                   IN THE COURT OF APPEALS OF IOWA

                              No. 3-1203 / 12-2327
                              Filed March 12, 2014


JOHN RICHMOND,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      John Richmond appeals from the denial of his application for

postconviction relief. AFFIRMED.




      Christopher J. Foster of Foster Law Office, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and Robert Hruska, Assistant

County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.
                                             2


POTTERFIELD, J.

         John Richmond appeals from the denial of his second application for

postconviction relief.

         Our review on appeal from the denial of postconviction relief is for errors

at law. Everett v. State, 789 N.W.2d 151,155 (Iowa 2010). However, we review

constitutional issues de novo. Id.

         Richmond was convicted of second-degree sexual abuse in 1997. On

direct appeal, he argued that testimony from an Episcopal priest he consulted,

Fr. Dick Osling, was improperly allowed at his criminal trial.            See State v.

Richmond, 509 N.W.2d 33, 34 (Iowa 1999). The Iowa Supreme Court rejected

his claim because neither the priest-penitent privilege, see id. at 35 (“Richmond

did not consult Fr. Osing in his priestly capacity”), nor the statutory counselor-

client privilege applied. See id. (noting communication with informal unlicensed

counselor does not fall within the statutory privilege).           His conviction was

affirmed. Id.

         Richmond filed his first application for postconviction relief (PCR) on

March 3, 2000, in which he claimed he was denied effective assistance of trial

and appellate counsel in several respects. See Richmond v. State, No. 03-1457,

2004 WL 2169439 (Iowa Ct. App. Sept. 29, 2004).1 His appeal from the denial of

this first PCR application was rejected. Id. at *3. This court noted,


1
    As noted in our 2004 opinion, 2004 WL 2169439, at *1, in part, Richmond claimed
         trial counsel should have requested that the jury be instructed that sexual
         abuse in the second degree is a specific intent crime, and that appellate
         counsel was ineffective for failing to raise that issue on direct appeal.
         Richmond additionally cited trial and appellate counsel’s failure to raise
         any issue concerning the trial court’s jury instructions regarding
         Richmond’s display of a dangerous weapon. Lastly, Richmond claimed
                                          3


              Richmond’s constitutional claims are premised entirely on
       the notion that the Richmond opinion added a new spirituality
       dimension to invocation of the priest-penitent privilege.      We
       disagree. Under our reading of the Richmond opinion, the court
       simply determined that Richmond did not consult Fr. Osing in his
       professional capacity as a priest and the privilege was therefore
       inapplicable. Because none of the constitutional protections cited
       were implicated, no attorney representing Richmond in any
       capacity at any stage of any related proceeding was duty bound to
       raise the constitutional issues he now relies upon. Moreover, and
       for the same reasons, the trial court did not err in rejecting
       Richmond’s claims that the supreme court’s decision in Richmond
       was unconstitutional.

Id. at *2. We also rejected Richmond’s claims that trial counsel was ineffective in

failing to object to the jury instructions, and found Richmond had failed to

preserve an issue regarding the trial information. Id. at *3.

       Richmond filed this second PCR application on May 15, 2007, in which he

contends his first postconviction counsel was ineffective in failing to assert

additional constitutional challenges concerning the supreme court’s interpretation

of the priest-penitent privilege, in failing to challenge the jury instructions, and in

failing to challenge the trial information as insufficient on its face.       He also

asserted a Brady violation.2



         appellate counsel failed to challenge the constitutionality of the priest-
         penitent privilege as applied by the trial court.
2
  Brady v. Maryland, 373 U.S. 83 (1963). “To establish a Brady violation has occurred,
the [claimant] must prove by a preponderance of the evidence ‘(1) the prosecution
suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the
evidence was material to the issue of guilt.’” DeSimone v. State, 803 N.W.2d 97, 103
(Iowa 2011) (citation omitted). The State argues this issue is also time-barred because
the officer’s notes were not relevant to the challenged conviction.
         In Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003), the supreme court
confirmed that a PCR applicant must show the ground of fact is relevant to the
challenged conviction to fall within the section 822.3 exception. The court stated,
         By “relevant” we mean the ground of fact must be of the type that has the
         potential to qualify as material evidence for purposes of a substantive
         claim under section 822.2. We specifically reject any requirement that an
         applicant must show the ground of fact would likely or probably have
                                          4


       The State filed a motion to dismiss the second application as time-barred.

The district court allowed the matter to proceed, but expressed its concern that at

least three of the issues appeared to have been litigated previously.            In its

thorough and well-reasoned ruling, the district court addressed the merits of the

ineffective-assistance-of-postconviction counsel claim “in an effort to end the re-

litigation that appears to be developing.”      However, we need not review the

district court’s ruling on the merits with respect to the ineffective-assistance-of-

postconviction counsel claims. As noted by the district court, these three issues

were variations on matters previously raised in the first PCR application.

Consequently, the claims cannot be re-litigated.        See Holmes v. State, 775

N.W.2d 733, 735 (Iowa 2009).

       Moreover, the issues could have been raised within the three-year

statutory period and are now time barred. See Iowa Code § 822.3 (providing a

three-year limitations period “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”). “[A]n

applicant for postconviction relief cannot circumvent the effect of the three-year

time bar by merely claiming the ineffective assistance of postconviction relief

counsel.” Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995). “The issue

is not whether his present claims were previously raised, it is whether they could

have been raised during the three-year time period.” Id. Because the legal and

factual underpinnings of each of applicant’s claims were in existence during the




       changed the outcome of the underlying criminal case in order to avoid a
       limitations defense.
Harrington, 659 N.W.2d at 521.
                                         5


three-year period and were available to be addressed in applicant’s appellate

and postconviction proceedings, they cannot now be raised. See id.

       However, section 822.3 provides that its three-year limitations period

“does not apply to a ground of fact or law that could not have been raised within

the applicable time period.” See Phuoc Thanh Nguyen v. State, 829 N.W.2d

183, 186 (Iowa 2013).      Richmond contends he did not discover the Brady

violation until he contacted the Cedar Rapids Police Department in 2007 in an

attempt to obtain any evidence related to his trial that he had not been provided

prior to trial.   In response, he was provided a handwritten note of the

investigating detective. Richmond claimed the failure to provide this note before

his criminal trial constituted a denial of due process arising from a Brady

violation.

       The district court summarized this claim, stating:

               Applicant alleges his conviction should be overturned and he
       should be granted a new trial because the State committed a Brady
       violation by not disclosing a handwritten note prepared by the case
       detective. The note contains information about the detective’s
       interview of Sue Blume, the supervisor of a State rebuttal witness,
       Paula Krings, who testified at the original trial about incriminating
       statements Applicant made to her over the telephone shortly after
       the charged incident while she was working in her capacity as a
       psychiatric social worker at the Abbe Center for Community Mental
       Health. The note, which was received into evidence at the instant
       trial as Applicant’s Exhibit 1, was forwarded to Applicant by the
       Cedar Rapids Police Department in 2007 at Applicant’s request.
       The note chronicles the telephone conversation in which Ms. Blume
       apparently told the detective that Paula Krings remembered a
       telephone call she received from a man named John on October
       24, 1996, but did not remember the content of the conversation.
       Applicant argues that had the information about Ms. Krings’ lack of
       memory been known at the time of trial, his trial defense counsel
       would have been able to effectively impeach her testimony.
                                           6

          The district court concluded Richmond failed to establish a Brady violation.

The court first noted that the “information regarding the detective’s contact with

Ms. Blume on October 24, 1996, and the substance of that contact, was

contained in a supplemental police report produced to the Linn County Attorney

on January 8, 1997, and forwarded to trial defense counsel per County Attorney

policy.”    The district court also determined the information was not material

because Ms. Krings’ inability to remember the full content of the call was

admitted by her at trial.

          Upon our de novo review, we find no reason to disturb the district court’s

denial of Richmond’s second application for postconviction relief. We therefore

affirm.

          AFFIRMED.
