                       IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0266
                                  Filed June 15, 2016


DARRELL SMITH,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



      A postconviction-relief applicant appeals the district court’s denial of his

application. AFFIRMED.




      Darren      J.   Robinson    of   McEnroe,   Gotsdiner, Brewer,   Steinbach,

& Rothman, P.C., West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kelli A. Huser, Kevin Cmelik, and

Katherine M. Krickbaum (until withdrawal), Assistant Attorneys General, for

appellee State.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Darrell Smith appeals the district court’s denial of his application for

postconviction relief (PCR), in which the district court concluded Smith’s claims

were time-barred. In 1997, Smith was convicted of two counts of first-degree

murder charged on alternate theories of premeditated murder and felony murder

based upon the predicate felony of robbery. The jury returned a general guilty

verdict. Smith’s convictions were affirmed on direct appeal in 1999, and prior

postconviction-relief actions have been denied. See Smith v. State, No. 06-1784,

2008 WL 375101, at *1 (Iowa Ct. App. Feb. 13, 2008) (noting procedural history

of Smith’s conviction and PCR actions).

       In 2013, our supreme court issued an opinion in Nguyen v. State, 829

N.W.2d 183, 188 (Iowa 2013), in which the court determined its ruling in State v.

Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), was a new ground of law so as to

excuse the three-year statute-of-limitations bar for PCR cases. See Iowa Code

§ 822.3 (2013) (noting all actions for postconviction relief must be filed within

three years from the date the conviction becomes final or the procedendo is

issued in the case of a direct appeal).       Because Nguyen had filed his PCR

application within three years of the Heemstra decision, Nguyen’s case was

remanded for the district court to consider the merits of Nguyen’s constitutional

claims that Heemstra should be retroactivity applied. Nguyen, 829 N.W.2d at

189.

       Smith filed the current PCR application in February 2014, asserting the

ruling in Nguyen constitutes a new ground of law that could not have been raised

within three years of his conviction becoming final. He claims he is in a similar
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position as Nguyen because he was convicted of first-degree murder under both

the premeditated and felony-murder alternatives and the three-year PCR statute

of limitations ran before Heemstra was decided. However, unlike Nguyen, Smith

did not file his PCR application within three years of the Heemstra decision.

Instead Smith waited until Nguyen’s challenge to the three-year PCR statute of

limitations was successful before filing his own PCR challenge.             Smith thus

claims the Nguyen holding was itself a new ground of law when it held the

Heemstra decision was a new ground of law allowing Nguyen to avoid the three-

year statute of limitations. He is attempting to leap frog his way 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 to his case.1

       The district court denied Smith’s argument, and we, in many unpublished

opinions, have denied similar arguments on appeal.2             We affirm the district

court’s conclusion Smith’s PCR application is barred by the three-year statute of

limitations without further opinion. See Iowa Ct. R. 21.26(1)(a), (c), (d), (e).

       AFFIRMED.




1
  We note that despite his success in getting past the three-year statute of limitations,
the merits of Nguyen’s arguments—that the Iowa and United States Constitutions
require the Heemstra decision to be retroactively applied—were rejected by the supreme
court. See Nguyen v. State, ___ N.W.2d ___, ___, 2016 WL 920320, at *9–14 (Iowa
2016). The Heemstra holding remains nonretroactive.
2
  See Burkett v. State, No. 14-0998, 2015 WL 5278970, at *3–4 (Iowa Ct. App. Sept. 10,
2015); see also Moore v. State, No. 14-1241, 2016 WL 1358489, at *2–3 (Iowa Ct. App.
Apr. 6, 2016); Sihavong v State, No. 14-0440, 2016 WL 351286, at *2 (Iowa Ct. App.
Jan. 27, 2016); Thompson v. State, No. 14-0138, 2015 WL 1332352, at *1 (Iowa Ct.
App. Mar. 25, 2015); Bear v. State, 13-2077, 2015 WL 1054977, at *1 (Iowa Ct. App.
Mar. 11, 2015); Claybon v. State, No. 12-1396, 2014 WL 1999057, at *2 n.4 (Iowa Ct.
App. May 14, 2014).
