                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0715
                               Filed April 19, 2017


ERIC BONITA PEPPERS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill,

Judge.



      Applicant appeals from the denial of his third application for postconviction

relief. AFFIRMED.




      John J. Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., Vaitheswaran, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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MAHAN, Senior Judge.

       Eric Peppers appeals from the denial of his third application for

postconviction relief (PCR), contending the district court erred in concluding the

application was barred by the three-year time limit of Iowa Code section 822.3

(2017) as Peppers raised no ground of law or fact that could not have been

raised within the applicable time frame. Finding no error, we affirm.

       In 1999, Peppers was convicted of second-degree sexual abuse, domestic

abuse assault while displaying a dangerous weapon, and false imprisonment.

State v. Peppers, No. 00-283, 2001 WL 810740, at *1 (Iowa Ct. App. July 18,

2001). Procedendo issued on his appeal. This court affirmed the convictions

and preserved for possible PCR proceedings four asserted grounds, including an

ineffective-assistance-of-counsel claim for failure to file a motion to dismiss for

violation of his speedy-trial rights.1 Id. However, a partial dissent was filed with

respect to preserving the speedy-trial issue:

               The defendant [Pepper] waived speedy trial and previously
       scheduled trial was then continued to a date about four months
       later. About one week after waiving speedy trial he secured the
       appointment of new counsel. Then, after about one more week, he
       filed a written “motion” requesting speedy trial. His motion does not
       indicate he served a copy on either the State or his own attorney,
       and he makes no claim that he did so. Trial commenced 110 days
       later, as previously rescheduled. The defendant claims his attorney
       was ineffective in failing to file a motion to dismiss for violation of
       his right to speedy trial. He bases this claim on an assertion that
       his attorney “had a duty to fully review the court file, which
       contained the defendant’s motion reasserting his right to a speedy
1
 This court observed:
               The parties concede Peppers’ trial took place more than ninety
       days after he reasserted his right to a speedy trial. Peppers argues his
       attorney should have notified the court that the trial date was outside the
       time limit. We deem the record inadequate to address this issue and,
       accordingly, preserve it for postconviction relief.
Peppers, 2001 WL 810740, at *3.
                                        3


      trial,” and therefore should have notified the court that the
      defendant had reasserted the right and the previously scheduled
      trial was outside the time for speedy trial. I would reject this
      assertion and the claim of ineffective assistance which is based
      upon it.
               Assuming without deciding that the defendant, who had
      requested and received court-appointed counsel, had the right to
      file the “motion” in question while represented by counsel, counsel
      had no duty to file a motion to dismiss for violation of defendant’s
      speedy trial rights unless counsel knew or should have known of
      that “motion.” The record provides no basis for finding that counsel
      knew of defendant’s “pro-se” filing, and the defendant makes no
      claim that counsel in fact did so. Absent any evidence or claim to
      that effect, there is no reason to preserve for a possible
      postconviction proceeding any issue of breach of duty based on
      actual knowledge of the filing.
               The State is obligated to serve on defense counsel a copy of
      its filings, and defense counsel is obviously aware of defense
      counsel’s filings. It is apparently the defendant’s position that
      defense counsel must from time to time review the court file to
      determine if there are any other filings of which counsel is not
      aware. The defendant cites no authority in support of his apparent
      assertion that defense counsel has a duty to periodically review the
      court file to determine if the defendant has filed something which
      the defendant has brought to the attention of neither the State nor
      defendant’s own attorney, and I would reject out of hand the claim
      that such a duty exists. By preserving the defendant’s fourth claim
      of ineffective assistance for a possible postconviction proceeding
      we implicitly accept the existence of such a duty.

Id., 2001 WL 810740, at *5-6 (Miller, J., dissenting in part). Procedendo issued

on November 1, 2001.

      Peppers filed his first PCR application on April 13, 2002, raising several

ineffective-assistance claims. We affirmed the dismissal of his PCR application.

See Peppers v. State, No. 07-0865, 2008 WL 2042504, at *1 (Iowa Ct. App. May

14, 2008).

      Peppers filed a second PCR application in which he asserted his speedy-

trial rights were violated and his first PCR counsel was ineffective in failing to

raise the claim. Peppers v. State, No. 12-1197, 2013 WL 6116815, at *1 (Iowa
                                         4


Ct. App. Nov. 20, 2013). The trial court dismissed the claim, and this court

affirmed on appeal, observing:

               Peppers filed [his first] postconviction relief application
       raising several issues, including the claimed speedy trial violation.
       An attorney subsequently appointed to represent him filed a
       document waiving the speedy trial issue. The attorney mailed a
       copy of the document to Peppers. Following an evidentiary
       hearing, the district court filed an order noting, in part, that the
       speedy trial claim appeared to have been waived.
               ....
               In sum, Peppers, his direct appeal attorney, and his first
       postconviction attorney were aware of the claimed speedy-trial
       violation and had an “opportunity to test the validity of the
       conviction” on that basis. The fact that Peppers’ postconviction
       counsel did not pursue the issue was a matter Peppers could have
       taken up with him at the time. He elected not to do so. We
       conclude he cannot revive the speedy-trial issue by belatedly
       repackaging it as an ineffective-assistance-of-counsel claim.

Id., 2013 WL 6116815, at *1-2 (citations omitted). The ruling was consistent with

Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994) (“Section 822.3 creates an

exception for untimely filed applications if they are based on claims that ‘could

not’ have been previously raised because they were not available.           In other

words, the exception applies to situations in which there ‘would be no opportunity

to test the validity of the conviction in relation to [the ground of fact or law that

allegedly could not have been raised within the time period].’        A reasonable

interpretation of the statute 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.”); see also Smith v. State, 542

N.W.2d 853, 854 (Iowa Ct. App. 1995) (“The legal and factual underpinnings of

each of Smith’s claims were in existence during the three-year period and were

available to be addressed in Smith’s appellate and postconviction proceedings.”).
                                               5


          Peppers then filed this third PCR application, again alleging a violation of

his speedy-trial rights. The district court dismissed the application as time-barred

under section 822.3. On appeal, Peppers acknowledges that if the starting point

of the section 822.3 timeline is the date procedendo issued from his original

appeal, then the three-year limitation took effect on October 29, 2004. This is the

rule of Iowa, which we addressed in his last appeal:

                  Iowa Code section 822.3 (2011)[2] states, in part, that
          applications for postconviction relief “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.”
          Procedendo issued in 2001 and Peppers’ second postconviction
          relief application was not filed until 2012. Therefore, the application
          was time-barred unless it fell within a statutory exception for “a
          ground of fact or law that could not have been raised within the
          applicable time period.” Iowa Code § 822.3.

Peppers, 2013 WL 6116815, at *1.

          Peppers’ attempt to read ambiguity into the limitations period is not

convincing, and we affirm the dismissal of his application as untimely.

          AFFIRMED.




2
    The current code provision is identical.
