                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1241
                                Filed April 6, 2016


FRED MOORE,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.




      Fred Moore appeals the district court’s decision dismissing his application

for postconviction relief from his conviction for first-degree murder. AFFIRMED.




      John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Alexandra Link

(until withdrawal), Assistant Attorneys General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

      Fred Moore appeals the district court’s decision dismissing his application

for postconviction relief (PCR) from his conviction for first-degree murder. We

determine Moore’s application is untimely under Iowa Code section 822.3 (2013).

We conclude the district court properly dismissed his PCR application and affirm.

      I. Background Facts and Proceedings.

      Moore was convicted of first-degree murder in 1997 and sentenced to life

in prison. His conviction was affirmed on appeal. See State v. Moore, No. 98-

1038, 1999 WL 1136569, at *4 (Iowa Ct. App. Dec. 13, 1999). Procedendo was

issued on March 15, 2000.

      Moore filed his first PCR application in 2001, which was dismissed by the

district court and affirmed on appeal. Moore v. State, No. 03-1223, 2004 WL

2387040, at *1 (Iowa Ct. App. Oct. 27, 2004). His second PCR application was

filed in 2005 and dismissed as frivolous in 2008. In April 2013, Moore filed his

present and third PCR application, seeking a retroactive extension of the holding

in State v. Heemstra, 721 N.W.2d 549, 557 (Iowa 2006), to his 1997 conviction.

Heemstra held that “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.” 721 N.W.2d at 588.

Moore’s predicate felony was terrorism.       His counsel filed an amended PCR

application in February 2014 asserting:

             On August 25, 2006, the Iowa Supreme Court issued its
      decision in Heemstra, which changed Iowa’s rules related to
      predicate felonies and the felony merger doctrine.
             On March 22, 2013, the Iowa Supreme Court reversed the
      dismissal of Phuoc Nguyen’s Application for [PCR], which . . . had
                                            3


       challenged the constitutionality of the Court’s decision to limit the
       retroactive effect of the Heemstra Decision. While not ruling on the
       merits of Nguyen’s claims, the Court determined that his application
       was not barred by the three-year statute of limitation imposed by
       Iowa Code § 822.3 because he could not have challenged the
       constitutionality of an Iowa Supreme Court decision within three
       years of his conviction when the decision was not rendered until
       much after that time.
              Mr. Moore’s case is very closely analogous to Nguyen’s, and
       he should be allowed to reach the merits of his claim in the same
       way that the court permitted Nguyen’s case to proceed on the
       merits.

In the Nguyen decision referenced by Moore, the supreme court reversed the

district court’s dismissal of Nguyen’s PCR application on statute-of-limitations

grounds. Nguyen v. State (Nguyen I), 829 N.W.2d 183, 189 (Iowa 2013). It “was

determined that Nguyen’s PCR application fell within the exception contained in

Iowa Code section 822.3 because Nguyen could not have argued for the

retroactive application of Heemstra until after Heemstra had been decided.”

Nguyen v. State (Nguyen II), No. 14-0401, ___ N.W.2d ___, ___, 2016 WL

920320, at *4 (Iowa 2016).

       A hearing was held on Moore’s third application in May 2014. With regard

to the statute of limitations, Moore claimed his application was timely since it was

filed within three years of the 2013 Nguyen I decision.1 The State asserted

Moore’s third PCR application was untimely under the three-year statute of

limitations in section 822.3 because the application was not filed within three

years of the 2006 Heemstra decision.

1
 With regard to his constitutional issues, Moore argued any limitation on the retroactivity
of Heemstra violated his rights under the Due Process Clause and Equal Protection
Clause of the United States Constitution, and his rights under the due process, equal
protection, and separation of powers clauses of the Iowa Constitution. We note these
arguments were recently rejected by our supreme court. See Nguyen II, 2016 WL
920320, at *9-14.
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       The district court concluded the Nguyen I decision “has not been extended

to allow applicants to pursue Heemstra-styled claims any longer than three years

following the Heemstra decision.” Since Moore’s application was filed more than

six years after the Heemstra decision, the court concluded Moore’s action was

barred by the statute of limitations.

       Furthermore, the court noted Moore’s second PCR application was

pending at the time the Heemstra decision was handed down. A decision on

Moore’s application was not entered until more than a year after the Heemstra

decision. Moore did not amend his application to raise the Heemstra issue prior

to the denial of his second PCR application. The district court concluded Moore’s

third application was procedurally barred. See Iowa Code § 822.8 (providing

grounds for relief may not be raised if they could have been raised in an earlier

proceeding, unless there is a “sufficient reason” for not raising the grounds

earlier). The court reasoned:

              [Moore] was clearly aware of the procedure for filing an
       amended petition to include new grounds of relief, as he actually
       did so in his second [PCR] case. [Moore’s] current [PCR] case is
       based entirely on Heemstra and consists entirely of arguments that
       could have been made in the midst of his second application for
       [PCR]—after the court’s decision in Heemstra on August 25, 2006,
       and prior to the resolution of his second application for [PCR] on
       September 25, 2007. [Moore] failed to raise these arguments
       following Heemstra and prior to the court’s denial of his second
       application for [PCR], and instead raises these claims in this
       application—long after the time he should have raised these claims
       had expired.

Finding Moore’s third application was barred both procedurally and by the statute

of limitations, the district court dismissed the application. Moore appeals.
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       II. Standard of Review.

       In general, our review of the denial of a PCR application is for the

correction of errors at law. Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012).

When there is an allegation of a constitutional error, however, we review de novo

in light of the totality of the circumstances. Id.

       III. Timeliness of Application.

       Section 822.3 provides that a PCR application “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.” Here, procedendo from

Moore’s direct appeal was issued on March 15, 2000, and the present PCR

application was filed more than thirteen years later, on May 9, 2013.          The

application is thus untimely unless it comes within the exception for “a ground of

fact or law that could not have been raised within the applicable time period.”

See Iowa Code § 822.3. Moore has the burden to show his application comes

within the exception to the three-year statute of limitations. See Cornell v. State,

529 N.W.2d 606, 610 (Iowa Ct. App. 1994).

       In Nguyen I, Nguyen sought PCR after the three-year statute of limitations

in section 822.3 had expired but within three years after the Iowa Supreme Court

decided Heemstra. Nguyen I, 829 N.W.2d at 183. The court concluded “section

822.3 does not bar Nguyen’s constitutional claims” because Heemstra, which

“expressly overruled the prior law,” constituted a ground of law that could not

have been raised within the applicable time period. Id. at 188.
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       Unlike Nguyen, however, Moore did not file this third PCR application

within three years after Heemstra was decided.2 Heemstra was filed on August

25, 2006, and Moore’s PCR application was not filed until May 9, 2013. Moore

attempts to side-step the three-year-limitation hurdle by arguing Heemstra should

not be the starting point for the statute of limitations because, “by its terms, it was

only addressing felony murder when the felony was willful injury. Heemstra said

nothing about terrorism.”    The Nguyen I decision prompted Moore to file the

present PCR application, because, like Moore, Nguyen’s predicate felony was

terrorism. Nguyen II, 2016 WL 920320, at *1. Moore asserts, “It wasn’t that he

didn’t know about Heemstra. It was that he didn’t know Heemstra maybe could

help him challenge the terrorism aspect of his conviction.” 3 The fatal flaw in

Moore’s argument is that he has not met, and cannot meet, his burden to

establish that an extension of the Heemstra holding to cases involving a

predicate felony of terrorism could not been raised within three years after the

Heemstra decision.     The proof in the pudding is that Nguyen filed his PCR

application within three years of Heemstra. Moore could have done the same but

did not. We therefore conclude Moore’s application is untimely under section

822.3. Furthermore, even if the application was timely, Moore’s claims would be

barred by section 822.8 because there was no sufficient cause or reason why he

2
  This same conclusion, that a PCR application challenging a conviction based on the
Heemstra holding should be filed within three years after Heemstra was decided in order
to be timely, has been reached in other Iowa Court of Appeals opinions. See Sihavong
v. State, No. 14-0440, 2016 WL 351286, at *2 (Iowa Ct. App. Jan. 27, 2016); Burkett v.
State, No. 14-0998, 2015 WL 5278970, *3 (Iowa Ct. App. Sept. 10, 2015); Thompson v.
State, No. 14-0138, 2015 WL 1332352, *1 (Iowa Ct. App. Mar. 25, 2015).
3
  If there had been any doubt, the issue is now crystal clear. Nguyen II states: “If
Heemstra had been controlling at the time of Nguyen’s conviction, terrorism could not
have been used as the predicate felony, and the felony-murder instruction could not
have been given as a theory to convict Nguyen.” Nguyen II, 2016 WL 920320, at *1, *3.
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could not have raised the claims in his second PCR application, which was

pending at the time Heemstra was decided.

       We affirm the decision of the district court dismissing Moore’s PCR

application.

       AFFIRMED.
