                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1382
                            Filed November 9, 2016


EDWARD A. GRAYSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Robert E.

Sosalla, Judge.



      Edward Grayson appeals from the district court’s order denying his

application for postconviction relief. AFFIRMED.




      Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids, for

appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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DANILSON, Chief Judge.

       Edward Grayson appeals from the district court’s order denying his

application for postconviction relief (PCR). Grayson was convicted of first-degree

kidnapping after a jury trial held December 9-12, 1996. This application, filed

April 9, 2015, is one of several PCR applications filed by Grayson stemming from

his first-degree kidnapping conviction. Grayson contends the district court erred

in dismissing the PCR application for failure to file within the three-year statute of

limitations as required by Iowa Code section 822.3 (2015).1

       Grayson asserts the section 822.3 three-year statute of limitations for filing

a PCR application does not apply to PCR applications raising a claim of actual

innocence, even if the claim could have been raised in the requisite three-year

period.    In making this argument, Grayson relies on the actual-innocence

exception to the statute of limitations in federal habeas corpus cases.                  See

Schlup v. Delo, 513 U.S. 298, 320 (1995) (“[I]n an extraordinary case, where a

constitutional violation has probably resulted in the conviction of one who is

actually innocent, a federal habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.” (citation omitted)). 2 However,



1
  We have also reviewed Grayson’s claim filed in the pro se supplemental brief that “the
district court erred in failed to invoke its inherent jurisdiction power to hear and determine
motion to dismiss charge district court possesses subject matter jurisdiction to grant,”
and find it to be without merit. We additionally note we will not consider any new issues
raised in Grayson’s pro se supplemental reply brief. See State v. Carroll, 767 N.W.2d
638, 644 (Iowa 2009) (“We have repeatedly held we will not consider issues raised for
the first time in a reply brief.”).
2
  The State contends Grayson failed to preserve error on his argument of the actual-
innocence exception. Grayson contends the court should have been able to discern his
reliance on such a claim. We are not so convinced and believe the State’s error-
preservation argument has some appeal, but we choose to proceed to address the
merits of the claim.
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the actual-innocence exception has not been addressed nor adopted by the Iowa

Supreme Court.

      We addressed the actual innocence-exception in Mayberry v. State, No.

11-1982, 2013 WL 2371213, at *4 (Iowa Ct. App. May 30, 2013). In Mayberry,

this court found, “[a]ssuming without deciding whether Iowa has an actual

innocence exception in our postconviction relief scheme,” the appellant was not

able to prove he was actually innocent. 2013 WL 2371213, at *4. The court

reasoned:

              Claims of constitutional error to prove actual innocence must
      be proved with “new reliable evidence—whether it be exculpatory
      scientific evidence, trustworthy eyewitness accounts, or critical
      physical evidence—that was not presented at trial.” Schlup, 513
      U.S. at 324. Actual innocence does not merely require a showing
      that a reasonable doubt exists in the light of the new evidence, but
      rather “that no reasonable juror would have found the defendant
      guilty.” Id. at 329. “Thus, a petitioner does not meet the threshold
      requirement unless he persuades the district court that, in light of
      the new evidence, no juror, acting reasonably, would have voted to
      find him guilty beyond a reasonable doubt.” Id.

Id. The Mayberry court held the PCR applicant’s new evidence did “not amount

to the type of evidence that would prove [the applicant]’s innocence.” Id.

      Grayson’s argument faces the same problem. Grayson’s claim of actual

innocence is based on testimony given by the victims during his 1996 trial and in

light of the decision in State v. Robinson, 859 N.W.2d 464 (Iowa 2015)

(addressing the confinement requirement for a kidnapping conviction). Grayson

contends Robinson announced a new rule of law with respect to the proof

necessary to establish the kidnapping offense upon which Grayson was

convicted. But Grayson has presented no new evidence to support his actual-

innocence claim.    Thus, even if the supreme court would adopt the actual-
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innocence exception as applied in federal habeas corpus actions,3 Grayson’s

claim fails.

       Grayson argues he was not required to present new evidence, and the

court should allow his PCR action to proceed to prevent “a miscarriage of

justice,” citing McQuiggin v. Perkins, 133 S. Ct. 1924 (2013).              However, in

McQuiggin, the United States Supreme Court stated:

       We stress once again that the Schlup standard is demanding. The
       gateway should open only when a petition presents “evidence of
       innocence so strong that a court cannot have confidence in the
       outcome of the trial unless the court is also satisfied that the trial
       was free from nonharmless constitutional error.”

133 S. Ct. at 1936. The Supreme Court held, “[T]he proffered evidence even if

‘new,’ was hardly adequate to show that had it been presented at trial, no

reasonable juror would have convicted [the petitioner].” Id. Grayson’s evidence

of actual innocence is similarly inadequate.

        The district court dismissed Grayson’s PCR application as untimely under

section 822.3, holding:

              Even when the application for postconviction relief is
       construed in the light most favorable to applicant, the court
       concludes that applicant has failed to state a claim upon which any
       relief may be granted under any state of facts which could be
       proved in support of the claim asserted. This action was filed
       nearly seventeen years after the procedendo issued in [the direct
       appeal]. Applicant has offered no evidence or legal argument that
       could not have [been] presented in any of the other numerous
       postconviction-relief filings, if they were filed within the applicable
       time period. . . . Applicant’s claim is time-barred by [section] 822.3.


3
  We additionally note that such a determination would be better left to the responsibility
of our supreme court. See State v. Miller, 841 N.W.2d 583, 584 n.1 (Iowa 2014)
(“Generally, it is the role of the supreme court to decide if case precedent should no
longer be followed.”); see also State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App.
1990) (“We are not at liberty to overturn Iowa Supreme Court precedent.”).
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We agree. Moreover our court has previously concluded the supreme court did

not announce a new rule in Robinson but rather only clarified existing law by its

reliance upon the three-factor test announced in State v. Rich, 305 N.W.2d 739,

741-42 (Iowa 1981). See Hampton v. State, No. 15-1802, 2016 WL 2743451, at

*1 (Iowa Ct. App. May 11, 2016).

       Accordingly, we affirm the district court order dismissing Grayson’s PCR

application.

       AFFIRMED.
