                    IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0035
                               Filed March 18, 2020


WALTER HOSKINS IV.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Odekirk, Judge.



      Walter Hoskins appeals from the summary dismissal of his second

application for postconviction relief. AFFIMRED.




      Shawn Smith of The Smith Law Firm, PC, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.



      Considered by Bower, C.J., and May and Greer, JJ.
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MAY, Judge.

       Walter Hoskins appeals from the summary dismissal of his second

application for postconviction relief (PCR). We affirm.

       I. Facts and Prior Proceedings

       We previously summarized the facts of Hoskins’s underlying conviction as

follows:

       On the evening of July 4, 2006, Waterloo police officers noticed
       Walter Hoskins IV and his cousin, Daytron Wise, in front of their
       grandmother’s house shooting off fireworks.             Officers Matt
       McGeough and Steve Bose went to the home due to this illegal
       activity and because there were outstanding arrest warrants for both
       men. Hoskins and Wise were arrested. A search incident to arrest
       revealed Hoskins had $174 in cash, Wise had $210, and both men
       had cell phones on them. As they were being placed in the back of
       a patrol car, Hoskins yelled at the officers not to go in the house
       because his grandmother, Alberta Hoskins, was sleeping.
                The officers knocked on the door, and then knocked on
       windows in an effort to alert whomever was inside that they were
       taking Hoskins and Wise to the police station, but no one responded.
       The officers then went around the outside of the house attempting to
       rouse someone when officer Bose saw baggies stuffed inside a
       detached drain pipe. He pulled out the baggies and saw several of
       them had corners that were missing. There was no mud or debris
       on the baggies. The corners of baggies are often used as packaging
       for illegal drugs.
                The officers gathered up the fireworks in the yard and on the
       porch as evidence for a fireworks violation charge. From the porch,
       officer McGeough smelled the distinct and strong odor of marijuana.
       The door of the house was open, but the screen door was closed.
       Through the screen door officer McGeough saw a box of fireworks
       just inside the door. He opened the door to collect the fireworks, and
       saw two baggies of marijuana and a baggie of crack cocaine in a
       planter beside the door. The officers seized the illegal drugs.
                While the officers were present, Alberta returned home.
       Hoskins told her not to let anyone inside the home, and she refused
       the officers’ request to search the home. The officers had activated
       a recorder in the patrol car, and one of the men said, “they haven’t
       found it yet.” Hoskins had previous felony convictions for drug-
       dealing in 2004. In April and May of 2006, officer McGeough had
       received information of drug dealing by Hoskins in Waterloo.
                                           3


                Sergeant Mark Meyer of the Tri-County Drug Task Force
         prepared an application for a search warrant of the house. A judge
         signed the search warrant. A search was conducted on July 5, 2006,
         which revealed large quantities of crack cocaine and marijuana,
         scales, cell phones, and baggies with torn corners.

State v. Hoskins, No. 07-0677, 2008 WL 1887314, at *1 (Iowa Ct. App. Apr. 30,

2008).

         In April 2007, Hoskins was convicted of possession of a controlled

substance (cocaine) with intent to deliver, failure to affix a drug tax stamp, and

possession of marijuana. On direct appeal, this court affirmed his conviction and

sentence (except for a DARE surcharge). Id. at *7.

         Hoskins then pursued his first PCR action. He alleged, among other things,

his trial counsel was ineffective for failing to challenge the sufficiency of the

evidence. Hoskins v. State, No. 10-0902, 2012 WL 470230, at *3 (Iowa Ct. App.

Feb. 15, 2012). The PCR court denied Hoskins’s application. This court affirmed

the PCR court. Id. at *7. Our opinion detailed the evidence inculpating Hoskins:

         Police obtained a search warrant and searched Alberta’s house,
         located at 439 Adams Street in Waterloo in the early morning hours
         of July 5, 2006. While searching the house, officers seized a great
         deal of the evidence from a bedroom in the northwest corner of the
         house. On the floor in the bedroom, officers—with the assistance of
         a dog—found a clear plastic bag with marijuana in it, on top of a
         wooden box.
                 Officers also encountered a large, green, plastic storage tote.
         Inside the storage tote, officers discovered a shoebox. The shoebox
         contained several clear plastic bags, filled with large, white chunks
         of a substance—crack cocaine. Among the items underneath the
         shoebox in the storage tote were a gun holster, a gold and black
         plastic bag with “quite a number of bullets and a box of ammunition,”
         and a plastic glove. There was also a pair of plastic gloves on the
         bedroom floor. Officer McGeough stated the plastic gloves were
         significant because they are worn to keep fingerprints from getting
         on material. He also characterized the gun holster and bullets as
         common among people with large quantities of narcotics.
                                  4


        Two safes were found in the room. On an end table were a
cell phone and a razor blade. Officer Matt McGeough testified that
“[a]fter the crack has been hardened into chunks, [drug dealers]
frequently use razor blades to kind of chip away and cut away the
dosage units.” Several more cell phones were found during the
search. Officer Mark Meyer testified that cell phones are very
transient in the crack cocaine business and it is common to see
several different cell phones when people are dealing a quantity of
drugs similar to this case.
        A box protruding from a laundry basket also contained a large
amount of clear plastic bags; at least two more boxes of clear plastic
bags were found on the floor. Officer McGeough described the
amount of clear plastic bags that were found as a “large amount.”
Officer Meyer described the quantity of baggies as “huge,” adding, “I
think there were more plastic baggies with the corners missing in this
case than I have seen in almost any other [case] I have worked on
and I have worked on a lot.” Two small digital scales were found on
an end table in the bedroom, with a much larger one found in a
shoebox. Officer McGeough explained the scales were significant
because when larger amounts of crack cocaine are found, scales are
used to weigh out the larger quantities into smaller units to package
and sell. Officers also found three bottles of supplements, which
Officer McGeough explained, “are used to cut with the cocaine once
it’s being cooked up to turn into crack.”
        Officers also found a box from “Inner Security Products,” sent
to “Walter Hoskins” at the 439 Adams Street address. Inner Security
Products sells body armor and bullet-proof vests. A bullet-proof vest
was found in the northwest bedroom by the closet. It was noted by
Officer McGeough that finding bulletproof vests or body armor is
consistent with the quantity of narcotics and ammunition found in
cases such as this one. In a second blue storage tote, officers found
another cell phone.
        In addition to the drug paraphernalia, officers found letters,
documents, and paperwork belonging to Hoskins and Wise in the
house. On the bed in the same northwest bedroom where the
marijuana, crack cocaine, and drug paraphernalia were found, was
a letter from the City of Waterloo, dated June 16, 2006, and
addressed to “Walter Hoskins IV.” The letter was addressed to 221
Cutler Street, Waterloo. A Nextel cell phone invoice for Wise, dated
October 12, 2005, was found lying on top of clothes in a laundry
basket. Under the letter was an envelope addressed to Wise at 439
Adams Street, postmarked September 24, 2005. Among the items
listed in the Waterloo Police Department’s “Property Tag Summary
Report” are miscellaneous letters and papers belonging to Hoskins,
which were found in the northwest bedroom. Additional documents
belonging to Hoskins and Wise were found in the kitchen. Hoskins’s
                                          5


       grandmother, Alberta, testified that on occasion, Hoskins and Wise
       stayed overnight at the house.

Id. at *4–5.

       Next Hoskins sought federal habeas corpus relief. He was unsuccessful.

Hoskins v. Fayram, No. 13-CV-35-LRR, 2014 WL 4988043, at *15 (N.D. Iowa Oct.

7, 2014).

       Hoskins then filed this case, his second PCR action. Hoskins relies on an

affidavit from Wise, his cousin and co-defendant from the criminal trial. It is dated

October 30, 2017. It states as follows:

               I Daytron Wise, states that the following is true and accurate
       to the best of my knowledge:
               On July 4th, 2006 I arrived at my grandmother’s house at
       approximately 7:30. When I arrived at the house there was no one
       there so I took the shoe box that contained drugs and stashed it
       inside of a green tote that I kept some of my clothes in. I felt safe
       putting it there because I knew no one would enter the room without
       my permission since I was the one that often slept there, and kept
       my clothes in there.
               About an hour later, around 8:30 my cousin Walter Hoskins
       came to the house and we sat outside talking and smoking. The
       police arrived a little while later and we both were arrested and put
       in the back of the same car. At that point I realized that I had put
       drugs in the plant next to the door, so I became concerned and told
       Walter about the drugs in the plant. We were taken down to the
       police station and put in a holding cell together. Officer McGeough
       questioned us and told me that they were getting a warrant. I never
       said anything to Walter about the other drugs in the tote because I
       did not want Walter to tell on me.
               The police searched the house and found the drugs that were
       in the tote. I never told Walter that the drugs were in the house, and
       because we were co-defendants in the same trail my lawyer told me
       that I could not tell the judge that Walter did not have anything to do
       with the drugs, or had any knowledge of them, because that would
       automatically make me look guilty. I asked her to try to get me a
       good plea that would get the charges against Walter dropped and
       she told me that they wanted him regardless so it was best for me to
       not say anything or we both would be in prison for a long time.
                                          6


               Its been 11 years and my conscious cannot let me continue
       to let a person that is innocent sit in jail for something that I am
       responsible for. At the time I was afraid with that being my first time
       in real trouble and I did not want to go against my lawyer’s advice.
       Now I just want the truth to come out so that I can have this weight
       lifted off me. I am willing to take a lie detector about the drugs being
       mine as well.

       The State filed a motion to dismiss, arguing the statute of limitations had

passed. Hoskins resisted. Following a hearing, the PCR court entered an order

dismissing Hoskins’s PCR application. Relying on Jones v. Scurr, 316 N.W.2d

905, 907 (Iowa 1982), the court concluded Hoskins could not prevail on a newly-

discovered-evidence theory because Hoskins “was aware of the potential defense

that the drugs belonged to Mr. Wise at the time of trial.” In the alternative, the PCR

court also concluded that, even if Wise would have “offered the testimony set forth

in his affidavit” at trial, it “would not have changed the result” given the

“overwhelming” evidence of Hoskins’s guilt.

       Hoskins now appeals.

       II. Scope and Standard of Review

       “Postconviction proceedings are law actions ordinarily reviewed for errors

of law.” Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003) (citation omitted).

“This includes summary dismissals of applications for postconviction relief.”

Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).

       III. Discussion

       The State contends this case is controlled by Jones. We agree.

       In State v. Jones, a grand jury had indicted three men—Jones and his half-

brothers, White and Daniels—for the murder of a man named Wright. 271 N.W.2d

761, 763 (Iowa 1978). The State alleged Wright “was cornered, shot, and killed
                                          7

after he ran from a friend’s house into an alley.” Jones, 316 N.W.2d at 906. At his

trial, Jones testified to his own innocence. Id. at 908. Indeed, he “testified that he

had not chased or struck the victim and that he had attempted to dissuade the

codefendants, his half-brothers, from harming the victim.” Id. Even so, Jones was

found guilty of first-degree murder.

       At his PCR hearing, Jones “presented two items of potentially exculpatory

evidence.” Id. at 906.

       The first was the testimony of a codefendant, [White], that he shot
       and killed [Wright] even though Jones had tried to talk him out of it.
       This testimony was not presented at Jones’[s] trial. It also was not
       presented in support of his motion for a new trial because White
       exercised his fifth-amendment privilege against self-incrimination.
       The second item of potentially exculpatory evidence was a
       deposition of a second codefendant, [Daniels]. Daniels stated that
       he had chased the victim and struck him with his cane, and that
       Jones had done neither of these things. The Daniels evidence was
       not presented at Jones’[s] trial or at the hearing on the motion for
       new trial because Daniels was then a fugitive.

Id. at 906–07 (emphasis added).

       The PCR court concluded the White and Daniels evidence “was not newly

discovered.” Id. at 907. For this and other reasons, the court denied relief. Id.

       Jones appealed.      Our supreme court framed the issue on appeal as

“whether evidence that is unavailable at trial, in this case due to the exercise by

one codefendant of his fifth-amendment privilege against self-incrimination and

due to the fugitive status of the other codefendant, is newly discovered when it

becomes available after judgment.” Id. at 908. “Other jurisdictions,” the court

noted, “are in disagreement on the resolution of this issue.” Id. While “[s]ome

jurisdictions find such evidence is newly discovered,” other jurisdictions “do not

find that unavailable evidence becomes newly discovered upon becoming
                                            8

available.”   Id. at 908–09.     Ultimately, our court sided with the “latter line of

authority”:

       We find that the latter line of authority, holding that exculpatory
       evidence that was unavailable, but known, at the time of trial is not
       newly discovered evidence, represents the better resolution of this
       issue. The requirement that evidence be newly discovered is
       intended to bring finality to litigation. Motions for new trials on the
       basis of newly discovered evidence are looked upon with disfavor
       because they do upset an end to litigation.
               “[I]t is not unusual for one of two convicted accomplices to
       assume the entire fault and thus exculpate his co-defendant by the
       filing of a recanting affidavit.” In a case such as the present one, the
       already convicted codefendants have nothing to lose by making
       statements that exculpate defendant. We find that such statements
       should not automatically be allowed to interfere with the finality of the
       underlying trial. Otherwise, the underlying trial would always be
       tentative unless all codefendants and alleged accomplices testified
       fully at that trial. The evidence here, although unavailable, was
       known to defendant, and cannot be considered newly discovered.

Id. at 910 (alteration in original) (citations omitted).

       So the Jones court held that the White and Daniels evidence “although

unavailable, was known to defendant, and cannot be considered newly

discovered.”1 Id.




1 We have considered whether the holding in Jones was undermined by the
supreme court’s holding in Schmidt v. State, 909 N.W.2d 778, 781 (Iowa 2018)
(“We now hold the Iowa Constitution allows freestanding claims of actual
innocence, so applicants may bring such claims to attack their pleas even though
they entered their pleas knowingly and voluntarily.”). We do not believe it was.
For one thing, the Schmidt majority did not mention Jones. Also, while Schmidt
was decided in March 2018, Moon v. State, 911 N.W.2d 137 (Iowa 2018), was
decided a month later. While Moon distinguished Jones, Moon gave no hint that
Jones was no longer good law. See Moon, 911 N.W.2d at 151. Indeed, if Jones
were not the law, there would have been no reason to distinguish it. So we
consider Jones binding. See State v. Hughes, 457 N.W.2d 25, 28 (Iowa Ct. App.
1990) (reiterating the court of appeals does not overrule supreme court cases).
                                         9

       Jones applies here.     Hoskins claims Wise’s affidavit constitutes newly

discovered evidence.     The affidavit says that the drugs underlying Hoskins’s

conviction were actually not Hoskins’s drugs. That cannot come as news to

Hoskins. While Wise’s affidavit was not available at the time of Hoskins’s trial, the

affidavit’s core factual content—that Hoskins “did not have anything to do with the

drugs”—was undoubtedly known to Hoskins at the time of his trial. Under Jones,

that sort of evidence “cannot be considered newly discovered.” See id.

       Moreover, we agree with the district court that Wise’s affidavit would

probably not have changed the result in Hoskins’s trial. As explained in our 2012

opinion from Hoskins’s first PCR case, the evidence against Hoskins was indeed

overwhelming.

       Based on the law and the undisputed facts, we conclude Hoskins could not

have prevailed on his newly-discovered-evidence claim. So we affirm the PCR

court’s dismissal of Hoskins’s application.

       AFFIRMED.
