                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0482
                               Filed May 25, 2016


JAMES LEE BLAIR,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



       James Blair appeals following the denial of his second application for

postconviction relief. AFFIRMED.




       Gary Dickey of Dickey & Campbell Law Firm, PLC, Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.




       Considered by Vogel, P.J., and Doyle and Bower, JJ. Blane, S.J., takes

no part.
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DOYLE, Judge.

       James Blair appeals following the summary disposition and dismissal of

his second application for postconviction relief (PCR). He argues he was denied

his right to counsel in the PCR action. He also argues the summary judgment

ruling must be reversed because the PCR court relied on a ground not asserted

in the State’s motion for summary judgment. In a pro se brief, Blair argues his

sentence is illegal.

       I. Background Facts and Proceedings.

       In 1982, Blair was convicted of first-degree murder and second-degree

theft. Our supreme court affirmed his convictions on direct appeal. See State v.

Blair, 347 N.W.2d 416, 418 (Iowa 1984).            The denial of Blair’s first PCR

application, filed in 1984, was affirmed by this court. See Blair v. State, 492

N.W.2d 220, 221 (Iowa Ct. App. 1992).

       In 2014, Blair filed his second PCR application. The State moved for

summary judgment on the grounds that Blair’s PCR application was filed after the

limitations period set forth in Iowa Code section 822.3 (2013) had expired. In

response, Blair argued his claim fell within the exception to the statute of

limitations because it was based on a new ground of law—specifically, our

supreme court’s holding in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006)

(holding that if an act causing willful injury as a forcible felony is the same act that

causes the victim’s death, it cannot serve as the predicate felony for felony-

murder purposes), which Blair claimed was a substantial change in the law.

       The PCR court entered its order dismissing Blair’s PCR application on

January 22, 2015. It found “that under the undisputed facts, Blair does not have
                                              3

a Heemstra claim,” and on that basis, the court concluded Blair’s PCR

application “has no merit and is subject to summary disposition under Iowa Code

section 822.6.” After his motion to enlarge was denied, Blair appealed.

       II. Right to PCR Counsel.

       Blair first claims his right to counsel was violated when the PCR court

rescinded the appointment of counsel.1 Because an indigent applicant need not

always be appointed representation in a PCR proceeding, the determination of

whether to appoint counsel rests in the court’s discretion. See Wise v. State, 708

N.W.2d 66, 69 (Iowa 2006).

       Blair indicated in his PCR application that he did not want an attorney

appointed to represent him. However, the PCR court misread the application

and appointed counsel for Blair. After realizing the error, the court entered an

order directing Blair to confirm in writing whether he wished to continue with

representation by counsel. In response, Blair stated he did not wish “to out-right

discharge nor reject” the assistance of counsel and instead requested that

counsel “assist as an advisor.” Blair then outlined a list of tasks he wished

counsel to perform in an “advisor role.”               The PCR court rescinded the

1
  The right to counsel in PCR proceedings is granted by statute. See Iowa Code § 822.5
(providing costs of legal services shall be made available to an indigent applicant); Lado
v. State, 804 N.W.2d 248, 250 (Iowa 2011). Blair asks us to find a PCR applicant also
has a constitutional right to counsel in PCR proceedings under article I, section 10 of the
Iowa Constitution. He concedes that our supreme court has held there is no state or
federal constitutional right to PCR counsel, see Lado, 804 N.W.2d at 250, but claims
“[n]o reported Iowa case . . . has ever engaged in any independent, substantive analysis
of the right to counsel under article I, section 10 as is constitutionally required.” In light
of the supreme court precedent that unequivocally states there is no right to PCR
counsel under the state constitution, we decline to reach the opposite conclusion. See
State v. Eichler, 83 N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to be
overruled, we should ordinarily prefer to do it ourselves.”); State v. Hastings, 466 N.W.2d
697, 700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa Supreme Court
precedent.”).
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appointment of counsel, stating: “Blair in his letter proposes a ‘remedy.’ The

court does not bargain over a remedy.” After noting that Blair’s PCR application

did not request a court-appointed attorney, the court rescinded the appointment.

We find no abuse of discretion by the PCR court.

       Even if Blair’s response could be construed as a request for appointment

of counsel, the PCR court did not abuse its discretion in rescinding the

appointment. We review the PCR court’s decision regarding the appointment of

counsel in the light most favorable to Blair. See Fuhrmann v. State, 433 N.W.2d

720, 722 (Iowa 1988). If a PCR application has no merit on its face, the PCR

court is not required to appoint counsel. See Wise, 708 N.W.2d at 70. If a PCR

application fails to raise a cognizable claim, “‘it is wasteful to appoint counsel to

determine solely if the applicant has some grounds for relief not stated in his

original application.’”   Furgison v. State, 217 N.W.2d 613, 615 (Iowa 1974)

(citation omitted). In making a determination of whether to appoint counsel, the

court may consider whether the applicant has unsuccessfully sought PCR in the

past with the aid of counsel. See id. If it appears a substantial issue of law or

fact may exist, the court should appoint counsel. See id. at 615-16.

       This is Blair’s second PCR application. It was filed more than thirty years

after he was convicted—a period ten times greater than the limitation period set

forth in section 822.3. The burden of showing a PCR application was filed within

the exception to the three-year statute of limitations is on the applicant. See

Cornell v. State, 529 N.W.2d 606, 610 (Iowa Ct. App. 1994). Blair claims the

supreme court’s decision in Heemstra provides a new ground of law previously

unavailable to him. Assuming for the sake of argument that Blair is correct, the
                                         5

Heemstra decision was filed more than three years before Blair initiated the

present PCR action.      His PCR application is therefore untimely.      See, e.g.,

Sihavong v. State, No. 14-0440, 2016 WL 351286, at *2 (Iowa Ct. App. Jan. 27,

2016) (finding a PCR application filed in February 2013 raising Heemstra claims

was untimely under section 822.3 because it was filed more than three years

after Heemstra was decided). Again, we find no abuse of discretion by the PCR

court in rescinding the appointment of counsel.

       III. Summary Judgment.

       Blair next argues the PCR court erred in granting summary judgment on

grounds not asserted in the State’s motion for summary judgment. Specifically,

he claims the State’s motion only asserted one issue—that Blair’s claims were

barred by section 822.3. However, the PCR court dismissed the PCR application

after finding Blair’s substantive-law claims had no legal merit.

       Iowa Code section 822.6 provides two ways in which a PCR application

may be summarily disposed. First, the court may dismiss the application on its

own motion if it is satisfied the applicant is not entitled to PCR and no purpose

would be served by any further proceedings. See Iowa Code § 822.6. Second,

the court may grant a motion by one of the parties for summary disposition if it

appears there is no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. See id. Blair argues that by granting summary

disposition on grounds not raised in the State’s motion, the court was acting on

its own motion. He alleges the court did so improvidently because he was never

given notice of the court’s intention to dismiss the application and its reasons for

dismissal, nor was he given an opportunity to reply to the proposed dismissal.
                                           6

See id. (requiring the court to “indicate to the parties its intention to dismiss the

application and its reasons for dismissal” and to give the applicant “an

opportunity to reply to the proposed dismissal”).

       The provisions of section 822.6 protect a PCR applicant from the

dismissal of a PCR application without an opportunity to resist in some manner.

See Hines v. State, 288 N.W.2d 344, 346 (Iowa 1980). Those concerns are not

present here.     Blair was informed of the PCR court’s concerns about the

applicability of Heemstra.     He had knowledge that his failure to adequately

address those concerns could lead to dismissal. He was afforded an opportunity

to respond.

       The court first raised its concerns at the July 2014 hearing on Blair’s

motion to extend time, where the following exchange occurred at the hearing:

               THE COURT: Well, I’m just going to tell you . . . , I have
       reviewed and read the original supreme court opinion in your
       appeal . . . . And they set forth the underlying facts of your
       conviction. And the first big issue that they address is whether or
       not there was evidence of premeditation. In other words, you
       weren’t convicted of felony murder based upon a willful injury. You
       were convicted of first-degree murder based upon premeditation.
               [BLAIR]: However, willful injury was an instruction provided
       to the jury.
               THE COURT: Well, I guess I have not looked at your court
       file from that case and looked at that, but the question would be if
       willful injury was instructed on as a lesser-included offense . . . .
       [B]ut the supreme court found you were guilty of premeditation and,
       therefore, guilty of first-degree murder. They did not find you guilty
       of willful injury leading up to first-degree murder.
               [I]f there’s no willful-injury predicate, you don’t fall under the
       Heemstra argument.
               [BLAIR]: I understand that.
               THE COURT: Okay. And that’s what I’m trying to get to . . . .
       I just will need to decipher whether or not you have truly a
       Heemstra claim and then, if you do, then I have to get into these
       procedural statute-of-limitation issues.
                                          7

              But if you don’t have a Heemstra claim to start with, . . . I
       don’t even get to the procedure because you don’t have a claim to
       start with if that’s the case.
              Are you following me?
              [BLAIR]: I’m following you.

At the end of the hearing, the court again mentioned its concern regarding a

Heemstra claim, stating: “[I]f you are really basing this on the Heemstra

argument, I think you have to look hard on whether you fit the criteria.” This

interaction was memorialized in the court’s written order granting the extension:

              Finally, the court advised . . . Blair that [it] had reviewed the
       Iowa Supreme Court opinion that affirmed his convictions[, see
       Blair, 347 N.W.2d at 416,] and finds that the first-degree-murder
       conviction was based upon premeditation, not felony murder where
       the predicate felony was willful injury. Thus, it would appear that
       claims based on the Heemstra case would not apply in this case.
       The court has not reviewed the court file. The court advised [Blair]
       to only make claims that are viable and not previously made in his
       earlier PCR and federal habeas corpus applications but that he
       could certainly make any claims he believed were viable.

Four months later, at another hearing to extend the time to file a resistance, the

PCR court again emphasized to Blair how necessary it was for him to address

the Heemstra ruling’s applicability to his case:

              THE COURT: Again, Mr. Blair, I reviewed your . . . amended
       application. . . . And, you know, it appears that it’s still relying on
       this Heemstra case. . . .
              [BLAIR]: . . . I believe Heemstra is arguably applicable, Your
       Honor.
              THE COURT: Well, you know, we’ve talked about that
       before. And I’ll certainly let you make your arguments, but that’s
       what you’re going to have to probably address in this summary
       judgment, too.
              [BLAIR]: Yes.
              THE COURT: And . . . that’s what I’m going to have to
       address, is whether Heemstra applies.           So you make your
       arguments and make sure you give me everything you’ve got.
              [BLAIR]: I would.
                                        8


      On December 23, 2014, the State’s motion for summary judgment was

heard. At that hearing, the court clarified that Blair’s PCR claims were premised

on the Heemstra ruling:

               THE COURT: Okay. Mr. Blair, I want to make sure that I
      understand. Your legal argument here is twofold. Number one,
      you want the court to find an extraordinary circumstance
      that . . . your claim is not time-barred.
               [BLAIR]: That is correct.
               THE COURT: Okay. And, number two, that your legal
      argument for your [PCR] is that you’re entitled to a new trial under
      Heemstra.
               [BLAIR]: Yes. That is also correct.
               THE COURT: Okay. I just want to make sure that I know
      what your claims are.
               [BLAIR]: Based upon Heemstra, Your Honor, is the
      fundamental premise of my claim. I have other constitutional
      grounds that I would like to raise concerning Heemstra, but I don’t
      believe now is the appropriate time. I believe that has to wait for
      either an evidentiary hearing or after you decide the summary
      judgment.
               THE COURT: Okay. Well, that’s what I’m trying to make
      sure is that at this time, the way the pleadings are, is that your sole
      claim is Heemstra.
               [BLAIR]: Heemstra would be the foundation, Your Honor, of
      my first claim. All my issues revolve around Heemstra, though, the
      Heemstra decision. . . . All my constitutional questions revolve
      around the application of the Heemstra decision.

      Blair had notice of the court’s concerns regarding the applicability of

Heemstra to his case.     He was also provided an opportunity to address the

court’s concerns.   In fact, both Blair’s brief in support of his amended PCR

application and his resistance to summary judgment devote an entire section to

the applicability of Heemstra. The protections set forth in section 822.6 were

afforded to Blair. Therefore, the court did not err in summarily dismissing Blair’s

PCR application on its own motion.
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       IV. Sentence.

       In a pro se brief, Blair argues his sentence of life imprisonment without the

possibility of parole is unconstitutional. Although he is raising this issue for the

first time on appeal, a claim concerning the legality of a sentence may be raised

at any time. See State v. Lathrop, 781 N.W.2d 288, 293 (Iowa 2010).

       Blair claims his sentence is grossly disproportionate both as a general

proposition and as applied to him.       The threshold test for disproportionality

“involves a preliminary judicial evaluation of whether the sentence being

reviewed is ‘grossly disproportionate’ to the underlying crime.” State v. Bruegger,

773 N.W.2d 862, 873 (Iowa 2009). This requires us to balance “the gravity of the

crime against the severity of the sentence.” Id. Only in “relatively rare” cases will

we find “an unusual combination of features that converge to generate a high risk

of potential gross disproportionality.” Id. “If the sentence does not create an

inference of gross disproportionality, then ‘no further analysis is necessary.’”

State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (citation omitted).

       Blair has not cited any factors that create an inference of gross

disproportionality. His failure to create an inference of gross disproportionality

ends our inquiry. See, e.g., State v. Huls, No. 15-0467, 2016 WL 903130, at *1

(Iowa Ct. App. Mar. 9, 2016) (holding an evidentiary hearing was not warranted

on claim special sentence under section 903B.2 was grossly disproportionate

where the defendant failed to argue any factors created an inference of gross

disproportionality). Accordingly, we affirm his sentence.

       AFFIRMED.
