                       IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0533
                               Filed June 15, 2016


STEVEN EARL FRASIER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Edward A.

Jacobson, Judge.



       Steven Frasier appeals from the dismissal of his fourth application for

postconviction relief. AFFIRMED.




       Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee State.




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


DANILSON, Chief Judge.

       Steven Frasier appeals from the dismissal of his fourth application for

postconviction relief (PCR). Because the application was time barred, we affirm.

       The standard of review on appeal from the denial of a postconviction relief

application, including summary judgment dismissals, is for errors of law. Castro

v. State, 795 N.W.2d 789, 792 (Iowa 2011).      Postconviction proceedings that

raise constitutional issues are reviewed de novo. Ledezma v. State, 626 N.W.2d

134, 141 (Iowa 2001).

       On August 31, 1986, Steven Frasier, Simon Tunstall, and James Simpson

were each charged with murder and burglary stemming from the shooting death

of Jeffrey Jones in Sioux City, Iowa.       Each defendant pled not guilty and

proceeded to a joint trial in the Iowa District Court for Woodbury County. In

February 1987, a jury convicted Frasier of first-degree murder and first-degree

burglary. The jury also found that Frasier had a firearm during the commission of

the offenses. On March 30, 1987, the district court denied Frasier’s post-trial

motions and sentenced him to life imprisonment on the murder conviction and a

term of imprisonment not to exceed twenty-five years on the burglary conviction,

with the sentences to be served concurrently. Frasier unsuccessfully appealed.

State v. Frasier, No. 87-0504 (Iowa Ct. App. Jan. 26, 1989). Procedendo issued

on April 7, 1989.

       Frasier filed his first PCR application on June 12, 1990, which was denied

on July 24, 1995. Although Frasier appealed, we have nothing in this record to

indicate the outcome of the appeal.
                                              3

         Frasier sought federal habeas relief, which was denied.               Frasier v.

Maschner, No. C97-4102MWB, 2001 WL 34008500, at *1 (N.D. Iowa July 26,

2001), aff’d, 304 F.3d 815 (8th Cir. 2002), cert. denied, 538 U.S. 966 (2003).

         Frasier filed a second PCR application on September 28, 2009, which was

dismissed on October 20, 2009. His appeal was dismissed by the Iowa Supreme

Court on April 23, 2010.

         Frasier’s third PCR application was filed on June 20, 2012. Summary

judgment was entered for the State, which was affirmed by this court. Frasier v.

State, No. 12-1957, 2014 WL 69671, at *3 (Iowa Ct. App. Jan. 9, 2014).

         On July 18, 2014, Frasier filed this fourth PCR application, asserting that

under the principles concerning joint criminal conduct enunciated in State v.

Smith, 739 N.W.2d 289 (Iowa 2007), he was entitled to a new trial. The State

moved for summary judgment, contending the application was time barred.

         In response, Frasier argued he “could not have secured relief under State

v. Smith until 2009,” when the Iowa Supreme Court decided Goosman v. State,

764 N.W.2d 539 (2009). He asserted:

                In that case, the Supreme Court of Iowa held that, when
         taken together, Fiore and Bunkley[1] stand for two propositions.
         Goosman, 764 N.W.2d. at 544. However, here only the first
         proposition needs addressed. It is the proposition that “where a
         court announces a new rule of substantive law that simply ‘clarifies’
         ambiguities in existing law, federal due process requires that
         decision to be retroactively applied to all cases, including collateral
         attacks where all avenues of direct appeal have been exhausted.”
         Id.
                The decision in State v. Smith is clearly one that falls within
         Goosman’s retroactivity analysis.



1
    Fiore v. White, 531 U.S. 225 (2001), and Bunkley v. Florida, 538 U.S. 835 (2003).
                                        4

      Even accepting Frasier’s argument as set forth, and even assuming Smith

stands for the proposition that Frasier claims it does, Iowa Code section 822.3

(2013) imposes a three-year time bar unless the applicant raises “a ground of . . .

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

statute says nothing about a deadline for raising the “ground of law” exception.

      The Iowa Supreme Court broached this issue in Nguyen v. State, 829

N.W.2d 183 (Iowa 2013), but did not explicitly resolve it.       The court made

reference to the fact Nguyen filed his application within three years of the change

of law announced in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), upon

which the applicant relied. Nguyen, 829 N.W.2d at 186 (“Nguyen applied again

for postconviction relief on April 2, 2009, more than three years after procedendo

had issued on his original direct appeal, but less than three years after

Heemstra.”).   The implication, then, is that the “ground of law” exception

premised on Heemstra could be raised only within three years of the filing of

Heemstra.

      This court held just that in Thompson v. State, No. 14-0138, 2015 WL

1332352, at *1 (Iowa Ct. App. Mar. 25, 2015); see also 4A B. John Burns, Iowa

Practice Series, Criminal Procedure § 33:3, at 637–38 n.12 (2015 ed.) (citing

Heemstra and Nguyen for proposition that “[u]nder some circumstances, an

otherwise time-barred petition may be filed within three years of an appellate

decision creating a substantial right that represents a clear break in the law that

could not have been anticipated at the time the defendant’s case was pending”

(emphasis added)). Faced with a PCR application raising a Heemstra challenge

but filed well after Thompson’s direct appeal became final and more than three
                                           5

years after Heemstra, we read Nguyen as “implicit[ly]” imposing “the requirement

that the postconviction-relief application asserting such a claim be filed within

three years of the Heemstra decision.” Thompson, 2015 WL 1332352, at *1.

Because Thompson did not file his application within this time-frame, we affirmed

the district court’s summary dismissal of the application as time-barred. Id.

              This implicit three-year limitation on raising the ground-of-law
       exception makes sense. In part, the purpose of section 822.3 is to
       “restore a sense of repose in our criminal judicial system.” Cornell
       v. State, 529 N.W.2d 606, 610–11 (Iowa Ct. App. 1994). The
       purpose of “the escape clause of section 822.3 is to provide relief
       from the limitation period when an applicant had ‘no opportunity’ to
       assert the claim before the limitation period expired.” Id. at 611.
       These purposes would be frustrated if an applicant had an
       unlimited amount of time to raise the “ground of law” exception.
       Nguyen suggests an applicant should have to raise a change in the
       law within a reasonable period after the change is announced and
       the opinion implies the reasonable period is three years.

Burkett v. State, No. 14-0998, 2015 WL 5278970, at *2–3 (Iowa Ct. App. Sept.

10, 2015); accord Sihavong v. State, No. 2016 WL 351286, at *1–2 (Iowa Ct.

App. Jan. 27, 2016) (finding PCR application time barred when filed more than

three years after case upon which applicant relied was decided).

       The claim made by Frasier could have been raised after Smith was

decided in 2007, or at least after Goosman in 2009.              Frasier’s fourth PCR

application was filed in 2014, seven years after Smith, the decision upon which

Frasier claims relief, and five years after Goosman.           Section 822.3 requires

dismissal.2 We therefore affirm.

       AFFIRMED.



2
  The same resolution applies to the issues raised in Frasier’s pro se supplemental brief
for the same reasons.
