                   IN THE COURT OF APPEALS OF IOWA

                                   No. 12-1032
                               Filed July 30, 2014


ODELL EVERETT JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.



      An applicant appeals the dismissal of his second application for post-

conviction relief. AFFIRMED.



      D. Raymond Walton of Beecher Law Offices, Waterloo, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant

County Attorney, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.

         Odell Everett, Jr. appeals a district court order dismissing his second

application for postconviction relief on the ground that it was time-barred.

   I.       Background Proceedings

         A jury found Everett guilty of first-degree robbery. This court affirmed his

judgment and sentence in 2005 and procedendo issued shortly thereafter. See

State v. Everett, No. 04-1343, 2005 WL 1106547 (Iowa Ct. App. May 11, 2005).

         In the ensuing years, Everett filed a postconviction relief application, which

was denied. The denial was affirmed by the Iowa Supreme Court. Everett v.

State, 789 N.W.2d 151 (Iowa 2010). He also filed a motion for correction of an

illegal sentence, asserting there was insufficient evidence to establish he was

armed with a dangerous weapon. The district court denied this motion.

         Everett filed a second postconviction relief application in 2010. He alleged

his trial attorney failed to review the definition of a “dangerous weapon” and failed

to argue that the weapon he carried was outside the definition. The State moved

to dismiss the petition on the ground that it was time-barred under Iowa Code

section 822.3 (2009).       The district court concluded the petition was indeed

untimely because it was filed more than three years after procedendo issued in

Everett’s direct appeal and because his ineffective-assistance-of-counsel claim

could have been raised within three years. On appeal, Everett attacks the district

court’s decision on a number of grounds.

   II.      Analysis

         Iowa Code section 822.3 states:
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       [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.

Iowa Code § 822.3. This provision requires an applicant to file a petition within

three years from the date a writ of procedendo issues. By its terms, “from the

date procedendo is issued” refers to the date procedendo issued in the direct

appeal, not in the appeal from the denial of the first postconviction relief

application, as Everett claims.1 As noted, procedendo in the direct appeal issued

in 2005 and Everett did not file his second postconviction relief application until

2010. Everett was two years too late.

       This brings us to the statutory exception for “a ground of fact or law that

could not have been raised within the applicable time period.”                 Id.   Everett

contends an unpublished decision of this court enunciated a rule of law that could

not have been raised earlier.         See State v. Lucius, No. 07-1445, 2008 WL

3367541 (Iowa Ct. App. August 13, 2008). In fact, Lucius relied on established

precedent dating back to 1990. See State v. Greene, 709 N.W.2d 535, 537

(Iowa 2006); State v. Dallen, 452 N.W.2d 398, 399 (Iowa 1990). The opinion did

not create a new ground of law that entitled Everett to file his application outside

the three-year limitations period.

       Nor can Everett circumvent the time-bar by contending his attorneys were

ineffective in failing to raise his challenge to the knife; the Iowa Supreme Court

1
  Everett makes a two-fold argument. First, he contends the time began to run from the
date procedendo issued in the first postconviction relief appeal and, second, he argues
the first postconviction application tolled the running of the limitations period. This court
rejected a similar argument in Campbell v. State, No. 12-1523, 2014 WL 468200, at *1-2
(Iowa Ct. App. Feb. 5, 2014).
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has unequivocally rejected that type of end-run around section 822.3.                   See

Whitsel v. State, 525 N.W.2d 860 (Iowa 1994) (stating ineffective assistance of

counsel does not “constitute a claim that ‘could not have been raised with the

applicable time period’ under section 822.3.”); Wilkins v. State, 522 N.W.2d 822,

824 (Iowa 1994) (noting Wilkins had three opportunities to raise ineffectiveness

of trial counsel and could not use claim to circumvent time bar.); see also Dible v.

State, 557 N.W.2d 881, 885 (Iowa 1996) (“If the legislature had intended that

ineffective assistance of counsel serve as an exception to the statute of

limitations, it would have said so.”), abrogated on other grounds by Harrington v.

State, 659 N.W.2d 509, 520-21 (Iowa 2003).

       We turn to Everett’s assertion that the “equitable tolling doctrine” permitted

the filing of the second application.            We question whether this issue was

preserved for our review but, by-passing that concern, we have found no

precedent to support the application of this doctrine to untimely-filed

postconviction-relief applications.2

       We are left with Everett’s cursory argument that if he is not allowed to

proceed with his second petition his right to due process will be violated. This

argument was not preserved for our review but, in any event, is premised on

ineffective assistance of prior counsel which, as noted, is not an exception to the

time bar.

2
  See Majors v. State, No. 12-1090, 2013 WL 2637599, at *5 (Iowa Ct. App. June 12,
2013) (“Iowa law has never before applied the doctrine of equitable tolling to the statute
of limitations contained in section 822.3”); Fagan v. State, No. 10-0739, 2012 WL
3854635, at *5 (Iowa Ct. App. Sept. 6, 2012) (declining to apply doctrine in absence of
Iowa authority authorizing its application in post-conviction context); Rieflin v. State, No.
11–1044, 2012 WL 3590453, at *2 (Iowa Ct. App. Aug. 22, 2012) (noting equitable tolling
doctrine “has not been recognized in Iowa.”).
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       We conclude the district court did not err in dismissing the postconviction-

relief application as time-barred.

       AFFIRMED.
