                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-1978
                               Filed February 7, 2018


LANCE RUSSELL DIXON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      Lance Dixon appeals the district court’s summary dismissal of his fourth

application for postconviction relief following his 2001 conviction for first-degree

murder. AFFIRMED.




      Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee State.



      Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

       In Heemstra v. State, 721 N.W.2d 549, 558 (Iowa 2006), the Iowa Supreme

Court reversed a first-degree murder conviction that was partially based on the

statutory alternative of killing “another person while participating in a forcible

felony.” See Iowa Code § 707.2(1)(b) (2001). The court held “if the act causing

willful injury is the same act that causes the victim’s death, the former is merged

into the murder and therefore cannot serve as the predicate felony for felony-

murder purposes.” Heemstra, 721 N.W.2d at 558. The court declined to apply the

holding retroactively, stating, “The rule of law announced in this case regarding the

use of willful injury as a predicate felony for felony-murder purposes shall be

applicable only to the present case and those cases not finally resolved on direct

appeal in which the issue has been raised in the district court.” Id.

       A postconviction relief applicant whose conviction became final four years

before Heemstra was decided appeals the summary disposition of his fourth

postconviction relief application. He argues a recent United States Supreme Court

opinion requires retroactive application of Heemstra.

I.     Background Proceedings

       A jury found Lance Dixon guilty of first-degree murder in connection with a

1999 shooting. This court affirmed his judgment and sentence in 2001, and

procedendo issued shortly thereafter. See State v. Dixon, No. 00-829, 2001 WL

1450991, at *6 (Iowa Ct. App. Nov. 16, 2001).

       Dixon filed three postconviction relief applications, all unsuccessful. See

Dixon v. State, No. 12-0499, 2013 WL 3291837, at *1 (Iowa Ct. App. June 26,

2013). In 2014, Dixon filed a fourth application alleging, “Heemstra v. State, 721
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N.W.2d at 558 and State v. Nguyen No. 10-2037 demand when a jury relied on a

willful injury instruction to find a defendant guilty the conviction cannot stand.”

       The State moved for summary judgment and dismissal on the ground the

application was “neither within three years of the Heemstra decision nor within

three years of the procedendo of his direct appeal” and, accordingly, was “time-

barred.” Meanwhile, Dixon amended his petition to allege a new “ground of fact

and or law that require Heemstra to be applied retroactively.” He cited “Welch v.

United States, No. 15-6418 April 2016 and Montgomery v. Louisiana, No. 14-280

January 2016.” Following a non-evidentiary hearing, the postconviction court

granted the State’s motion for summary disposition. Dixon appealed.

II.    Ground-of-Law-Exception to Section 822.3 Time Bar

       Iowa Code section 822.3 (2013) states postconviction relief 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,” but “this

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

within the applicable time period.” Dixon’s fourth postconviction relief application

was filed well outside the three-year limitations period.

       Dixon’s application, then, had to fall within the “ground of fact or law”

exception to the time bar to allow consideration of the merits. In his argument to

the district court, Dixon paid lip service to the exception but did not address how

his case fell within it. Instead, he pivoted to the merits of his claim, asserting

Heemstra should be retroactively applied to his case. He does the same thing on

appeal, arguing Welch v. United States, 136 S. Ct. 1257 (2016), requires the

district court to apply the holding of Heemstra retroactively.
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       Dixon conflates two inquiries: (1) is Heemstra an opinion that implicates the

“ground of law” exception to the time bar? and (2) should Heemstra be applied

retroactively to Dixon’s case? As the Iowa Supreme Court made clear in Nguyen

v. State (Nguyen I), 829 N.W.2d 183 (Iowa 2013), these are distinct issues.

       In Nguyen I, a postconvicton relief applicant who received the same felony-

murder jury instruction that was invalidated in Heemstra argued Heemstra should

be applied retroactively. 829 N.W.2d at 186. The district court granted the State’s

motion for summary disposition. Id. The court concluded the “ground of law”

exception to the time bar did not apply because “the line of cases” leading up to

Heemstra “would have alerted trial counsel” to the argument made in Heemstra

and, accordingly, the question “was a ground that could have been urged” during

the three-year limitations period. Id.

       The Iowa Supreme Court disagreed with this reasoning. The court stated

“a ground of law that had been clearly and repeatedly rejected by controlling

precedent from the court with final decision-making authority is one that ‘could not

have been raised’ as that phrase is used in section 822.3.” Id. at 188. The court

implied the ground-of-law exception could be raised within three years of the law-

changing decision rather than three years from when procedendo issued in the

direct appeal, as set forth in section 822.3.      Id.   Because Nguyen filed his

posconviction relief application within three years of Heemstra, the court allowed

him to invoke the “ground of law” exception to the three-year limitations period. Id.

The court reversed the district court’s summary disposition of the postconviction

relief application and “remand[ed] for further proceedings on whether retroactive

application of Heemstra is required by the equal protection, due process, and
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separation of powers clauses of the Iowa Constitution, or the Equal Protection

Clause of the United States Constitution.” Id. at 189. In short, the court (1) implied

a postconviction relief applicant could rely on the “ground of law” exception to the

time bar for three years after a law changing decision, (2) held Heemstra was a

law changing decision implicating the “ground of law” exception to the statute of

limitations, (3) found Nguyen filed his application within three years of Heemstra,

and (4) held the district court needed to consider the merits of Nguyen’s claim that

retroactive application of Heemstra was constitutionally mandated. See id. at 186,

188, 189.

       Nguyen II essentially reaffirmed Nguyen I’s statute-of-limitations analysis.

Nguyen v. State (Nguyen II), 878 N.W.2d 744, 751 (Iowa 2016).              The court

concluded an ineffective-assistance claim premised on Heemstra was “not time-

barred” where the postconviction relief application was filed within three years of

Heemstra and a pro se brief articulated the common-law “framework for evaluating

the retroactive application of state decisions.” Id. As in Nguyen I, the court

addressed the statute-of-limitations hurdle before addressing the question of

retroactivity.   See id. at 751-52.    Only after finding the postconviction relief

application was timely filed because it fell within the “ground of law” exception to

the time bar did the court proceed to the “merits of the ineffective-assistance-of-

counsel claim,” which sought retroactive application of Heemstra. Id. at 753-54.

       Welch, 136 S. Ct. at 1265, cited by Dixon, implicates the merits of his claim.

The Court there held a prior opinion finding a statutory provision void for

vagueness was “a substantive decision and so has retroactive effect under Teague
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[v. Lane, 489 U.S. 288 (1989)] in cases on collateral review.” Welch, 136 S. Ct. at

1265. The opinion has no bearing on our statute-of-limitations analysis.

       That analysis turns on whether Dixon filed his fourth postconviction

application within the implied limitations period of three years from the Heemstra

decision. He did not. Because he did not, his application was time-barred, and

the postconviction court could not reach the retroactivity claim.

       We affirm the postconviction court’s summary disposition of Dixon’s fourth

postconviction relief application.

       AFFIRMED.
