                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0371
                               Filed May 3, 2017


JAMES DEAN RAYMOND,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, DeDra L.

Schroeder, Judge.



      An   applicant   appeals the    district   court’s denial of   his   second

postconviction-relief proceeding. AFFIRMED.



      Sarah A. Reindl of Reindl Law Firm, Mason City, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VOGEL, Judge.

       James Raymond was convicted of first-degree murder in 2006.

Procedendo from his direct appeal from his conviction was issued April 1, 2008.

See State v. Raymond, No. 06-2059, 2008 WL 141184, at *1 (Iowa Ct. App. Jan.

16, 2008).     Raymond filed his first postconviction-relief (PCR) proceeding in

November 2008.         Following a bench trial, the district court denied the PCR

application, and we affirmed that denial on appeal. See Raymond v. State, No.

12-1174, 2013 WL 4474479, at *1 (Iowa Ct. App. Aug. 21, 2013). Subsequently,

on March 3, 2014, Raymond filed a second PCR application. On January 6,

2016, the district court denied that action following a bench trial. Raymond once

again appeals1 claiming the district court erred in concluding his second PCR

action is time-barred and that a Brady2 violation did not occur during his criminal

proceeding.

       For a PCR action to be timely, it must be filed within three years of the

date the conviction was final or the date the writ of procedendo was issued if the

conviction was appealed.         See Iowa Code § 822.3 (2014).               “However, this

limitation does not apply to a ground of fact or law that could not have been

raised within the applicable time period.” Id. While Raymond’s second PCR

action was clearly filed outside the three-year limitation, he asserts newly


1
   The State contends this appeal is untimely because Raymond’s posttrial motion under
Iowa Rule of Criminal Procedure 1.904(2) was improper. We conclude the properly filed
posttrial motion in this case tolled the appeal deadline. Baur v. Baur Farms, Inc., 832
N.W.2d 663, 669 (Iowa 2013) (“[W]hen used to obtain a ruling on an issue that the court
may have overlooked, or to request the district court enlarge or amend its findings when
it fails to comply with rule 1.904(1), the motion [under rule 1.904(2)] is proper and will toll
the time for appeal.”).
2
   See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding prosecutors have a duty to
disclose material evidence to the accused upon request)
                                             3


discovered evidence, specifically polygraph-examination reports of two of the

State’s witnesses—Charles Gallmeyer and Michael Gallmeyer—and a video of

Charles Gallmeyer’s polygraph examinations, tolls the statute of limitations under

the new-ground-of-fact exception.3 See id. To establish the exception to the

three-year statute of limitations, Raymond “must show the alleged ground of fact

could not have been raised earlier” and “must show the ground of fact is relevant

to the challenged conviction.”       Harrington v. State, 659 N.W.2d 509, 520–21

(Iowa 2003).

       Our appellate courts have previously observed that the objective of
       the escape clause of section 822.3 is to provide relief from the
       limitation period when an applicant had “no opportunity” to assert
       the claim before the limitation period expired. . . . [T]he focus of our
       inquiry has been whether the applicant was or should have been
       “alerted” to the potential claim before the limitation period expired.

Cornell v. State, 529 N.W.2d 606, 611 (Iowa Ct. App. 1994) (citations omitted).

       Raymond asserts that it was only through the “dogged pursuit” of his

second PCR counsel in this proceeding that he was able to obtain both the

polygraph-examination reports and the video recording from the State. However,

it is clear from a review of the trial transcript that defense counsel was aware the

witnesses in question underwent polygraph examinations and questioned

witnesses regarding the results of those examinations at trial. While counsel


3
  The State also asserts Raymond did not preserve error on this claim. Raymond did
raise the new-ground-of-fact exception in his trial reply brief before the district court in
response to the State’s claim in its trial brief that this PCR action was barred by the
three-year statute of limitations. While the district court did not rule on the new-ground-
of-fact exception to the statute of limitations in its PCR decision, Raymond again raised
the issue in his posttrial motion under rule 1.904(2), which was denied by the district
court. We thus conclude the issue was preserved for appellate review. See Lamasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“When a district court fails to rule on an
issue properly raised by a party, the party who raised the issue must file a motion
requesting a ruling in order to preserve error for appeal.”).
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may not have the polygraph-examination reports or the video of the examination

at the time of trial, counsel was at least “alerted” to the potential existence of

these items.   See id.   Assuming the polygraph-examination reports and the

polygraph-interview video were withheld by the prosecution at the time of trial,

nothing prevented Raymond from obtaining the reports and video within the

three-year PCR period. Prior PCR counsel’s ineffectiveness does not satisfy the

new-ground-of-fact exception to the three-year statute of limitations. Smith v.

State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995) (“[A]n applicant for

postconviction relief cannot circumvent the effect of the three-year time bar by

merely claiming the ineffective assistance of postconviction counsel.” (citing

Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994))).

      In addition, we agree with the district court’s alternate holding that even

assuming Raymond can avoid the application of the statute of limitations, he

cannot prove a Brady violation because defense counsel knew of the essential

facts that the witnesses underwent polygraph examinations and that in particular

Charles Gallmeyer’s polygraph examination indicated he was being deceptive;

defense counsel questioned Charles Gallmeyer and the investigating officer

regarding the deception. Cornell v. State, 430 N.W.2d 384, 385 (Iowa 1988)

(“Exculpatory evidence is not ‘suppressed’ if the defendant either knew or should

have known of the essential facts permitting him to take advantage of the

evidence.”).

      We thus conclude the district court correctly denied Raymond’s second

PCR application.

      AFFIRMED.
