                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1220
                               Filed June 21, 2017


DANNY RAY LONG,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.

Larson, Judge.



      Danny Long appeals the district court’s dismissal of his application for

postconviction relief. AFFIRMED.



      Patrick A. Sondag of Sondag Law, Council Bluffs, for appellant.

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

General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.

       A jury found Danny Long guilty of two counts of first-degree robbery. This

court affirmed his conviction in its entirety. See generally State v. Long, No. 99-

1429, 2000 WL 1827178, at *1-6 (Iowa Ct. App. Dec. 13, 2000). Thirteen years

after procedendo issued, Long filed his second postconviction relief application.

The State moved for summary dismissal. The district court granted the motion

after concluding Long “failed to file his application within the three-year statute of

limitations provided under Iowa Code section 822.3” (2015) and “failed to raise a

ground of fact or law that could not have been raised within the statute of

limitations period.”

       Long filed a “motion for expanded findings and relief” pursuant to Iowa

Rule of Civil Procedure 1.904. The district court denied the motion, and this

appeal followed.

I.     Timeliness of Appeal

       As a preliminary matter, the State argues Long’s appeal is untimely

because it was not “filed within 30 days after the filing of the final order or

judgment.” Iowa R. App. P. 6.101(1)(b). The State acknowledges Long filed a

postjudgment motion to enlarge or amend that could extend the time for filing an

appeal notice. See id. (“[I]f a motion is timely filed under Iowa R. Civ. P. 1.904(2)

. . . , the notice of appeal must be filed within 30 days after the filing of the ruling

on such motion.”). But, in the State’s view, the motion was not “proper.” See In

re Marriage of Okland, 699 N.W. 2d 260, 265-66 (Iowa 2005) (“[A]n . . . improper

rule 1.904(2) motion cannot extend the time for appeal.” (footnote omitted)).
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         The State is correct that a rule 1.904(2) motion is not available under

certain circumstances and the filing of an improper motion will not toll the time for

appeal. Id. at 265-66, 265 n.2.1 But, “when used to obtain a ruling on an issue

that the court may have overlooked, or to request the district court enlarge or

amend its findings when it fails to comply with rule 1.904(1),” which requires

written findings of fact and conclusions of law where the court is trying an issue

of fact without a jury, “the motion is proper and will toll the time for appeal.” Baur

v. Baur Farms, Inc., 832 N.W.2d 663, 669 (Iowa 2013).

         The district court filed a succinct dismissal order. In his rule 1.904(2)

motion, Long pointed to testimony and exhibits admitted at the dismissal hearing

that, in his view, generated issues of material fact with respect to the legal issues

he raised. In filing the motion, Long reasonably could have believed the court

overlooked these facts.         We conclude the motion was proper, the motion

extended the time for filing a notice of appeal, and the notice of appeal was

timely. Moreover, rule 1.904 was amended effective March 1, 2017, as was Iowa

Rule of Appellate Procedure 6.101, to permit an appeal within thirty days of a

ruling on such a motion without the necessity of examining the propriety of the

motion. See Iowa R. Civ. P. 1.904 & cmt. (2017); Iowa R. App. P. 6.101 & cmt.

(2017).

II.      Summary Dismissal

         Generally, applications 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. However, this limitation does not apply to

1
    As will be discussed, this case law has been superseded by rule.
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       a ground of fact or law that could not have been raised within the
       applicable time period.

Iowa Code § 822.3. Long concedes his postconviction relief application was filed

well outside the three-year limitations period but relies on the “ground of fact”

exception to the time-bar to raise a challenge to certain jury instructions. In his

view, this exception applies because “he knew absolutely nothing about the

instructional errors made during his trial within his limitations period.”

       Lack of awareness is not a basis for circumventing the time-bar. See

Lopez-Penaloza v. State, 804 N.W.2d 537, 542 (Iowa Ct. App. 2011) (concluding

subsequent discovery of matters that existed within limitations period, and thus

available to be addressed then, are not a ground for exception from the statute of

limitations); State v. Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989) (“[H]is

claimed lack of knowledge is not . . . a ground for exception from the effects of

the statute of limitations.”).

        Long next argues his trial attorney was ineffective in failing to challenge

the instructions at trial. Claimed ineffective assistance does not allow him to

avoid the limitations period. See State v. Wilkins, 522 N.W.2d 822, 824 (Iowa

1994) (rejecting applicant’s attempt to label his claim an ineffective-assistance-of-

counsel claim “in the hope that the court will reach the merits”); Smith v. State,

542 N.W.2d 853, 854 (Iowa Ct. App. 1995) (stating applicant could not

“circumvent the three-year time-bar by claiming ineffective assistance of

postconviction counsel”). As this court stated in Smith, “The legal and factual

underpinnings of each of Smith’s claims were in existence during the three-year

period . . . .” 542 N.W.2d at 854.
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       We also find no basis for Long’s claim that “the errant [jury] instructions”

generated structural error and this type of error should constitute an exception to

the time-bar. The court of appeals rejected a similar assertion in Avina v. State,

where we concluded section 822.3 “does not provide an exception for . . .

‘structural errors.’” No. 11-1780, 2013 WL 1452949, at *3 (Iowa Ct. App. Apr. 10,

2013). We also declined to shoehorn a structural error analysis into the “ground

of fact” exception to the time-bar because the applicant “knew, within the

limitations period” of the underlying basis for the claimed structural error. Id.

Avina is persuasive authority in support of our conclusion.

       Finally, Long invokes the equitable tolling doctrine to avoid the time-bar.

“We have not applied this doctrine to section 822.3.”         James v. State, 858

N.W.2d 32, 33 (Iowa Ct. App. 2014).

       We affirm the summary dismissal of Long’s postconviction relief

application.

       AFFIRMED.
