                   IN THE COURT OF APPEALS OF IOWA

                             No. 3-1197 / 12-1523
                             Filed February 5, 2014


DEWAYNE CAMPBELL,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,

Judge.



      Dewayne Campbell appeals the dismissal of his second postconviction

relief application. AFFIRMED.




      John J. Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Michelle Wagner, Assistant

County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.
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VAITHESWARAN, J.

       We must decide whether a postconviction relief application is time-barred.

I.     Background Proceedings

       In 2004, a Black Hawk County jury found Dewayne Campbell guilty of first-

degree robbery. This court affirmed his conviction. State v. Campbell, No. 04-

1809, 2005 WL 3298971, at *4-6 (Iowa Ct. App. Dec. 7, 2005). Procedendo

issued in January 2006.

       Campbell filed a postconviction relief application raising issues of

prosecutorial misconduct. The district court found that Campbell’s trial attorney

breached an essential duty in failing to object to certain prosecutorial assertions

but concluded Campbell did not suffer Strickland prejudice. See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (holding that to prove a claim of

ineffective assistance of counsel, a claimant must establish a breach of an

essential duty and prejudice).

       On appeal, Campbell’s attorney filed a brief to support Campbell’s

argument and moved to withdraw pursuant to Iowa Rule of Appellate Procedure

6.1005, governing “[f]rivolous appeals, withdrawal of counsel.”1                 Campbell

resisted the motion. In 2009, the Iowa Supreme Court dismissed the appeal as

frivolous and denied a motion to reconsider.2



1
  The rule has since been amended to preclude the use of these withdrawal procedures
“in appeals from the denial of an application for postconviction relief following a reported
evidentiary hearing on that application, unless the application was ultimately denied
based upon the statute of limitations, law of the case, or res judicata principles.” Iowa R.
App. P. 6.1005(1).
2
  Campbell also filed a petition for writ of habeas corpus, which was denied. Campbell v.
Fayram, 09-CV-2057-LRR, 2012 WL 264171, at *4 (N.D. Iowa Jan. 30, 2012); see also
Campbell v. Fayram, C09-2057, 2010 WL 3023489, at *12 (N.D. Iowa July 29, 2010).
                                          3


       In December 2011, Campbell filed a second application for postconviction

relief, re-alleging the grounds raised in his first application and claiming “his right

to effective assistance of counsel was violated by [his first posconviction relief

attorney] in her assertion that the Applicant’s appeal to the denial of his PCR was

frivolous.”   The State moved to dismiss Campbell’s application on statute of

limitations and res judicata grounds.       Following a hearing, the district court

accepted the State’s res judicata argument and dismissed the application. The

court denied a motion to enlarge or amend the ruling, and this appeal followed.

II.    Statute of Limitations

       The State contends the district court could have dismissed the petition as

untimely. Although this was not a ground on which the court relied, the State

points out that we may affirm on an alternate basis raised in the district court.

See DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2012) (“We have in a number of

cases upheld a district court ruling on a ground other than the one upon which

the district court relied provided the ground was urged in that court.”). We agree.

       Generally, an application for postconviction relief “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,” unless the application

raises “a ground of fact or law that could not have been raised within the

applicable time period.” Iowa Code § 822.3 (2011). Procedendo issued in 2006,

and Campbell did not file his second postconviction relief application until nearly

six years later. Accordingly, the application was untimely.

       Campbell does not rely on the statutory exception to overcome the time

bar. Instead, he argues that the limitations period began to run from the 2009
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dismissal of his first postconviction appeal. Section 822.3 does not support this

reading; by its terms, the date of procedendo after a direct appeal is the

operative triggering date.

       Nor can Campbell “circumvent the three-year time-bar by claiming the

ineffective assistance of postconviction counsel.” Smith v. State, 542 N.W.2d

853, 854 (Iowa Ct. App. 1995); see also Wilkins v. State, 522 N.W.2d 822, 824

(Iowa 1994) (“Wilkins labels his claim ineffective-assistance-of-postconviction-

counsel in the hope that the court will reach the merits of his contention that his

trial counsel was ineffective. However, his claims neither involve new evidence

nor are they new legal claims.”). His underlying claims of prosecutorial

misconduct could have been, and indeed were, raised during the three-year time

period. See Smith, 542 N.W.2d at 854.

       We affirm the dismissal of Campbell’s second postconviction relief

application.

       AFFIRMED.
