                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2067
                               Filed June 7, 2017


DAVID M. GONZALES BECERRA,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.

Kilnoski, Judge.



      David Gonzales Becerra appeals the denial of his application for

postconviction relief. AFFIRMED.




      Brian S. Munnelly of Munnelly Law Office, Omaha, Nebraska, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee State.




      Considered by Doyle, P.J., McDonald, J., and Blane, S.J.*

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

       David Gonzales Becerra appeals the denial of his application for

postconviction relief (PCR), which challenges his conviction of first-degree

murder for the role he played in the 2003 death of Oscar Flores. This court

affirmed his conviction on direct appeal in State v. Becerra, No. 04-0567, 2005

WL 3115330, at *1 (Iowa Ct. App. Nov. 23, 2005). Nearly eight years after our

supreme court denied further review, Gonzales Becerra initiated this PCR action.

The district court determined his claims were time barred and denied the

application.

       We review PCR applications for corrections of errors at law unless they

raise constitutional issues.   See Perez v. State, 816 N.W.2d 354, 356 (Iowa

2012). We review a district court’s ruling finding a PCR application was untimely

for correction of errors at law. Harrington v. State, 659 N.W.2d 509, 519-20

(Iowa 2003). “[W]e will affirm if the [PCR] court’s findings of fact are supported

by substantial evidence and the law was correctly applied.” Id. at 520.

       Iowa Code section 822.3 (2013) requires PCR 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.”          Procedendo

issued on February 15, 2006, and Gonzales Becerra initiated this PCR action on

December 5, 2013. Therefore, Gonzales Becerra’s application is untimely.

       Gonzales Becerra argues his claims fall within the exception for a ground

of law that could not have been raised within the applicable time period. See

Iowa Code § 822.3. He bears the burden of showing the exception applies to his

PCR application. See Cornell v. State, 529 N.W.2d 606, 610 (Iowa Ct. App.
                                            3


1994).    His PCR application relies on the following cases, which he argues

qualify as a new ground of law that could not have been raised within the three-

year limitation period: State v. Schuler, 774 N.W.2d 294 (Iowa 2009); Wyatt v.

Iowa Dep’t of Human Servs., 744 N.W.2d 89 (Iowa 2008); State v. Smith, 739

N.W.2d 289 (Iowa 2007); and State v. Heemstra, 721 N.W.2d 549 (Iowa 2006).1

Even assuming these cases qualify as a new ground of law, 2 Gonzales Becerra’s

claims still fail. In order for an untimely PCR application to fall within the section

822.3 exception, the application must be filed within three years of the time the

new ground of law is decided. See, e.g., Clayton v. State, No. 15-1826, 2016 WL

6636771, at *1 (Iowa Ct. App. Nov. 9, 2016). Gonzales Becerra’s application

was filed more than three years after the cases cited.

         Gonzales Becerra also claims the statute of limitations for PCR actions

does not apply to cases involving structural errors that affect “the framework

1
  Gonzales Becerra also relies on two other cases that were filed within three years of
his PCR application. However, neither places this PCR action within the section 822.3
exception. In Nguyen v. State, 829 N.W.2d 183, 188-89 (Iowa 2013), the supreme court
held the Heemstra ruling was a new ground of law that falls within the exception to the
statute of limitations for those PCR actions filed within three years of Heemstra being
decided. However, the Nguyen decision is not a new ground of law on which a PCR
applicant may rely to lengthen the time period for challenging a conviction under
Heemstra. See Smith v. State, 882 N.W.2d 126, 127-28 (Iowa Ct. App. 2016) (holding a
PCR applicant cannot use Nguyen “to leap frog . . . past the three-year statute of
limitations contained in section 822.3 to have a chance to argue the Heemstra decision
should be retroactively applied”). Gonzales Becerra also argues that State v. Ambrose,
861 N.W.2d 550 (Iowa 2015), which was filed after his PCR action was initiated, shows
the supreme court “is poised to clarify an area of the law” regarding whether a jury
should be instructed it has the right to review all of the lesser-included offenses before
making its decision. However, the Ambrose court did not address this question because
it found the defendant suffered no prejudice from the challenged instruction. 861
N.W.2d at 558-59.
2
  Our court has already held that two of these decisions only clarify existing law rather
than represent a new ground of law. See, e.g., Palmer v. State, No. 14–1328, 2016 WL
6396168, at *2 (Iowa Ct. App. Oct. 26, 2016) (holding Smith “was an expression of
current or preexisting law and did not constitute new law”); Jones v. State, No. 12–0706,
2013 WL 4506167, at *3 (Iowa Ct. App. Aug. 21, 2013) (holding Schuler clarified rather
than changed the law).
                                        4

within which the trial proceeds.”   Lado v. State, 804 N.W.2d 248, 252 (Iowa

2011). We have expressly rejected this argument. See Avina v. State, No. 11-

1780, 2013 WL 1452949, at *3 (Iowa Ct. App. Apr. 10, 2013) (“Chapter 822

applies to constitutional violations, which would include ‘structural errors.’ The

statute of limitations in section 822.3 would apply to this argument and, absent a

showing of new facts, would bar the application.” (internal citation omitted)).

Gonzales Becerra offers no other availing argument concerning the timeliness of

his PCR application. Because the district court properly denied the PCR action

as untimely, we affirm.

      AFFIRMED.
