                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1180
                               Filed July 22, 2020


JUAN LOZANO,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.



      An applicant for postconviction relief appeals from the dismissal of his

application. AFFIRMED.




      Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant

Attorney General, for appellee State.



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

       Approximately fourteen years after being convicted of terrorism and murder

in the second degree, Juan Lozano filed an application for postconviction relief

(PCR).    The district court dismissed his application on the ground that the

application failed to comply with the three-year limitations period set out in Iowa

Code section 822.3 (2016). On appeal, Lozano asks us to apply the doctrine of

equitable tolling to section 822.3 due to his limited English proficiency and the lack

of an interpreter at his sentencing hearing. We decline to do so, and we affirm the

dismissal of his PCR application.

Background Facts and Proceedings

       In July 2001, Juan Lozano went armed with a gun to the apartment of the

mother of his three children. A fight broke out between Lozano and Charles Carillo,

and Carillo was fatally shot.

       The State charged Lozano with murder in the first degree, in violation of

Iowa Code sections 707.1, 707.2 and 708.4 (2001); attempt to commit murder, in

violation of section 707.11; and going armed with intent, in violation of section

708.8. Lozano’s counsel applied for a Spanish translator, a request the court

granted. The State then amended the trial information to include a charge for

terrorism, in violation of section 708.6.

       On January 8, 2002, a memorandum of plea agreement was filed, signed

by the defendant, his counsel, and the State. No other plea agreement was ever

filed. The memorandum indicated Lozano would plead guilty to terrorism and to

murder in the second degree.
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       At the plea hearing on January 8, 2002, a disagreement emerged over the

factual basis for the murder charge. Due to the disagreement, the court did not

accept the plea. A subsequent plea hearing was held on January 31. At this

second plea hearing, the defendant agreed to plead guilty pursuant to North

Carolina v. Alford, 400 U.S. 25 (1970). The court accepted the plea. At both the

first and second plea hearings, an interpreter was provided for Lozano’s benefit,

and Lozano spoke to the court via the interpreter.

       Sentencing occurred on February 21.            No interpreter was present at

sentencing. The court sentenced Lozano to a fifty-year indeterminate term for the

second-degree murder conviction and a ten-year indeterminate term for the

terrorism conviction.     Lozano’s second-degree murder conviction carried a

requirement that he serve a minimum of eighty-five percent of the sentence. The

court ordered that the sentences run consecutively. In English, the court afforded

Lozano his right to allocution and instructed him that “he has the right to appeal

the judgment and sentence of this Court.” Lozano did not appeal his convictions

and sentences.

       Over fourteen years later, on May 10, 2016, Lozano filed an application for

postconviction relief (PCR) pursuant to Iowa Code chapter 822 (2016). The State

filed a motion to dismiss the PCR petition on the ground that the application was

barred by the three-year limitations period set forth in Iowa Code section 822.3. In

a supplement to the original petition, Lozano argued trial counsel was ineffective

for failing to file pre-trial motions and fully investigate the case.

       The district court granted the State’s motion to dismiss. It noted that this

court has repeatedly refused to apply the doctrine of equitable tolling to section
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822.3, citing two of our cases. See Hardin v. State, No. 17-0869, 2018 WL

3057455, at *2 (Iowa Ct. App. June 20, 2018); Larimer v. State, No. 17-0276, 2018

WL 739301, at *1 n.1 (Iowa Ct. App. Feb. 7, 2018) (collecting cases). The court

also rejected Lozano’s argument that his sentence was an illegal sentence that

could be challenged at any time under Iowa Rule of Criminal Procedure 2.24(5)(a),

finding Lozano’s arguments amounted to allegations of procedural defects that do

not provide a basis for a sentence challenge under rule 2.24(5)(a). See Tindell v.

State, 629 N.W.2d 357, 359 (Iowa 2001). Lozano appeals from the order granting

the State’s motion to dismiss.

Standard of Review

       We review a grant of a motion to dismiss a PCR petition for correction of

errors at law; however, when the applicant asserts a claim of ineffective assistance

of counsel, we review such claims de novo. Ledezma v. State, 626 N.W.2d 134,

141 (Iowa 2001); Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).

Discussion

       On appeal, Lozano argues we should apply the doctrine of equitable tolling

to forgive the noncompliance of his PCR application with the three-year limitations

period set out in section 822.3. He supports his claim by noting his lack of

proficiency in the English language at the time of his conviction and emphasizing

that his failure to appeal his guilty plea was due to his lack of awareness of a right

to appeal. Additionally, he argues he received ineffective assistance of counsel at

his plea and sentencing, as well as during the PCR proceedings.

       We have many times rejected the notion that the doctrine of equitable tolling

should be applied to section 822.3. See Larimer, 2018 WL 739301, at *1 n.1
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(collecting cases). Lozano insists his case is different, noting in reliance on federal

decisions that “[l]anguage deficiency has been recognized as [a] qualifier for

equitable tolling.” See Diaz v. Kelly, 515 F.3d 149, 154 (2nd Cir. 2008); Mendoza

v. Carey, 449 F.3d 1065, 1070–71 (9th Cir. 2006). Iowa courts have never held

that language deficiency can provide a basis to apply equitable tolling in the

context of PCR applications. We decline to create such an exception here.

        “Once a defendant has waived his right to a trial by pleading guilty, the State

is entitled to expect finality in the conviction.” State v. Mann, 602 N.W.2d 785, 789

(Iowa 1999). Even under the federal rule allowing equitable tolling, a petitioner

must show diligent pursuit of rights and “that some extraordinary circumstance

stood” in the way. Diaz, 515 F.3d at 153; see also Mendoza, 449 F.3d at 1068.

The facts of the instant case demonstrate that Lozano would be unable to satisfy

the diligence requirement of the federal rule as a matter of law. In Mendoza, the

petitioner sought relief approximately nine months after the expiration of a one-

year limitations period. 449 F.3d at 1067–68. In Diaz, the petitioner’s filing was

“more than four months late.” 515 F.3d at 152. In profound contrast, Lozano filed

a PCR application more than eleven years after the limitations period closed in his

case.

        Lozano highlights several hurdles he allegedly faced to show why we should

find him diligent despite his eleven-year tardiness. He cites his limited English

proficiency in 2002; lack of knowledge that he could appeal his plea; lack of

Spanish-language legal materials in the prison library; the inability to obtain

translation assistance due to “frequent lockdowns”; a fear that seeking assistance

from other inmates would lead to him being reported to law enforcement; and
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fruitless requests to the court for documents related to his case. Because the court

rejected Lozano’s PCR application on statute-of-limitations grounds, the record is

not fully developed with respect to these alleged deficiencies. However, we have

previously rejected similar arguments. A lack of knowledge is not a ground for an

exception from the effects of a limitations period. State v. Edman, 444 N.W.2d

103, 106 (Iowa Ct. App. 1989). Neither does a claim of ineffective assistance allow

a PCR applicant to avoid the limitations period. See Long v. State, No. 16-1220,

2017 WL 2684345, at *2 (Iowa Ct. App. June 21, 2017) (citing Smith v. State, 542

N.W.2d 853, 854 (Iowa Ct. App. 1995)). While the record is undeveloped with

respect to the remainder of Lozano’s claims, we find they do not provide a basis

for an exception to our well-recognized rule that equitable tolling does not apply to

section 822.3.

       The legislature has made clear in section 822.3 that defendants have a

three-year window in which to bring PCR applications. A court should not create

a relief mechanism that conflicts with the legislature’s chosen limitation. See

Drahaus v. State, 584 N.W.2d 270, 275 (Iowa 1998). We decline to adopt an

exception to that rule based on proficiency in the English language, and because

this holding is dispositive, we do not reach Lozano’s claims of ineffective

assistance of counsel.

       Lastly, we briefly discuss Lozano’s contention that there were two plea

agreements. In more than one pro se brief filed in this court,1 he asserts that his



1 Although Iowa Code section 814.6A(1) was recently enacted to prohibit
defendants from filing pro se briefs when represented by counsel, the instant
appeal was pending prior to the July 1, 2019, effective date of the new legislation.
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trial counsel wrongfully convinced him to sign a “second guilty plea,” which unlike

the first, “reinstated his appeal rights.”   The record contains only one plea

memorandum and it makes no mention of Lozano’s right to appeal.                 That

memorandum was filed on January 8, 2002, and was signed by Lozano, his

counsel, and the State. No other plea agreement in any form was ever filed. At

the January 31 plea hearing, the court referenced the January 8 memorandum,

and the parties confirmed that the January 8 plea memorandum represented the

parties’ agreement. The contents of the January 8 plea memorandum do not

impact our analysis of the equitable-tolling issue, which is dispositive, and, to the

extent Lozano contends he was prejudicially induced into signing a second plea

memorandum, such document is not part of the record.

Conclusion

       We decline to apply the doctrine of equitable tolling to extend the limitation

period governing Lozano’s PCR application. We affirm the dismissal of Lozano’s

PCR application, filed over fourteen years after his convictions. We have carefully

considered all claims raised by counsel and by Lozano pro se. Those claims not

specifically addressed in this decision are either disposed of by our resolution of

other claims or are without merit.

       AFFIRMED.




We therefore may consider Lozano’s pro se briefs. See State v. Purk,
No. 18-0208, 2019 WL 5790875, at *8 n.8 (Iowa Ct. App. Nov. 6, 2019).
