                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0844
                               Filed January 9, 2019


MICHAEL ALON DAVIS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.



      Michael Davis appeals the dismissal of his fourth postconviction-relief

application. AFFIRMED.



      Sharon D. Hallstoos of Hallstoos Law Office, LLC, Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

           Michael Davis appeals the dismissal of his fourth postconviction-relief

application following his 1997 conviction for first-degree kidnaping, second-degree

sexual abuse, and aggravated assault. See Davis v. State, No. 14-2103, 2016 WL

6652303, at *1 (Iowa Ct. App. Nov. 9, 2016); Davis v. State, No. 01-0759, 2002

WL 1332259, at *1 (Iowa Ct. App. June 19, 2002); State v. Davis, 584 N.W.2d 913,

915 (Iowa Ct. App. 1998). Davis essentially concedes the postconviction-relief

application was filed outside the three-year time bar set forth in Iowa Code section

822.3 (2017).1 He challenges the district court’s ruling on the ground that the

court’s fact findings “referred largely to the State’s motion to dismiss, which

referenced alleged prior proceedings and court documents that were neither

judicially noticed nor admitted as exhibits into the record.” He also argues certain

claims fell within an exception to the time bar.

I.         District Court’s Reference to Prior Proceedings

           Iowa Code section 822.6 states:

                  The court may grant a motion by either party for summary
           disposition of the application, when it appears from the pleadings,
           depositions, answers to interrogatories, and admissions and
           agreements of fact, together with any affidavits submitted, that there
           is no genuine issue of material fact and the moving party is entitled
           to judgment as a matter of law.




1
     Iowa Code section 822.3 states:
          [A]pplications 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. However, this limitation does not apply to a ground
          of fact or law that could not have been raised within the applicable time
          period.
                                          3

Summary disposition under this statute is akin to summary judgment.               See

Manning v. State, 654 N.W.2d 555, 559–60 (Iowa 2002). “Therefore, the principles

underlying summary judgment procedure apply to motions of either party for

disposition of an application for postconviction relief without a trial on the merits.”

Id. at 560.

       The State filed a motion to dismiss the fourth postconviction-relief

application. The dismissal motion listed prior proceedings, pointed out that the

single issue raised in Davis’ fourth application had been litigated, and sought

dismissal on statute-of-limitations grounds and on the ground there were “no

issues to litigate.” The court scheduled the motion for hearing seven weeks after

its filing. Davis did not file a resistance. Instead, he moved to amend his petition

to raise several additional claims.

       The district court held an unreported non-evidentiary hearing.            In its

subsequent ruling, the court made clear that the State’s dismissal motion was

being treated as a motion for summary disposition under Iowa Code section 822.6.

See Porter v. State, No. 14-1925, 2015 WL 6508957, at *1 n.1 (Iowa Ct. App. Oct.

28, 2015) (“Technically speaking, it would be more accurate to say that [the

applicant] is appealing the district court’s summary disposition of her application

for postconviction relief, even though the motion the district court granted was the

State’s motion to dismiss.”). After summarizing the prior proceedings, the court

dismissed Davis’ original and amended claims on statute-of-limitations grounds or

on the ground the claims were previously litigated and decided.

       We discern no error in the court’s handling of the State’s motion. The district

court applied the summary disposition statute as written. In summarizing prior
                                            4


proceedings, the court did not invoke judicial notice principles but simply cited the

undisputed prior proceedings disclosed in the record. Notably, Davis referenced

many of those proceedings in his postconviction-relief application. He mentioned

the crimes underlying his conviction, the date of the guilty verdict, this court’s

affirmance of his conviction, and the 2002 dismissal of his second postconviction-

relief application.2 See In re Hinkle’s Estate, 38 N.W.2d 648, 649 (Iowa 1949)

(“The executrix herself . . . pleaded the filing of the ‘opinion’ and expressly referred

to her application.”). In the absence of a resistance, the prior proceedings stood

as admitted. See Lang v. State, No. 14-1997, 2015 WL 9450779, at *1 (Iowa Ct.

App. Dec. 23, 2015) (“To the extent that the State’s motion consisted of a

statement of undisputed facts, the asserted facts were not resisted by [the

applicant].”); accord Harris v. State, No. 16-0637, 2017 WL 1278296, at *1 (Iowa

Ct. App. Apr. 5, 2017) (noting applicant’s “resistance to the State’s motion for

summary disposition failed to refute the State’s affirmative assertion”).             We

conclude the district court did not err referring to those proceedings.

II.    Ground-of-Fact Exception to Time Bar

       Davis asserts his claims fell within an exception to the section 822.3 time-

bar for “a ground of fact or law that could not have been raised within the applicable

time period.” In his view, he was “entitled to conduct the necessary preparation to

present . . . issues to the Court based on the merits,” “the Court neither permitted

the necessary preparation . . . nor did it properly make specific findings of facts,”




2
  The record discloses the dismissal of Davis’ first postconviction-relief application was
affirmed on June 19, 2002, and the district court dismissed his second postconviction-
relief application on September 27, 2002.
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and the court did not “make conclusions of law as to each claim as required under

the statute.”

        Under our summary judgment rules on which summary disposition

procedure is predicated, “[w]here proper service has been made and the

nonmoving party is on notice of the motion to dismiss, and where the nonmoving

party is given adequate time to respond, the nonmoving party is thereby afforded

an opportunity to respond.” Brown v. State, 589 N.W.2d 273, 275 (Iowa Ct. App.

1998). “If there is no response to a motion to dismiss or the response is, on its

face, plainly inadequate to resist a motion for summary judgment, nothing prevents

the court from ruling as a matter of default judgment.” Id.

       This is precisely what the court did. The court considered each claim Davis

raised and concluded the claims were facially time-barred, did not fall within the

exception to the time-bar, or were previously decided. For one or more of those

reasons, the court did not reach the merits of Davis’ claims. We conclude the court

utilized the proper pretrial procedure for resolving the claims, and we discern no

error in the district court’s reasons for declining to address the merits.

       In reaching this conclusion, we have considered the court’s holding in

Manning, that “an evidentiary hearing on the merits is ordinarily required where

claims of ineffective assistance of counsel are properly raised in a postconviction

relief application.” 654 N.W.2d at 562. Because Davis’ claims were not properly

raised, we affirm the district court’s dismissal of Davis’ fourth postconviction-relief

application.

       AFFIRMED.
