                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0331
                               Filed July 1, 2020


JOEL SMITHERMAN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Hardin County, James A. McGlynn,

Judge.



      The applicant appeals the district court’s dismissal of his application for

postconviction relief. AFFIRMED.



      Jessica Maffitt of Benzoni Law Office, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.



      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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SCHUMACHER, Judge.

       Joel Smitherman appeals the district court’s dismissal of his fourth

application for postconviction relief (PCR). Smitherman is not entitled to relief

under the narrow exception set forth in Allison v. State, 914 N.W.2d 866, 891 (Iowa

2018). Also, he has not shown he received ineffective assistance from his PCR

counsel in this case. We affirm the decision of the district court.

       I.     Background Facts & Proceedings

       Smitherman was convicted of first-degree murder for the death of Richard

Tasler. On April 8, 2005, Smitherman was sentenced to life in prison. He appealed

his conviction, claiming he received ineffective assistance from defense counsel

due to a conflict of interest and there was insufficient evidence to support the

verdict. State v. Smitherman, 733 N.W.2d 341, 343 (Iowa 2007). Smitherman’s

conviction was affirmed. Id. at 350.

       Smitherman filed his first PCR application on July 5, 2007, claiming he

received ineffective assistance from defense and appellate counsel.            The

application was denied. Smitherman’s appeal was dismissed as frivolous, and

procedendo was issued on July 14, 2010.

       Smitherman’s second PCR application was filed on December 22, 2010.

He claimed the court had given an improper instruction on reasonable doubt and

he received ineffective assistance because defense and appellate counsel had not

previously raised this issue. The district court denied the application. Smitherman

appealed but the appeal was dismissed as frivolous. Procedendo was issued on

January 8, 2013.
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       The third PCR application was filed on October 7, 2013. Smitherman

asserted the trial information was defective so the court did not have jurisdiction to

convict him. The court dismissed the application, determining it was barred by the

three-year time limitation in Iowa Code section 822.3 (2013). Smitherman’s appeal

of the district court’s decision was dismissed as frivolous. Procedendo was issued

on October 13, 2015.

       This case involves Smitherman’s fourth PCR application, which was filed

on October 3, 2018. He claimed he received ineffective assistance from his first

PCR counsel and was entitled to relief under Allison, 914 N.W.2d at 891. The

State filed a motion to dismiss the application on the ground that it was barred as

untimely under section 822.3 (2018). On November 30, the district court entered

an order stating, “Having reviewed the State’s Motion to Dismiss, the Court now

indicates to the parties its intention to dismiss the application for the reasons set

forth in the State’s Motion to Dismiss.” Smitherman was given “through and

including December 14, 2018, to file a reply to the proposed dismissal.” The court

stated that if Smitherman failed to reply by that date, the court would enter an order

dismissing the case. On January 22, 2019, the court dismissed the PCR action,

noting Smitherman had never filed a reply to the proposed dismissal. The court

found the PCR application was barred by the three-year statute of limitations in

section 822.3.

       Smitherman requested the appointment of different counsel. The court

denied the request, finding that because the case had been dismissed the court-

appointed counsel was relieved of his responsibilities and substitute counsel would

not be appointed. Smitherman filed a pro se motion pursuant to Iowa Rule of Civil
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Procedure 1.904(2). He asserted that he had not received a copy of the court’s

November 30, 2018 order. He blamed his most recent PCR counsel for not

responding to the court’s order by December 14 and asked to have his PCR action

reinstated. The court denied the motion, finding Smitherman had not shown any

reason why his application was not untimely. Smitherman now appeals.

       II.     Timeliness of PCR Application

       Smitherman contends his PCR application is not untimely based on an

exception to the limitations period found in Allison, which held:

       [W]here a PCR petition alleging ineffective assistance of trial counsel
       has been timely filed per section 822.3 and there is a successive
       PCR petition alleging postconviction counsel was ineffective in
       presenting the ineffective-assistance-of-trial-counsel claim, the
       timing of the second PCR petition relates back to the timing of the
       original PCR petition for purposes of Iowa Code section 822.3 if the
       successive PCR petition is filed promptly after the conclusion of the
       first PCR action.

914 N.W.2d at 891. “[T]he application of the relation-back doctrine ensures that

the right to effective assistance of counsel in PCR is not cut off by the running of

the statute of limitations.” Id.

       “Our review of the court’s ruling on the State’s statute-of-limitations defense

is for correction of errors of law.” Harrington v. State, 659 N.W.2d 509, 519 (Iowa

2003). “When summary [disposition] is granted in a postconviction relief action,

we examine the record to determine if a genuine issue of fact exists and whether

the moving party is entitled to a judgment as a matter of law.” See Bugley v. State,

596 N.W.2d 893, 895 (Iowa 1999).

       Smitherman asserts that he is raising a claim of ineffective assistance from

his first PCR counsel and states his present PCR application should relate back to
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the date he filed his first PCR action, which was timely under section 822.3. He

asserts that under Allison his present PCR application should not be barred as

untimely.

       The rule in Allison permits a second PCR application to relate back to the

timing of the first application. Kelly v. State, No. 17-0382, 2018 WL 3650287, at

*4 (Iowa Ct. App. Aug. 1, 2018). It does not apply to a third or subsequent PCR

application. See id. (“Kelly’s third application is time-barred, as it does not fall

within the narrow confines of Allison. This is not Kelly’s second application but his

third.”). If we were to allow an applicant’s third or subsequent PCR application to

relate back to the date of the first PCR application, it could enable an “endless

procession of postconviction actions.” See Dible v. State, 557 N.W.2d 881, 886

(Iowa 1996), abrogated on other grounds by Harrington v. State, 659 N.W.2d 509,

521 (Iowa 2003). Smitherman’s fourth PCR application does not come within the

tolling provision of Allison.

       Furthermore, the tolling of the three-year statute of limitations under Allison

applies only if the successive PCR application is filed promptly after the first PCR

action. Thompson v. State, No. 19-0322, 2020 WL 2060310, at *3 (Iowa Ct. App.

Apr. 29, 2020); see also Wilder v. State, No. 19-0157, 2020 WL 1879703, at *3

(Iowa Ct. App. Apr. 15, 2020) (finding a successive PCR action filed three years

after the first PCR action was not “prompt” under Allison). Smitherman’s current

PCR application, filed thirteen years after his conviction for first-degree murder,

cannot be considered “prompt.” See Thompson, 2020 WL 2060310, at *4. On this

ground as well, Smitherman does not come within the exception in Allison.
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       III.   Ineffective Assistance

       Smitherman asserts he received ineffective assistance from his counsel in

this PCR proceeding. He states his counsel should have filed a response to the

district court’s order of November 30, 2018, indicating the court intended to dismiss

the action unless Smitherman filed a response by December 14. Counsel for

Smitherman did not file a response. On January 22, 2019, the court dismissed the

PCR action, noting Smitherman had never filed a reply to the proposed dismissal.

Smitherman contends PCR counsel’s inaction led to the dismissal of his case.

       On claims of ineffective assistance of counsel, our review is de novo.

Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). To prevail on a claim of

ineffective assistance of counsel, the applicant must demonstrate by a

preponderance of the evidence both breach of an essential duty and prejudice.

State v. Adams, 810 N.W.2d 365, 372 (Iowa 2012). “However, both elements do

not always need to be addressed. If the claim lacks prejudice, it can be decided

on that ground alone without deciding whether the attorney performed deficiently.”

Ledezma, 626 N.W.2d at 142. For the element of prejudice, there must be a

showing of “a reasonable probability that, but for counsel’s unprofessional errors,

the results of the proceeding would have been different.” Adams, 810 N.W.2d at

373.

       Smitherman’s claim of ineffective assistance of counsel can be addressed

looking solely at the issue of prejudice. See Ledezma, 626 N.W.2d at 142. He

cannot show that but for counsel’s failure to file a response to the court’s indication

it intended to dismiss the case that the case would not have been dismissed. Even

if a response to the court’s order of November 30, 2018, had been filed, the case
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would still have been dismissed. Smitherman’s fourth PCR application is untimely

under section 822.3.    We conclude Smitherman has not shown he received

ineffective assistance of counsel.

      We affirm the decision of the district court.

      AFFIRMED.
