                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1847
                             Filed August 19, 2015


ISIDRO RAMIREZ,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,

Judge.



      Isidro Ramirez appeals the dismissal of his third application for

postconviction relief. AFFIRMED.




      John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for

appellant.

      Isidro Ramirez, Anamosa, pro se.

      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant

County Attorney, for appellee State.



      Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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MAHAN, S.J.

       Isidro Ramirez appeals the dismissal of his third application for

postconviction relief (PCR). He contends the court erred in granting summary

disposition in favor of the State without proper notice. He also raises several

claims in a pro se brief.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       Ramirez was convicted of first-degree murder in 1998, and his conviction

was affirmed in 2000. The denial of his first PCR application was affirmed in

2005. See State v. Ramirez, No. 03-1224, 2005 WL 973610, at *1 (Iowa Ct. App.

Apr. 28, 2005). In 2006, Ramirez filed a second PCR application, which was also

denied. His appeal of that denial was dismissed as frivolous in 2010.

       In January 2011, Ramirez initiated this—his third—PCR action.        He

amended his PCR application after the State moved to dismiss it on timeliness

grounds, and the court denied the State’s motion.         The State moved for

reconsideration of the court’s ruling on the motion to dismiss in August 2013.

After a hearing on the motion, the court dismissed the PCR application, finding

the three-year limitations period provided in Iowa Code section 822.3 (2011)

expired in 2003 and Ramirez failed to prove a new ground of fact or law

excepting his application from the limitations period.

II.    ANALYSIS.

       Ramirez contends the court erred in granting summary disposition of his

PCR application. He argues the hearing on the State’s motion to reconsider

“was really a hearing on a motion for summary disposition” pursuant to section

822.6. Because the only issue Ramirez was informed would be considered at
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the hearing was the State’s motion to reconsider, he argues he did not receive

adequate notice.

       Section 822.6 provides two methods by which the court may dispose of a

PCR action without reaching the merits. Manning v. State, 654 N.W.2d 555, 559

(Iowa 2002). Under the first method, the court may dismiss a PCR application on

its own motion if “the applicant is not entitled to postconviction relief and no

purpose would be served by any further proceedings,” provided the applicant

receives notice of the court’s intention to dismiss the application and its reasons

for so doing.   Iowa Code § 822.6; Manning, 654 N.W.2d at 559. Under the

second method, the court may grant summary disposition of a PCR application

“when it appears from the pleadings, depositions, answers to interrogatories, and

admissions and agreements of fact, together with any affidavits submitted, that

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.” Iowa Code § 822.6. The question presented in

this appeal concerns a determination of which of these methods the court

utilized.

       The State moved to dismiss Ramirez’s application as untimely under

section 822.3, which would render Ramirez ineligible for PCR.            However,

Ramirez argues the State’s motion was actually treated as a motion for summary

disposition, citing the State’s request at the hearing on the motion to reconsider

“to summarily dismiss [Ramirez’s] petition.” In support of his argument, Ramirez

cites Manning v. State, in which the court disposed of a PCR action on the merits

of Manning’s claim after finding he failed to meet his burden of proving his

appellate counsel was ineffective.     654 N.W.2d at 557-58.        However, the
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disposition was reached following a hearing on the State’s motion to dismiss,

which failed to indicate any other grounds for disposing of the action. Id. The

supreme court reversed the summary dismissal of the PCR application in part

because Manning was not properly notified the hearing would be on the merits of

his claim and that he would need to present proof on any issue other than what

was alleged in the motion to dismiss.1 Id. at 561-62.

       It is apparent that the PCR court’s ruling was not one of summary

disposition. In its ruling, the court found the application was time barred under

section 822.3 “and is therefore dismissed.” The court did not consider the merits

of Ramirez’s claims as is required for summary disposition, and therefore,

Ramirez’s reliance on Manning is misplaced. Because Ramirez was properly

notified of the hearing on the motion to dismiss and the reason for the potential

dismissal, error has not been shown.

       Ramirez also raises several claims in a pro se brief. Because he fails to

demonstrate the existence of any newly-discovered evidence that could not have

been discovered within the three-year limitations period, see Iowa Code § 822.3

(stating the limitations period does not apply to a ground of fact or law that could

not have been raised within the applicable time period), the dismissal of his third

PCR application is affirmed.

       AFFIRMED.




1
  The supreme court notes that in the appeal, “the State and Manning treat the State’s
motion to dismiss as a motion for summary disposition under . . . section 822.6” and
therefore, “we do the same.” Manning, 654 N.W.2d at 560.
