                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0383
                               Filed March 22, 2017


STEPHEN SHAWN KEYES,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Marsha M.

Beckelman (first motion to amend), Mary E. Chicchelly (second motion to

amend), and Lars G. Anderson (trial), Judges.




      Stephen Keyes appeals the denial of his application for postconviction

relief (PCR), asserting that his trial counsel provided ineffective assistance and

that the PCR court erred in denying his motions to amend his application.

AFFIRMED.




      Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee State.



      Considered by Danilson, C.J., and Doyle and McDonald, JJ.
                                         2


DOYLE, Judge.

       A jury found Stephen Keyes guilty of two counts of first-degree murder,

and he was sentenced to life in prison. We affirmed Keyes’s convictions on

direct appeal, but we preserved his ineffective-assistance-of-counsel claims for

possible postconviction-relief (PCR) proceedings. See State v. Keyes, No. 97-

1997, slip op. at 1-5 (Iowa Ct. App. May 26, 1999). Keyes timely filed a PCR

application in 1999, but trial did not take place until 2014. The PCR court denied

the application in early 2015. Keyes appeals, raising two claims: (1) trial counsel

was ineffective regarding the cross-examination of Keyes’s eight-year-old son,

and (2) the PCR court abused its discretion in denying his motions to amend the

PCR application. We conclude that Keyes did not meet his burden to prove his

trial counsel was ineffective and that the PCR court did not abuse its discretion in

denying his motions to amend his PCR application. We therefore affirm.

       I. Background Facts and Proceedings.

       In the early morning hours of December 26, 1996, Keyes’s wife, Sandra,

and two-year-old son, Joshua, died in a house fire. The State accused Keyes of

setting the fire to collect insurance proceeds and charged him with two counts of

murder. Keyes was tried to a jury in September 1997.

       Special Agent Michael Hiles was the State’s chief fire investigator on the

case. He testified concerning accelerant detection at the fire scene by a dog

trained for this purpose. See id. at 2. Hiles was also allowed to demonstrate the

dog’s ability to detect a drop of gasoline concealed in the courtroom. See id.

“Other inculpatory evidence included Keyes’s failing marriage to Sandra, threat to

kill her, and recent purchase of substantial life and renter’s insurance.”       Id.
                                            3


Keyes was found guilty of two counts of first-degree murder and sentenced to life

in prison. See id.

       On direct appeal, this court concluded the State’s foundation for admission

of Hiles’s expert testimony concerning the reaction of a dog trained in accelerant

detection was sufficient. See id. at 3-4. We also found no error in the dog’s in-

court demonstration.        See id. at 5.   We affirmed Keyes’s convictions and

sentence and preserved for postconviction proceedings Keyes’s ineffective-

assistance-of-counsel claims that “his trial counsel was ineffective in (1) failing to

object to evidence of [Keyes’s] ‘check kiting’ offenses; and (2) failing to cross-

examine [Keyes’s] son Michael about his recall of the events surrounding the

morning of the fire.” Id.

       Keyes timely filed his pro se PCR application on November 1, 1999,

setting forth three claims of ineffective assistance of counsel. He contended his

trial counsel was ineffective in (1) failing to object to evidence of other crimes,

i.e., Keyes’s check kiting offenses, (2) failing to cross-examine his eight-year-old

son Michael concerning the boy’s recall of events at the time of the fire, and (3)

failing to object to the warrantless search and seizure of Keyes’s clothing. Keyes

was appointed PCR counsel. As the PCR court so aptly noted: “From there, this

case . . . had a sad history of progression.” Keyes’s eighth PCR counsel was

appointed in April 2007.

       In September 2008, PCR counsel moved for a continuance.               Counsel

advised the court that “in spite of the multiple attorneys that [had] been

appointed, very little was done” in the case and that he had to “essentially begin

from scratch.” Due to the size and complexity of the case, counsel requested an
                                        4


extension of one year to develop the PCR record.        Counsel also requested

depositions and preparation of transcripts at the State’s expense, stating Keyes’s

expert had “now completed his preliminary analysis,” and the case was “finally

ready for depositions.” The court granted Keyes’s requests.

      In an April 2009 motion, PCR counsel advised that Keyes had “obtained

the services of a Dr. Gerald Hurst in Austin, Texas,” who had worked for Keyes

pro bono and “prepared a 57 page report finding significant infirmities in the

arson investigation,” and counsel requested funds for the expert to travel to give

testimony, as well as funds for other experts. Dr. Hurst’s September 3, 2008

report was attached to the motion.       The report was very critical of Hiles,

stating: “The origin and cause investigation in the Keyes case was an exercise

based on concepts which had been long relegated to the category of old wives

tales.” The State resisted, but the PCR court granted funding for two of three

requested experts.

      At the end of 2010, PCR counsel requested another continuance and a

trial-scheduling conference.   Following the conference, the court entered a

scheduling order setting deadlines of February 15, 2011, for amendments to

pleadings and March 15, 2011, for Keyes’s designation of experts. Trial was set

for January 9, 2012.

      On March 15, along with a designation of experts, PCR counsel filed a

motion to amend the PCR application. The motion stated counsel “inadvertently

tickled this deadline for March 15” and learned of the error when talking to the

State’s counsel. PCR counsel took full responsibility for missing the deadline by

twenty-eight days and requested the fault not be placed on Keyes. PCR counsel
                                           5


also stated he “had no tactical advantage for missing the deadline, and the

contents of his Amended Application merely restate many of the core

conclusions” of Dr. Hurst’s report, which the State had had since April 2009.

With the trial some ten months away, counsel believed the State had adequate

time to prepare, but Keyes did not object to a continuance, including the resetting

of deadlines, if the State needed additional time.          The proposed amended

application asserted fourteen grounds, including the original three claims of

ineffective assistance of counsel. The State resisted, and the PCR court denied

the motion, concluding it substantially changed the issues, prejudiced the State,

and would likely require a continuance.

       A status hearing was held in December 2011, and Keyes and his counsel

requested the trial date be reset. The State did not resist a continuance, but it

“reserved the right to object in the future to any further request by [Keyes] to

amend the [application].” The court granted the motion to reset the trial date.

       Another status hearing was held in June 2013, and trial was again reset—

for September 2014. In July 2014, PCR counsel filed a second motion seeking

to amend the PCR application. The proposed amended application raised ten

grounds, including two of the original ineffective-assistance-of-counsel claims.

Among other things, the motion advised that since the first motion to amend, the

Iowa Fire Marshal had officially adopted National Fire Protection Association

(NFPA) 921, a Guide for Fire and Explosion Investigations.1 The State again


1
  NFPA 921 was in existence at the time of the Keyes’s fire. When cross-examined at
the murder trial, the State’s fire investigator Hiles testified he did not rely upon the
guidelines of NFPA 921 because NFPA was controlled by “special interest people,” and
“[n]ot one of the 50 State Fire Marshals [was] on the board or committee.” On July 5,
                                            6


resisted, and the PCR court denied the motion in August 2014 for the same

reasons it stated in its prior order.

       Trial commenced in September 2014 on the three ineffective-assistance-

of-counsel claims asserted by Keyes in his original 1999 PCR application. The

PCR court declined to reconsider the rulings previously made on the earlier

motions to amend. Though the court did not consider Keyes’s experts’ testimony

at trial, the court did permit Keyes to elicit their testimony by way of an offer of

proof for appellate review. On January 30, 2015, the PCR court entered its ruling

denying Keyes’s ineffective-assistance-of-counsel claims.

       Keyes appealed. In June 2015, the Iowa Supreme Court entered an order

for limited remand to allow the PCR court to rule on Keyes’s motions for a new

trial and to amend or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2).2

The PCR court denied the motions on August 24, 2015.                  The matter then

bounced back to the supreme court and was transferred to this court in

December 2016.

       On appeal, Keyes argues a single ground of ineffective-assistance-of-

counsel: that his trial counsel was ineffective for failing to impeach or more

effectively cross-examine his then eight-year-old son about the inconsistencies in

his trial testimony compared to the child’s statements given to a detective the day

of the fire. Keyes also argues the PCR court erred or abused its discretion when




2011, the Iowa State Fire Marshal adopted NFPA 921 as a guide, “except when such
guidance is inapplicable or when additional or alternative investigative methods are
warranted based upon the nature of the fire or explosion.”
2
  Keyes’s posttrial motions had not been ruled on before Keyes filed his notice of appeal.
                                           7


it denied his motions to amend the PCR application. We begin with Keyes’s

ineffective-assistance-of-counsel claim.

         II. Ineffective Assistance of Counsel.

         A. Standard of Review and Boilerplate Law.

         Though we normally review the PCR court’s ruling on the application for

corrections of errors at law, constitutional claims, such as those alleging

ineffective assistance of counsel, are reviewed de novo. See More v. State, 880

N.W.2d 487, 498 (Iowa 2016); Nguyen v. State, 878 N.W.2d 744, 750 (Iowa

2016).    To succeed on a claim of ineffective assistance of counsel, a PCR

applicant “must prove by a preponderance of evidence ‘(1) his trial counsel failed

to perform an essential duty, and (2) this failure resulted in prejudice.’” Rhoades

v. State, 848 N.W.2d 22, 28 (Iowa 2014) (citation omitted). If Keyes cannot

establish both elements, his claim fails; thus, if we find one element lacking, we

need not address the other element. See State v. Schlitter, 881 N.W.2d 380, 388

(Iowa 2016). But if Keyes does establish both elements, meaning his counsel

was ineffective, he is entitled to a new trial. See id. at 391. “[I]t is the applicant’s

burden to present facts establishing inadequate representation.” King v. State,

797 N.W.2d 565, 571 (Iowa 2011).

         “An attorney breaches an essential duty when ‘counsel’s representation

[falls] below an objective standard of reasonableness.’”          Lado v. State, 804

N.W.2d 248, 251 (Iowa 2011) (citation omitted).              “We assess counsel’s

performance ‘objectively by determining whether [it] was reasonable, under

prevailing professional norms, considering all the circumstances.’” Nguyen, 878

N.W.2d at 752 (citation omitted). But, in assessing counsel’s performance, “we
                                           8


start with the presumption that the attorney performed his duties in a competent

manner.” State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008). “Miscalculated

trial strategies and mere mistakes in judgment normally do not rise to the level of

ineffective assistance of counsel,” King, 797 N.W.2d at 571, and “we avoid

second-guessing and hindsight,” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa

2001). We are less likely to find counsel ineffective if counsel’s alleged actions

or inactions stem from counsel’s use of judgment rather than counsel’s lack of

diligence. See Lado, 804 N.W.2d at 251. “[W]e look to the facts of the case to

determine whether there was a lack of diligence.”           King, 797 N.W.2d at 571

(citation omitted).   “Clearly, there is a greater tendency for courts to find

ineffective assistance when there has been ‘an abdication—not exercise—

of . . . professional [responsibility].’” Lado, 804 N.W.2d at 251 (citation omitted).

“In the end, the inquiry is transformed into an individualized fact-based analysis.”

Ledezma, 626 N.W.2d at 142. “Counsel’s unprofessional errors resulting in the

mere impairment of presenting the defense is not sufficiently prejudicial.” State

v. Clay, 824 N.W.2d 488, 496 (Iowa 2012).

       B. Analysis.

       Keyes asserts one ineffective-assistance-of-counsel claim on appeal. The

PCR court succinctly set forth that claim as follows:

               In his [application], Keyes claims that “[t]rial counsel erred
       when failing to cross-examine [his] son, Michael, concerning his
       recall of events at the time of the fire . . . . Essentially, trial counsel
       could have impeached [Keyes’s son] but instead decided not to
       engage in cross-examination . . . . Michael’s testimony could have
       been impeached, especially where it suggested [Keyes] did not
       attempt to remove his wife and another child from the flames of the
       burning house.” At trial and in posttrial briefs, Keyes expands on
       this and takes issue with three separate statements made by
                                         9


      Michael at trial, all of which were allegedly contradicted by
      statements made by Michael to [a detective] shortly after the fire.
               First, at trial Michael was asked: “While you were walking
      down the stairs, Mike, and going towards the door, did you ever
      hear your dad yell for your mom?” Michael replied, “No.” [The
      report of the detective that] interviewed Michael on December 26,
      1996, shortly after the fire . . . indicate[d] “Michael said he heard his
      father calling to his mother, but ‘Mommy didn’t answer.’ [Michael]
      thought that his mother was still sleeping because he never saw
      her.”
               Second, Michael was asked at trial: “When did you first
      realize the house was on fire?” He replied, “When we got into the
      van.” He told [the detective] that “they went to the back door but
      there was fire so they went to the front door.”
               Lastly, at trial Michael was asked: “When he woke you up by
      pulling on your shirt, did he say anything?” Michael replied, “No.”
      The [detective’s] report indicates that Michael said “[h]is daddy
      shook me and yelled to get up.”
               Keyes asserts that Michael’s testimony was very important
      at trial. [The prosecutor] who prosecuted the case against Keyes,
      testified in the [PCR] proceedings that he thought Michael’s
      testimony was one of the more important pieces of evidence in the
      case. He highlighted Michael’s testimony at trial and contrasted it
      with statements made by Keyes as part of his closing argument.

      At the PCR hearing, though trial counsel testified that he did not know of a

tactical reason he would not have impeached Michael’s testimony, his testimony

at the hearing was given more than a decade after the trial.           Trial counsel

testified he was an experienced attorney, and “it didn’t sound like [him] to miss

something like that.” We agree with the PCR court’s assessment:

      The court does not construe [trial counsel’s] admission to be nearly
      as broad as argued by Keyes. [Trial counsel] testified that as he
      sat there almost eighteen years later, he could not recall any
      strategic or tactical justification, and that with hindsight being 20\20,
      he perhaps should have impeached Michael at the time. This is a
      far cry from admitting that at the time he had no strategic or tactical
      justification.
              ....
              When it comes to cross-examination of children, courts have
      noted the difficulties faced by defense counsel and the fine line that
      defense counsel walks—an overly aggressive cross-examination
      runs the risk of alienating the jury and generating hostility toward
                                        10

      the defendant. See State v. DeLeon, 337 N.W.2d 635, 641 (Wis.
      Ct. App. 1985) (“This failure to impeach can be justified as a
      legitimate trial tactic. Impeaching a child witness with a prior
      inconsistent statement is a double-edged sword—it may cast doubt
      upon the child’s credibility; on the other hand, it may cast both the
      defendant and defense counsel in a negative light.”) . . . .
              In this case, not surprisingly, [trial counsel] had no
      independent recollection of Michael’s testimony at the criminal trial
      or his strategy. [Trial counsel] testified that in his experience with
      children witnesses, a case-by-case determination had to be made
      regarding how aggressively to cross-examine them and whether or
      not to try and impeached their testimony. He did, in fact, conduct a
      cross-examination of Michael. Looking at it in full, it is clear that
      [trial counsel] was delicate in his cross-examination, but he was
      also trying and able to make certain points helpful to Keyes,
      including that Michael was a hard sleeper and often groggy when
      he woke up. [Trial counsel] referenced this in his closing
      statement. It is clear that [trial counsel] had a strategy and purpose
      with his cross-examination of Michael.
              Looking at the case eighteen years later, it may be easy to
      say that a different strategy would have worked better, but that is
      not the applicable standard. Under these facts and circumstances,
      the court cannot say that trial counsel’s cross-examination of then
      eight-year-old Michael Keyes was outside of the range of
      competent legal assistance.

Keyes’s ineffective-assistance-of-counsel claim fails as a matter of law.      We

therefore proceed to the second point—whether the PCR court erred in denying

his motions to amend.

      III. Motions to Amend.

      Keyes also argues the PCR court erred or abused its discretion when it

denied his motions to amend his PCR application. On appeal, Keyes asserts the

first motion to amend was largely based on Dr. Hurst’s 2008 report. 3 The second

motion to amend “raised largely the same issues as the first,” but it also included




3
  Keyes makes no argument on appeal concerning any of the other new grounds raised
in his first amended application.
                                          11


the Iowa State Fire Marshal’s adoption of NFPA 921 as “newly discovered

evidence.”

         A. Standard of Review.

         We review the denial of a request to amend a pleading for an abuse of

discretion. See Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 108 (Iowa

1995).     “An abuse of discretion occurs when the trial court ‘exercises its

discretion on grounds clearly untenable or to an extent clearly unreasonable.’”

State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999) (quoting State v. Smith, 522

N.W.2d 591, 593 (Iowa 1994)).          “A postconviction action based on newly

discovered evidence is reviewed for correction of errors at law.”        More, 880

N.W.2d at 498.

         B. Analysis.

         1. PCR Procedures.

         PCR proceedings are civil actions triable at law, and the rules of civil

procedure apply. See Jones v. State, 545 N.W.2d 313, 314 (Iowa 1996); see

also Jack v. P & A Farms, Ltd., 822 N.W.2d 511, 517-18 (Iowa 2012) (citing Iowa

Code § 822.7). To commence PCR proceedings, the PCR applicant must file a

verified application “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”

unless the applicant is asserting “a ground of fact or law that could not have been

raised within the applicable time period.” Iowa Code § 822.3 (1999); see also id.

§ 822.4; Nguyen v. State, 829 N.W.2d 183, 187 (Iowa 2013). But:

               All grounds for relief available to an applicant under [chapter
         822] must be raised in the applicant’s original, supplemental or
         amended application. Any ground finally adjudicated or not raised,
                                         12


       or knowingly, voluntarily, and intelligently waived in the proceeding
       that resulted in the conviction or sentence, or in any other
       proceeding the applicant has taken to secure relief, may not be the
       basis for a subsequent application, unless the court finds a ground
       for relief asserted which for sufficient reason was not asserted or
       was inadequately raised in the original, supplemental, or amended
       application.

Iowa Code § 822.8.        “Within thirty days after the docketing of the [PCR]

application, or within any further time the court may fix, the [S]tate shall respond

by answer or by motion.” Id. § 822.6 (emphasis added). A PCR court can “make

appropriate orders for amendment of the application or any pleading or motion,

for pleading over, for filing further pleadings or motions, or for extending the time

of the filing of any pleading.” Id.

       2. Rules of Civil Procedure and Case Law.

       In addition to the procedures contemplated in chapter 822, Iowa Rule of

Civil Procedure 1.402(4) expressly permits a party to

       amend a pleading as a matter of course at any time before a
       responsive pleading is served or, if the pleading is one to which no
       responsive pleading is required and the action has not been placed
       upon the trial calendar, the party may so amend it at any time within
       [twenty] days after it is served. Otherwise, a party may amend a
       pleading only by leave of court or by written consent of the adverse
       party. Leave to amend, including leave to amend to conform to the
       proof, shall be freely given when justice so requires.

(Emphasis added.) Our supreme court has long found that “amendments should

be the rule and denial should be the exception.” Baker v. City of Iowa City, 867

N.W.2d 44, 51 (Iowa 2015); see also Ackerman v. Lauver, 242 N.W.2d 342, 345

(Iowa 1976). Amendments should be granted “so long as the amendment does

not substantially change the issues in the case” or “if the opposing party is not

prejudiced or unfairly surprised” by the substantial change. Baker, 867 N.W.2d
                                         13


at 51. Moreover, amendments can be made at any stage of the litigation, even at

trial in certain circumstances. See id.; see also Rife v. D.T. Corner, Inc., 641

N.W.2d 761, 767 (Iowa 2002). Nevertheless, “[d]istrict courts have considerable

discretion to allow amendments at any point in the litigation,” and appellate

courts should “only reverse the district court’s decision if it has abused that

discretion.” Baker, 867 N.W.2d at 51; see also Daniels v. Holtz, 794 N.W.2d 813,

824 (Iowa 2010). An “[a]buse of discretion may be shown where there is no

record to support the court’s factual conclusions, or where the decision is

grounded on reasons that are clearly untenable or unreasonable.”           Office of

Citizens’ Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa 2012). If the

court’s reasoning is based on an erroneous application of the law, it is untenable.

See Sioux Pharm, Inc. v. Eagle Labs., Inc., 865 N.W.2d 528, 535 (Iowa 2015).

       a. First Motion to Amend.

       The underlying PCR proceedings in Keyes’s case languished for many,

many years. Although it had plenty of opportunity to do so, the State never filed

an answer to the original PCR application as required by section 822.6. So, at

least up to the deadline set by the January 2011 scheduling order, Keyes was

free to amend his application “at any time” as a matter of course. See Iowa R.

Civ. P. 1.402(4). And, his amendment would relate back to the original pleading

if the claims set forth therein “arose out of the conduct, transaction, or occurrence

set forth . . . in the original pleading.” Iowa R. Civ. P. 1.402(5). Additionally, in

the PCR court’s January 2011 scheduling order, the court noted that after an

“extensive discussion between counsel and the court . . . there was a consensus

related to the deadlines which are set in this order.” Clearly, the State agreed
                                           14


Keyes could amend his petition up to at least February 15, 2011. But once the

scheduling order deadline to file amendments passed, as it did, Keyes no longer

had free reign to file an amendment to his PCR application. See Iowa R. Civ. P.

1.602(2)(4) (allowing the court to set time limits for amending pleadings).

       Due to a calendaring error, Keyes’s counsel missed the deadline to file the

amended application by twenty-eight days. There can be no question that the

amended application substantially changed the issues in the case. The crux of

Keyes’s amended application is Dr. Hurst’s opinion that Special Agent Hiles’s fire

investigation was flawed in numerous respects.4 Dr. Hurst’s September 3, 2008

fifty-seven page report was provided to the State as early as April 2009. The

State certainly had no problem with Keyes amending his application by February

15, 2011—some eleven months before the scheduled January 9, 2012 trial—and

in fact it agreed he could do so. It strains credulity to believe the State was

suddenly prejudiced when the motion to amend was filed just twenty-eight days

late—still some ten months before trial. Additionally, Keyes and his counsel even

agreed to continue the trial if the State believed it needed additional time. The


4
  Keyes also claimed there was new scientific evidence surrounding cause and origin
investigations of suspected arson cases. Keyes claimed that since his conviction, the
U.S. Department of Justice (DOJ) issued a report in June 2000 stating NFPA 921 had
“become the benchmark for the training and expertise of everyone who purports to be an
expert in the origin and cause determination of fires.” He also noted the National
Academy of Sciences (NAS) published a 2009 report revealing significant deficiencies in
forensic science as a whole—and fire science specifically—and he noted the NAS report
confirmed the NFPA as foundational on fire science. The recommendations of the
NFPA 921 are the minimal standards for performing fire investigations, which included
disapproval of the use of canine detection of accelerants. Keyes contended the State
had not adopted such standards at the time of his trial, and in fact discredited the NFPA
standards. Keyes noted Special Agent Hiles used a canine trained to detect accelerants
during his investigation. Keyes asserted that, since some of Hiles’s investigative
techniques have since been replaced with new scientific techniques, the arson
investigation which resulted in his conviction was flawed.
                                         15


State made no showing of prejudice or unfair surprise in the PCR proceeding.

Under Baker, it would appear the amendment could have been granted. See

867 N.W.2d at 51 (stating an amendment is not prohibited “if the opposing party

is not prejudiced or unfairly surprised” by the substantial change). But prejudice

is not the only factor we consider in our analysis.

       The proposed amended application would have substantially changed the

issues to be tried. Keyes or his PCR counsel knew of the potential for asserting

the claims related to Dr. Hurst’s report as early as 2008 and yet failed to assert

them until more than two-and-one-half years later. The PCR court concluded

that neither Keyes nor his PCR counsel presented any valid reason

       to have waited until this stage of litigation to present the proposed
       amended claims. [The State] asserted that [Keyes] would have
       been aware of the conclusions of Dr. Hurst since at least April 23,
       2009;[5] [Keyes] does not dispute this assertion. [Keyes] did not
       meet even the generous deadline included in the January 25, 2011
       Scheduling Order.

Our supreme court has held that a district court did not abuse its discretion in

denying a proposed amendment where a party knew of the potential for asserting

a claim but did not do so until more than a year later. See Glenn v. Carlstrom,

556 N.W.2d 800, 804 (Iowa 1996). Keyes had known of Dr. Hurst’s report for

years before filing his motion to amend.        The same is true for the reports

concerning NFPA 921 by the DOJ—released in 2000—and the NAS—reported in

2009.6 For the reasons expressed in Glenn, we conclude the PCR court did not

abuse its discretion in denying Keyes’s first motion to amend.


5
  Dr. Hurst’s report is dated September 3, 2008. A copy was provided to the State with
Keyes’s April 2009 motion for expenses.
6
  See footnote 4.
                                           16


       b. Second Motion to Amend.

       In July 2014, just two months before trial, Keyes’s counsel filed a second

motion seeking to amend Keyes’s PCR application. Among other things, the

motion asserted newly discovered evidence, namely, the adoption of NFPA 921

by the Iowa Fire Marshal on July 5, 2011.             The State again resisted and

requested the motion be denied for the reasons set forth in the court’s prior ruling

denying Keyes’s first motion to amend. The PCR court denied the motion in

August 2014.      It found the proposed amendment substantially changed the

issues and prejudiced the State. The court concluded “Keyes has not set forth

any valid reason for either counsel or Keyes to have waited until this stage of

litigation, just before trial, to raise these issues.” Specifically, the court noted that

although Iowa adopted NFPA 921 on July 5, 2011, and that Keyes had personal

knowledge of this fact by January 2012, Keyes provided no reason as to why he

waited until July 5, 2014, to file the motion to amend. For the reasons expressed

in Glenn, we conclude the PCR court did not abuse its discretion in denying

Keyes’s second motion to amend. See id.

       c. NFPA 921 as Newly Discovered Evidence.

       Even had Keyes timely filed a motion to amend, would the NFPA 921

issue be considered “newly discovered evidence?” We think not.

       In order for Keyes to prevail in his PCR action because of newly

discovered evidence, he must show:

       (1) that the evidence was discovered after the verdict; (2) that it
       could not have been discovered earlier in the exercise of due
       diligence; (3) that the evidence is material to the issues in the case
       and not merely cumulative or impeaching; and (4) that the evidence
                                        17


      probably    would      have   changed   the    result   of   the   trial.

More, 880 N.W.2d at 499 (citations omitted).        The standard for whether the

evidence probably would have changed the result is a high one. See id.

      NFPA 921 was considered controversial at the time of Keyes’s 1997 trial.

It is certainly true that the 2000 DOJ report, which stated NFPA 921 had “become

the benchmark for the training and expertise of everyone who purports to be an

expert in the origin and cause determination of fires,” is evidence that could not

have been discovered at the time of Keyes’s 1997 criminal trial. The same is

true for the 2009 NAS report revealing significant deficiencies in forensic science

as a whole—and fire science specifically—as well as confirming NFPA as

foundational on fire science. Likewise for Iowa’s adoption of NFPA 921 in 2011.

“While each marginal advance in science cannot form the basis of a new trial,

watershed developments are a different story.” Id. at 509. We do not view the

general acceptance of NFPA 921 over the years to be a “watershed

development.”    We conclude this evidence is cumulative or impeaching—not

newly discovered evidence.      Nevertheless, we proceed to examine whether

Keyes has shown a reasonable probability that the result of his criminal trial

would have been different with this evidence. This inquiry is whether, based

upon all the evidence, the verdict probably would have been different in the case

before us. See id. at 510.

      Based upon our review of the entire record, we conclude Keyes has not

met the high standard of showing that the verdict would have been different

based on the claimed newly discovered evidence concerning NFPA 921. It was

undisputed the origin of the fire was the garage. However, causation of the fire—
                                         18


accident or arson—was the issue before the jury, and NFPA 921 was discussed

at length there.    To recount all the trial testimony and evidence here would

unduly lengthen this opinion. In this case, the State’s witness Special Agent

Hiles opined the fire was intentionally set with the use of an accelerant.

         In Keyes’s defense, an expert testified about changes that had been made

in how arson is investigated and the conclusions that could be drawn from certain

fire evidence under NFPA 921.            The expert was critical of the State’s

investigation of the fire, opining that “reliable procedures were not used” in

investigating the fire.    He believed arson with use of an accelerant was

predetermined from the start of the investigation and only the things that might

support that opinion were looked at in the investigation. He believed there was

no objective evidence presented that showed that an accelerant was present.

He said none of the samples showed an accelerant as being there, and in his

opinion, that was the only thing that could be used “as to say whether an

accelerant was there or not.” He believed the wiring, the fluorescent light, and

the freezer as possible ignition sources were not fully investigated to rule them

out as the cause of the fire. He opined that “at this stage of the investigation” the

cause of the fire was “undetermined.” This conclusion is no different than Dr.

Hurst’s conclusion.

         Other evidence—both direct and circumstantial—contradicted Keyes’s

story.      This   evidence   included   Keyes’s   own   inconsistent   statements,

observations of the fire and of Keyes by eyewitnesses, medical evidence

indicating minimal smoke inhalation, location of smoke detectors found in the

home, and Keyes’s postfire behavior and demeanor. Other evidence pointed to
                                        19


motive, including Keyes’s poor treatment of his wife, his relationship with another

woman, his financial woes, and his recent purchase of renter’s insurance. There

was also testimony by a jailhouse informant who said Keyes told him how he set

the fire.

          Keyes had the motive and means; he was at the right place at the right

time, and his behavior generally points in the direction of guilt. We recognize that

the fire investigation may have been flawed and that any singular piece of

evidence in isolation may not have been convincing, but it was the combination

of facts and circumstances that strongly point toward Keyes’s guilt.

          Based upon all the above, we conclude the PCR court did not abuse its

discretion in denying Keyes’s motions to amend his application for postconviction

relief.

          IV. Conclusion.

          Because Keyes cannot establish his trial counsel breach a duty in his

representation of him, Keyes’s ineffective-assistance-of-counsel claim fails as a

matter of law. Additionally, the PCR did not abuse its discretion when it denied

Keyes’s motions to amend. Accordingly, we affirm the ruling of the PCR court

denying and dismissing Keyes’s PCR application.

          AFFIRMED.
