                   IN THE COURT OF APPEALS OF IOWA

                             No. 3-1211 / 13-0299
                            Filed February 19, 2014


WILLIAM J. NIMS JR.,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, David F.

Staudt, Judge.



      An applicant appeals the district court’s dismissal of his postconviction

relief application. AFFIRMED.



      James T. Peters, Independence, for appellant.

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

General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Mullins and McDonald, JJ.
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VOGEL, P.J.

      William Nims appeals the district court’s dismissal of his second

postconviction relief (PCR) application.    Nims was convicted of first-degree

kidnapping in 1983, following his abduction and sexual assault of an eight-year-

old child, and was sentenced to life in prison. See State v. Nims, 357 N.W.2d

608, 608–09 (Iowa 1984). He filed this most recent PCR application pro se,

asserting his sentence amounted to cruel and unusual punishment, detailing

facts of both disproportionality and categorical challenges to the legality of his

sentence. The State filed a motion to dismiss the application as time barred

under the three-year statute of limitations for PCR applications. See Iowa Code

§ 822.3 (2011).

      The district court dismissed the petition after an unreported hearing where

Nims was represented by counsel. The district court found Nims’s argument to

be essentially that if it has been determined by the United States Supreme Court

to be cruel and unusual punishment to sentence a seventeen-year-old to life in

prison without the possibility of parole, then it should also be considered cruel

and unusual punishment to sentence him to life in prison without the possibility of

parole when he was just nineteen years old at the time of the commission of the

offense. See Graham v. Florida, 560 U.S. 48, 82 (2010) (holding the Federal

Constitution prohibits the imposition of a life-without-parole sentence on a

juvenile offender who did not commit homicide). The district court concluded

there were no cases extending the cruel-and-unusual-punishment argument,

articulated in Graham, to adult teenagers.     The court also concluded it was
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unaware of any appropriate exception to the three-year statute of limitations

found in section 822.3.

       On appeal Nims claims “the court erred by denying him an evidentiary

hearing to fully address his claim that the mandatory sentence of life without

parole as applied to him amounts to cruel and unusual punishment under the

state and federal constitutions.” In his argument section, however, Nims fails to

cite any statutory or case law authority to support his claim that he is entitled to

an evidentiary hearing on his claim. He cites only cases from the Supreme Court

and the courts of our state that hold juveniles cannot be sentenced to life without

the possibility of parole, and statutes that limit the rights of those under the age of

twenty-one. He also fails to assert any facts that could support his claim made in

his application for postconviction relief that his sentence was grossly

disproportionate to his crime. Because Nims has failed to cite both facts and

authority to support his claim, we consider the issue waived pursuant to Iowa

Rule of Appellate Procedure 6.903(2)(g)(3) (“Failure to cite authority in support of

an issue may be deemed a waiver of that issue.”). Finding Nims’s only claim on

appeal has been waived, we affirm the district court’s dismissal of his application

for postconviction relief.

       AFFIRMED.

       McDonald, J., concurs; Mullins, J., dissents.
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MULLINS, J., (dissenting)

      I must respectfully dissent. I conclude Nims did not waive his claim by

failing to cite authority and conclude, based on the merits of the appeal, Nims

should have been granted an evidentiary hearing to develop his cruel-and-

unusual-punishment challenge to his sentence.

      First, the waiver rule found in Iowa Rule of Appellate Procedure

6.903(2)(g)(3) is discretionary, not mandatory—“Failure to cite authority in

support of an issue may be deemed a waiver of that issue.” (Emphasis added.)

While Nims does not cite specific case law that supports his claim for an

evidentiary hearing, his argument is easily discernable in the brief. This is not a

case where a party randomly mentions an issue without any support or

argument. See Soo Line R.R. Co. v. Iowa Dep’t of Transp., 521 N.W.2d 685,

691 (Iowa 1994) (finding a party’s random mention of an issue without

elaboration or supportive authority was insufficient to raise an issue for the

court’s consideration). The whole point and scope of Nims’s brief is that the

court should have permitted him to have an evidentiary hearing on his cruel-and-

unusual-punishment claim. Nims’s pro se application at the district court made

his claim clear. The case law on this issue is easily obtainable by this writer in

my review of the district court’s action without requiring me to take an advocate

position for Nims. See Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240

(Iowa 1974) (noting the court will dismiss an appeal where to reach the merits of

the case required the court to assume a partisan role and undertake the
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appellant’s research and advocacy). I therefore find Nims did not waive this

claim and address it on the merits.

      I begin by noting the three-year statute of limitations for postconviction

relief actions does not apply in cases where the applicant challenges his

sentence as illegal. See Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010) (finding

the three-year statute of limitations for postconviction relief actions does not

apply when a defendant challenges a sentence as illegal in a PCR application).

A challenge that a sentence is illegal can be raised at any time as it is a

challenge to the underlying power of the court to impose a sentence. Id. Even

though he raised the claim in a PCR application, the claim of an illegal sentence

is not considered a PCR action. Id. The three-year statute of limitations for PCR

actions found in section 822.3 is inapplicable. The district court was incorrect to

dismiss this case on that ground.

      The district court also rejected the illegal sentence challenge on the merits

when it stated that it was unaware of any case that extended the cruel-and-

unusual-punishment argument to individuals who were adult teenagers during

the commission of the offense. The United State Supreme Court announced a

categorical rule in Graham that the Federal Constitution prohibits the imposition

of a sentence of life without the possibility of parole on juvenile offenders

convicted of nonhomicide crimes. 560 U.S. at 82. The Supreme Court extended

this categorical rule against mandatory life-without-parole sentences to juveniles

convicted of homicide offenses in Miller v. Alabama, 132 S. Ct. 2455, 2475

(2012). However, these categorical rules have not been applied to offenders
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who were eighteen years of age or older when they committed the offense. See

Roper v. Simmons, 543 U.S. 551, 574 (2005) (“Drawing the line at 18 years of

age is subject, of course, to the objections always raised against categorical

rules. . . . For the reasons we have discussed, however, a line must be drawn.”).

Thus, any attempt by Nims to assert his sentence is categorically unconstitutional

by violating the Cruel and Unusual Punishment Clauses of the Federal

Constitution or the corresponding clause in the Iowa Constitution is without merit,

and the district court correctly rejected this claim.

       However, I interpret Nims’s claim in his pro se PCR application along with

his appellate brief to be a gross-proportionality challenge,1 not a categorical

challenge, because he emphasized the specific facts of his case. See Oliver,

812 N.W.2d at 639–41 (explaining the difference between a categorical and a

gross-proportionality challenge to a sentence as violating the Cruel and Unusual

Punishment Clause). In relatively rare cases, a court is permitted to conduct an

individualized assessment of the punishment imposed where there is an unusual

combination of features converging to generate a high risk of potential gross

disproportionality.   State v. Bruegger, 773 N.W.2d 862, 884 (Iowa 2009).        A

gross-proportionality challenge involves the application of a three-part test first

developed in Solem v. Helm, 463 U.S. 277 (1983). Oliver, 812 N.W.2d at 647.




1
  The Iowa Supreme Court in State v. Oliver, 812 N.W.2d 636, 639–40 (Iowa 2012),
recognized the terminology for an Eighth Amendment challenge has changed with the
U.S. Supreme Court’s case of Graham, 130 S. Ct. at 2022. Instead of a “facial
challenge” or an “as-applied challenge,” “the defendant must challenge his sentence
under a ‘categorical’ approach or make a ‘gross proportionality challenge to [the]
particular defendant's sentence.’” Oliver, 812 N.W.2d at 640 (citations omitted).
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       The first step in this analysis, sometimes referred to as the
       threshold test, requires a reviewing court to determine whether a
       defendant’s sentence leads to an inference of gross
       disproportionality. This preliminary test involves a balancing of the
       gravity of the crime against the severity of the sentence. If, and
       only if, the threshold test is satisfied, a court then proceeds to steps
       two and three of the analysis. These steps require the court to
       engage in an intrajurisdictional analysis comparing the challenged
       sentence to sentences for other crimes within the jurisdiction. Next,
       the court engages in an interjurisdictional analysis, comparing
       sentences in other jurisdictions for the same or similar crimes.

Id. (internal quotation marks and citations omitted). However, this test cannot be

applied without a proper record allowing the defendant “an opportunity to fully

explain the facts and circumstances of his prior offense” and “giving the State a

chance to present evidence of the impact on the victim and [the victim’s] family,

the defendant’s lack of remorse, his inability to respond to rehabilitative services,

and the need to incapacitate the defendant.” Id. at 649.

       In this case, the court dismissed Nims’s PCR application on the basis of

the statute of limitations and the lack of authority to support a categorical

challenge to his sentence. Nims was not given an opportunity to develop the

record with regard to his gross-proportionality challenge.2           I therefore would



2
  I note Nims challenged his sentence as cruel and unusual punishment under the Solem
factors in his direct appeal. See Nims, 357 N.W.2d at 610-11. The supreme court
rejected the challenge finding Nims “grossly understates the seriousness of his crime”
and Iowa was not alone in mandating a life sentence for a crime similar to Nims’s. Id. In
its appeal brief the State asserts this prior decision prevents Nims from asserting a
challenge again based on res judicata.
         The State did not, however, assert the affirmative defense of res judicata at the
district court in its motion to dismiss. See Bertran v. Glen Falls Ins. Co., 232 N.W.2d
527, 531 (Iowa 1975) (“We have established the rule that a party who desires to set up a
prior adjudication as a bar to a claim made by an opposing party must properly plead
such adjudication before evidence is admissible in regard to it.”). As an affirmative
defense, the State had the obligation to plead and prove the claim. Id.
         I also note our supreme court did not officially adopt a gross-proportionality
challenge to a sentence under the Iowa Constitution until Bruegger, 773 N.W.2d at 884.
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reverse the district court’s dismissal and remand this case for a hearing on

Nims’s gross-proportionality challenge.




This was some twenty-five years after the court’s rejection of Nims’s claims on direct
appeal. The court in Ragland v. State, 812 N.W.2d 654, 658–59 (Iowa 2012), noted the
law with respect to a claim that a sentence amounted to cruel and unusual punishment
had changed as a result of the court’s decisions in Bruegger and Veal. This judicial
clarification of the law makes the law-of-the-case doctrine inapplicable.
