                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1622
                               Filed August 17, 2016


BRUCE EVAN MARTIN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      Bruce Evan Martin appeals the district court’s grant of the State’s motion

to dismiss his fourth postconviction-relief application. AFFIRMED.




      Courtney T. Wilson of Gomez May, L.L.P., Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee State.




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

       Bruce Evan Martin appeals the district court’s grant of the State’s motion

to dismiss his fourth postconviction-relief (PCR) application.

       On Martin’s third PCR action, a panel of this court provided the following

summary of Martin’s case:

               On December 1, 2003, Martin was charged with four counts
       of second-degree sexual abuse, in violation of Iowa Code section
       709.3(2)(2003), which was later amended, adding one count of
       lascivious acts with a child in violation of [section] 709.8. In
       February 2004, Martin pled guilty to one count of second-degree
       sexual abuse and to lascivious acts, but was allowed to withdraw
       his guilty plea prior to sentencing. In June 2004, Martin again
       pleaded guilty to one count of second-degree sexual abuse and to
       lascivious acts, but subsequently asked to again withdraw his
       pleas. His request was denied and he was sentenced to a
       maximum indeterminate twenty-five year prison term for second-
       degree sexual abuse, and a five-year indeterminate prison term for
       lascivious acts with a child, the sentences to run concurrently.
               Martin filed an application for postconviction relief. The court
       granted the State’s summary judgment motion in October 2006,
       dismissing the action. Martin did not appeal. Martin filed a second
       application for postconviction relief in January 2005, and an
       amended application in October 2006, claiming his trial counsel
       was ineffective in various ways, including failing to fully investigate
       the charges and obtain “possibly exculpatory” reports and
       documents. Following a trial on the merits, the district court denied
       the application, finding Martin, “failed to produce any evidence on
       relevant issues upon which this Court could find that the entry of his
       pleas were not voluntary and intelligently entered.” Our supreme
       court dismissed his subsequent appeal as frivolous in March 2008.
       In June 2007, Martin filed a third application for postconviction
       relief, asserting he had “evidence to show my innocence in this
       crime.” He again claimed trial counsel and now his second
       postconviction counsel were ineffective in failing to investigate
       “numerous documents” relevant to the charges. Granting the
       State’s motion for summary disposition, the district court denied
       Martin’s third application for postconviciton relief.

Martin v. State, No. 09-0014, 2009 WL 5126344, at *1 (Iowa Ct. App. Dec. 30,

2009) (footnotes omitted). On that appeal of his third PCR action, a panel of this
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court “agree[d] with the postconviction court’s findings that summary disposition

was appropriate because Martin’s claims of his innocence d[id] not undermine

the validity of his guilty plea.” Id. at *2.

       In this, his fourth PCR application, Martin raised numerous grounds for

relief, including newly discovered evidence.        The State filed for summary

dismissal, contending this fourth PCR “raises no new issues,” “is barred by the

statute of limitations as it has been filed more than [three] years after the entry of

judgment,” and does “not allege[] as the basis for relief any information which

could not have been discovered prior to the statute of limitations expiring.”

Following a hearing held September 4, 2015, the PCR court issued a ruling

granting the State’s motion, holding “[t]his matter was clearly filed outside the

three year period. There has been no showing that this filing fits within the

‘exception of a ground of fact or law that could not have been raised within the

applicable time period, such as newly discovered evidence.’” Martin appeals.

       On appeal, Martin argues summary dismissal was improper, as the

grounds raised in his fourth PCR application had not been previously raised and

were based on documents not previously seen by the court and not previously in

existence or available to him. Martin contends he should have been granted the

opportunity to proceed to an evidentiary hearing on the merits.

       In a PCR action, the PCR court may grant a motion for summary

disposition when it appears from the record as a whole that there is no genuine

issue of material fact. Manning v. State, 654 N.W.2d 555, 559-60 (Iowa 2002).

PCR proceedings, including summary dismissal of PCR applications, are
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generally reviewed for errors at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa

2011).

         Iowa Code section 822.3 (2015) provides a PCR action must be

commenced “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.” Id.; Perez v. State, 816

N.W.2d 354, 360 (Iowa 2012) (“A reasonable interpretation of [Iowa Code section

822.3] compels the conclusion that exceptions to the time bar would be, for

example, newly-discovered evidence or a ground that the applicant was at least

not alerted to in some way.” (citation omitted)).

         To fall within the section 822.3 time-bar exception, Martin must

demonstrate “the alleged ground of fact could not have been raised earlier” and

“a nexus between the asserted ground of fact and the challenged conviction.”

Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003). To show the facts could

not have been raised earlier, Martin must prove “they were discovered after [his

conviction] and that they could not have been discovered earlier than they were

discovered in the exercise of due diligence.” Id. at 521. The only exception

Martin alleges on appeal is newly discovered evidence.

         A PCR application based on newly discovered evidence is subject to the

same analysis as a motion for new trial based on the same. Schawitsch v. State,

No. 11-0743, 2012 WL 1439223, at *3 (Iowa Ct. App. Apr. 25, 2012) (“It is

obvious the legislature intended the sufficiency of the showing necessary to

obtain a new trial based on newly discovered evidence to be the same whether
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the ground is raised in a motion for new trial or in a postconviction application.”

(quoting State v. Sims, 239 N.W.2d 550, 555 (Iowa 1976))). To prevail on a

newly-discovered-evidence claim, Martin must show the proffered evidence

(1) was discovered after the verdict, (2) could not have been discovered “earlier

in the exercise of reasonable diligence,” (3) “is material to the issues in the case

and not merely cumulative or impeaching,” and (4) “probably would have

changed the result of the trial in which [he] was convicted.” State v. Weaver, 554

N.W.2d 240, 246 (Iowa 1996); see also State v. Romeo, 542 N.W.2d 543, 550

(Iowa 1996). While this standard applies to a substantive PCR claim based on

newly discovered evidence under section 822.2(1)(d), our supreme court has

expressly rejected “any requirement that an applicant must show the ground of

fact [under section 822.3] would likely or probably have changed the outcome of

the underlying criminal case in order to avoid a limitations defense.” Harrington,

659 N.W.2d at 521.

       As an initial matter, Martin’s fourth PCR application contains numerous

allegations Martin could have raised, or did raise, on previous applications within

the statute of limitations—that his confession was coerced, there were no sexual

abuse police reports from the time period during which the offenses occurred

(1995 to 1996), and he was incarcerated at the time of the offense. These

allegations, on their own, are barred by the statute of limitations.

       While Martin concludes he “could not raise the issues he raises in his prior

postconviction action, because the new documents . . . were not in existence or

previously available to him,” Martin provides no explanation or support for why

this information could not have been discovered, in the exercise of reasonable
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diligence, at the time of Martin’s plea or during Martin’s three previous PCR

actions. Martin describes the documents provided as “agency documents,” most

of which appear to be police reports, transcripts, and documents from various

states’ departments of human services. These documents are dated anywhere

from 1994 to 2007. Martin also provides documents from various agencies and

police departments responding to his request for records, dated from 2006 to

2013, that indicate a search of their records uncovered no information regarding

child abuse filings made against him. Beyond his conclusory statements, Martin

has wholly failed to explain how this information is relevant to his guilty plea or

why it could not have been discovered in the exercise of reasonable diligence

within the requisite limitations period.

       Moreover, the record reflects that at least some of these documents were

in Martin’s possession at the time of his last PCR application. See Martin, 2009

WL 5126344, at *2 (quoting the PCR court as noting Martin argues the

documents presented “demonstrate his innocence in that no reports with regard

to his asserted sexual abuse of [the minor] surfaced until 2002 or 2003 relating to

acts supposedly taking place in 1995 or 1996”).           Ultimately, even when

construing the material available in the light most favorable to Martin, as we

must, see Manning, 654 N.W.2d at 560, Martin has failed to demonstrate the

evidence was newly discovery, not previously discoverable, or that said evidence

requires vacation of his plea in the interest of justice under Iowa Code section

822.2(1)(d). See Walters v. State, No. 12-2022, 2014 WL 69589, at *6 (Iowa Ct.

App. Jan. 9, 2014) (concluding the defendant’s claim the newly discovered

evidence was a new ground of fact that could not have been timely raised was
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misplaced, as the ground of fact in his claim was “actual innocence,” the newly

discovered evidence was merely evidence supporting this claim, the defendant

had already waived his claim of innocence by pleading guilty and, even if the new

evidence could be considered a ground of fact in avoidance of the statute of

limitations, justice required that his conviction based on a guilty plea that satisfied

all legal requirements could not be successfully challenged in a PCR action

based on the evidence proffered).

       AFFIRMED.
