                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1543
                               Filed August 1, 2018


BRUCE EVAN MARTIN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      Bruce Martin appeals the order granting summary disposition of his fifth

application for postconviction relief. AFFIRMED.



      Lauren M. Phelps, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       Bruce Martin appeals the order granting summary disposition of his fifth

application for postconviction relief (PCR), in which he sought relief from his 2004

convictions for second-degree sexual abuse and lascivious acts with a child. He

argues his application is excepted from the three-year time bar for bringing PCR

actions because it is based on newly discovered evidence. He also asserts his

fifth PCR counsel provided ineffective assistance by failing to demonstrate his

claim rested on newly discovered evidence.

       We review the summary disposition of a PCR action for correction of errors

at law. See Schmidt v. State, 909 N.W.2d 778, 784 (Iowa 2018). Summary

disposition is appropriate where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

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

judgment as a matter of law.” Id. (cleaned up).1 We view the record in the light

most favorable to the nonmoving party, drawing all legitimate inferences from the

evidence in favor of the nonmoving party. See id.

       Applicants for PCR are required to file their application “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” unless the application is based on “a

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

period.” Iowa Code § 822.3 (2016). Martin concedes his PCR application was not


1
  “Cleaned up” is a new parenthetical used to indicate that internal quotation marks,
alterations, and citations have been omitted from quotations for readability purposes. See
United States v. Steward, 880 F.3d 983, 986 n.3 (8th Cir. 2018); Jack Metzler, Cleaning
Up Quotations, 18 J. App. Prac. & Process 143 (Fall 2017).
                                          3


timely under section 822.3 but claims it falls within the exception for newly

discovered evidence. An applicant asserting a claim of newly discovered evidence

must show the ground of fact could not have been raised within the limitations

period and that it has the potential to qualify as material evidence. See Moon v.

State, 911 N.W.2d 137, 143 (Iowa 2018).

       Martin raises two claims in this PCR action. First, he alleges that his prior

counsel failed to raise exculpatory evidence in the form of documents from

agencies and police departments that would show “no claims of child sex abuse

against him.” In his recast PCR application, Martin admitted these documents

were discoverable before he pled guilty or undertook his four prior PCR actions,

but he claimed his counsel failed to produce the documents. At the summary

disposition hearing, Martin testified he instructed his attorneys to get this evidence,

which indicates he knew of the documents’ existence. Martin acknowledges that

“most if not all of the documents to which [he] referred in his current PCR case”

are contained in previous PCR files. Clearly, the documents he relies on do not

fall under the exception to the time bar for newly discovered evidence. In fact, it

appears Martin raised this claim in his failed fourth PCR action, which this court

affirmed on appeal. See Martin v. State, No. 15-1622, 2016 WL 4384755, at *3

(Iowa Ct. App. Aug. 17, 2016) (holding Martin failed to demonstrate that similarly

described documents could not have been discovered in the exercise of

reasonable diligence within the limitations period and that “at least some of these

documents were in Martin’s possession at the time of his last PCR application” and

concluding Martin “failed to demonstrate the evidence was newly discovery, not

previously discoverable, or that said evidence requires vacation of his plea in the
                                            4

interest of justice”). “Relitigation of previously adjudicated issues is barred.” State

v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971).

         Martin also alleges that newly discovered evidence regarding the child’s

mother and the child lying about the abuse provides an exception to the statutory

time bar for PCR actions. Specifically, Martin claims the mother told one of his

friends she intended to “hang [Martin] up on a crime he didn’t even do,” and the

child expressed Martin’s innocence to another person at a funeral on December 3,

2003.2     Martin testified he learned of this evidence after he was sentenced,

“[p]robably a few years ago.” Asked if he learned of the information before he filed

his fourth PCR action,3 Martin responded, “Yes.” His appellate counsel claims

Martin “simply is not certain of when he learned about the comments.”

         Martin has the burden to show his application comes within the exception

to the three-year statute of limitations. See Cornell v. State, 529 N.W.2d 606, 610

(Iowa Ct. App. 1994). He has not shown that he raised this issue within three years

of his discovery of the statements. He has not met his burden to prove the

information was “newly discovered evidence” under section 822.3.

         Finally, Martin claims that his fifth PCR counsel was ineffective by failing to

present his claims to the PCR court adequately. We reject this claim for the

reasons stated above. Even if counsel had procured the evidence in the manner

Martin suggests on appeal, it would not have changed the outcome of the PCR



2
  Martin was charged on December 1, 2003. In February 2004, Martin pled guilty to one
count of second-degree sexual abuse and to lascivious acts, but was allowed to withdraw
his guilty plea prior to sentencing. In June 2004, Martin again pleaded guilty to one count
of second-degree sexual abuse and to lascivious acts. Martin v. State, No. 09-0014, 2009
WL 5126344, at *1 (Iowa Ct. App. Dec. 30, 2009).
3
  Martin’s fourth PCR action was filed February 17, 2015.
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proceeding because the evidence does not fall within the exception to the time bar

set forth in section 822.3. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994)

(holding a PCR applicant alleging ineffective assistance of PCR counsel must

prove PCR counsel’s deficient performance was so prejudicial as to give rise to

the reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different).

       AFFIRMED.
