                      IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0779
                              Filed March 25, 2015


KENNY CHRIS HEMM,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Annette J.

Scieszinski, Judge.



      Kenny Hemm appeals from the district court’s dismissal of his second

postconviction-relief application. AFFIRMED.



      R. E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for appellant.

      Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney

General, Gary Oldenburger, County Attorney, and Douglas D. Hammerand,

Assistant County Attorney, for appellee State.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
                                        2


POTTERFIELD, J.

       Kenny Hemm appeals from the district court’s dismissal of his second

postconviction-relief application.

       I. Procedural Background

       A jury convicted Hemm of murder and arson in 2001. He appealed, and

this court remanded for a new trial. In 2004, he was convicted upon retrial.

Hemm again appealed, and this court affirmed. Our supreme court declined to

hear the case on further review, and procedendo issued on August 29, 2006.

       On October 2, 2006, Hemm filed an application for postconviction relief

alleging several claims of ineffective assistance of counsel, including “failure to

properly advise and counsel the Applicant regarding plea offers.” The district

court denied the application. Hemm appealed, but waived further consideration

of the ineffective-assistance claim regarding plea offers by failing to raise the

issue in his appeal. This court affirmed. See Hemm v. State, No. 09-0616, 2010

WL 786049, at *7 (Iowa Ct. App. Mar. 10, 2010).

       On August 1, 2013, Hemm filed a second application for postconviction

relief, again alleging ineffective assistance of counsel because his trial counsel

failed to properly advise him of potential plea agreements.        On the State’s

motion, the district court dismissed the application. The district court held the

claim was barred by the statute of limitations found in Iowa Code section 822.3

(2013). It also held the ineffective-assistance issues had already been raised

and decided in Hemm’s first postconviction relief action.1 Hemm appeals.


1
  See Iowa Code § 822.8 (“Any ground finally adjudicated or . . . waived in the
proceeding . . . may not be the basis for a subsequent application . . . .”).
                                          3


       II. Standard of Review

       We review a dismissal of an application for postconviction relief for errors

at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).

       III. Discussion

       Hemm first claims the district court’s tolling of the statute of limitations was

erroneous. Iowa Code section 822.3 provides an application for postconviction

relief “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.”

Procedendo on Hemm’s direct appeal issued on August 29, 2006. He argues,

however, that the statute of limitations began to run at the close of his latest

postconviction relief action.   This court has previously noted his argument is

fallacious and would allow defendants to reset the clock on the statute of

limitations indefinitely by filing postconviction relief applications every three

years. See Holmes v. State, No. 02-1100, 2004 WL 893338, at *3 (Iowa Ct. App.

Apr. 28, 2004) (“[S]ection 822.3 in no way provides for the tolling of the three-

year statute of limitations until notice of procedendo of a postconviction action

has been issued.”). Hemm’s current postconviction relief application falls outside

the three-year statute of limitations, which expired on August 29, 2009.

       However, the three-year limitation “does not apply to a ground of fact or

law that could not have been raised within the applicable time period.”2 Iowa

Code § 822.3. Hemm’s second claim is that his current application could not

have been raised prior to the United States Supreme Court’s companion


2
  Hemm asserts only a new ground of law. He does not assert a new ground or issue of
fact, and none is reflected in the record.
                                            4

decisions in Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012), and Missouri v. Frye,

132 S. Ct. 1399 (2012), which discuss a defendant’s constitutional entitlement to

effective assistance of counsel during the plea-bargaining process.               Hemm

argues that the right to effective assistance of counsel during plea bargaining is a

“new right” created by these two cases—i.e. a new ground of law that could not

have been raised prior to the expiration of the statute of limitations.

       His claim is belied by the fact that Hemm did in fact raise the alleged

failure of his trial counsel to discuss plea bargains as a ground for ineffective

assistance in his first postconviction action.3        Additionally, a majority of the

federal circuit courts of appeals have held that Cooper and Frye merely apply

preexisting law, namely Strickland v. Washington, 466 U.S. 668 (1984). See,

e.g., Williams v. United States, 705 F.3d 293, 294 (8th Cir. 2013) (“We therefore

conclude, as have the other circuit courts of appeals that have addressed the

issue, that neither Cooper nor Frye announced a new rule of constitutional

law.”).4 Hemm’s postconviction relief application therefore does not raise any

new issues of fact or law, and the district court did not err in so holding.

       Lastly, Hemm argues the district court erred in holding the issues in his

current application are barred because they have been previously decided.

However, because his claim is barred by the statute of limitations found in Iowa


3
  Hemm argues his ineffective-assistance issue was not argued to its “full extent” during
his first postconviction action. He cites no authority, nor do we find any, that permits a
defendant to characterize an issue previously determined as a new ground of law simply
because it was not argued to its “full extent” in earlier proceedings.
4
  Hemm relies on Justice Scalia’s dissent in Cooper, in which he wrote, “[T]he Court
today opens a whole new field of constitutionalized criminal procedure: plea-bargaining
law.” Cooper, 132 S. Ct. at 1391 (Scalia, J., dissenting). However, it is clear from the
context of Justice Scalia’s dissent on the whole that this language was used rhetorically.
The Cooper majority does not characterize its decision as creating a new area of law.
                                         5


Code section 822.3, we need not determine whether it is also barred for other

reasons.

       The district court did not err in dismissing Hemm’s application because it

was filed beyond the three-year statute of limitations and raised no ground of law

that could not have otherwise been raised within that three-year period. We

affirm the district court’s dismissal.

       AFFIRMED.
