                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1623
                               Filed June 6, 2018


MICHAEL YOUNG,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Timothy J. Finn,

Judge.



      The applicant, Michael Young, appeals the dismissal of his applications for

postconviction relief based on statute of limitations. AFFIRMED.




      Michael Young, Cody, Wyoming, pro se appellant.

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

General, for appellee State.




      Considered by Potterfield, P.J., Tabor, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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BLANE, Senior Judge.

       Michael Young appeals the dismissal of his four applications for

postconviction relief.   Because we agree with the district court that Young’s

applications were filed beyond the statute of limitations, we affirm.

       I.     Factual and Procedural Background.

       On February 6, 2013, Young was stopped by an officer and charged with

four separate motor vehicle violations.1 Following a trial before a magistrate, he

was convicted and sentenced on October 23, 2013. Young timely filed a notice of

appeal. As these were simple misdemeanors, the appeal was to the district court

and assigned to a district associate judge. See Iowa R. Crim. P. 2.73(3). By

written ruling filed on November 27, 2013, the appeals were denied and the

convictions and sentences were affirmed.

       Young then filed with the Iowa Supreme Court an application for

discretionary review of the district associate court’s appeal ruling affirming his

convictions. The application was denied on January 31, 2014, by order signed by

a single justice.   On February 11, 2014, Young filed a petition for rehearing

pursuant to Iowa Rule of Appellate Procedure 6.1205(1). On February 17, 2014,

procedendo issued as to the four cases. On May 8, 2014, three justices of the

supreme court addressed Young’s petition for rehearing and issued an order,

which stated: “This court treats the petition for rehearing as a motion to review the

ruling of a single justice under Iowa Rule of Appellate Procedure 6.1002(5) (2009).”




1Marshall County Nos. NTA0033107 (driving under suspension); STA0033108 (failure to
have proof of insurance); STA0033109 (operating an unregistered vehicle) and
STA003310 (obstructed windshield/window).
                                         3


The order then stated: “[T]he order denying the application for discretionary review

is confirmed as the order of this court.” Young did not challenge the issuance or

timeliness of the procedendo in the criminal proceedings or request that it be

recalled.

        On May 4, 2017, Young filed four separate applications for postconviction

relief, one as to each of the four separate convictions.2 On July 21, 2017, the State

filed its answer to Young’s four applications. In the answer, the State raised the

affirmative defense of the statute of limitations found in Iowa Code section 822.3

(2017). The State also filed a motion for summary disposition and a motion to

dismiss the applications based upon statute-of-limitations grounds. On July 31,

Young filed his resistance to the State’s motion to dismiss, asserting that the

procedendo in his criminal appeals was erroneously issued by the Clerk of the

Supreme Court.

        On August 28, 2017, the district court held a hearing on Young’s

applications as well as the State’s motion to dismiss, where Young personally

appeared pro se.     On September 14, the district court issued its ruling and

determined that Young had not established an exception to the statute of limitation

and that the State’s motion to dismiss should be granted. The court then went on

to address the State’s motion for summary disposition and Young’s postconviction

applications on their merits, deciding that the applications should be denied as

being without merit. Young appeals.




2
    PCCI009453; PCCI009454; PCCI009455, and PCCI009456.
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       II.    Discussion.

       On appeal, Young again contends that the Clerk of the Supreme Court erred

in issuing the procedendo and that his applications for postconviction relief were

therefore timely filed. Postconviction relief proceedings are actions at law and

review of proceedings is for correction of errors at law. Lado v. State, 804 N.W.

2d 248, 250 (Iowa 2011).

       As to applications for postconviction relief, Iowa Code section 822.3

provides in pertinent part: “Applications 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.” Any postconviction application filed outside of

the applicable three-year limitations period “is time barred unless an exception

applies.” Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003). It is uncontested

that the clerk issued the procedendo on February 17, 2014.              It is further

uncontested that Young filed his applications for postconviction relief on May 4,

2017, more than three years after the procedendo issued. In an attempt to escape

this inevitable conclusion, Young argues that the supreme court clerk erroneously

issued the procedendo and therefore the February 17, 2014 date cannot be

considered in calculating the three-year statute of limitation.

       Young’s argument is that under Iowa Rule of Appellate Procedure 6.1208,

no procedendo is to issue while a timely petition or motion is pending. He argues,

since he had a motion pending, the Clerk of the Iowa Supreme Court erroneously

issued procedendo on February 17, 2014, and the supreme court retained

jurisdiction of the case until the order denying the “petition for rehearing,” which

the supreme court treated as a motion for review, was issued on May 8, 2014. See
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Iowa R. App. P. 6.1002(9). Consequently, he contends the district court incorrectly

relied upon the procedendo date of February 17, 2014, in determining that the

three-year statute of limitations in section 822.3 had expired when Young filed his

applications.

       Young’s argument does not withstand legal scrutiny. The district court in

these postconviction relief actions had no jurisdiction to entertain a collateral

challenge to the Iowa Supreme Court clerk’s issuance of procedendo on February

17 in Young’s criminal actions. See In re H.S., 805 N.W.2d 737, 743–44 (Iowa

2011) (“[O]ur rules seem to contemplate one procedendo per appeal and do not

appear to envision ‘partial’ procedendos, at least unless ‘otherwise ordered.’”).

Our supreme court has discussed the purpose and effect of procedendo:

       Once procedendo has issued, the jurisdiction of the supreme court
       ceases. See [State v.] Henderson, 243 N.W. [289,] 290 [(1932)];
       Iowa Code § 814.25 [(2005)] (providing in reference to criminal
       matters that “[t]he jurisdiction of the appellate court shall cease when
       procedendo is issued”); id. § 631.16(7) (setting forth same principle
       pertaining to discretionary review of small claims actions); see also
       Iowa R. App. P. [6.1201(3)] (stating in cases of voluntary dismissal
       of an appeal that “[t]he issuance of procedendo shall constitute a final
       adjudication with prejudice”). Indeed, the entire purpose of a
       procedendo is to notify the lower court that the case is transferred
       back to that court. See [State v.] Banning, 218 N.W. [572,] 574
       [(1928)].

In re M.T., 714 N.W.2d 278, 282 (Iowa 2006). The supreme court went on to state

that it also has authority to recall a procedendo. Id. Under M.T., it appears the

supreme court was without jurisdiction when it issued its May 8, 2014 order as

procedendo had already issued, but this is of no consequence since the order

simply “confirmed” the January 31 order. More important is that Young did not

request in the criminal-appeal proceedings that the supreme court recall the
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procedendo. Young cannot litigate the issuance of the procedendo through a

collateral challenge in these civil postconviction relief proceedings. See Fetters v.

Degnan, 250 N.W.2d 25, 30 (Iowa 1977). Our prior case law is clear that a

judgment is not subject to collateral attack “except upon jurisdictional grounds.” Id.

The issuance of procedendo shall constitute a final adjudication with prejudice

which equates to a judgment. See id. The procedendo issued on February 17,

2014, remains viable, and the district court properly relied on it in deciding the

State’s motion to dismiss based on statute of limitations.

         We also determine that procedendo properly issued. Young filed a petition

for rehearing pursuant to Iowa Rule of Appellate Procedure 6.1205(1), which can

only be filed to challenge an opinion issued by the Iowa Supreme Court—not a

single-justice order. Young could only challenge the January 31, 2014 order by

filing a motion for three-justice review under Iowa Rule of Appellate Procedure

6.1002(5) (“The action of a single justice or senior judge may be reviewed by the

supreme court upon its own motion or a motion of a party.”); see also M.T., 714

N.W.2d at 283 (finding a dismissal order from the supreme court is not an opinion

under the Iowa Rules of Appellate Procedure such that a petition for rehearing

should toll or delay issuance of procedendo). Since Young filed an incorrect

motion under the incorrect rule the clerk properly issued procedendo on February

17, 2014. See Iowa R. App. P. 6.1208(1)(c).3




3   Iowa Rule of Appellate Procedure 6.1208 provides:
                 (1). Procedendo from supreme court action. Unless otherwise
         ordered by the supreme court, no procedendo shall issue for:
                 ....
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       Iowa Code section 822.3 specifically uses an unequivocal reference to that

specific event to establish when the statute of limitations begins to run: “in the

event of an appeal, from the date the writ of procedendo is issued.” See Iowa

Code § 822.3.       The district court was correct in calculating that Young’s

applications for postconviction relief were filed after the statute of limitations had

run. The district court properly granted the State’s motion to dismiss Young’s four

applications for postconviction relief.

       Since we find Young’s applications were correctly dismissed, there is no

reason for us to review the substantive issues in this appeal.

       AFFIRMED.




              c. Seventeen days after an order dismissing the appeal is filed, nor
      thereafter while a motion requesting that the dismissal be set aside, filed
      according to these rules, is pending.
(Emphasis added.) Prior to March 1, 2017, this provision was numbered as 6.1208(1)b.
