                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0309
                             Filed August 21, 2019


CHESTER LEE POLK JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      A person seeking postconviction relief appeals the dismissal of his second

petition as untimely. AFFIRMED.



      Thomas J. O’Flaherty of O’Flaherty Law Firm, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.



      Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
                                             2


TABOR, Judge.

       The question here is timing. The district court dismissed Chester Polk Jr.’s

second petition for postconviction relief (PCR) as beyond the statute of limitations.

The dismissal predated Allison v. State, 914 N.W.2d 866, 891 (Iowa 2018). Allison

held the filing of a second PCR petition—alleging ineffective assistance of first

PCR counsel—relates back to the date of the original petition if “filed promptly”

after the first PCR action. 914 N.W.2d at 891. On appeal, Polk argues Allison

“appears to encompass [his] situation.”

       Because Polk waited nearly six months to file his second PCR petition after

the voluntary dismissal of his first PCR action, he did not meet the “prompt” filing

mandate in Allison.1 We thus affirm the dismissal.2

       Dismissal means Polk’s forgery conviction stays in place. Polk pleaded

guilty to forgery as a habitual offender. The district court entered judgment on that

conviction on February 3, 2014. Polk received a suspended sentence. But in June

2015, the court revoked his probation and sent him to prison for the indeterminate

fifteen-year term. Polk then filed a notice of appeal from his conviction that the

supreme court dismissed as untimely. Because Polk’s direct appeal was not

viable, the three-year clock for filing a PCR application started on the date of his




1
  We review the dismissal of Polk’s PCR petition for the correction of legal error. Allison,
914 N.W.2d at 870.
2
  Because we hold Allison did not save Polk’s second PCR petition, we need not address
whether recent legislation, apparently abrogating Allison, applies to this appeal. See
S.F. 589, 88th Gen. Assemb. § 34 (Iowa 2019)(“An allegation of ineffective assistance of
counsel in a prior case under this chapter shall not toll or extend the limitations period in
this section nor shall such claim relate back to a prior filing to avoid application of the
limitation periods.”) (codified as amended at Iowa Code § 822.3 (2019)).
                                            3

conviction. See Iowa Code § 822.3 (2017). The parties agree the statute of

limitations expired on February 3, 2017.

       In June 2015, well within the three-year limitations period, Polk filed his first

PCR application.     The district court denied relief.      Polk timely appealed but

voluntarily dismissed that appeal before our appellate courts could weigh in.

Procedendo issued on November 15, 2016, a little more than two months before

the three-year limitations period expired.

       Nearly six months passed before Polk filed his second PCR petition on

May 8, 2017. In that petition, he alleged both his criminal and PCR counsel

provided ineffective assistance. In January 2018, the district court dismissed

Polk’s second PCR application as untimely, citing Dible v. State, 557 N.W.2d 881

(Iowa 1996), abrogated in part on other grounds by Harrington v. State, 659

N.W.2d 509, 521 (Iowa 2003). Dible held ineffectiveness of first PCR counsel did

not fit within the “ground of fact” exception to the section 822.3 statute of limitations,

and thus did not excuse filing a second PCR after three years. 557 N.W.2d at 885.

       In June 2018, the supreme court issued Allison.              While not outright

overruling Dible, the Allison majority opted to “qualify Dible” by allowing a second

PCR application to relate back to the time of filing the first PCR where three

conditions existed. Allison, 914 N.W.2d at 890. First, the original PCR petition

alleging ineffective assistance of trial counsel had to be “timely filed per section

822.3.”    Id. at 891.      Second, the successive PCR petition must allege

“postconviction counsel was ineffective in presenting the ineffective-assistance-of-

trial-counsel claim.” Id. And third, the successive petition must be “filed promptly

after the conclusion of the first PCR action.” Id.
                                             4


       Polk failed to meet that third condition. A gap of almost six months between

his voluntary dismissal of the first PCR appeal and filing the second PCR petition

does not fit the definition of prompt. See Cook v. State, No. 17-1245, 2019 WL

719163, at *4 n.6 (Iowa Ct. App. Feb. 20, 2019) (noting Webster’s Third New

International Dictionary 1816 (unabr. ed. 2002), defines “promptly” as “in a prompt

manner; at once; immediately, quickly”).

       On appeal, Polk references the “filed promptly” language from Allison. But

he does not argue with any detail how the timing of his second petition satisfied

that standard. After he voluntarily dismissed his first appeal, he still had more than

two months before the statute of limitations expired on February 3, 2017. He then

waited until May 8, 2017, before filing his second PCR petition. Those months of

delay belie the quick action Allison envisioned when adopting its “variant” on the

equitable tolling doctrine.3 See 914 N.W.2d at 891; see also Kelly v. State, No.

17-0382, 2018 WL 3650287, at *4 (Iowa Ct. App. Aug. 1, 2018) (holding third PCR

was not “promptly” filed where second PCR was filed more than fifteen months

after close of his first PCR).



3
  The State acknowledges language in Allison “could be read to suggest that, for purposes
of determining whether a second postconviction application is timely, courts should
subtract from the three-year limitation period the amount of time between the date the first
postconviction application was filed and the date it was concluded.” Under that approach,
his second petition would be timely because twenty months would remain in the three-
year limitations period. But Polk does not argue for equitable tolling. And the State
contends that approach is not a reasonable interpretation of Allison. We agree Allison
discusses, but does not adopt, equitable tolling “during an active PCR claim.” Cook, 2019
WL 719163, at *4 n.7. But see Stechcon v. State, No. 17-1531, 2018 WL 3913126, at *2
(Iowa Ct. App. Aug. 15, 2018) (observing Allison “essentially invoked an equitable tolling
doctrine to permit consideration of a second postconviction relief application.”). The
Allison majority would not have had to use the phrase “filed promptly” when discussing the
second PCR petition if timeliness was a purely mathematical formula of subtracting the
number of days the first PCR was pending from three years.
                                              5

       Recall Allison’s aim in applying the relation-back doctrine was to ensure “the

right to effective assistance of counsel in PCR is not cut off by the running of the

statute of limitations in situations like the one in this case.” 914 N.W.2d at 891.

What was Allison’s situation?          His first PCR concluded after the statute of

limitations ran.4 Id. at 869. No time remained for Allison to benefit from competent

PCR representation. Not so here. Polk had more than two months after his first

PCR to file a timely petition to challenge the effective assistance of his first PCR

counsel. The running of the statute of limitations did not cut off Polk’s right to

effective assistance of PCR counsel. What’s more, Polk did not file the second

application for another four months. We cannot call his action “prompt.” That

difference precludes applying the relation-back doctrine to save his second PCR

application. The district court properly ruled Polk’s second PCR petition was time

barred.

       AFFIRMED.




4
  Our court affirmed the denial of Allison’s first PCR petition six days before the statute of
limitations expired, and procedendo issued thirty-five days after its expiration.
