                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0670
                                Filed April 30, 2014


LONZO HOWARD,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



       Lonzo Howard appeals from the order dismissing his third application for

postconviction relief. AFFIRMED.




       Alexander Smith of Burdette Law Firm, P.C., Clive, for appellant.

       Lonzo Howard, Anamosa, pro se.

       Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney

General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County

Attorney, for appellee State.




       Considered by Danilson, C.J., Mullins, J., and Mahan, S.J.*

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

       Lonzo Howard appeals from the order dismissing his third application for

postconviction relief (PCR). Howard contends the district court erred in granting

the State’s motion for summary disposition. Because Howard’s PCR action is

time-barred, we affirm its dismissal.

       Howard was convicted in 2003 of second-degree sexual abuse, and this

court affirmed his direct appeal the following year. State v. Howard, No. 03-

0734, 2004 WL 894127, at *4 (Iowa Ct. App. April 28, 2004). Two PCR actions

and one habeas corpus action followed without success. See Howard v. State,

No. 05-1878, 2007 WL 108904, at *1 (Iowa Ct. App. Jan. 18, 2007) (affirming the

denial of Howard’s first PCR action without opinion). In his petition for habeas

corpus, Howard alleged in part that there is insufficient evidence to support his

conviction.   The federal district court’s determination that Howard never

challenged the sufficiency of the evidence supporting his conviction in state

court—and thereby failed to exhaust his remedies, precluding habeas corpus

relief—leads to the present action.

       In December of 2011, more than seven years after procedendo was

issued in his direct appeal, Howard filed a third PCR action. In his application, he

alleged his trial, appellate, and PCR counsel were all ineffective in failing to

challenge the sufficiency of the evidence supporting his conviction. The State

moved for summary disposition, alleging the action fell outside the three-year

statute of limitations found in Iowa Code section 822.3 (Iowa 2011) and his claim

did not fall under a recognized exception to the time limitation. After initially
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denying the motion, the district court reconsidered, sustained the motion, and

dismissed the action.

       We review the court’s ruling on the State’s statute-of-limitations defense

for correction of errors at law and affirm if the trial court’s fact-findings are

supported by substantial evidence and were correctly applied.          See State v.

Harrington, 659 N.W.2d 509, 519 (Iowa 2003). There is no dispute that Howard’s

action falls outside the statute of limitations provided in section 822.3. However,

the time limit does not apply to a ground of fact or law that could not have been

raised within the applicable time period.     Iowa Code § 822.3.      To meet this

exception, there must be a possibility of success on the claim. Nguyen v. State,

829 N.W.2d 183, 188 (Iowa 2013).

       Howard cannot show a possibility of success on his claim trial counsel

was ineffective in failing to raise a sufficiency-of-the-evidence claim where, as

here, a bench trial was held. See State v. Petithory, 702 N.W.2d 854, 856 (Iowa

2005) (“The district court’s finding of guilt necessarily includes a finding that the

evidence was sufficient to sustain [the defendant]’s conviction.”).        Nor can

Howard show he was unable to raise a claim of ineffective assistance of counsel

based on insufficient evidence within the three-year limitation period because the

basis for such a claim existed during that time frame. See Smith v. State, 542

N.W.2d 853, 854 (Iowa Ct. App. 1995) (holding applicant cannot circumvent the

three-year time-bar by claiming ineffective assistance of counsel because

grounds existed and could have been raised within the applicable time period).

In fact, Howard himself filed a motion to enlarge or amend the court’s findings in

his first PCR action, alleging in part that there was insufficient evidence to
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support his conviction. Although the motion was untimely and therefore not ruled

upon, it shows Howard had the ability to raise this claim in a prior, timely PCR

action.

          Because the State is entitled to judgment as a matter of law on the

undisputed facts before us, the district court properly granted summary

disposition. See Manning v. State, 654 N.W.2d 555, 559 (Iowa 2002) (noting

court may grant summary disposition when “it appears from the pleadings,

depositions, answers to interrogatories, and admissions and agreements of fact,

together with any affidavits submitted, that there is no genuine issue of material

fact and the [State] is entitled to judgment as a matter of law”). Accordingly, we

affirm.

          AFFIRMED.
