                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-1246 / 13-0203
                              Filed March 12, 2014


DOUGLAS PAUL BEERY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Douglas Beery appeals the district court’s ruling dismissing his application

for postconviction relief. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Benjamin M. Parrott, Assistant

Attorney General, John P. Sarcone, County Attorney, and David Porter, Assistant

County Attorney, for appellee State.




      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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POTTERFIELD, P.J.

      Douglas Beery appeals the district court’s ruling dismissing his application

for postconviction relief. Beery’s claim of newly-discovered evidence does not

warrant a new trial. We affirm.

      I. Scope of Review.

      “Generally, an appeal from a denial of an application for postconviction

relief is reviewed for correction of errors at law.” Perez v. State, 816 N.W.2d 354,

356 (Iowa 2012) (internal quotation marks and citation omitted). We must “affirm

if the trial court’s findings of fact are supported by substantial evidence and the

law was correctly applied.” Harrington v. State, 659 N.W.2d 509, 520 (Iowa

2003). “Where the applicant alleges constitutional error, our review is de novo in

light of the totality of the circumstances and the record upon which the

postconviction court’s rulings were made.” Perez, 816 N.W.2d at 356 (quotation

marks, citation, and corrections omitted).

      II. Background Facts.

      In April 1996, Beery was convicted of first-degree murder and assault with

intent to inflict serious injury stemming from an incident occurring in October

1995, which we have previously described:

      Beery, his brother and several others, after having been asked to
      leave a bar for causing a disturbance, began fighting. During the
      fracas, two passing vehicles were kicked by Beery or his brother.
      After having her car kicked, Dawn Ray returned with her husband,
      Jackie, and three other men. A brawl ensued and Beery pulled his
      knife. He stabbed one individual, Dennis Link, four times, including
      a fatal wound to the chest. He also stabbed Jackie Ray in the
      chest.

Beery v. State, 0-797, 2001 WL 98382, at *1 (Iowa Ct. App. Feb. 7, 2001).
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This court affirmed his conviction on direct appeal. See id. Further review was

denied by the Iowa Supreme Court on October 3, 1997. See Beery v. Ault, 312

F.3d 948, 950 (8th Cir. 2002) (concluding Beery’s habeas petition was untimely).

       In 1999, Beery filed an application for postconviction relief (PCR),

asserting trial counsel was ineffective.      Beery, 2001 WL 98382, at *1.        We

rejected Beery’s ineffectiveness claim,1 and affirmed the district court’s dismissal

of the PCR application. Id. at * 2.

       Beery filed a second application for postconviction relief on November 9,

2010, asserting, among other things, newly-discovered evidence entitled him to a

new trial. He urged the newly-discovered evidence would have bolstered his

justification defense upon which he relied at trial. The State filed a motion to

dismiss, asserting the second application is barred by the three-year limitations

period of Iowa Code section 822.3 (2009).2 The district court did not rule on the


1
  Beery contended trial counsel should have sought a hearing to determine if Beery’s
criminal history would have been admissible had he chosen to testify. We observed:
                 Beery’s attorney testified at the post conviction relief hearing that
        he advised Beery not to testify on his own behalf for several reasons,
        including the felony convictions in his background, knowledge of Beery’s
        involvement in another recent violent incident with a baseball bat, and
        Beery’s behavior that night in stabbing his own brother prior to the fatal
        stabbing of Link. In addition to this information, Beery’s attorney testified
        he knew of no reason Beery’s criminal history would have been ruled
        inadmissible at trial. Iowa Rule of Evidence 609 allows prior felony
        convictions to be admitted to impeach a defendant if the felony involves
        the veracity of the defendant. Beery’s criminal history included two prior
        burglary convictions and a theft conviction. . . . Trial counsel did not
        breach an essential duty when the status of the law would clearly indicate
        Beery’s criminal history would have been admitted into evidence,
        subjecting his testimony to impeachment. Trial counsel is not ineffective
        in failing to pursue a meritless issue.
Beery, 2001 WL 98382, at *2.
2
  Section 822.3 provides in pertinent part,
        [A]pplications 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
                                         4


motion for summary disposition; rather, the matter proceeded to trial. In support

of his newly-discovered-evidence claim, Beery presented the deposition of

Melvin Freeborn and testimony from Beery and his trial counsel.

      On January 30, 2013, the district court concluded the applicant’s claims

“with the possible exception of the claim of newly discovered evidence” were

barred by section 822.3. The court summarized:

             Beery’s newly-discovered evidence consists of the testimony
      of Melvin Freeborn, which is as follows: Freeborn is from Des
      Moines and, although he knew of Beery at the time of Beery’s
      crime, they did not associate. Freeborn was imprisoned in 2002
      and that is when he met Beery and the two started “hanging out
      and talking.” Despite this, it was not until six years later, in 2008,
      that Freeborn learned why Beery was in prison. When he learned
      that Beery had been convicted of killing Dennis Link, Freeborn
      remembered the event. He remembered the incident because he
      had been at a tattoo parlor (that was in an old bus sitting on his
      cousin’s property) on the early morning of the killing when Dawn
      Ray showed up. (It was Dawn Ray’s car that Beery or his brother
      had kicked as she left the tavern where the fracas had erupted after
      Beery and his brother were ejected and near where the victim,
      Dennis Link, was later stabbed and killed by Beery.) Dawn Ray
      came into the bus yelling to her husband, Jackie Ray, who was also
      at the bus, that someone had kicked her car. That is when another
      individual who was at the bus, Bobby Palmer, said: “well, let’s just
      go kick their butts.” Dawn, her husband Jackie, and Bobby Palmer
      then left the bus to get in their cars and head back to the bar. As
      they left, the victim, Dennis Link, pulled up in his car. They all
      stopped and talked to him for a moment. Then the Rays, Palmer
      and Link left, all in separate cars, heading back toward the bar.
      Later, Freeborn heard on the news that Dennis Link had been
      stabbed to death but he did not know that Beery had been accused
      of the crime. He did not talk to police about what he had observed
      the night before because he didn’t think it was any of his concern;
      or because he was “a bad guy back then” and so wasn’t “going to
      go to the cops”; or because he didn’t know who to go to, depending
      on which of those three answers to that question he gave in his
      deposition is to be believed.



      of fact or law that could not have been raised within the applicable time
      period.
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      Beery’s trial counsel, Wesley Dunbar testified that his investigator tried to

locate witnesses or evidence to support Beery’s justification defense. Dunbar

stated that he never heard the name of Freeborn or his wife until this hearing.

He also testified that he remembered there were only three witnesses to the

alleged stabbing—Beery, the victim, and a woman named Kelly Milani. Dunbar

stated that Milani’s statement to police, which was played for the jury, provided

evidence to support the self-defense claim, but he could not use her at trial

because he discovered on the eve of the trial that she was in a relationship with

Beery. Dunbar testified that additional witnesses would have been helpful to

Beery’s case, especially evidence regarding the demeanor of the alleged victim.

      The district court denied the application for postconviction relief, finding

Freeborn’s evidence was merely cumulative or impeaching and would not

probably change the result of the trial. Beery appeals.

      III. Discussion.

      An applicant alleging newly-discovered evidence entitles him to a new trial

must show: (1) the evidence was not discovered until after judgment; (2) the

evidence could not have been discovered earlier through the exercise of due

diligence; (3) the evidence is material to the issue, not merely cumulative or

impeaching; and, (4) it would probably change the result if a new trial is granted.

Harrington, 659 N.W.2d at 520. As to the second element, the district court

determined the credibility of Freeborn’s testimony was highly suspect. We agree

with the district court that Beery has failed to establish at least the third and

fourth elements listed. Beery’s defense hinged upon Link’s actions or statements

at the scene of the fight leading to Beery’s use of lethal force. Freeborn offered
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nothing relevant to the murdered person’s (Link’s) demeanor, statements, or

actions; heard nothing that was said by Ray or Palmer to Link; and was not

present at the scene of the murder. We find no error in the district court’s finding

that Freeborn’s testimony would probably not change the result if a new trial was

granted. We therefore affirm.

      AFFIRMED.
