                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0853
                             Filed August 17, 2016


CECIL WATSON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      Petitioner appeals the district court decision denying his application for

postconviction relief on the ground it was untimely. AFFIRMED.




      Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.

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

Attorney General, for appellee State.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
                                           2


BOWER, Judge.

       Cecil Watson appeals the district court decision denying his application for

postconviction relief on the ground it was untimely. We find Watson’s application

was not filed within three years after procedendo was issued in his direct appeal,

and because his claims do not fall within the exception for a ground of fact or law

that could not have been raised within the applicable time period, we affirm the

decision of the district court.

       Watson was convicted of conspiracy to deliver crack cocaine, possession

of crack cocaine with the intent to deliver, and failure to possess a drug tax

stamp. On appeal, we vacated Watson’s conviction for conspiracy to deliver

crack cocaine and affirmed his other convictions. See State v. Watson, No. 08-

0339, 2009 WL 1492690, at *4 (Iowa Ct. App. May 29, 2009). Procedendo was

issued on August 3, 2009.

       Watson filed the present application for postconviction relief on

September 25, 2014.1 The State filed a motion for summary judgment, claiming

the application was untimely under Iowa Code section 822.3 (2013). Watson

resisted the motion.      The district court granted summary judgment, finding

Watson’s application was filed more than three years after procedendo was

issued in his direct appeal. Watson appeals.

       We review a district court’s ruling finding an application for postconviction

relief was untimely for the correction of errors at law. Harrington v. State, 659


1
     Watson filed an earlier application for postconviction relief, claiming he received
ineffective assistance of counsel. The district court denied his application, and we
affirmed on appeal. See Watson v. State, No. 11-1833, 2013 WL 99862, at *8 (Iowa Ct.
App. Jan. 9, 2013).
                                         3


N.W.2d 509, 519 (Iowa 2003). We will affirm if the court’s findings of fact are

supported by substantial evidence and the law was correctly applied. Id. at 520.

       When a party has filed a direct appeal of a criminal conviction, an

application for postconviction relief must be filed within three years from the date

the writ of procedendo was issued. Iowa Code § 822.3. “However, this limitation

does not apply to a ground of fact or law that could not have been raised within

the applicable time period.” Id.

       On appeal, Watson has raised a new issue, claiming his application for

postconviction relief comes within the exception found in section 822.3 because it

involves an issue of law “that could not have been raised within the applicable

time period.” See id. In Watson’s direct appeal we stated:

               On August 30, 2007, police officers obtained a warrant to
       search Cecil Watson’s residence and person. Watson was not at
       home when officers arrived to search his residence. Later that day,
       officers received a tip that Watson would be driving to CiCi’s Pizza
       and waited for him in unmarked vehicles. When Watson pulled into
       the parking lot, officers blocked in the vehicle driven by Watson and
       converged on the vehicle to execute the warrant.

Watson, 2006 WL 1492690, at *1.

       Watson claims the officers improperly stopped his vehicle based upon a

tip. He relies upon State v. Kooima, 833 N.W.2d 202, 210–11 (Iowa 2013),

which states:

               Accordingly, we hold a bare assertion by an anonymous
       tipster, without relaying to the police a personal observation of
       erratic driving, other facts to establish the driver is intoxicated, or
       details not available to the general public as to the defendant's
       future actions does not have the requisite indicia of reliability to
       justify an investigatory stop. Such a tip does not meet the
       requirements of the Fourth Amendment.
                                             4

Watson states he was unable to raise this issue until Kooima was decided in

2013, and therefore, his claim comes within the exception in section 822.3.

       Even if Kooima applied retroactively, we determine it does not apply to the

factual situation here. Kooima involved an investigatory stop based on the bare

assertions of an anonymous tipster. 833 N.W.2d at 210–11. Watson’s case

does not involve an investigatory stop based only on a tip. Rather, the officers

had a warrant to search his residence and person, and the tip related only to

Watson’s location at the time he was stopped by the officers. Watson, 2009 WL

1492690, at *1. Because Kooima is not factually applicable, we conclude the

Iowa Supreme Court’s holding in Kooima does not provide Watson with a ground

of law “that could not have been raised within the applicable time period.” See

Iowa Code § 822.3.

       Because Watson’s claims do not come within the exception found in

section 822.3, we determine his application is untimely because it was not filed

within three years after procedendo was issued in his direct appeal. See id. We

affirm the decision of the district court.

       AFFIRMED.
