                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1815
                           Filed September 13, 2017


MARTIN SHANE MOON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Clarke County, Gary G. Kimes,

Judge.



      An applicant appeals the summary dismissal of his application for

postconviction relief. AFFIRMED.




      Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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VOGEL, Presiding Judge.

       Martin Moon appeals the district court’s summary dismissal of his second

application for postconviction relief (PCR) based on the applicable statute of

limitations. Moon was convicted of first-degree murder in June 2000. This court

affirmed his conviction in April 2002, see State v. Moon, No. 00-1128, 2002 WL

663486, at *1 (Iowa Ct. App. Apr. 24, 2002), and procedendo was issued in July

2002 following that appeal. Moon filed his first PCR application in October 2002,

which was denied by the district court, and the district court’s denial was affirmed

by this court in May 2007. See Moon v. State, No. 05-0816, 2007 WL 1345732,

at *10 (Iowa Ct. App. May 9, 2007).

       In January 2012, Moon filed his second PCR application—the application

at issue in this matter.   He claimed newly discovered evidence requires the

vacation of his conviction and sentence. The district court rejected this assertion,

granting the State’s motion for summary dismissal of this PCR application. Moon

appeals.

       All actions for postconviction relief must be filed no later than three years

from the date the conviction is final or, in the event of an appeal, from the date

procedendo is issued.      See Iowa Code § 822.3 (2011).          The procedendo

following Moon’s direct appeal was issued in July 2002, almost ten years before

Moon’s current PCR application. However, the three-year statute of limitations

will not bar a PCR application if there is “a ground of fact or law that could not

have been raised within the applicable time period.” Id.

       Moon claims he recently received information from a person by the name

of Brandon Lee Boone that justifies the late filing of this PCR application. In
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support of his claim, Moon submitted an affidavit from Boone where Boone

admitted he lied to police in 1998 and 1999 implicating Moon in the murder at the

behest of another individual by the name of Casey Brodsack.1 Moon claimed he

never received any police reports regarding the statements Boone made to

police, which he claimed was a Brady2 violation. He also claims he is entitled to

a new trial in light of this newly discovered evidence of Boone’s recantation.

         Our review of the district court’s summary dismissal of a PCR application

is for the correction of errors at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa

2011).     To satisfy the ground-of-fact exception to the three-year statute of

limitations, an applicant must prove “the alleged ground of fact could not have

been raised earlier, . . . [and] a nexus between the asserted ground of fact and

the challenged conviction.”       Harrington v. State, 659 N.W.2d 509, 520 (Iowa

2003).

         This additional [nexus] requirement is based on the common sense
         conclusion that it would be absurd to toll the statute of limitations
         pending the discovery of a trivial fact that could not possibly affect
         the challenged conviction. Accordingly, we have held that an
         “exonerating ground of fact must . . . be ‘relevant and . . . likely [to]
         change the result of the case.’”

Id. (second alteration in original) (citations omitted).          As used in this test,

“relevant” means “the ground of fact must be of the type that has the potential to

qualify as material evidence for purposes of a substantive claim under section

1
  Brodsack pled guilty to second-degree murder in exchange for testifying against Moon
at the murder trial. Moon, 2002 WL 663486, at *1. Brodsack testified Moon lured the
victim into the basement of an abandoned farmhouse, where Moon shot the victim and
then demanded Brodsack also shoot the victim. Id. The victim’s body was then dumped
into a cistern, where it went undetected for nine years. Id.
2
  See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the prosecution
of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.”).
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822.2.” Id. at 521. The applicant does not need to “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.” Id. This final determination must

await an adjudication on the merits of the case. Id.

      Boone was disclosed as a witness in the minutes of testimony in the

underlying criminal case. The minutes stated the State anticipated Boone would

testify that he was in prison with Moon in 1995 or 1996 and that during that time

Moon confessed his involvement in the murder. However, Moon’s trial counsel

moved to exclude Boone from testifying at trial, noting the State had advised

Boone was refusing to cooperate and Moon had not had an opportunity to

depose Boone. Moon asserted the admission of any statement made by Boone

to police was hearsay and violated his Sixth Amendment confrontation rights.

The State responded to Moon’s motion to exclude by noting it had given Moon

the police report containing Boone’s interview, Boone had refused to be

interviewed since his arrest as a material witness, and the State was unaware

whether Boone would cooperate at the time of trial. The record is unclear as to

the trial court’s ruling on Moon’s motion to exclude, but ultimately, Boone did not

testify at trial. While prior to the 2000 trial, Moon may not have been aware of

the precise claims Boone made in the 2011 affidavit—that Brodsack had

prepared him to give false statements implicating Moon in the murder—Moon

was at least aware as early as the time of trial that Boone, the State’s witness,

was no longer cooperating with the State.

      Even if the alleged ground of fact could not have been raised earlier, we

conclude this ground of fact lacks the necessary nexus with the conviction. See
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id. at 520. Boone did not testify against Moon at trial. At most, Boone’s affidavit

casts doubt on the credibility of the testimony of Brodsack by indicating Brodsack

may have attempted to strong-arm Boone into providing false testimony

implicating Moon in the murder. However, for the ground-of-fact exception to

apply, the newly discovered fact “must be of the type that has the potential to

qualify as material evidence for purposes of a substantive claim under section

822.2.”   Id. at 521 (emphasis added).      Boone’s affidavit does not have the

potential to qualify as material evidence because it only impeaches the credibility

of Brodsack. See id. at 516 (noting to prevail on a claim of newly discovered

evidence a defendant must prove the evidence is material to the case and not

merely cumulative or impeaching).

      Because Boone’s affidavit does not satisfy the ground-of-fact exception to

the statute of limitations, we affirm the district court’s summary dismissal of

Moon’s second PCR application.

      AFFIRMED.
