                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0584
                             Filed August 17, 2016


PEDRO PEREZ-FUENTES,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Timothy J. Finn,

Judge.



      An applicant for postconviction relief appeals the district court’s summary

dismissal of his second application. AFFIRMED.




      Unes J. Booth of Booth Law Firm, Osceola, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee State.




      Considered by Doyle, P.J., Bower, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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BLANE, Senior Judge.

      Pedro Perez-Fuentes appeals the district court’s summary dismissal of his

second application for postconviction relief (PCR). Perez-Fuentes maintains the

district court erred when it granted the State’s untimely motion to dismiss.

Additionally, he claims his PCR counsel was ineffective for failing to preserve

error on the district court’s violation of his statutory rights by dismissing his

application without giving him an opportunity to respond and by holding a hearing

on the State’s motion without Perez-Fuentes being present. Finally, he contends

the district court erred when it stated he “waived” his rights under the Vienna

Convention.

I. Background Facts and Proceedings

      Following a jury trial, Perez-Fuentes was convicted of first-degree murder

in September 2006. He filed a direct appeal, and a panel of our court rejected

each of his claims and affirmed his conviction. See State v. Perez-Fuentes, No.

06-1465, 2007 WL 4191962, at *5 (Iowa Ct. App. Nov. 29, 2007). Perez-Fuentes

applied to the Iowa Supreme Court for further review, and his application was

denied. Procedendo issued on January 25, 2008.

      Perez-Fuentes filed his first pro se application for PCR on March 6, 2008.

He was appointed counsel and later filed an amended application. The district

court ultimately dismissed the application, and Perez-Fuentes appealed. Another

panel of our court reviewed Perez-Fuentes’s claims and affirmed the district

court’s dismissal. See Perez-Fuentes v. State, No. 13-0024, 2014 WL 4929806,

at *2 (Iowa Ct. App. Oct. 1, 2014).
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       Perez-Fuentes filed his current pro se application for PCR on October 16,

2014. In his application, Perez-Fuentes asserted “[t]he conviction and sentence

is in violation of the Constitution of the U.S. and the Constitution and laws of the

state of Iowa;” “[t]here exists evidence of material facts not previously

presented . . . ;” and “[t]he conviction and sentence is otherwise subject to

collateral attack.”   More specifically, Perez-Fuentes raised four claims of

ineffective assistance, stating each level of counsel—criminal trial, criminal

appeal and first PCR—was ineffective for failing (1) to “pursue the issue” of

another person’s DNA in the body of the deceased, (2) to raise and preserve the

issue Perez-Fuentes was “denied his right to consult a Mexican Consulate under

the Vienna Convention,” (3) to raise the issue that Perez-Fuentes did not have a

proper interpreter to waive his Miranda rights, and (4) to raise issues concerning

new rulings regarding the felony-murder rule.

       On February 23, 2015, the State filed a motion to dismiss, alleging Perez-

Fuentes’s claims were time-barred by Iowa Code section 822.3 (2013). The

district court held a hearing on the motion on March 23, 2015. Perez-Fuentes

was not present at the hearing; his PCR counsel told the court he was waiving

his client’s presence because “this is not an evidentiary hearing but motion only.”

       The next day, the district court filed an order, in which it noted that PCR

applications must be filed within three years from the date the writ of procedendo

issued, except where there are grounds of law or fact that could not have been

raised within the three years.        Because Perez-Fuentes had only raised

allegations of ineffective assistance, which do not fall within the exception, Perez-
                                            4


Fuentes had not raised any issues that could survive dismissal. Additionally, the

court noted:

       Finally, Perez-Fuentes specifically raises in his argument that prior
       counsel were ineffective for not properly raising the issue of denial
       of the Applicant’s right to consult a Mexican Consulate under the
       Vienna Convention. This ground was waived because it was not
       raised in the prior proceedings. Had it been raised, the outcome
       would not have been different.

       Perez-Fuentes appeals.

II. Standard of Review

       We review postconviction proceedings, including summary dismissals, for

errors at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). However,

applications for postconviction relief that allege ineffective assistance raise a

constitutional claim, which we review de novo. Id.

III. Discussion

       1. Dismissal of Application

       Perez-Fuentes maintains the State’s motion to dismiss was untimely and

the district court erred by granting it. Perez-Fuentes claims the State had only

thirty days to file an answer pleading the affirmative defense of the statute of

limitations and it failed to do so in that time.

       Applications for postconviction relief 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.” Iowa Code § 822.3. The defense of the

statute of limitations “must be affirmatively asserted by a responsive pleading.”

Davis v. State, 443 N.W.2d 707, 708 (Iowa 1989). However, the State is not

required to plead the defense in an answer. Rather, “when it is obvious from the
                                         5


uncontroverted facts shown on the face of the challenged petition that the claim

for relief was barred when the action was commenced, the defense may properly

be raised by a motion to dismiss.” Id.

       Here, it is clear on the face of the application that it was time-barred.

While Perez-Fuentes claimed there were material facts previous counsel failed to

present, he did not claim that those facts could not have been presented within

the three-year limitation. See Iowa Code § 822.3 (“[T]his limitation does not

apply to a ground of fact or law that could not have been raised within the

applicable time period.” (emphasis added)). Rather, Perez-Fuentes only claims

that each of his previous counsel was ineffective for failing to pursue and

preserve various arguments. These claims of ineffective assistance are not an

exception to the time limit of section 822.3. See Wilkins v. State, 522 N.W.2d

822, 824 (Iowa 1994) (holding that an applicant for PCR cannot circumvent the

effect of the three-year time-bar by merely claiming the ineffective assistance of

postconviction counsel because section 822.3 “creates an exception for untimely

filed application if they are based on claims that ‘could not’ have been previously

raised because they were not available”).

       The State’s motion to dismiss properly raised the statute of limitations as

an affirmative defense, and the district court did not err by granting the motion.

       2. Opportunity to Respond

       Perez-Fuentes maintains this PCR counsel was ineffective for failing to

preserve error on the district court’s violation of Perez-Fuentes’s statutory rights

by dismissing his application without giving him an opportunity to respond.
                                        6


      “To prevail on a claim of ineffective assistance, the applicant must

demonstrate both ineffective assistance and prejudice.” Ledezma v. State, 626

N.W.2d 134, 141 (Iowa 2001) (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)). Both claims must be proven by a preponderance of the evidence, and

we may end our analysis if either element is lacking. See id.

      Here, Perez-Fuentes’s claim fails because he cannot establish that he

would have been successful on appeal if counsel had preserved the claim. See

Nguyen v. State, 878 N.W.2d 744, 754 (Iowa 2016) (“[P]ostconviction counsel

had no duty to pursue a meritless claim.”). The State filed its motion to dismiss

on February 23, 2015, and a hearing on the matter was scheduled to take place

one month later. In the meantime, nothing prevented Perez-Fuentes from filing a

resistance or a reply.     “Section 822.6 contemplates that a claimant in a

postconviction case will be allowed to have extensive pro se participation in the

proceedings.” Gamble v. State, 723 N.W.2d 443, 445 (Iowa 2006). In fact, a

postconviction-relief “applicant may file application, briefs, resistances, motion,

and all other documents the applicant deems appropriate in addition to what the

applicant’s counsel files. This qualification should give the applicant assurance

that all matter the applicant wants raised before the district court will be

considered.” Leonard v. State, 461 N.W.2d 465, 468 (Iowa 1990). From the

record before us, it appears Perez-Fuentes was given the opportunity to respond;

he just failed to do so. As such, the district court did not err by dismissing his

application, and PCR counsel did not violate a duty to preserve the claim.
                                        7


       3. Right to be Present

       Perez-Fuentes also maintains this PCR counsel was ineffective for

waiving Perez-Fuentes’s presence at the hearing on the motion to dismiss, in

violation of his statutory rights.

       While we agree it is not best practice to exclude the applicant from PCR

hearings, Perez-Fuentes cannot establish that he suffered prejudice from his lack

of testimony or presence at the hearing. See Webb v. State, 555 N.W.2d 824,

826–27 (Iowa 1996) (“In conclusion, [the applicant] was not denied any due

process or statutory rights to personally attend the postconviction hearing. He

was accorded opportunity to present testimony in compliance with the principles

of fundamental fairness and he waived those opportunities.           Finally, [his]

postconviction counsel did not perform ineffectively [because the applicant

suffered no prejudice from his lack of testimony].”). As explained above, the four

claims in his application for PCR involved whether earlier counsel was ineffective

and evidence that was not presented in earlier proceedings—as opposed to not

able to have been presented. Neither of these types of claims are exceptions to

the three-year limitation found in section 822.6. See Wilkins, 522 N.W.2d at 824.

Even if Perez-Fuentes was present and able to testify about his claims in-depth,

it would not have changed the court’s ruling that they were time-barred. For that

reason, counsel was not ineffective for waiving Perez-Fuentes’s presence at the

hearing.

       4. Vienna Convention

       Perez-Fuentes maintains the district court erred by determining he had

waived his rights under the Vienna Convention. Although we question the use of
                                             8


the term “waived” in its order, the district court did not err in dismissing this claim

along with the others.

       Perez-Fuentes did not raise an issue regarding his rights under the Vienna

Convention until his second application for PCR. See Fryer v. State, 325 N.W.2d

400, 405 (Iowa 1982) (“Even issues of constitutional magnitude will not be

addressed if not presented in the trial court.”); see also Ledezma, 626 N.W.2d at

141 (“Generally, a claim not raised on direct appeal cannot be raised in a

postconviction relief proceeding unless the applicant can demonstrate a sufficient

cause or reason for not properly raising the issue previously.” (citing Iowa Code

§ 822.8)). As such, his only option was to raise the issue under an ineffective-

assistance framework. See Iowa Code § 814.7(1) (“An ineffective assistance of

counsel claim . . . need not be raised on direct appeal from the criminal

proceedings in order to preserve the claim for postconviction relief.”); see also

Jones v. State, 545 N.W.2d 313, 314 (Iowa 1996) (“Ineffective assistance of

postconviction counsel can provide ‘sufficient reason’ under Iowa Code section

822.8 . . . for a successive postconviction application raising new issues.”).

       Here, it appears the district court believed Perez-Fuentes was attempting

to make a direct challenge regarding his rights under the Vienna Convention and

thus found he had not preserved the error for review. 1 However, it is clear from

his written application that Perez-Fuentes claimed each of his previous counsel


1
  We believe the court used “waived” when it meant to say Perez-Fuentes “had not
preserved error.” Compare Waive, Black’s Law Dictionary (10th ed. 2014) (“To
abandon, renounce, or surrender (a claim, privilege, right, etc); to give up (a right or
claim) voluntarily.”), with Preservation of Error, Black’s Law Dictionary (10th ed. 2014)
(“The taking of all steps necessary under the rules of procedure or at common law in
bringing an improper statement to the trial court’s attention so that, if not corrected, the
mistake can be reviewed on appeal.”).
                                        9


was “ineffective for failing to raise and preserve for error the issue of the

Applicant being denied his right to consult a Mexican Consulate under the Vienna

Convention.” Because ineffective-assistance-of-counsel claims are an exception,

Perez-Fuentes was not barred from raising the claim due to error-preservation

rules. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). However, as

explained above, claims of ineffective assistance do not fall within the exception

to section 822.3, so Perez-Fuentes’s claim regarding whether counsel was

ineffective for failing to inform him of his rights under the Vienna Convention was

still time-barred. See Wilkins, 522 N.W.2d at 824 (rejecting claim that ineffective

assistance from PCR counsel was an exception to the time limitation because

the “claims neither involve new evidence nor are they new legal claims”).

IV. Conclusion

      Because it was clear on the face of Perez-Fuentes’s application that it was

time-barred, and in such a case the State may raise the statute of limitations

defense in a motion to dismiss, the district court did not err in granting the

motion.   Because the district court did not err in dismissing Perez-Fuentes’s

application before he responded, counsel had no duty to preserve the district

court’s alleged error. Additionally, because Perez-Fuentes cannot establish that

his application would not have been dismissed if he was present at the motion to

dismiss hearing, he cannot establish that he was prejudiced by counsel’s alleged

failure in waiving Perez-Fuentes’s presence. Lastly, the district court did not err

in dismissing Perez-Fuentes’s claim regarding the Vienna Convention along with

his other untimely claims. For these reasons, we affirm.

      AFFIRMED.
