                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1209
                               Filed March 4, 2020


HAYES ELBERT BAKER III,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Duane E.

Hoffmeyer, Judge.



      The applicant appeals from the dismissal of his fourth application for

postconviction relief as time-barred. AFFIRMED.




      Priscilla E. Forsyth, Sioux City, for appellant.

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

General, for appellee State.



      Considered by Bower, C.J., and May and Greer, JJ.
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GREER, Judge.

       Hayes Baker III appeals the denial of his fourth postconviction-relief

application (PCR) on statute-of-limitation grounds.      He argues new evidence

establishes an actual-innocence claim to overcome the statute-of-limitations

defense. The State disagrees. We do as well.

       I. Background Facts and Proceedings.

       In March 2009, Baker entered Amanda Carey’s home and assaulted her

and her sister, the mother of his children, Brooke Carey. Because of those actions,

on October 21, 2010, a jury convicted Baker of six criminal counts, including first-

degree burglary. Sentenced to a term of fifty years, Baker appealed the conviction.

The conviction was affirmed. See State v. Baker, No. 10-2093, 2012 WL 170181,

at *1–2 (Iowa Ct. App. Jan. 19, 2012). Procedendo issued on March 22, 2012,

almost six years before this fourth PCR filing. But after his direct appeal resolved,

Baker filed a postconviction-relief action. That application was denied, and Baker

then appealed that ruling.    He argued in this first PCR his trial counsel was

ineffective when he failed to interview and produce witnesses who would have

testified Baker had consent to enter the Carey home, making it impossible to prove

an element of the first-degree-burglary charge. Finding Baker was not credible

and that the evidence against him was “overwhelming,” the district court’s denial

of the first PCR was affirmed. See State v. Baker, No. 13-1387, 2014 WL 2885039,

at *2–3 (Iowa Ct. App. June 25, 2014) (finding attorney cannot fall below the

threshold of reasonable competency by failing to interview witnesses whose

existence his client has not shared). Not to be deterred, Baker filed two more PCR

applications before the one we address today. In his second PCR application,
                                            3

Baker addressed new evidence relating to his competency to stand trial. See State

v. Baker, No. 16-1375, 2017 WL 1735902, at *3 (Iowa Ct. App. May 3, 2017)

(finding that the claim of incompetency contradicted the record, including a

competency evaluation, and with no plausible claim for an exemption from the

statute of limitations, the filing “border[ed] on frivolous”).      Baker voluntarily

dismissed his third application.

         Hoping for another look by our appellate courts, Baker asserts new

evidence proves his actual innocence. Returning to his same themes, he argues

that his possession of house keys to the home and that the “open door agreement”

to enter the premises raises doubt of his guilt. The State moved for summary

judgment on three points: statute of limitations, claim preclusion, and repetitive

actions. Baker resisted the motion, urging a genuine issue of material fact was

generated as to his innocence and that as a matter of first impression, the court

should “follow the lead of the federal courts, and adopt an exception to the

procedural bars applicable in postconviction cases.” The district court granted

summary judgment and ruled the PCR application was barred under Iowa Code

section 822.3 (2018)1 because the statute of limitations ran and no exception to

the limitation period existed. Baker appeals.




1   Iowa Code section 822.3 states in pertinent part:
         All other 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. However, this limitation
         does not apply to a ground of fact or law that could not have been
         raised within the applicable time period.
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      II. Standard of Review.

      Denials of PCR applications are generally reviewed for correction of errors

at law unless they raise constitutional issues. See Perez v. State, 816 N.W.2d

354, 356 (Iowa 2012). A PCR “action based on newly discovered evidence is

reviewed for corrections of errors at law.” See More v. State, 880 N.W.2d 487,

498 (Iowa 2016).

      Summary dismissals of PCR applications are also reviewed for errors at

law. See Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). Just as in a civil

case, summary judgment principles apply here. Dewberry v. State, ___ N.W.2d

___, ___, 2019 WL 6633750, at *3 (Iowa 2019). Summary disposition of a PCR

action is analogous to summary judgment in a civil case. See Manning v. State,

654 N.W.2d 555, 559 (Iowa 2002). As in a civil case, the moving party has the

burden of proving the material facts are undisputed to succeed in a summary

judgment action. Castro, 795 N.W.2d at 792. And the nonmoving party cannot

rest on conclusory allegations in the pleadings to refute a properly supported

motion for summary judgment. See Iowa R. Civ. P. 1.981(5).

      III. Analysis.

      Looking to change Iowa case law, Baker contends that his actual innocence

claim provides a “gateway,” blocking application of the statute-of-limitations

defense for his PCR claim. He urges adopting the “gateway” theory formulated by

the United States Supreme Court but not yet adopted by the Iowa Supreme Court.2



2 For an in-depth discussion of the differences between a gateway claim, not
recognized under Iowa law, versus a freestanding claim recognized under Iowa
law. See Schmidt v. State, 909 N.W.2d 778, 790–92 (Iowa 2018).
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In his words, Baker “raises his claim of actual innocence not as a freestanding

claim, but as a gateway by which to obtain review of a constitutional error relating

to his conviction despites the statute of limitations and other procedural barriers.”

We decline the invitation to charge ahead of our supreme court. Grayson v. State,

No. 15-1382, 2016 WL 6652357, at *1–2 (Iowa Ct. App. Nov. 9, 2016) (noting “the

actual innocence exception [announced in Schlup v. Delo, 513 U.S. 298, 320

(1995),] has not been addressed nor adopted by the Iowa Supreme Court”).

       Iowa courts do recognize a freestanding actual-innocence claim available

as a safety valve for an innocent applicant convicted of a crime. Schmidt, 909

N.W.2d 795–98 (holding that even though defendant pleaded guilty, a witness

recantation unavailable within the three-year statute-of-limitation period provided

a sufficient basis to avoid a time bar to the actual-innocence claim in a PCR

proceeding). Baker did not urge this vehicle. But even if he had, to avoid the

statute-of-limitations requirements of Iowa Code section 822.3, Baker must show

he could not have raised the grounds of fact asserted here within the applicable

time period. Id. at 798–99; see also Dewberry, 2019 WL 6633750, at *5 (refusing

to expand the actual innocence claim to claims of legal innocence focusing on the

degree of the offense rather than factual innocence). As noted by our supreme

court, “An applicant must first meet the procedural requirements governing the

presentation of postconviction-relief claims as set forth in Iowa Code chapter 822.

For example, the applicant must comply with the statute of limitations or prove a

statutory exception thereto.”    Dewberry, 2019 WL 6633750, at *3 (citations

omitted). Once the procedural hurdles are met, the PCR applicant must establish
                                          6


a claim of actual innocence by “clear and convincing evidence he or she was

factually innocent of the offense of conviction.” Id. at *8.

       Baker’s claims of innocence are old and repetitive. These themes have

been tried, tested, and rejected by the jury and the district court.3 With the benefit

of the trial transcript, the PCR court noted that Baker took the stand at his trial and

testified he had keys to Amanda Carey’s home and believed he had standing

permission to enter the home. In his first PCR, Baker again raised arguments that

he had permission to enter Carey’s home and had keys to the home. Baker, 2014

WL 2885039, at *1–3. At that point in Baker’s appellate history, the Iowa Court of

Appeals opined the proof of his crime was “overwhelming.” Id.

       Confined by a three-year statute-of-limitation period, unless Baker identified

a ground of fact or law that could not have been raised within the applicable time,

his claim is barred. On this record, Baker shows no new grounds of fact or law

establishing his innocence. Even so, under the freestanding actual-innocence

claim, an applicant “must meet the demanding actual-innocence standard to prove

the validity of [his or her] actual-innocence claims.” Schmidt, 909 N.W.2d at 793.

Such a “demanding standard balance[s] the liberty interest of a factually innocent

person to be free from conviction and criminal sanction against the state’s

legitimate interests in finality and the conservation of judicial resources.”

Dewberry, 2019 WL 6633750, at *4. Having produced no new evidence or law




3 Even under the gateway actual-innocence exception, proof of claims of
constitutional error must include “new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” Schlup, 513 U.S. at 324.
                                        7


that allows him to escape the consequences of the late filing, Baker has no

entitlement to a PCR claim or any actual-innocence claim.

      IV. Disposition.

      Bringing finality to this case, we find the statute of limitations precludes

Baker’s fourth PCR application because it was filed more than three years after

procedendo issued. See Iowa Code § 822.3. The gateway actual-innocence

exception does not apply. We affirm the district court.

      AFFIRMED.
