                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0115
                               Filed December 20, 2017


JAMES MICHAEL GREEN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



       James Green appeals the district court’s order granting summary judgment

on his application for postconviction relief following his 1988 conviction for first-

degree murder. AFFIRMED.




       Tabitha L. Turner of Turner Law Firm, P.L.L.C., Des Moines, for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.




       Considered by Doyle, P.J., Bower, J., and Carr, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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CARR, Senior Judge.

       James Green was convicted of first-degree murder in 1988. His conviction

was affirmed on appeal. See State v. Green, 457 N.W.2d 20, 21 (Iowa Ct. App.

1990). Procedendo issued June 6, 1990. In 2015, Green filed an application for

postconviction relief (PCR). PCR applications are untimely if filed more than three

years after the writ of procedendo is issued unless a “ground of fact or law that

could not have been raised within the applicable time period” is shown. See Iowa

Code § 822.3 (2015). The State moved for summary judgment on the basis that

Green had not shown any new ground of fact or law and his PCR application was

therefore time-barred. The motion was granted. Green now appeals.

       On appeal, Green argues his new ground of fact or law is contained in State

v. Ambrose, 861 N.W.2d 550, 557 (Iowa 2015). He argues Ambrose holds there

exists a “general justification for permitting a jury to consider lesser included

offenses without first acquitting the defendant on the greater offense.” Ambrose,

861 N.W.2d at 557.      Green’s framing of Ambrose is incorrect.        The quoted

language from Ambrose states that said “general justification . . . is to insure that

the jury fully appreciates and understands the alternative outcomes at stake and

how all the claims of the parties fit into those alternatives.” Id. (citing State v.

Labanowski, 816 P.2d 26, 33–36 (Wash. 1991)). That language functions merely

as table-setting for a discussion of whether to adopt a new jury instruction rule in

Iowa. The Ambrose court noted several approaches to jury instructions. See id.

at 556 n.1.    The challenged instruction in Ambrose was an “acquittal-first”

instruction. See id. at 557. Ultimately, however, the Ambrose court decided the

issue on another ground, without ruling on whether the acquittal-first instruction
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was an improper statement of the law. See id. at 559 (holding defendant was not

prejudiced by acquittal-first instruction given overwhelming evidence of guilt).

Thus, Ambrose did not announce a new rule.

       Without a new rule, Green is left without a new ground of fact or law to make

his PCR application timely. See State v. Gonzales Becerra, No. 15-2067, 2017

WL 2461435, at *1 n.1 (Iowa Ct. App. June 7, 2017) (noting Ambrose’s holding in

rejecting argument identical to Green’s). We therefore affirm. See Iowa Ct. R.

21.26(1)(a), (d), (e).

       AFFIRMED.
