                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0157
                               Filed April 15, 2020


WILLIE JAMES WILDER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,

Judge.



      Willie J. Wilder appeals the denial of his second application for

postconviction relief. We affirm the district court’s ruling dismissing his claim as

time-barred. AFFIRMED.




      Jeremy L. Merrill of Lubinus Law Firm, PLLC, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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DOYLE, Judge.

    Willie J. Wilder appeals the denial of his second postconviction-relief (PCR)

application. Even though his second PCR application was filed more than three

years after procedendo issued from his first PCR action, Wilder argues the district

court erred in dismissing his application as time-barred. We disagree and affirm

the district court’s ruling.1

    I. Background Facts and Proceedings.

       The events prompting this case begin in 2010 when a jury found Wilder

guilty of first-degree robbery and third-degree theft. The two convictions were

merged, and he was sentenced to prison. Wilder v. State, No. 13-1586, 2014 WL

5862031, at *2 (Iowa Ct. App. Nov. 13, 2014) (Wilder II). Wilder challenged his

conviction on several grounds including insufficiency of evidence. In 2012, this

court affirmed his conviction. State v. Wilder, No. 11-0067, 2012 WL 170690, at

*4 (Iowa Ct. App. Jan. 12, 2012) (Wilder I).

       Wilder timely filed his first PCR application claiming, among other things,

that his trial attorney was ineffective. Wilder II, 2014 WL 5862031, at *2. The

district court denied the application, and Wilder once again appealed. Id. While

his appeal was pending, after briefing and transfer to this court, Wilder’s PCR

appellate attorney withdrew, and a substitute was appointed. This court affirmed



1 Because we hold Allison v. State, 914 N.W.2d 866, 891 (Iowa 2018), did not save
Polk’s second PCR petition, we need not address whether recent legislation,
apparently abrogating Allison, applies to this appeal. See S.F. 589, 88th Gen.
Assemb. § 34 (Iowa 2019) (“An allegation of ineffective assistance of counsel in a
prior case under this chapter shall not toll or extend the limitations period in this
section nor shall such claim relate back to a prior filing to avoid application of the
limitation periods.”) (codified as amended at Iowa Code § 822.3 (2019)).
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finding that Wilder’s “defense counsel acted reasonably” in presenting an alibi

defense strategy and that Wilder showed no prejudice in his counsel’s failure to

challenge a witness’s testimony. Id. at * 3-4. Substitute PCR appellate counsel

did not apply for further review, and procedendo issued on January 2, 2015. In a

January 18, 2015 letter to Wilder, his substitute PCR appellate counsel wrote

       I have had an opportunity to sort out where the confusion arose
       regarding my appointment to your case and my understanding of my
       appointment, and the error was clearly mine. As a result, the timeline
       to file for further review to the Iowa Supreme Court has long since
       passed, and you are foreclosed from now seeking its review of the
       Appellate Court. This was totally my fault, and for that I apologize,
       and you may seek whatever recourse from that at your disposal. And
       I do not state that cavalierly.

       Wilder then waited almost three-and-a-half years before filing a second

PCR application. He claimed that first PCR counsel was ineffective and failed to

“sufficiently highlight and or question trial counsel as to the deceit involved in

properly counseling client as to ramification of proceeding to trial v. plea offer.”

The State moved to dismiss arguing that the PCR application was time-barred

under Iowa Code sections 822.3 and 822.8 (2018). Wilder resisted arguing that

the PCR application should be considered timely under the Iowa Supreme Court’s

holding in Allison v. State, 914 N.W.2d 866, 890 (Iowa 2018), and that his previous

substitute PCR appellate attorney’s failure to explain applicable timelines to

remedy his mistake prevented Wilder from timely pursuing any recourse.

       Later, Wilder filed his first amended PCR application where he added a

claim of ineffective assistance of appellate counsel stating that the ineffectiveness

stemmed from substitute PCR appellate counsel’s failure to apply for further

review. Then Wilder filed a second amendment adding a claim of prosecutorial
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misconduct in the original criminal proceedings.       The district court dismissed

Wilder’s application as untimely. Wilder appeals.

   II. Scope and Standard of Review.

       We review a grant of a motion to dismiss a PCR application for correction

of errors at law. Allison, 914 N.W.2d at 870. But when a PCR applicant claims

ineffective assistance of PCR counsel, our review is de novo. Id.

   III. Analysis.

       Iowa Code Section 822.3 requires that PCR

       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.

Wilder argues a relation-back doctrine provides him relief from the section 822.3

statute of limitations. Allison holds that

       where a PCR petition alleging ineffective assistance of trial counsel
       has been timely filed per section 822.3 and there is a successive
       PCR petition alleging postconviction counsel was ineffective in
       presenting the ineffective-assistance-of-trial-counsel claim, the
       timing of the filing of the second PCR petition relates back to the
       timing of the filing of the original PCR petition for purposes of Iowa
       Code section 822.3 if the successive PCR petition is filed promptly
       after the conclusion of the first PCR action.

914 N.W.2d at 891. So, for the timing of the filing of a second PCR application to

relate back to the timing of the filing of the first under section 822.3, three prongs

must be met. There must be: (1) a timely filed PCR application alleging ineffective

assistance of trial counsel, (2) a successive PCR application alleging that PCR

counsel was ineffective in presenting the ineffective-assistance-of-trial-counsel
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claim in the first PCR action, and (3) prompt filing of the successive PCR

application following the conclusion of the first PCR action.

         Wilder’s case satisfies the first prong. In his first timely filed PCR action he

alleged his trial counsel was ineffective. He satisfies the second prong. He alleges

his PCR appellate counsel was ineffective in presenting the ineffective-assistance-

of-trial-counsel claim. So we examine the third prong—promptness in filing the

successive PCR application.

         Under the third prong of the Allison test, for the timing of the filing of the

successive PCR application to relate to the timing of the filing of the first PCR

action, the successive PCR application must be “promptly”2 filed after the

conclusion of the first. Id. Wilder’s first PCR action concluded when procedendo

issued on January 2, 2015. By the January 18, 2015 letter, Wilder was informed

by his substitute appellate PCR lawyer that he blew the time to petition for review.

Wilder did nothing for over three years. He waited until May 3, 2018 to file his

second PCR application—almost three-and-a-half years after procedendo issued

after his first PCR and more than three years after learning his substitute appellate

PCR counsel had not petitioned for further review. In challenging this filing, the

State moved to dismiss asserting the application was untimely. Wilder resisted

arguing that the Allison relation-back doctrine should apply and that any late filing

should be excused because his substitute appellate attorney failed to explain the

applicable timelines adequately to remedy his mistake of not applying for further

review. We, like the district court, find both arguments unpersuasive.



2   “Promptly” is not defined.
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       Because Wilder waited more than three years to file his second PCR action

after conclusion of his first PCR action, he did not meet the “prompt” filing mandate

in Allison. See Fountain v. State, No. 17-2024, 2019 WL 5424928, at *3 n.9 (Iowa

Ct. App. Oct. 23, 2019) (waiting nearly two years to file not considered prompt);

Polk v. State, No. 18-0309, 2019 WL 3945964, at *1 (Iowa Ct. App. Aug. 21, 2019)

(waiting nearly six months did not meet “prompt” filing mandate); Cook v. State,

No. 17-1245, 2019 WL 719163, at *4 (Iowa Ct. App. Feb. 20, 2019) (application

filed more than forty-six months after the conclusion of first PCR action and more

than twenty-nine months after the conclusion of second PCR action not prompt);

Kelly v. State, No. 17-0382, 2018 WL 3650287, at *3-4 (Iowa Ct. App. Aug. 1,

2018) (“[W]e cannot say Kelly’s applications have been ‘promptly’ filed, with his

second PCR application being filed more than fifteen months after our court

affirmed the denial of his first application and his third application being filed more

than one year after procedendo issued on his appeal of his second PCR action.”).

And Wilder’s attempt to justify the late filing because his substitute appellate

counsel failed to make him aware of a timeline to remedy the mistake is unavailing,

particularly when he was immediately made aware that the counsel was admitting

ineffectiveness.

   IV. Conclusion.

       We conclude that Wilder’s second PCR application does not qualify for the

Allison relation-back doctrine because it was not promptly filed after conclusion of

his first PCR action and is therefore time barred. The district court correctly

dismissed the application.

       AFFIRMED.
