                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0627
                               Filed July 22, 2020


KENYATTA HARLSTON SR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.



      Kenyatta Harlston appeals the district court’s dismissal of his second

application for postconviction relief. AFFIRMED.




      Joey T. Hoover of Hoover Law Firm P.L.L.C., Epworth, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.



      Considered by Mullins, P.J., Ahlers, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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MAHAN, Senior Judge.

         Kenyatta Harlston appeals the district court’s dismissal of his second

application for postconviction relief (PCR). Upon our review, we affirm.

         In 2008, following a jury trial, Harlston was convicted of second-degree

murder. The facts underlying Harlston’s charge and conviction were set forth in

State v. Harlston, No. 08-1908, 2010 WL 624843, at *1 (Iowa Ct. App. Feb. 24,

2010) (Harlston I) (affirming Harlston’s conviction on direct appeal), and reiterated

in Harlston v. State, No. 15-2190, 2016 WL 7395755, at *1 (Iowa Ct. App. Dec. 21,

2016) (Harlston II) (affirming the denial of Harlston’s first PCR application). To

briefly summarize:

                 Early on August 25, 2007, a racially charged skirmish
         occurred in Dubuque, Iowa, involving Harlston, his friends, and Nic
         Blackburn and his friends. The specifics of the fight are disputed,
         including how many individuals were involved on both sides, who
         was the initial aggressor, and what provoked the incident. During the
         fight, Blackburn was fatally stabbed in the heart. Police officers
         responded to the scene, but many of the participants, including
         Harlston and his friends, had fled. Police arrived at the apartment
         where Harlston and his friends were located, asked Harlston if they
         could enter, and Harlston refused them entry. Harlston and his
         friends then voluntarily accompanied the officers to the police station,
         where he was charged with murder.

Harlston II, 2016 WL 7395755, at *1.

         Harlston filed this PCR application in August 2017, raising a claim with

regard to Iowa’s “new ‘stand-your-ground’ statue [sic].”1 The State filed a motion

for summary judgment, arguing the new legislation “has absolutely no bearing on

the conviction from 2007” and noting that Harlston previously raised a self-defense

claim in Harlston II, which was rejected by the court. Harlston later filed amended


1   Harlston subsequently withdrew, then reasserted, this claim.
                                           3


applications raising additional claims regarding the lack of “disparity of African

Americans” on the jury, whether he received a fair trial due to his race, and alleged

newly discovered evidence. Harlston further claimed trial counsel was ineffective

in not advising him to testify at trial.   The State filed a motion for summary

disposition, contending Harlston’s claims were barred by the three-year statute of

limitations in Iowa Code section 822.3 (2017) and issue preclusion. Harlston

resisted the motion.

       Following a hearing, the court found that “modifications of Iowa Code

chapter 704 apply prospectively, as opposed to retroactively.”            The court

determined Harlston’s other claims were time barred, that Harlston had failed to

show there was newly discovered evidence, and dismissed his application.

       On appeal, Harlston claims his “current PCR counsel was ineffective for

failing to raise [the claim that] prior PCR counsel was ineffective for not raising

issues raised in this PCR.”2 Harlston further argues his application was excepted

from the section 822.3 limitations period pursuant to Allison v. State, 914 N.W.2d

866, 891 (Iowa 2018) (holding the filing of a second PCR petition—alleging

ineffective assistance of first PCR counsel—relates back to the date of the original


2 Harlston does not allege prior PCR counsel was ineffective in failing to raise all
the claims alleged in his application and amended applications in this proceeding;
rather, he focuses on the following claims: (a) “The previous PCR counsel was
ineffective for not claiming the Trial Counsel was ineffective for not ensuring a fair
cross section of the community within the Jury Pool”; (b) “The previous PCR
counsel was ineffective for not claiming the Trial Counsel was ineffective for failing
to impeach Witness Gallagher for using racial epitaphs”; (c) “The previous PCR
counsel was ineffective for not claiming the Trial Counsel was ineffective for not
having the defendant evaluated for competency”; and (d) “The previous PCR
counsel was ineffective for not claiming the Trial Counsel was ineffective for not
ensuring that Witness Buchanan was offered a plea in return for his favorable
testimony.”
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petition if “filed promptly” after the first PCR action”).3 However, Harlston filed his

second PCR application more than six months after the conclusion of his first PCR

action,4 and “this court has already concluded six months ‘does not fit the definition

of prompt’ for purposes of the Allison decision.” Demery v. State, No. 19-1465,

2020 WL 1887955, at *2 (Iowa Ct. App. Apr. 15, 2020) (quoting Polk v. State, No.

18-0309, 2019 WL 3945964, at *2 (Iowa Ct. App. Aug. 21, 2019)). Upon our

review, we find no error in the court’s ruling denying Harlston’s claims,5 and we

affirm. See Iowa Ct. R. 21.26(1)(b), (d), and (e).

       In a pro se brief,6 Harlston raises claims relating to trial counsel’s handling

of the jury-panel assembly, alleging counsel “failed to preserve his motion for

mistrial on both jury selections,” “totally abandoned the dismissal of the first jury,”



3  We observe recent legislation, effective July 1, 2019, apparently abrogates
Allison by amending section 822.3 to provide: “An allegation of ineffective
assistance of counsel in a prior case under this chapter shall not toll or extend the
limitation periods in this section nor shall such claim relate back to a prior filing to
avoid the application of the limitation periods.” 2019 Iowa Acts ch. 140. In light of
our conclusion on Harlston’s Allison claim, we need not address whether the
amendment is retroactive.
4 Procedendo issued in Harlston II on February 27, 2017. Harlston filed this PCR

action on August 2, 2017.
5 “Generally, we review a grant of a motion to dismiss a PCR petition for correction

of errors at law.” Allison, 914 N.W.2d at 870. “But when a PCR petitioner claims
ineffective assistance of PCR counsel, our review is de novo.” Id.
6 Pursuant to recent legislation, “An applicant seeking relief under section 822.2

who is currently represented by counsel shall not file any pro se document,
including an application, brief, reply brief, or motion, in any Iowa court. The court
shall not consider, and opposing counsel shall not respond to, such pro se filings.”
Iowa Code § 814.6A(1) (2019). The State asks us to “find Iowa Code section
814.6A prohibits consideration of Harlston’s pro se brief.” This court has declined
to apply the provision to appeals, such as this one, pending before July 1, 2019,
the effective date of the legislation. See State v. Krone, No. 18-0130, 2020 WL
821935, at *4 (Iowa Ct. App. Feb. 19, 2020); State v. Syperda, No. 18-1471, 2019
WL 6893791, at *12 (Iowa Ct. App. Dec. 18, 2019); State v. Purk, No. 18-0208,
2019 WL 5790875, at *7 n.8 (Iowa Ct. App Nov. 6, 2019).
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and “did not request nor examin [sic] any juror with respect to racial prejudice.”

Harlston also claims counsel was “ineffective for failing to present a ‘self-defense.’”

Insofar as these claims are different from those discussed above, Harlston did not

raise them before the PCR court; accordingly, they are not preserved. See Meier

v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.”).         Harlston also claims

“[a]ppellate and PCR counsels were ineffective for failing to assert the

ineffectiveness of trial counsel’s failure to adequately investigate and conduct a

reasonable investigation.” Specifically, he argues, “The record is strong, that trial

counsel failed to prepare for a defense or self-defense.” The issue of self-defense

was addressed, and rejected, in Harlston II.        See 2016 WL 7395755, at *2

(“[T]estimony regarding the fight, and any factors which may have given rise to a

reasonable belief force was necessary to defend himself, would have been useful

in Harlston’s defense. However, Harlston previously told counsel he could not

remember his thought process leading up to the stabbing nor the actual stabbing.

An eyewitness called by the State testified Harlston had run up to the victim,

stabbed him, and ran away. Harlston would have been unable to counter this

testimony effectively as he had no memory of the events leading up to the

stabbing.”).

       We affirm the denial of Harlston’s application for postconviction relief.

       AFFIRMED.
