                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1195
                               Filed July 18, 2018


JERRY LEE WILLIAMS, SR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (North) County, John M. Wright,

Judge.



      Jerry Williams appeals the dismissal of his application for postconviction

relief. AFFIRMED.




      Eric D. Tindal of Keegan Farnsworth & Tindal, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Aaron J. Rogers, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Jerry Williams Sr. appeals the denial of his application for postconviction

relief (PCR) following his conviction for murder in the first degree. On direct

appeal, our supreme court set forth the following facts:

               The charge arose from the slaying of Iowa State Penitentiary
       inmate Gary Tyson on September 2, 1981. Defendant was among a
       group of inmates being held in administrative segregation in
       cellhouse 20 on that date. Defendant was then under indictment for
       the alleged murder of inmate Allen Lewis on May 18, 1981. Tyson’s
       death was discovered after a prison riot was brought under control.
               The State’s evidence tended to show that defendant and
       several fellow members of a prison gang called the Vice Lords killed
       Tyson during the riot because they suspected Tyson was going to
       provide the State with evidence against them on the Lewis homicide.
       . . . In particular the jury could find that defendant held Tyson in a
       chokehold while Allen Langley repeatedly stabbed him. Tyson was
       beaten, choked and stabbed in the chest, back and neck. Forensic
       testimony indicated that he died from the stab wounds.

State v. Williams, 360 N.W.2d 782, 784 (Iowa 1985). Procedendo issued February

12, 1985. Williams subsequently obtained signed affidavits from three separate

inmates stating two witnesses at Williams’s trial had confessed to falsely testifying

against Williams. Those affidavits are dated November 16, 1987, December 23,

1987, and March 1990. One of the affiants provided another affidavit dated August

4, 2016, that again states a witness had confessed to committing perjury in

Williams’s trial.

       On December 30, 2013, Williams filed his application for PCR based partly

on the affidavits he obtained. On July 13, 2017, the district court denied his

application, finding he filed his application more than three years after the writ of

procedendo and he had failed to present a ground of fact or law that could not
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have been raised during the three years to overcome the statute of limitations.

Iowa Code § 822.3 (2013).

       On appeal, Williams has abandoned the arguments he raised before the

district court. Instead, he only argues his PCR counsel was ineffective for failing

to raise actual innocence and create a record to evaluate his innocence. To prevail

on a claim on ineffective assistance of counsel, the applicant must show “(1)

counsel failed to perform an essential duty; and (2) prejudice resulted.” State v.

Clay, 824 N.W.2d 488, 495 (Iowa 2012) (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)). We typically preserve such claims for further PCR proceedings,

resolving the claims on appeal only if the record is adequate. Id. at 494.

       Our supreme court recently addressed actual innocence in PCR actions,

finding the PCR statute of limitations does not bar freestanding actual innocence

claims and creating a new standard to evaluate actual innocence claims. Schmidt

v. State, 909 N.W.2d 778, 799–800 (Iowa 2018).           The district court denied

Williams’s application before the issuance of the Schmidt decision. As a result,

Williams did not have the benefit of Schmidt when making arguments and

establishing the record regarding actual innocence before the district court, and

the record before us is inadequate to evaluate whether his counsel was ineffective

for failing to raise actual innocence. See Clay, 824 N.W.2d at 494. Therefore, we

affirm the district court, and we preserve his claim that his PCR counsel was

ineffective for failing to raise actual innocence for an additional PCR proceeding.

        AFFIRMED.
