                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-2077
                             Filed March 11, 2015


ARCHIE ROBERT BEAR,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates,

Judge.



      Archie Bear appeals the district court’s summary dismissal of his third

application for postconviction relief. AFFIRMED.



      Archie Robert Bear, Anamosa, appellant pro se.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, and Rebecca Petig, County Attorney, for appellee State.




      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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VOGEL, P.J.

         Archie Bear appeals the district court’s summary dismissal of his third

application for postconviction relief.         We conclude that Bear’s Heemstra

challenge is inapplicable to his conviction as well as being barred by claim

preclusion; furthermore, the jury-instruction argument is barred by the statute of

limitations, pursuant to Iowa Code section 822.3 (2013).           Consequently, we

affirm the dismissal of Bear’s application.

         On February 28, 2000, Bear was convicted of second-degree murder

following a jury trial. His conviction was affirmed on direct appeal in 2001, and

the denial of his first application for postconviction relief was affirmed by our court

in 2007. See Bear v. State, No. 06-1048, 2007 WL 1689434 (Iowa Ct. App. June

13, 2007); State v. Bear, No. 00-0558, 2001 WL 293523 (Iowa Ct. App. Mar. 28,

2001).     Our court also affirmed the denial of his second application, which

challenged the nature of his conviction pursuant to State v. Heemstra, 721

N.W.2d 549 (Iowa 2006), claiming a due process violation. See Bear v. State,

No. 08–1717, 2010 WL 625004 (Iowa Ct. App. Feb. 24, 2010).

         Bear filed his third application for postconviction relief on May 6, 2013, in

which he alleged the Iowa courts erred in dismissing his second application for

postconviction relief pursuant to Nguyen v. State, 829 N.W.2d 183 (Iowa 2013),

as he was now raising an equal protection violation based on Heemstra. His

second claim asserted that he was indicted for premeditated murder “under Iowa

law 707.2(1)” but that the jury instructions erroneously instructed under Iowa

Code section 707.2(2), and this in turn violated his due process rights and
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constituted an illegal sentence. The district court summarily dismissed his claims

on October 21, 2013, following a hearing. Bear appeals.

       We review a district court’s summary dismissal for correction of errors at

law. See Nguyen, 829 N.W.2d at 186.

       Iowa Code section 822.3 requires that postconviction applications 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,” excepting “a

ground of fact or law that could not have been raised within the applicable time

period.”

       Upon review of the record, we conclude Bear’s jury-instruction claim is

time-barred; nor has he shown that an exception applies such that we could

address the merits of his argument. His third application was filed nearly twelve

years after his 2000 conviction became final. Moreover, no “ground of fact or law

that could not have been raised within the applicable time period” exists, such

that it would exempt this claim from being time-barred. See Iowa Code § 822.3.

       Claim preclusion also bars Bear’s Heemstra argument.              Though he

challenged his conviction in his second postconviction application through a due

process claim, and he now challenges his conviction by asserting an equal

protection claim based on Heemstra and Nguyen, he had the opportunity to fully

and fairly litigate this constitutional challenge pursuant to the holding in Heemstra

in his second application. Therefore, he cannot now litigate his equal-protection-

Heemstra challenge in this third application. See Pavone v. Kirke, 807 N.W.2d

828, 835–36 (Iowa 2011) (noting claim preclusion bars a second suit when the
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plaintiff had the opportunity to fully and fairly litigate the issue in the prior

proceeding, even though the exact claim may not have been litigated).

      We further agree with the State that, because Bear was convicted of

murder in the second degree rather than first-degree murder, Heemstra and

Nguyen are inapplicable. See Heemstra, 721 N.W.2d at 558 (holding if an act

causing willful injury as a forcible felony 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); see also Nguyen, 829 N.W.2d at

188 (reiterating the conclusion reached in Heemstra but remanding so the district

court could decide whether various constitutional challenges barred the non-

retroactivity of Heemstra); State v. Goosman, 764 N.W.2d 539, 545 (Iowa 2009)

(noting the Heemstra court stated its holding was only applicable to the present

case and those defendants whose direct appeal was pending, and further holding

the non-retroactive application of the Heemstra decision did not violate federal

due process rights).

      Given this reasoning, the district court properly dismissed Bear’s petition,

and we affirm.

      AFFIRMED.
