                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0795
                               Filed May 2, 2018


ROGER PEGRAM,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      Roger Pegram appeals from the dismissal of his second application for

postconviction relief. AFFIRMED.



      Jeffrey M. Lipman and Arielle M. Lipman of Lipman Law Firm, P.C., West

Des Moines, for appellant.

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

General, for appellee State.



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

       Roger Pegram appeals from the dismissal of his second application for

postconviction relief after the district court granted the State’s motion for summary

disposition. We affirm.

       I. Background Facts and Proceedings.

       In May 1991, Roger Pegram was convicted of first-degree murder, and this

court affirmed his conviction on direct appeal. See Pegram v. State, No. 99-1093,

2001 WL 913817, at *1 (Iowa Ct. App. Aug. 15, 2001). Pegram subsequently filed

an application for postconviction relief (PCR), which was denied and dismissed by

the district court. See id. We affirmed the denial and dismissal on appeal. See

id.

       In March 2016, Pegram filed a second PCR application, based upon the

Iowa Supreme Court’s ruling in Nguyen v. State, 829 N.W.2d 183, 188 (Iowa

2013). In Nguyen,

       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 [PCR] 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
       retroactiv[ely] applied. Nguyen, 829 N.W.2d at 189.

Smith v. State, 882 N.W.2d 126, 127 (Iowa Ct. App. 2016). In his PCR application,

Pegram basically argued he is in a similar position as Nguyen because he was

convicted of first-degree murder and the three-year PCR statute of limitations ran

before Heemstra was decided. However, unlike Nguyen, Pegram did not file his
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PCR application within three years of the Heemstra decision. Instead Pegram

waited until Nguyen’s challenge to the three-year PCR statute of limitations was

successful before filing his own PCR challenge.

      The State subsequently filed a motion for summary judgment and dismissal.

See Iowa Code § 822.6 (2016). The State argued Nguyen did not provide an

exception to the three-year statute of limitations set out in section 822.3, and

Pegram’s PCR application was time-barred by more than twenty years. Following

a hearing on the State’s motion, the district court granted the State’s motion for

summary disposition and dismissed Pegram’s PCR application.

      Pegram appeals.

      II. Standard of Review.

      We review PCR proceedings, including the summary disposition of a PCR

application, for correction of errors at law. See Moon v. State, ___ N.W.2d ___,

___ (Iowa 2018). Summary disposition is appropriate when, viewing the facts in

the light most favorable to the nonmoving party, “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.” See Iowa

Code § 822.6; see also Moon, ___ N.W.2d at ___ (“We apply our summary

judgment standards to summary disposition of [PCR] applications. Therefore, on

further review we will apply our summary judgment/disposition standards.”);

Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002) (noting “the principles

underlying summary judgment procedure apply to motions of either party for

disposition of an application for [PCR] without a trial on the merits”). These same
                                          4

summary-dismissal standards apply “to the statute-of-limitations issue.” Moon,

___ N.W.2d at ___.

       III. Discussion.

       “[T]o conserve judicial resources, promote substantive goals of the criminal

law, foster rehabilitation, and restore a sense of repose in our system of justice,”

our legislature limited the time to bring PCR actions. Wilkins v. State, 522 N.W.2d

822, 824 (Iowa 1994).       To that end, section 822.3 expressly provides that

“[a]ll . . . applications must 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 or

procedendo is issued.” The legislature did include an exception: “[T]his limitation

does not apply to a ground of fact or law that could not have been raised within the

applicable time period.” Iowa Code § 822.3. Consequently, “to avoid the three-

year statute of limitations contained in section 822.3, an applicant must show he

or she could not have raised the ground of fact within the applicable time period.”

Schmidt v. State, ___ N.W.2d ___, ___ (Iowa 2018). Additionally, the applicant

“must show the ground of fact is relevant to the challenged conviction.” Id. “It

would be absurd to toll the statute of limitations pending the discovery of a trivial

fact that could not possibly affect the challenged conviction.” Harrington v. State,

659 N.W.2d 509, 520 (Iowa 2003). “Every limitation statute sets up an arbitrary

date after which certain actions cannot be brought or certain rights cannot be

enforced. One cannot escape the effect of such statutes by showing they were

only violated a little bit.” In re Detention of Fowler, 784 N.W.2d 184, 190-91 (Iowa

2010). At the summary-disposition stage, to overcome a challenge based upon

the running of the statute of limitations, an applicant does not have to prove the
                                          5


“fact would likely or probably have changed the outcome of the underlying criminal

case.” Schmidt, ___ N.W.2d at ___. Rather, the applicant must show the ground

of fact is “of the type that has the potential to qualify as material evidence for

purposes of a substantive claim under section 822.2.” Id.

       Here, Pegram’s arguments are two-fold. First, he argues the court “abused

its discretion in dismissing the [PCR application] without first allowing counsel the

opportunity to review the criminal file.” He also asserts his PCR counsel was

ineffective in failing to amend his PCR application to “raise and cite to recent

dispositive case law.”

       A. Discovery.

       There is no question that the three-year limitation period has run. Thus,

summary disposition and dismissal of his application is proper unless Pegram

establishes a genuine issue of material fact exists as to whether he could have

raised the ground of fact or law within the applicable time period. See Moon, ___

N.W.2d at ___. Pegram insists his most recent PCR counsel should have been

allowed time to review his criminal file to see if there were any violations of Brady

v. Maryland, 373 U.S. 83, 87 (1963), which held “failure of prosecution to disclose

evidence that may be favorable to the accused is a violation of the Due Process

Clause of the Fourteenth Amendment.” Harrington, 659 N.W.2d at 516. But there

is neither evidence nor a factual allegation specific to a Brady violation here, nor

is there any explanation as to why such violation could not have been brought

within the applicable time period. See Iowa Code § 822.3; see also id. § 822.8

(“All grounds for relief available to an applicant under this chapter must be raised

in the applicant’s original . . . application . . . unless the court finds a ground for
                                            6


relief asserted which for sufficient reason was not asserted or was inadequately

raised in the original . . . application.”). When Pegram was given an opportunity to

explain his current PCR claims at the latest hearing, he stated:

               Here’s where I’m at on this. I believe that the felony murder
       rule was found unconstitutional through Heemstra. I think we all
       understand that. Maybe I’m wrong. However, I think the highest
       courts have found that not applying Heemstra retroactively
       concerning that felony murder rule would be unconstitutional
       considering Nguyen in other cases since Nguyen.
               Now, all this other extraneous stuff that we’re talking about
       right now in this summary judgment claim by the State in wanting to
       dismiss the case and all that, you know, I’m—I’m resisting that, of
       course.
               But I think that we all understand what’s going on here and it’s
       all unconstitutional. That felony murder rule thing is unconstitutional.
       I think this summary judgment thing should be denied.

There was no allegation of any Brady violation by Pegram. Pegram’s PCR counsel

even admitted that the likelihood of finding evidence of a Brady violation would be

low, even with a full review of the record.

       It is true that, under section 822.7, “[a]ll rules and statutes applicable in civil

proceedings including pretrial and discovery procedures are available to the

parties.” Nevertheless, Pegram had his opportunity to litigate his PCR claims,

including any Brady violation, within the statutory-time period in his first PCR

application. The second time around, Pegram had to provide specific facts rather

than mere legal conclusions to satisfy the requirements of chapter 822. See Arnold

v. State, 540 N.W.2d 243, 246 (Iowa 1995). The mere filing of a subsequent PCR

application does not entitle the applicant access to the discovery process, and to

allow Pegram to do so would undermine the legislative intent behind the statutory-

time limitation. That is not to say there are not circumstances where discovery

may be appropriate, even outside the three-year time period. See Moon, ___
                                         7


N.W.2d at ___ (holding PCR court’s grant of summary disposition not appropriate

because a genuine issue of material fact existed as to whether applicant could

have raised the ground of fact earlier); Schmidt, ___ N.W.2d at ___ (holding PCR

court’s grant of summary disposition not appropriate where victim’s “recantation

was not available to Schmidt within the three-year period following the date of his

conviction and Schmidt could not have discovered the recantation earlier than he

did in the exercise of due diligence”); Harrington, 659 N.W.2d at 516, 521-25

(holding PCR court incorrectly found application was time barred where police

reports were allegedly not disclosed in violation of Brady at the time of trial and

were not discovered until well after PCR statute of limitations had run). But insofar

as Pegram’s second PCR application claimed a Brady violation, specific factual

allegations were required to establish a genuine issue of material fact to survive

summary disposition. See, e.g., Moon, ___ N.W.2d at ___ (stating applicant’s

claim was “based on an alleged Brady violation arising from the State’s failure to

turn over exculpatory evidence, such as notes, statements, and interview reports

of [a State’s witness]”). Consequently, the PCR court did not err in dismissing the

PCR application without allowing further time for review of the underlying criminal

file.

        B. Ineffective Assistance.

        As to his felony-murder constitutionality claims, Pegram maintains on

appeal that his trial counsel was ineffective because he did not assert any

arguments related to the Supreme Court’s opinion in Welch v. United States, 136

S. Ct. 1257 (2016). In Welch, the Court held a prior opinion finding a statutory

provision void for vagueness was “a substantive decision and so has retroactive
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effect under Teague [v. Lane, 489 U.S. 288 (1989)] in cases on collateral review.”

Welch, 136 S. Ct. at 1265. Pegram claims that Welch constitutes a change in law

and allows Heemstra to be applied retroactively. Even assuming that assessment

is accurate, Welch has no bearing on our statute-of-limitations analysis. See

Nguyen v. State, 878 N.W.2d 744, 754 (Iowa 2016).

       Heemstra was filed in 2006. Pegram’s current PCR application was filed in

2016, more than three years after Heemstra. Pegram’s application was therefore

time barred. Even if PCR counsel had advanced an argument invoking Welch,

Pegram’s PCR application would still be time barred and the PCR court could not

have reached his retroactivity claim. See also Nguyen, 878 N.W.2d at 754 (noting

PCR counsel has “no duty to pursue a meritless claim”). Consequently, the PCR

court did not err in granting the State’s motion for summary disposition and

dismissing Pegram’s PCR application because it was time barred.

       IV. Conclusion.

       Because Pegram’s second PCR application was time barred, the court did

not err in granting the State’s motion for summary disposition and in dismissing the

PCR application. Accordingly, we affirm the ruling of the district court.

       AFFIRMED.
