                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1619
                             Filed October 14, 2015


JOHN LEE HRBEK,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.

Kilnoski, Judge.



      John Lee Hrbek appeals from the denial of his application to reinstate his

postconviction-relief action. REVERSED AND REMANDED.



      Philip B. Mears of Mears Law Office, Iowa City, for appellant.

      John Lee Hrbek, Anamosa, pro se.

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

General, Matthew Wilber, County Attorney, and Margaret Popp-Reyes, Assistant

County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DANILSON, Chief Judge.

      John Lee Hrbek appeals from the denial of his application to reinstate his

postconviction-relief (PCR) action, which was dismissed on January 1, 2005,

pursuant to Iowa Rule of Civil Procedure 1.944.

      We generally review an appeal from a denial of a PCR application for

correction of errors at law. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).

However, we review de novo the applicant’s contention his statutory right to

effective assistance of postconviction counsel. See id.

      The district court set out the bizarre procedural history of the PCR

action—unreasonably extended as it is:

              The records in the file revealed that the applicant, through
      his attorney H. Walter Green, filed an application for post-conviction
      relief on June 30, 1987. The application was timely filed within
      three years of the March 6, 1986, procedendo that issued after his
      convictions for two counts of first degree murder were affirmed. On
      August 14, 1987, Hrbek’s counsel filed a motion for default
      judgment. On August 31, 1987, Hrbek filed a pro se motion for
      summary judgment. On September 1, 1987, Hrbek filed another
      pro se motion for summary judgment. A hearing was scheduled for
      September 1, 1987, on the motion for default judgment. Hrbek’s
      attorney appeared at the hearing September 1. By order filed
      September 3, 1987, the court denied the motion for default
      judgment.
              On September 24, 1987, Hrbek filed a pro se motion to
      adjudicate law points.
              In October 1988, attorney Green moved to withdraw. On
      October 18, 1988, the court granted Green’s motion and appointed
      attorney Richard Swenson to represent Mr. Hrbek. There was no
      indication in the file that the order appointing Swenson or allowing
      Green to withdraw was given to Mr. Hrbek.
              On April 3, 1990, the State made a motion for a more
      specific statement. The motion was set for hearing on April 24,
      1990. The file does not reveal that any order regarding the motion
      was entered.
              The next entry in the file was on May 11, 1992, when Hrbek
      filed a pro se “memorandum in support of application for
      postconviction as amended.” He filed an amended application for
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       postconviction relief the same day. On May 13, 1992, Hrbek filed a
       pro se amendment to the amended application.
               On May 22, 1992, the State moved to dismiss Hrbek’s May
       13, 1992, action for postconviction relief as being not timely filed
       within three years of procedendo, which the state urged had issued
       August 25, 1983. A hearing was scheduled for June 15, 1992, on
       the State’s motion to dismiss. Notice of the hearing was sent to
       Hrbek and his attorney Swenson.
               On June 10, 1992, Hrbek filed a pro se motion to amend and
       supplement pleadings.
               The record shows the next matter docketed was a
       November 16, 1993, scheduling order setting a hearing on Hrbek’s
       motion to recast, amend and substitute the postconviction petition.
       Notice of the hearing was sent to Hrbek and his attorney Swenson.
       The record does not show that a hearing occurred or an order
       issued.
               On March 21, 1994, Hrbek’s attorney filed a motion to allow
       him to amend the petition. On that same date, the court granted
       the motion to amend the petition and gave the parties thirty days to
       schedule trial and file a discovery schedule.
               There are no records of any action between March 1994 and
       March 1997, until the court on March 7, 1997, dismissed the case.
               On March 28, 1997, Hrbek’s attorney moved to set aside the
       March 7 dismissal, because neither the attorney nor Mr. Hrbek had
       been notified of a motion to dismiss.
               On April 7, 1997, the court set aside the dismissal and
       reinstated the case.
               There was no other action in the case from 1997 until July
       29, 2004, when the clerk of court sent notice to attorney Swenson
       and the county attorney that [a listed] case had to be tried before
       December 31, 2004, or it would be dismissed on January 1, 2005,
       for lack of prosecution, pursuant to Iowa Rule of Civil Procedure
       1.944.[1]
               On January 3, 2005, the case was dismissed under Rule
       1.944. Two copies of the dismissal order were sent by the clerk of
       court, presumably to attorney Swenson and to the county
       attorney.[2]
               Eight-and-one-half years later, Hrbek filed his June 28, 2013,
       pro se motion to rescind the rule 1.944 dismissal.

       Hrbek argues he never received notice of the dismissal and was never

told by his court-appointed attorney the case had been dismissed. He asserts he

1
  This dismissal order included a list of more than fifty cases, and Hrbek’s name is not
legible in the list. We have attached the order as Appendix A.
2
  The dismissal order is attached as Appendix B.
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only learned of the dismissal inadvertently in checking on another matter. He

contends appointed postconviction counsel was ineffective in failing to prosecute

the matter and in not moving timely to set aside the rule 1.944 dismissal.

          The district court ruled it was without jurisdiction to reinstate the case after

the six-month window noted in rule 1.944(6).3              This ruling is consistent with

Walker v. State, 572 N.W.2d 589, 590 (Iowa 1997), which dealt with the

predecessor to rule 1.944. There, the court wrote, “This court has repeatedly

held that even if ‘good cause’ is shown for reinstating a case dismissed pursuant

to rule 215.1, a district court lacks the authority to do so where the application for

reinstatement was filed more than six months after the dismissal.” Walker, 572

N.W.2d at 590.           The Walker court stated, “Walker contends the alleged

ineffective assistance of his counsel should constitute an exception to the rule.

Nothing in rule 215.1 or our case law supports this position and we reject it.” Id.

          However, our supreme court held in Lado v. State, 804 N.W.2d 248, 253

(Iowa 2011), when a PCR application is dismissed by operation of rule 1.944

“without any consideration of its merits or meaningful adversarial testing” the

applicant is constructively without counsel during his PCR proceeding, which

constitutes a “structural error” and “renders the entire postconviction relief

proceeding ‘presumptively unreliable.’” Lado, 804 N.W.2d at 252-53. Thus, our




3
    Iowa R. Civ. P. 1.944(6) states:
                 The trial court may, in its discretion, and shall upon a showing that
         such dismissal was the result of oversight, mistake or other reasonable
         cause, reinstate the action or actions so dismissed. Application for such
         reinstatement, setting forth the grounds therefor, shall be filed within six
         months from the date of dismissal.
                                           5

current case law does support the proposition that the alleged ineffective

assistance of his counsel constitutes an exception to the rule. See id.

       We observe, too, that no notice of the rule 1.944 dismissal was sent to

Hrbek, and the record is not at all clear whether the rule 1.944 notice was sent to

Hrbek’s court appointed attorney.4 “At the very least, procedural due process

requires notice and opportunity to be heard in a proceeding that is adequate to

safeguard the right for which the constitutional protection is invoked.” State v.

Seering, 701 N.W.2d 655, 665-66 (Iowa 2005) (internal quotation marks and

citations omitted). Despite the lengthy lag between the dismissal and Hrbek’s

motion to rescind the rule 1.944 dismissal—in a case fraught with several

unreasonable lengths of inaction by both counsel and the court—Hrbek

nonetheless was entitled to the effective assistance of appointed counsel. See

Lado, 804 N.W.2d at 252.

       In Lado, the court noted:

       The court specifically warned Lado’s counsel that his postconviction
       relief application was subject to rule 1.944 dismissal. Counsel at no
       point sought a continuance to obtain relief from the rule’s
       consequences. Additionally, after the court dismissed the case
       pursuant to the rule, counsel never made application to the court to
       have the case reinstated as allowed by the rule. When the State
       filed its motions for summary judgment and dismissal alleging
       Lado’s application should be dismissed pursuant to rule 1.944,

4
  The State argues, “[W]hile the minutiae of the notice’s formatting may not have
complied exactly with rule 1.944, the notice was sufficient to apprise counsel that this
case faced dismissal under Rule 1.944 unless some action was taken.”
       Rule 1.944(2) provides, in part:
       The clerk shall prior to August 15 of each year give notice to counsel of
       record as provided in rule 1.442 of the docket number, the names of
       parties, counsel appearing, and the date of filing the petition. The notice
       shall state that such case will be subject to dismissal if not tried prior to
       January 1 of the next succeeding year pursuant to the rule.
We have attached the notice upon which the State relies in Appendix A. We are not
persuaded by the State’s proclamations of sufficiency.
                                         6


       Lado’s counsel sat silent and did not respond. Not surprisingly, the
       court dismissed Lado’s application for failure to prosecute. Lado
       was constructively without counsel during his postconviction relief
       proceeding as his application was dismissed without any
       consideration of its merits or meaningful adversarial testing. This is
       the type of error that renders the entire postconviction relief
       proceeding “presumptively unreliable.”         Accordingly, Lado’s
       statutory right to effective counsel entitles him to have his
       postconviction relief dismissal reversed and to proceed with his
       postconviction relief proceeding.

Id. at 252-53.

       We conclude Hrbek is similarly entitled to proceed with his postconviction-

relief proceeding. Under the unusual circumstances of this case, we conclude

the district court erred in denying reinstatement of the action. See Friedley v.

State, No. 11-1782, 2013 WL 988628, at *2 (Iowa Ct. App. Mar. 13, 2013).

       REVERSED AND REMANDED.
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Appendix A




     ....
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Appendix B
