                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1010
                              Filed May 14, 2014

RODERICK DWAYNE CHISLEY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Woodbury County, Michael S.

Walsh, Judge.



      An applicant appeals the dismissal of his second application for

postconviction relief. AFFIRMED.



      Rees Conrad Douglas, Sioux City, for appellant.

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

General, and Patrick Jennings, County Attorney, for appellee.



      Considered by Vogel, P.J., and Doyle and Mullins, JJ.
                                         2



MULLINS, J.

       Roderick Chisley appeals the district court’s denial of his second

application for postconviction relief (PCR). He asserts his appellate counsel on

his first PCR application rendered ineffective assistance by telling him that he did

not need to seek further review of our court’s affirmance of the district court’s

denial of his first PCR application in order to seek habeas corpus relief in the

federal court. His habeas corpus application was denied based in part on his

failure to exhaust state remedies. In his second PCR action, he sought a new

trial on his first PCR application in order to exhaust his state remedies on those

claims so that he can again seek habeas corpus relief.

       The district court denied his current PCR application based on the three-

year statute of limitations for PCR actions found in Iowa Code section 822.3

(2011). The court found the claim he now raises does not fit within the exception

to the three-year bar because the claim does not involve any new evidence or

involve any new legal claims that relate to or affect his conviction.          See

Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003) (“[T]he applicant must also

show a nexus between the asserted ground of fact and the challenged

conviction.”).   In addition, the court concluded section 822.8 barred Chisley’s

second application. This section provides:

               All grounds for relief available to an applicant under this
       chapter must be raised in the applicant’s original, supplemental or
       amended application. Any ground finally adjudicated or not raised,
       or knowingly, voluntarily, and intelligently waived in the proceeding
       that resulted in the conviction or sentence, or in any other
       proceeding the applicant has taken to secure relief, may not be the
       basis for a subsequent application, unless the court finds a ground
       for relief asserted which for sufficient reason was not asserted or
                                        3



       was inadequately raised in the original, supplemental, or amended
       application.

Iowa Code § 822.8.

       In federal court Chisley already raised the issue of his PCR appellate

counsel’s erroneous advice—that he did not need to file for further review in

order to pursue his habeas corpus claim—when he was faced with a motion for

summary judgment.         The federal court rejected the claim that counsel’s

ineffectiveness excused his failure to exhaust his state remedies, concluding

because there is no constitutional right to an attorney in PCR proceedings, he

cannot claim ineffective assistance excused his procedural default.          See

Armstrong v. Iowa, 418 F.3d 924, 927 (8th Cir. 2005) (holding that an attorney’s

error does not constitute cause to excuse a procedural default unless the

attorney’s performance was constitutionally deficient and confirming there is no

Sixth Amendment right to the effective assistance of postconviction counsel); see

also Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011) (noting a PCR applicant as

a statutory, not constitutional, right of effective assistance of counsel on

postconviction relief).

       Because we agree with the district court that Chisley’s second application

is untimely under section 822.3 and he is precluded by section 822.8 from

reasserting the same claims, we affirm the district court’s decision pursuant to

Iowa Court Rule 21.26(1)(d).

       AFFIRMED.
