                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1703
                               Filed December 19, 2018


THOMAS KANE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Susan

Christensen, Judge.



      A petitioner appeals the dismissal of his application for postconviction relief.

AFFIRMED.




      Christopher J. Roth of Forney Roth, LLC, Omaha, Nebraska, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                          2


VOGEL, Judge.

       Thomas Kane appeals the district court’s denial of his application for

postconviction relief (PCR). He claims the PCR court erroneously determined his

application is time-barred. We review ineffective-assistance-of-counsel claims de

novo. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).

       In January 1981, Kane was convicted of murder in the first degree for a

1980 killing. Our supreme court affirmed his conviction on direct appeal, with

procedendo issuing on March 12, 1982.1 He filed this application for PCR on June

20, 2017. Ordinarily, an application for PCR is time-barred if it is not filed within

three years of the date procedendo issues.        See Iowa Code § 822.3 (2017).

However, Kane argues this limitation does not apply here because he has raised

a ground of “law that could not have been raised within the applicable time period.”

Id.

       At Kane’s trial, the jurors were instructed to determine whether he was guilty

of murder in the first degree before considering less serious charges. He argues

our supreme court recently questioned the legality of such acquittal-first

instructions and this decision presents a new ground of law to overcome the three-

year statute of limitations for his application. See State v. Ambrose, 861 N.W.2d

550, 556–57 (Iowa 2015). While our supreme court acknowledged in Ambrose it

had never considered an acquittal-first instruction before, it analyzed the question

under an ineffective-assistance-of-counsel framework and rejected the appeal

because the defendant experienced no prejudice from the challenged instruction.


1
 Our supreme court described the facts behind his conviction in a previous PCR appeal.
See Kane v. State, 436 N.W.2d 624, 625–26 (Iowa 1989).
                                         3

See id. at 556–59. Thus, Ambrose did not present a new ground of law to

overcome the time limitation of section 822.3. See Nguyen v. State, 829 N.W.2d

183, 188 (Iowa 2013) (finding a claim that was “viewed as fruitless at the time but

became meritorious later on” presents a new ground of law to proceed under

section 822.3). We therefore affirm the denial of Kane’s PCR application without

further opinion. See Iowa Ct. R. 21.26(1)(a), (d), (e).

       AFFIRMED.
