                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3193
                         ___________________________

                               Tatiana Michelle Dixon

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                                  Patti Wachtendorf

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                              Submitted: May 15, 2014
                                Filed: July 14, 2014
                                  ____________

Before RILEY, Chief Judge, BEAM and SHEPHERD, Circuit Judges.
                              ____________

BEAM, Circuit Judge.

       Tatiana Dixon appeals the district court's1 dismissal of her 28 U.S.C. § 2254
petition for habeas corpus relief. In 2003, Dixon was convicted of first-degree felony
murder in Iowa state court. The qualifying felony was willful injury based upon

      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
Dixon's actions of firing shots into the hallway of her apartment building, killing one
person and injuring another. At Dixon's bench trial, the state was required to prove
only that Dixon had the intent to cause serious bodily injury, not death, to establish
the felony-murder charge. Dixon was sentenced to life imprisonment.

       In her direct criminal appeal, Dixon argued that the state failed to prove she
acted without justification and that her attorney was ineffective for failing to argue
that the court should reconsider its position on the use of willful injury as a qualifying
felony for felony murder. The Iowa Court of Appeals denied relief on December 22,
2004. State v. Dixon, 695 N.W.2d 334, 2004 WL 2951968 (Iowa Ct. App. 2004)
(unpublished). Dixon's application for further review was denied by the Iowa
Supreme Court on March 28, 2005. On August 25, 2006, the Iowa Supreme Court
reversed its position on the use of willful injury as the underlying felony for felony
murder. State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006). The Heemstra court
held "if the act causing willful injury is the same act that causes the victim's death, the
former is merged into the murder and therefore cannot serve as the predicate felony
for felony-murder purposes." Id. The Heemstra court further delineated that its
decision would not be applied retroactively to cases on collateral review in Iowa state
courts. Id.

       On September 5, 2006, Dixon filed a motion for relief in state district court,
seeking relief based on this change in the law, and re-urging relief based on her
counsel's failure to request a new trial based on the use of willful injury as the
qualifying felony for her conviction of first-degree murder. Construing her motion
as a petition for post-conviction relief, the court denied relief on October 6, 2010. On
November 23, 2011, the Iowa Court of Appeals denied her appeal. Dixon v. State,
808 N.W.2d 756, 2011 WL 5867929 (Iowa Ct. App. 2011) (unpublished).




                                           -2-
Procedendo2 issued on December 20, 2011, and Dixon filed no petition for further
review. Dixon filed the current 28 U.S.C. § 2254 petition on December 17, 2012, and
states that it was placed in the prison mailing system on December 11, 2012.

       Upon the government's motion, the district court dismissed the petition as
untimely based upon the one-year statute of limitations in 28 U.S.C. § 2244(d)(1).
The court alternatively held that Dixon would not have been able to obtain relief
because she had not adequately exhausted her state court remedies, and that, in any
event, Dixon could not have prevailed on the merits because her federal due process
rights3 were not violated by the state courts of Iowa.

       Dixon's conviction became final, for § 2244 statute of limitations purposes, on
June 15, 2005, ninety days after the Iowa Supreme Court denied her application for
further review. Boston v. Weber, 525 F.3d 622, 624 (8th Cir. 2008). So, unless the
Heemstra decision can be construed as a new factual predicate for Dixon within the
meaning of § 2244(d)(1), her petition is time-barred. See 28 U.S.C. § 2244(d)(1)(D)
(stating that the statute of limitations begins running on the latest of certain events,
including "the date on which the factual predicate of the claim . . . presented could
have been discovered through the exercise of due diligence"). Further complicating
matters is the fact that, even giving Dixon the benefit of construing Heemstra as a
"factual predicate," her petition is still time-barred unless we do not begin counting
until the day the Heemstra procedendo issued (September 25, 2006) rather than the




      2
         In Iowa, "procedendo" is similar to the "mandate" in federal courts, and once
it has issued, the jurisdiction of the issuing court ceases. See In re M.T., 714 N.W.2d
278, 281-82 (Iowa 2006).
      3
        The district court did not address Dixon's Equal Protection Clause claim and
the state apparently concedes that if we need to decide the case on the merits on that
basis, it should be remanded to the district court to decide in the first instance.

                                          -3-
date of decision on August 25, 2006.4 If the statute of limitations began running on
August 25, Dixon waited eleven days to file her petition for post-conviction relief on
September 5, which stopped the limitations clock. See 28 U.S.C. § 2244(d)(2) ("The
time during which a properly filed application for State post-conviction or other
collateral review . . . is pending shall not be counted toward any period of limitation
under this subsection."). Then when the state post-conviction petition was no longer
pending as of December 20, 2011, she waited another 363 days to file her federal
petition for habeas corpus on December 17, 2012,5 making her current habeas petition
untimely.

      Dixon's argument that the clock did not begin running until the Heemstra
procedendo issued is somewhat disingenuous, as Dixon actually filed her state post-
conviction motion on September 5, 2006, twenty days before the procedendo issued


      4
        A legal decision in this circumstance is generally not a "factual predicate" as
described in § 2244(d)(1)(D). See E.J.R.E. v. United States, 453 F.3d 1094, 1098
(8th Cir. 2006) (holding that a legal decision did not serve to toll the statute of
limitations because the decision was within the domain of the court and was
"incapable of being proved or disproved"); Shannon v. Newland, 410 F.3d 1083,
1089 (9th Cir. 2005) (holding that a habeas petition was not timely even though filed
days after a California state court decision in a different case changed the law in a
way that would have favorably affected the petitioner had it been in effect at the time
of his conviction). We further note that the dilemma over deciding which day to
begin counting this supposedly factual event simply underscores the difficulty of
construing a legal decision as a factual predicate. But, due to the untimeliness of the
petition, we need not definitively decide the issue.
      5
        The government argues that Dixon does not get the benefit of the Prison
Mailbox Rule and a filing date of December 11, 2012, because she did not adequately
aver that she pre-paid with first-class postage, in violation of Rule 3(d) of the Rules
Governing Section 2254 Cases in the United States District Courts. However, even
if she had and we credit December 11, 2012, as her filing date, 368 non-tolled days
would have passed during the various times when the clock started and stopped, still
rendering the petition untimely because it was not filed within one year's time.

                                         -4-
on September 25. Section 2244(d)(1)(D) states that the statutory clock begins ticking
when the factual predicate was or could have been "discovered." Heemstra was
"discoverable" on the day it was issued, August 25, 2006. Indeed, Dixon certainly
discovered it before September 25, as she filed her post-conviction petition twenty
days prior. And, the Iowa Supreme Court has definitively held that its decisions are
effective upon issuance, not after the procedendo has issued, unless otherwise
specially noted. State v. Harris, 741 N.W.2d 1, 9-10 n.2 (Iowa 2007). Nothing in
Heemstra indicated that it should not be effective upon issuance. Accordingly, Dixon
"discovered" Heemstra within the meaning of § 2244(d)(1)(D) on August 25, 2006.

       We are not unsympathetic to Dixon's plight, as her factual scenario seems quite
similar to the defendant in Heemstra, given that they committed similar crimes within
three days of each other. However, the Iowa state courts determined that the
Heemstra decision would not be applied retroactively, and accordingly, the federal
courts cannot unravel this particular byzantine knot. See Shannon v. Newland, 410
F.3d 1083, 1089 (9th Cir. 2005) ("[N]othing in AEDPA suggests that it was meant
to take away state courts' ability to handle as they see fit the always-thorny problem
of the retroactivity of changes in substantive law."). We affirm the district court's
dismissal of the petition as untimely.
                        ______________________________




                                         -5-
