMBLE, Senior Judge.

       Dwight Murray appeals the dismissal of his application for postconviction

relief (PCR). We affirm.

I. Facts and Prior Proceedings

       Murray was convicted of first-degree robbery and second-degree burglary

in connection with a break in and the bludgeoning of Blanche Gloe in 1991. Gloe

remained on life support during Murray’s trial. Following his conviction, Gloe

showed no signs of neurological improvement, and her family agreed to withdraw

life-saving services. Gloe died, and Murray was charged and convicted of first-

degree felony murder, with his robbery serving as the predicate felony.           Our

supreme court affirmed his conviction in 1994.1 See State v. Murray, 512 N.W.2d

547, 548 (Iowa 1994).

       In 2012 Murray filed a pro se PCR application. The State filed a pre-answer

motion to dismiss, arguing the three-year statute of limitations contained in Iowa

Code section 822.3 (2012) governing PCRs had expired. The PCR court granted

the State’s motion in part and denied it in part so that Murray could further develop

his claim that certain changes in law occurred after the three-year statute of

limitations, which would serve as an exception to section 822.3’s statute of

limitations.

       Following trial and full briefing, the PCR court determined no change in law

occurred to excuse Murray’s failure to file his PCR action within the three years

following procedendo and dismissed the PCR action.


1
 This court also affirmed Murray’s conviction without opinion. State v. Murray, No. 91-
1431 (Iowa Ct. App. Mar. 30, 1993).
                                         3


      Murray now appeals.

II. Standard of Review

      “‘Generally, postconviction relief proceedings are reviewed for correction of

errors at law.’ However, claims of alleged violations of constitutional rights are

reviewed in ‘light of the totality of circumstances and the record upon which the

postconviction court’s ruling was made.’ ‘This is the functional equivalent of de

novo review.’” Johnson v. State, 860 N.W.2d 913, 918 (Iowa Ct. App. 2014)

(quoting Reilly v. Iowa Dist. Ct., 783 N.W.2d 490, 493 (Iowa 2010)).

III. Discussion

      At the outset, Murray argues the PCR court’s ruling denying the State’s pre-

answer motion to dismiss is the law of the case and the court could not base its

final dismissal of his application on the three-year limitation of section 822.3. We

disagree and conclude the law-of-the-case doctrine is inapplicable.

      “[T]he law of the case doctrine is founded on a public policy against

reopening matters which have been decided.” United Fire & Cas. Co. v. Iowa Dist.

Ct., 612 N.W.2d 101,103 (Iowa 2000). “The ‘law of the case’ arises only after a

ruling becomes final.” City of Ankeny v. Armstrong Co., 353 N.W.2d 864, 867

(Iowa Ct. App. 1984). Here, the PCR court denied the pre-answer motion to

dismiss so that Murray could develop his argument that changes in law occurred

to excuse non-compliance with the three-year limitation of section 822.3. As such,

the court did not determine whether an exception to section 822.3 existed and left

the issue open for determination in its final ruling. The law-of-the-case doctrine

does not apply.
                                           4


       Murray asserts three changes in law occurred after expiration of section

822.3’s three-year statute of limitations to excuse his non-compliance.

       First, Murray argues State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006),

constitutes a change in law by “hold[ing] that, if [an] act causing willful injury is the

same act that causes [a] victim’s death, the former is merged into the murder and

therefore cannot serve as the predicate felony for felony-murder purposes.” He

asserts Heemstra should be applied retroactively to reverse his conviction. His

argument fails for several reasons.

       Heemstra does not apply to felony murder convictions in which the

predicate felony is robbery. See State v. Minifee, No. 17-1661, 2019 WL 2373601,

at *1 (Iowa Ct. App. June 5, 2019) (recognizing “[t]he court has not extended the

rule to the predicate felony of robbery); State v. Collins, No. 16-1094, 2017 WL

6027763, at *9 (Iowa Ct. App. Nov. 22, 2017) (“We decline to extend the Heemstra

rule to the predicate felony of robbery.”). Robbery served as the predicate felony

for Murray’s murder conviction, making Heemstra inapplicable.

       Even if Heemstra did apply to felony murder wherein robbery served as the

predicate felony, it could not be applied to Murray’s case. Heemstra made clear

its ruling applies prospectively and not retroactively, foreclosing its application to

Murray’s case. 721 N.W.2d at 558 (“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.”).

Moreover, contrary to Murray’s assertion, prospective application of Heemstra

does not violate federal due process. See Davis v. State, No. 18-0078, 2019 WL
                                         5


476478, at *2 (Iowa Ct. App. Feb. 6, 2019).        Our supreme court previously

declared, “Heemstra did not create a new substantive rule of constitutional

dimension.” Nguyen v. State, 878 N.W.2d 744, 753 n.4 (Iowa 2016). As such, we

are not compelled to apply Heemstra retroactively. See Montgomery v. Louisiana,

136 S.Ct. 718, 727 (2016) (requiring retroactive application of new substantive

rules of constitutional dimension).

       In short, Heemstra is not a change in law available to Murray to defeat

section 822.3’s three-year limitation.

       Second, relying on Rosemond v. United States, 572 U.S. 65 (2014), Murray

argues developments in aiding and abetting law constitute a change in law

excusing his non-compliance with the statute of limitations.2 Rosemond required

a defendant charged under an aiding and abetting theory of “us[ing] or carr[ying] a

firearm during and in relation to any crime of violence or drug trafficking crime”

have advance knowledge of the firearm’s presence. See 572 U.S. at 67, 81, 82.

This did not establish new law. Aiding and abetting has long required participants

be knowledgeable of the circumstances of the charged offense. See State v.

Henderson, 908 N.W.2d 868, 877 (Iowa 2018) (collecting cases).            Because

Rosemond did not establish new law, Murray’s invocation of it does not serve as

an exception to section 822.3’s three-year limitation.

       Finally, Murray claims Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa

2009), and State v. Tribble, 790 N.W.2d 121 (Iowa 2010), represent new grounds




2
 Because there was some evidence multiple people participated in the crimes against
Gloe, the jury was instructed on aiding and abetting. See Murray, 512 N.W.2d at 551.
                                            6


of law relating to causation to excuse his noncompliance with section 822.3.3

Thompson “bifurcated proximate cause into factual cause and scope of liability and

adopted the Restatement (Third) of Torts risk standard for civil tort actions.” State

v. Roache, 920 N.W.2d 93, 101 (Iowa 2018). However, our courts have not

adopted this bifurcated approach to proximate cause to determine causation in

criminal cases. See id. at 102 (adopting the risk standard for scope of liability in

criminal restitution determinations). Tribble applied a factual-cause analysis to

consider the element of causation. 790 N.W.2d at 127 n.1. A factual-cause

analysis applies the long-standing but-for test: “but for the defendant’s conduct,

the harm or damage would not have occurred.” State v. Marti, 290 N.W.2d 570,

584–85 (Iowa 1980); see also State v. Lenz, No.16-2172, 2017 WL 6516867, at *7

(Iowa Ct. App. Dec. 20, 2017) (equating factual-cause to but-for causation).

Accordingly, there is no new causation standard for criminal cases amounting to a

new ground of law. Moreover, even if Roache’s adoption of Restatement (Third)

for criminal restitution determinations effectively adopts it with respect to all

aspects of criminal cases, we find no constitutional implications that would

necessitate retroactive application to serve as a new ground of law for Murray.

See Montgomery, 136 S.Ct. at 727 (requiring retroactive application of new




3
  Murray also makes brief reference to Alleyne v. United States, 570 U.S. 99, 116 (2013),
which held “facts that increase mandatory minimum sentences must be submitted to the
jury.” But he does not develop his argument associated with Alleyne, so we do not
consider it. See Midwest Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 431 n.2
(Iowa 2002) (finding perfunctory mention of an issue without elaboration or supporting
authority waives the claim); State v. Mann, 602 N.W.2d 785, 788 n. 1 (Iowa 1999) (holding
random mention of an issue, without elaboration or supporting authority, is insufficient to
raise the issue for appellate court’s consideration).
                                       7


substantive rules of constitutional dimension). Accordingly, Murray identifies no

new ground of causation law to excuse his non-compliance with section 822.3.

IV. Conclusion

      For the reasons discussed, we conclude the PCR court correctly dismissed

Murray’s application as time barred.

      AFFIRMED.
