                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0375
                               Filed April 29, 2020


WILLIAM EDWARD BLAKEMAN, III,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi

Wittig, Judge.



      William Blakeman appeals from the summary dismissal of his application

for postconviction relief. AFFIRMED.



      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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MAY, Judge.

       William Blakeman failed to file this postconviction-relief (PCR) action within

the three-year statutory limitations period. See Iowa Code § 822.3 (2018). The

PCR court summarily dismissed. We affirm.

       In 2015, Blakeman pled guilty to possession of marijuana with intent to

deliver. On May 4, 2015, the court sentenced Blakeman to prison but suspended

the sentence and ordered probation. Blakeman pursued no direct appeal.

       Blakeman struggled on probation. Between June 2015 and May 2018, the

department of correctional services filed five separate reports of violations. On

three occasions, the court found Blakeman in contempt and ordered jail time.

Finally, in July 2018, the court revoked Blakeman’s probation.

       On December 11, 2018, Blakeman filed his hand-written PCR petition.

Although sparse, it suggests that whoever reported Blakeman to police had just

stolen money from Blakeman. It also states: “I was NOT found to be in possesion

[sic] of any drug on the date in question.”

       Following appointment of PCR counsel, Blakeman filed a motion to obtain

transcripts at state expense. The PCR court entered an order denying the motion.

In the same order, the court dismissed Blakeman’s action as untimely under Iowa

Code section 822.3, which states in pertinent part:

       All [PCR][1] applications 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. However, this
       limitation does not apply to a ground of fact or law that could not have
       been raised within the applicable time period.


1 There is one carve-out: A shorter, ninety-day limitation period applies for
applicants seeking relief under section 822.2(1)(f).
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      Blakeman filed a motion to reconsider. It suggested the “actual innocence”

standard could provide a means of avoiding dismissal under section 822.3. It also

advised the court that counsel “needs to review the transcripts to determine if it

[sic] meets the actual innocence standard.” The court denied Blakeman’s motion.

This appeal followed.

      On appeal, Blakeman argues the PCR court erred in dismissing without first

affording him “the opportunity to present evidence to the [c]ourt regarding his

actual innocence claim.” He also argues the PCR court erred in dismissing “on

statute of limitation grounds without considering equitable tolling.” “We generally

review postconviction proceedings, including summary dismissals of [PCR]

applications, for errors at law.” Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018).

But “[w]hen the basis for relief implicates a violation of constitutional dimension,

our review is de novo.” Id.

      Even when an applicant claims actual innocence, the applicant must still

“comply with the statute of limitations or prove a statutory exception thereto.”

Dewberry v. State, ___N.W.2d___, ___, 2019 WL 6633750, at *3 (Iowa 2019). But

Blakeman cannot show he complied with the three-year limitation period under

section 822.3. Although Blakeman’s conviction was final on May 4, 2015, he did

not file his PCR action until December 11, 2018—more than three years later.

      Nor can Blakeman show he fits within a statutory exception. He identifies

no “ground of fact or law that could not have been raised within the” three-year

limitations period. See Iowa Code § 822.3. Blakeman’s application suggests he

did not possess the marijuana on which his conviction was based. If that is true, it

cannot come as news to Blakeman. Rather, as the State points out, “evidence of
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whether [Blakeman] possessed marijuana—or not, was known to Blakeman at the

time of his guilty plea.” It was a “ground of fact” that could, indeed, “have been

raised within the” three-year period. Cf. Hoskins v. State, No. 19-0035, 2020 WL

1310308, at *3 (Iowa Ct. App. Mar. 18, 2020) (finding a third-party’s affidavit that

the PCR applicant did not own the relevant drugs was not “newly-discovered

evidence” because “the affidavit’s core factual content—that [the applicant] ‘did not

have anything to do with the drugs’—was undoubtedly known to [the applicant] at

the time of his trial”).

       But Blakeman complains the court’s summary dismissal prevented him from

“submit[ting] ANY evidence to support his claim of actual innocence.”             As

explained, though, evidence that Blakeman did not possess marijuana would not

help him avoid the statute of limitations. Moreover, Blakeman has not told us what

evidence he would have presented. He has not even told us what evidence he

hoped to find in the transcripts from his criminal case. Nor did he advise the PCR

court of what evidence he hoped to find. On this record, we cannot conclude an

evidentiary hearing was required.

       Blakeman also argues we should adopt “equitable tolling” as an additional

exception to the three-year time limit. Like the State, we do not believe Blakeman

preserved error on this claim. Equitable tolling was not mentioned in Blakeman’s

motion to reconsider. Nor do we find it elsewhere in the record. So we decline to

consider it now. See Fountain v. State, No. 17-2024, 2019 WL 5424928, at *3

(Iowa Ct. App. Oct. 23, 2019) (“He alternatively argues not allowing equitable

tolling under Iowa Code chapter 822 is unconstitutional. The equitable-tolling

arguments were not raised or decided below, and we will not consider them for the
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first time on appeal.”); see id. at *3 n.7 (noting “our prior holdings that equitable

tolling does not apply to section 822.3” and citing eleven unpublished decisions);

cf. Davis v. State, 443 N.W.2d 707, 710 (Iowa 1989) (rejecting applicant’s claim

that dismissal under three-year limitation period, then codified at section 663A.3

(1987), improperly “precluded him from showing his delay was due to justifiable

excuse and from presenting the merits of his case”).

       Blakeman’s PCR action was time-barred under section 822.3 (2018). The

PCR court was correct in dismissing his application.

       AFFIRMED.

       Doyle, J., concurs; Vaitheswaran, P.J., dissents.
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VAITHESWARAN, Presiding Judge (dissenting).

       I respectfully dissent. The district court dismissed the postconviction-relief

application sua sponte without notice to Blakeman, despite the fact that an order

filed less than three weeks earlier afforded his attorney forty-five days to file a brief

and granted Blakeman the right to a hearing in the event a motion for summary

judgment was filed. See also Iowa Code § 822.6 (2018) (governing summary

disposition of postconviction-relief applications and requiring notice and an

opportunity to respond). In my view, the district court erred. I would reverse and

remand for further proceedings.
