                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0960
                                Filed July 30, 2014

CHAD KAMMERUDE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



       Applicant appeals the decision of the district court granting summary

judgment to the State on his application for postconviction relief. AFFIRMED.



       Samuel M. Degree of Drake Law Firm, P.C., Dubuque, for appellant.

       Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, Ralph Potter, County Attorney, and Brigit Barnes, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., Doyle, J., and Sackett, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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SACKETT, S.J.

      The applicant appeals the decision of the district court granting summary

judgment to the State on his application for postconviction relief. The application

for postconviction relief is untimely because it was filed more than three years

after the applicant was sentenced and does not raise a ground of law or fact that

could not have been raised within the applicable time period. We affirm the

decision of the district court granting summary judgment to the State on the

ground the application is barred as untimely.

I.    Background Facts & Proceedings

      On May 24, 2007, a Dubuque police officer arrested Chad Kammerude for

driving while barred.      Subsequent to the arrest, the officer searched

Kammerude’s vehicle and found a plastic bag containing 470.8 grams of

marijuana.   Kammerude pled guilty to possession of marijuana with intent to

deliver, in violation of Iowa Code section 124.401(1)(d) (2007), and driving while

revoked, in violation of section 321J.21(1). On October 25, 2007, Kammerude

was sentenced to five years in prison. The sentence was suspended, and he

was placed on probation.1 Kammerude did not appeal.

      On May 14, 2012, Kammerude filed an application for postconviction

relief. He recognized that his application was outside the three-year statute of

limitations found in section 822.3 (2011), but argued the United States Supreme

Court case of Arizona v. Gant, 556 U.S. 332 (2009), created a new ground of law

which extended the limitations period. Kammerude argued that under Gant, 556


1
   Kammerude’s probation was later revoked for probation violations, and he was
ordered to serve his sentence of five years in prison.
                                          3


U.S. at 351, the search of his vehicle violated his Fourth Amendment rights and

his conviction for possession of marijuana with intent to deliver should be

reversed.

       The State filed a motion for summary judgment, claiming Kammerude’s

application for postconviction relief was untimely under section 822.3. After a

hearing, the district court determined the application was untimely and dismissed

the application for postconviction relief. Kammerude now appeals.

II.    Standard of Review

       We review a district court’s grant of summary judgment in a postconviction

relief action for the correction of errors of law. Castro v. State, 795 N.W.2d 789,

792 (Iowa 2011). To the extent, however, an application raises a constitutional

claim, such as ineffective assistance of counsel, our review is de novo. Id.

III.   Merits

       Section 822.3 provides, in part:

       All other applications 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. However, this limitation
       does not apply to a ground of fact or law that could not have been
       raised within the applicable time period.

       Kammerude was sentenced on October 25, 2007, and his criminal case

was final at that time because he did not appeal.               His application for

postconviction relief was filed on May 14, 2012, more than four years later. His

application is therefore untimely under section 822.3 unless his application

comes within the exception for a ground of fact or law “that could not have been

raised within the applicable time period.”
                                           4

         Kammerude claims that the mandate for Gant was issued on May 27,

2009. He asserts Gant represented a new ground of law and a new three-year

time period commenced from that date. He claims his application, filed on May

14, 2012, was filed within this three-year period and thus is timely. Kammerude’s

theory is not supported by legal precedent and does not comport with the

language of the statute.

         The exception in section 822.3 applies to “a ground of fact or law that

could not have been raised within the applicable time period.”               (Emphasis

added.) “A reasonable interpretation of the statute compels the conclusion that

exceptions to the time bar would be, for example, newly-discovered evidence or

a ground that the applicant was at least not alerted to in some way.” Perez v.

State, 816 N.W.2d 354, 360 (Iowa 2012).           The exception does not apply to

issues that were in existence during the three-year period and were available to

be addressed. Lopez-Penaloza v. State, 804 N.W.2d 537, 542 (Iowa Ct. App.

2011).

         As noted above, Kammerude was sentenced on October 25, 2007. He

thus had until October 25, 2010, to file an application for postconviction relief

concerning all issues that were in existence during that three-year time period.

See id.     The decision in Gant was filed on April 21, 2009, well within the

applicable time limitation.2 Setting aside the issue of whether Gant, 556 U.S. at

351, expressed a new rule of law, it does not represent a ground of law “that

2
   We do not accept Kammerude’s arguments concerning using the date the mandate
was issued, rather than the filing date. See State v. Harris, 741 N.W.2d 1, 9 (Iowa 2007)
(noting opinions are binding on the day they are filed). Even if the date the mandate was
issued, May 27, 2009, was used, however, this is still within the three-year time period
after Kammerude was sentenced.
                                         5

could not have been raised within the applicable time period.” See Iowa Code

§ 822.3. Kammerude’s claims based on Gant could have been raised within the

three-year limitations period. His claims do not come within the exception to the

limitations period found in section 822.3, and we conclude his application for

postconviction relief was untimely.

       Likewise, Kammerude’s claim he received ineffective assistance because

defense counsel did not file a motion to suppress evidence collected in the

search of his vehicle is barred by the three-year statute of limitations. His claims

of ineffective assistance of counsel could have been raised within the applicable

time period. See Fuhrmann v. State, 433 N.W.2d 720, 723 (Iowa 1988); Lopez-

Penaloza, 804 N.W.2d at 542.

       We affirm the decision of the district court granting summary judgment to

the State on Kammerude’s application for postconviction relief on the ground the

application is barred as untimely.

       AFFIRMED.
