                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0897
                                Filed July 5, 2018


JOSEPH ANTHONY HOUSTON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



      Joseph Anthony Houston appeals the denial of his postconviction

application. AFFIRMED.




      Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.

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

General, for appellee State.




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

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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BOWER, Judge.

       Joseph Anthony Houston appeals the denial of his postconviction

application. We find the postconviction relief application is time barred and affirm

the district court.

       In 1996, the remains of Dawue Stigler were found in a cornfield. Stigler had

been beaten, put into the trunk of a car, driven to the cornfield, and shot in the

head. Houston and several others were charged with first-degree murder and first-

degree kidnaping. Houston was eventually convicted of first-degree kidnapping

and assault with intent to inflict serious bodily injury.

       Houston appealed his conviction, and our court affirmed. State v. Houston,

No. 99-491, 2000 WL 702370, at *1 (Iowa Ct. App. May. 31, 2000). Houston then

filed an application for postconviction relief which was denied by the district court,

he appealed, and our court affirmed. Houston v. State, No. 05-1591, 2007 WL

254543, at *9 (Iowa Ct. App. Jan. 31, 2007).           Houston filed numerous other

postconviction-relief actions, which were all denied.

       Houston filed the present application for postconviction relief June 1, 2016.

The State filed a motion for summary judgment and dismissal June 14. Houston

resisted the motion for summary judgment and requested the ability to take

depositions. The district court postponed Houston’s request to take depositions

but allowed him to proceed without a filing fee.

       On May 18, 2017, the district court held a hearing on the State’s motion for

summary judgment. The district court found many of the issues Houston raised

had been decided in previous postconviction-relief actions. The district court also

found “there is no genuine issue of material fact as to any new ground of fact that
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could not have been raised within the applicable three year time limitation. This

case is time barred and res judicata applied.” Houston now appeals.

       “The standard of review on appeal from the denial of postconviction relief is

for errors at law.” McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995).

       Houston claims the district court should not have dismissed his application

for postconviction relief as time barred. Postconviction relief actions are required

to 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.” Iowa Code

§ 822.3 (2016). However, the application may be made outside the three year

period if “a ground of fact or law . . . could not have been raised within the

applicable time period.” Id. Houston claims new case law establishes a ground of

law that could not have raised within the applicable time period.

       Houston relies on State v. Smith, 739 N.W.2d 289 (Iowa 2007), as

establishing a new ground of law. Because the postconviction action was not

brought within three years of Smith, Houston then claims he could not have raised

the arguments in Smith until State v. Shorter, No. 14-1239, 2016 WL 3272291

(Iowa Ct. App. June 15, 2016), vacated, 893 N.W.2d 65 (Iowa 2017), as amended

(June 19, 2017) was filed. Houston claims Shorter established that the legal

principles in Smith could be applied to avoid the time bar.

       We find Shorter does not constitute a new ground of law as it wholly relied

on the same reasoning established in Smith.            Additionally, assuming Smith

established a new ground of law, Houston may not rely on Smith to overcome the

time bar as the postconviction action was not filed until nine years after Smith.

Pursuant to Iowa Court Rule 21.26(1), (a) and (e), we affirm the district court.
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AFFIRMED.
