                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1021
                               Filed August 7, 2019


BOBBY JOE MORRIS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      Bobby Joe Morris appeals from the dismissal of his application for

postconviction relief. AFFIRMED.




      Andrew Dunn of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann L.L.P., Des Moines, for appellant.

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

General, for appellee State.



      Considered by Mullins, P.J., Bower, J., and Vogel, S.J.* Gamble, S.J.,

takes no part.

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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BOWER, Judge.

      Bobby Joe Morris appeals from the dismissal of his application for

postconviction relief (PCR) in which he challenges his 1998 conviction for first-

degree murder.

      While details of the underlying offense have been set out in our previous

opinion, see State v. Morris, No. 98-1640, 2000 WL 381641, at *1–2 (Iowa Ct. App.

Apr. 12, 2000), here we note Morris was charged with committing or aiding and

abetting first-degree murder, with the jury being allowed to determine the shooting

of Morris’s girlfriend was done with premeditation or while committing the forcible

felony of willful injury. We affirmed his conviction on appeal. Id. at *9 (further

review denied, procedendo issued Aug. 3, 2000).

      On appeal from the denial of his first PCR proceeding—which application

was filed in 2001 but was not decided until December 16, 2005—Morris’s counsel

argued four issues,

      all of which relate to the felony murder/merger rule adopted in [State
      v.] Heemstra[, 721 N.W.2d 549 (Iowa 2006)]. Morris claim[ed]:
      (1) the district court erred when it ruled his concerns were without
      merit; (2) appellate counsel was ineffective for not challenging the
      felony murder/merger rule on direct appeal; (3) he received
      ineffective postconviction relief counsel because counsel did not
      claim appellate counsel was ineffective for not raising the felony
      murder/merger rule; and (4) the Iowa Supreme Court erred when it
      ruled that Heemstra only applied to cases on direct appeal.

Morris v. State, No. 06-0069, 2007 WL 1827394, at *1 (Iowa Ct. App. June 27,

2007). We addressed those claims and affirmed the PCR dismissal. See id. at

*2–5. Further review was denied by the supreme court, and procedendo issued

on August 31, 2007.
                                                3


        A second July 30, 2010 PCR application was dismissed for failure to

prosecute on January 20, 2015. This application was filed three years and ten

months after Heemstra was decided and thirty-five months after procedendo

issued on the denial of his first PCR.

        On July 31, 2017, Morris filed his third PCR application. Consequently, this

PCR application was filed seventeen years after procedendo issued on the appeal

from his conviction. It was filed nine years and eleven months after procedendo

issued on the appeal of his first PCR application.

        The State moved for summary judgment, asserting Morris’s claims in this

third PCR application were previously litigated or time-barred pursuant to Iowa

Code section 822.3 (2017) (providing a three-year limitation period unless the

applicant raises a “ground of fact or law that could not have been raised within the

applicable time period”). Morris resisted.

        The district court set out Morris’s claims1 and found most of the claims were

time-barred or “have been litigated either on direct appeal or in Morris’[s] first

PCR.”     With respect to the one issue not previously raised—that the non-

retroactive application of Heemstra violates the prohibition against cruel and

unusual punishment of the Eighth Amendment of the United States Constitution—


1
  Morris asserted seven claims in this PCR application: (1) prosecutorial misconduct for
failing to provide exculpatory evidence related to statements made by James Caster;
(2) ineffective assistance of trial counsel and subsequent counsel related to that
prosecutorial misconduct, i.e., failure to raise the issue; (3) failure of the trial court to apply
the reasoning of Heemstra when it was argued in relation to Instruction 33 (felony-
murder/willful injury as underlying felony); (4) ineffective assistance of appellate counsel
and subsequent counsel by failure to raise the Heemstra issue; (5) the non-retroactive
application of Heemstra violates the prohibition against cruel and unusual punishment of
the Eighth Amendment of the United States Constitution; (6) the Iowa Supreme Court
misinterpreted the retroactivity of Heemstra; and (7) jury tampering/instructional error
because Morris was never found guilty of willful injury.
                                          4


the court treated the issue as a claim of an illegal sentence, which can be raised

at any time. See State v. Harrison, 914 N.W.2d 178, 187 (Iowa 2018).

       The PCR court concluded:

       [T]he prohibition against cruel and unusual punishment set forth in
       the state and federal constitutions does not require retrospective
       application of ameliorative statutory sentencing provisions. Dixon v.
       Iowa Dist. Ct. for Scott Cty., 2018 WL 1182529 (Iowa Ct. App. 2018).
       The same reasoning holds for retrospective application of Heemstra.
       While Heemstra came down during the appeal of the first PCR,
       Morris v. State, 2007 WL 1827394, at *4, appellate counsel in the
       first PCR had no obligation to raise these constitutional issues
       because they had no merit.

       On appeal, Morris argues the court erred in finding his claim concerning the

State’s failure to disclose exculpatory evidence was untimely. He asserts he was

prejudiced by the failure of his appellate counsel in his first postconviction

proceedings to raise the claim regarding the withholding of exculpatory evidence.

He also contends, “Morris’s case should have been the Heemstra . . . case.”

Finally, he urges his life sentence, where one alternative given to the jury was

forcible-felony murder, constitutes cruel and unusual punishment.

       Ordinarily, our review of PCR proceedings is for errors of law. Harrington

v. State, 659 N.W.2d 509, 519 (Iowa 2003). “But when the basis for relief is a

constitutional violation, our review is de novo.” Id.

       Iowa Code section 822.3 contains a statute of limitations for PCR actions.

At the time Morris filed this action in 2017, section 822.3 required that PCR

applications “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 of procedendo is issued.”2


2
  Section 822.3 has been amended, effective July 1, 2019. The three-year limitation
remains:
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As noted above, this PCR application was filed seventeen years after procedendo

issued on the appeal from his conviction. And, even if the relation-back doctrine

of Allison is applicable, it provides Morris no relief. The application was filed nine

years and eleven months after procedendo issued on the appeal of his first PCR

application. We cannot say a petition filed almost a decade after the denial of his

first postconviction-relief action can be said to have been “filed promptly after the

conclusion of the first PCR action.” Allison, 914 N.W.2d at 891. All of Morris’s

claims of ineffective assistance of trial, appellate, and first PCR counsel are time

barred.



         All other 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 of procedendo is issued. However, this limitation does not apply to
         a ground of fact or law that could not have been raised within the applicable
         time period. 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. Facts within the personal knowledge
         of the applicant and the authenticity of all documents and exhibits included
         in or attached to the application must be sworn to affirmatively as true and
         correct. The supreme court may prescribe the form of the application and
         verification. The clerk shall docket the application upon its receipt and
         promptly bring it to the attention of the court and deliver a copy to the county
         attorney and the attorney general.
The emphasized language is new. It appears to be in response to Allison v. State, 914
N.W.2d 866, 891 (Iowa 2018), in which the supreme court adopted a “relation-back
doctrine to the statutory period of limitation under section 822.3 when an applicant alleges
in a second PCR proceeding brought outside the three-year time frame that the attorney
in the first PCR proceeding was ineffective in presenting the same claim as raised in the
second proceeding.” Goode v. State, 920 N.W.2d 520, 525 (Iowa 2018).
         In Allison the court held:
         [T]he best approach is to hold that where a PCR petition alleging ineffective
         assistance of trial counsel has been timely filed per section 822.3 and there
         is a successive PCR petition alleging postconviction counsel was
         ineffective in presenting the ineffective-assistance-of-trial-counsel claim,
         the timing of the filing of the second PCR petition relates back to the timing
         of the filing of the original PCR petition for purposes of Iowa Code section
         822.3 if the successive PCR petition is filed promptly after the conclusion
         of the first PCR action.
914 N.W.2d at 891 (emphasis added).
                                          6


      With respect to his cruel-and-unusual-punishment claim, Morris grounds the

claim on due process, arguing, “The due process violation as to Morris results in

his cruel and unusual punishment under Article I, section 17 of the Iowa

Constitution . . . and the Eighth Amendment.” He asserts:

             With a general verdict, Morris is spending his life in prison
      without a finding he “acted willfully, deliberately, premeditatedly and
      with a specific intent to kill Kelsey Bitting[,]” the very prerequisite to
      sentencing someone for first-degree murder.                 Morris’s life
      imprisonment is based on a conviction lacking in proof beyond a
      reasonable doubt as to every fact necessary to constitute first-
      degree murder. This is a violation of the Due Process Clause of the
      United States Constitution.

      This type of challenge has been rejected in State v. Nowlin:

      [A]ll murder which is committed in the perpetration of [specified
      felonies] is murder in the first degree. Defendant made timely
      exception to the instruction ‘on constitutional grounds’, alleging it
      makes it possible for a conviction of first-degree murder to occur
      without proof of ‘specific intent to commit murder’. The exception
      was overruled. He now attacks the statute on equal protection and
      due process grounds.
              ....
              In his due process challenge, defendant contends the felony-
      murder statute allows the State to avoid proving the state of mind
      essential for first-degree murder by presumptively supplying it when
      the crime occurs during the perpetration of one of the enumerated
      felonies. He relies on the principle that a defendant is denied due
      process of law when the State is not required to prove every element
      of the crime charged beyond a reasonable doubt.
              The fallacy in defendant’s position is his assertion, without
      citation of authority, that willfulness, premeditation and deliberation
      are essential elements of all first-degree murder. The statutes which
      define the crime do not support this assertion.

244 N.W.2d 596, 604 (Iowa 1976) (emphasis added) (citations omitted).

“Willfulness, deliberation and premeditation are not essential elements of murder

as defined in [section 707.2(1)(b)]. They are simply elements present in one
                                     7

category of murder sufficient to enhance the penalty.” Id. at 604–05; accord

Harrison, 914 N.W.2d at 193.

      Finding no error, we affirm.

      AFFIRMED.
