                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0636
                               Filed April 17, 2019


MICHAEL ROACH,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      The applicant appeals the summary dismissal of his fourth application for

postconviction relief challenging his 2004 convictions for murder in the second

degree and robbery in the first degree. AFFIRMED.




      Karmen Anderson, Des Moines, for appellant.

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

Attorney General, for appellee State.



      Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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POTTERFIELD, Presiding Judge.

       Michael Roach appeals the summary dismissal of his fourth application for

postconviction relief (PCR) challenging his 2004 convictions for murder in the

second degree and robbery in the first degree. As he did before the district court,

Roach argues Iowa’s 2017 “stand your ground” law, which provides criminal

immunity to a “person who is justified in using reasonable force against an

aggressor in defense of oneself, another person, or property,” applies

retroactively. See Iowa Code § 704.13 (2017). He argues both state and federal

constitutional due process require the retroactive application1 and asks that we

remand to the PCR court for the determination of whether the facts of his

particular case warrant the application of the immunity.2

       Our court has been asked by other defendants to determine whether

section 704.13 is to be applied retroactively, and we have ruled that it is not. See

Hines v. State, No. 17-2080, 2019 WL 1056030, at *1–2 (Iowa Ct. App. Mar. 9,

2019) (finding the “stand your ground” law is a change in substantive law and

therefore does not apply retroactively); State v. Barber, No. 18-0038, 2019 WL

761631, at *9 (Iowa Ct. App. Feb. 20, 2019) (“The 2017 amendments to the

justification defense at issue in this case were prospective, not retrospective, as

1
  On appeal, Roach argues the Equal Protection Clause is also implicated in this case.
However, this issue was not raised before and decided by the district court, so we do not
consider it. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised and
decided by the district court before we will decide them on appeal.” (citation omitted)).
2
  Specifically, Roach states:
                 This case should have proceeded on the merits to determine if
        Roach’s actions were reasonable on the night of Ellis’ death based on
        actions of Ellis, and whether or not Roach believed he was in imminent
        danger, thereby justifying deadly force. If the court finds that these
        statements are true, the conviction must be vacated and Roach would be
        barred from prosecution for his actions pursuant to Iowa Code 704.13.
                                           3


the amendments were not expressly made retrospective and were substantive in

nature.”). And we are not persuaded by Roach’s argument that the Supreme

Court’s rulings in Welch v. United States, 136 S. Ct. 1257, 1264 (2016) and

Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016) require us to now rule

otherwise.

         In Montgomery, the Supreme Court was asked to consider whether its

previous ruling in Miller v. Alabama,3 that the Eighth Amendment prohibition

against cruel and unusual punishment prevented juveniles convicted of homicide

from being sentenced to life without parole absent consideration of the juvenile’s

special circumstances, applied retroactively to juveniles whose convictions were

final before Miller was decided. 136 S. Ct. at 725. The defendant in Montgomery

challenged the sentence he received as a juvenile almost fifty years before the

Miller ruling, and Louisiana—the state in which Montgomery was convicted of his

crimes—ruled Miller was not to be applied retroactively. Id. at 726, 727. The

Supreme Court first ruled that it had jurisdiction to hear the case even though it

involved a state’s procedural rule regarding when to hear collateral attacks on

illegal sentences.     Id. at 727.   The Court reasoned, “If . . . the Constitution

establishes a rule and requires that the rule have retroactive application, then a

state court’s refusal to give the rule retroactive effect is reviewable by this Court.”

Id. The Court ultimately held that “when a new substantive rule of constitutional

law controls the outcome of a case, the Constitution requires state collateral

review courts to give retroactive effect to that rule.” Id. at 729. The Court’s ruling

in Montgomery is limited to instances of new substantive rules that are both

3
    567 U.S. 460, 470 (2012).
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federal and constitutional in nature—of which Iowa’s “stand your ground” law is

not.

       In Welch v. United States, the Court considered whether a new rule of

constitutional dimension would be applicable to cases that have become final

before the new rule is announced. 136 S. Ct. at 164. As Welch is similarly

limited in nature as Montgomery, it is also inapplicable to our analysis in

determining whether section 704.13 is to be applied retroactively.

       Because the “stand your ground” law is not retroactive, the new law does

not fall within the exception to the statute of limitations for PCR applications. See

Iowa Code § 822.3 (requiring applications to be filed within three years unless

there is “a ground of fact or law that could not have been raised within the

applicable time period”). Thus, Roach’s fourth PCR application was untimely,

and we affirm the district court’s summary dismissal of the application.

       AFFIRMED.
