                   IN THE SUPREME COURT OF IOWA
                                      No. 16–0764

                                Filed June 29, 2018


BRIAN K. ALLISON,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Keokuk County, Myron

Gookin, Judge.



      Petitioner requests further review of a court of appeals’ decision

affirming    the    dismissal    of    his   petition   for   postconviction   relief.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND REMANDED.


      Robert E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for

appellant.



      Thomas J. Miller, Attorney General, Kelli Huser and Doug

Hammerand, Assistant Attorneys General, and John Schroeder, County

Attorney, for appellee.
                                      2

APPEL, Justice.

       In this case, we consider whether the three-year statute of

limitations in Iowa Code section 822.3 (2015) applies where a

postconviction-relief (PCR) petitioner files an untimely second petition for

PCR, alleging counsel for his timely filed first petition for PCR was

ineffective. The district court held the second petition’s allegation that

the first postconviction counsel was ineffective did not supply a ground of

fact to avoid the three-year statutory bar. The court of appeals affirmed,

relying upon our previous decision in Dible v. State, 557 N.W.2d 881,

883, 886 (Iowa 1996) (en banc), abrogated in part on other grounds by

Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003).

       A second question raised in the case is whether the district court

properly dismissed allegations in the amended petition filed in the

second PCR action.      The amended petition alleged newly discovered

evidence—namely, that the victim and other witnesses recanted their

testimony. The amended petition further alleged that there had been a

change in the law regarding admissibility of expert testimony on the

credibility of child victims.   The district court recognized the amended

petition had been filed, observed that the amended petition did not affect

the “core basis” of the claim in the case, and denied relief. On appeal,

the State contended that the petitioner failed to preserve the issues in

the amended petition because the district court never granted leave to

amend.

       The court of appeals affirmed on two grounds. The court held that

the claims raised in the amended petition were not preserved. The court

also found that the allegations in the petition were too vague to provide a

basis for relief.
                                     3

      In order to answer the first question, we revisit the holding in

Dible. For the reasons expressed below, we vacate the decision of the

court of appeals and reverse the judgment of the district court. On the

second question, we find that the claims raised in the amended petition

were adequately preserved.     Rather than rule on the adequacy of the

amended petition on appeal, we remand the case to the district court for

further proceedings on the amended petition.

      I. Factual and Procedural Background.

      A jury convicted Brian Allison of three counts of sexual abuse in

the third degree in 2011.     He appealed his conviction.     In his direct

appeal, Allison argued the district court erred in not granting him a new

trial based upon the weight of the evidence under Iowa Rule of Criminal

Procedure 2.24(2)(b)(6). Among other things, Allison noted the victim, his

stepdaughter, initially denied the abuse, behaved normally during the

time of the alleged abuse, returned to Allison’s home after the abuse

ended, and gave inconsistent testimony about the abuse.

      On July 11, 2012, the court of appeals affirmed Allison’s

convictions. Although the court held the claim was not preserved, the

court addressed Allison’s weight-of-the-evidence claim in the context of

ineffective assistance of counsel. Noting Allison’s attack on the victim’s

credibility, the court cited expert testimony that it was not unusual for

children to delay reporting abuse, to return to their abuser after the

alleged acts, and to forget the details of the abuse. In addition, the court

remarked that several witnesses testified about inappropriate physical

contact, specifically Allison and the victim holding hands, the victim

sitting on Allison’s lap, Allison rubbing the victim’s back, and Allison and

the victim being together in bed under a blanket with Allison wearing

boxer shorts and the victim wearing “skimpy shorts and a low-cut shirt.”
                                     4

The court concluded that under the circumstances, there was not a

reasonable probability that the district court would have granted the

motion for a new trial if the verdict-contrary-to-the-weight-of-the-

evidence claim had been preserved.       As a result, the court of appeals

affirmed the convictions. Procedendo issued on September 6, 2012.

      On March 6, 2013, Allison filed his first petition for PCR. Allison

claimed that his trial counsel was ineffective for failing to investigate the

bias of one of the jurors. At the hearing on the first PCR action, Allison

and his son testified they observed a juror appear to wave and

acknowledge Allison’s ex-wife Tina, the mother of the victim. The district

court denied relief, noting, among other things, that no evidence was

offered showing the relationship between the juror and the mother and

that there was no evidence of prejudice.

      Allison appealed. On appeal, Allison claimed his PCR counsel did

not properly investigate the claim of juror bias and, like his trial counsel,

provided him with ineffective assistance.     He claimed that if his PCR

counsel had adequately investigated, he could have established there

was a reasonable probability the result of the trial would have been

different if the potentially biased juror had been removed.

      On September 10, 2015, the court of appeals affirmed the denial of

relief. The court explained that in order to support a claim of ineffective

assistance of counsel, Allison was required to show he suffered prejudice

from the presence of a biased juror in deliberations.      The court noted

that the PCR record did not establish the identity of the juror; whether

the juror actually waived at the victim’s mother; the relationship, if any,

between the juror and the victim’s mother; and whether any juror was in

fact biased. The court of appeals held that Allison was not entitled to
                                     5

relief based on ineffective assistance of counsel without developing the

underlying claim of juror bias.

      On November 5, Allison, proceeding pro se, filed a second petition

for PCR. In his second petition, Allison alleged that his counsel in his

first PCR action was ineffective for failing to develop adequately the

record in connection with the juror-bias issue. According to Allison, “[a]

brief investigation could have revealed the name of the juror and her

familiarity with Tina Allison.” Allison also noted that his counsel in the

first PCR proceeding could have called Tina as a witness and developed

the relationship between Tina and the juror.

      The district court appointed counsel for Allison. The State filed a

motion to dismiss. In its motion, the State noted procedendo in Allison’s

direct appeal was issued on September 6, 2012, and Allison’s second

petition was filed on November 5, 2015. The State asserted that because

the second petition was filed more than three years after his convictions

became final, it was barred by Iowa Code section 822.3. The State relied

upon Dible, 557 N.W.2d at 886. In Dible, a 5–4 majority of this court

held that ineffective assistance of counsel was not a “ground of fact”

under Iowa Code section 822.3 that would allow a PCR petition to be

filed more than three years after a conviction became final. Id.

      Allison, now represented by counsel, resisted the motion to dismiss

and filed an amended second petition for PCR.        The amended petition

reprised the claim of ineffective assistance for failure to investigate the

allegation of juror bias, noting that the claim “extends beyond merely

ineffective assistance.” According to the motion, “[b]y utterly failing to do

[his] job[],” Allison’s previous PCR counsel “effectively render[ed Allison]

with no post-conviction relief.”
                                     6

      The amended petition also raised new issues. It asserted there was

“reason to believe that the victim and other witnesses have recanted their

testimony thus taking away the factual basis for [Allison’s] conviction.”

The amended petition also claimed “[t]hat changes in the law and

particularly the admissibility of expert testimony that tends to invade the

[province] of the jury and attempting to bolster the credibility of child

victims, would result in a change of verdict.” An unreported hearing was

held before the district court.

      The district court granted the State’s motion to dismiss.       In its

order, the court recognized that Allison filed his amended petition. The

court further acknowledged Allison’s claim that his amended petition

cured the statute-of-limitations bar raised by the State. Yet the court

concluded, “[T]he amended petition does not change the core basis for

[Allison’s] claim for post-conviction relief, namely, ineffective assistance

of counsel by post-conviction counsel and ineffective assistance of post-

conviction appellate counsel.”    The court ruled that such ineffective

assistance was not a basis for avoiding the three-year statute of

limitations in Iowa Code section 822.3.

      Allison appealed. We transferred the case to the court of appeals.

The court held that it was not at liberty to overturn Dible and that Dible

was controlling on the issue of ineffective assistance of counsel.      The

court dismissed the remaining claims in Allison’s amended petition on

the ground that Allison failed to preserve error in the district court. The

court also concluded that the additional allegations in the amended

petition were insufficient to survive a motion to dismiss.

      II. Standard of Review.

      Generally, we review a grant of a motion to dismiss a PCR petition

for correction of errors at law. Perez v. State, 816 N.W.2d 354, 356 (Iowa
                                     7

2012). But when a PCR petitioner claims ineffective assistance of PCR

counsel, our review is de novo. Lado v. State, 804 N.W.2d 248, 250 (Iowa

2011).

      III. Discussion of Iowa Code Section 822.3 and the Right to
Effective Assistance of Counsel.

      A. Introduction.      Iowa Code section 822.3 generally provides a

three-year statute of limitations for PCR claims.      Iowa Code § 822.3.

Section 822.5 provides a right to assistance of PCR counsel, which we

have held logically implies a right to effective assistance of PCR counsel.

Lado, 804 N.W.2d at 250; Dunbar v. State, 515 N.W.2d 12, 14–15 (Iowa

1994). This case raises a difficult question: What happens when a PCR

petitioner alleges that his criminal trial attorney was ineffective, further

alleges that his attorney in his first PCR proceeding was ineffective, and

now seeks to have the underlying claim—which the first PCR attorney

was allegedly ineffective in presenting—heard on the merits outside the

three-year time frame of section 822.3?

      The easy path would be to simply state a smooth-as-ice conclusion

that there is no right to counsel in PCR.       Yet close analysis reveals

substantial constitutional and statutory issues. So the question is this:
Is the smooth-as-ice approach strong enough to withstand weighty

constitutional and statutory right-to-counsel challenges?

      B. Statutory Framework.        Chapter 822 generally provides the

framework for obtaining PCR in Iowa. A PCR proceeding is commenced

by filing an application with the appropriate district court. Iowa Code

§ 822.3. If the applicant is unable to pay for the costs and expenses of

legal representation, such expenses are to be made available to the

applicant.   Id. § 822.5.    “All rules and statutes applicable in civil
                                      8

proceedings including pretrial and discovery procedures are available to

the parties” in a PCR proceeding. Id. § 822.7.

      “All grounds for relief available to an applicant . . . must be raised

in the applicant’s original, supplemental or amended application.”       Id.

§ 822.8. The provision further states,

      Any ground finally adjudicated or not raised, or knowingly,
      voluntarily, and intelligently waived in the proceeding that
      resulted in the conviction or sentence . . . 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 was inadequately raised in the original,
      supplemental, or amended application.

Id.

      The generally applicable statute of limitations is provided in Iowa

Code section 822.3. This section provides, “All . . . 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.” Id. § 822.3.

      C. Right to Counsel in PCR Proceedings.            The United States

Constitution provides that there is a right to counsel “[i]n all criminal

prosecutions.” U.S. Const. amend. VI. The right-to-counsel provision of

the Iowa Constitution has different language than the United States

Constitution. Article I, section 10 of the Iowa Constitution provides, “In

all criminal prosecutions, and in cases involving the life, or liberty of an

individual the accused shall have a right . . . to have the assistance of

counsel.” Iowa Const. art. I, § 10. Unlike the federal counterpart, the

Iowa constitutional provision, on its face, extends beyond criminal

prosecutions to other cases involving life or liberty. See id.

      The United States Supreme Court has ruled that the right to

counsel under the Federal Constitution does not extend to proceedings
                                      9

for PCR.   Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990,

1993 (1987).    In spite of the federal nature of Finley’s ruling and the

presence of a vigorous dissent by Justice Brennan, PCR applicants in

two reported cases have simply conceded that Finley means that a

constitutional right to counsel is categorically not available in PCR

actions and that the same is true under the Iowa Constitution, a

sweeping concession not challenged or examined by the Iowa court. See

Wise v. State, 708 N.W.2d 66, 69 (Iowa 2006); Fuhrmann v. State, 433

N.W.2d 720, 722 (Iowa 1988). Wise and Fuhrmann also do not consider

the meaning of the “cases involving the life, or liberty” clause of article I,

section 10 or its potential application to PCR proceedings.

      In any event, Iowa Code section 822.5 has been held to amount to

a statutory right to counsel in PCR proceedings. Patchette v. State, 374

N.W.2d 397, 398 (Iowa 1985) (discussing Iowa Code section 663A.5, now

section 822.5).     Further, we have held the statutory grant of a

postconviction applicant’s right to counsel necessarily implies that

counsel be effective. Id. Thus, where the only counsel provided to an

applicant has been ineffective, a violation of the statute occurs.

      D. Positions of the Parties. On appeal, Allison recognizes that

he must confront the case of Dible. In Dible, a narrow majority of this

court held that a successive PCR application filed outside the three-year

statute of limitations in Iowa Code section 822.3 was untimely and that

ineffective assistance of counsel was not a “ground of fact” sufficient to

extend the running of the limitations period. 557 N.W.2d at 886.

      Allison claims that Dible is a case “with questionable value” as

precedent and that Dible “needs to be revisited and reexamined.”           He

notes that part of the holding in Dible was abrogated in Harrington, 659

N.W.2d at 521. Allison further notes that the dissent in Dible questioned
                                    10

a bright-line approach that produced an unfair result. 557 N.W.2d at

886 (McGiverin, C.J., dissenting). Allison asserts that because his first

PCR petition was “timely filed [but] was never given a proper opportunity

to be heard because his counsel failed to perform essential duties,” his

current PCR petition should not be dismissed.

      On the question of dismissal of his additional claims in the second

PCR proceeding, Allison points out that, generally, the rules of civil

procedure apply to PCR actions.      See Iowa Code § 822.7.      Under the

rules of civil procedure, Allison argues, he is entitled to a hearing to

attempt to prove the allegations in his amended petition. Allison asserts

the new grounds alleged in his amended petition are not time-barred

under Iowa Code section 822.3.

      The State responds that Dible is good law and controls the

outcome of the ineffective-assistance-of-counsel claim in this case.

According to the State, Dible remains good law on the point that

ineffective assistance of postconviction counsel is not a “ground of fact”

to avoid the three-year statue of limitations in section 822.3. See 557

N.W.2d at 886 (majority opinion). The State stresses that the rationale

underlying Dible remains strong.         The purpose of the statute of

limitations in section 822.3 is to reduce stale claims and cause “a sense

of repose in the criminal justice system.”     Id.   The State asserts that

Allison did, in fact, raise the juror-bias claim within the three-year

limitations period and did not prevail. The fact that he alleges he lost the

juror-bias challenge in his first PCR proceeding because of his PCR

counsel’s ineffective assistance is of no moment to the State.

      On the new issues raised in Allison’s amended second petition, the

State argues that error was not preserved because the district court

never issued an order allowing amendment. Even if error was preserved,
                                     11

the State asserts, the claims were vague allegations insufficient to avoid

dismissal. The State indicates that with respect to the claim of newly

discovered evidence, the petition does not identify which witnesses

recanted or identify when the newly discovered evidence was uncovered.

On the issue of new law, the State claims that Allison has not showed

that any change in the law occurred in the past three years, as required

for the exception to the statute of limitations. Allison did not identify any

new statute or change in the caselaw or a particular witness or testimony

that would be affected by the allegedly new law. The State emphasizes

that because the postconviction hearing in this case was not recorded,

the court should presume that no additional evidence beyond the

pleadings was provided to the district court.

      E. The Winding and Nuanced Road of United States Supreme

Court Right-to-Counsel Cases Involving PCR.

      1. Introduction. Allison does not expressly raise a federal or state

constitutional challenge to the dismissal of his second application for

PCR. Yet constitutional considerations must inform our approach to the

proper interpretation of Iowa Code section 822.3. See, e.g., State v. Iowa

Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014) (“The doctrine of constitutional

avoidance suggests the proper course in the construction of a statute

may be to steer clear of ‘constitutional shoals’ when possible.”); Simmons

v. State Pub. Def., 791 N.W.2d 69, 74 (Iowa 2010) (“If fairly possible, a

statute will be construed to avoid doubt as to constitutionality.”). The

notion that a statute should be interpreted to avoid doubt as to its

constitutionality is a principle that applies even when the parties do not

explicitly claim a right to relief based on constitutional provisions. Roth

v. Evangelical Lutheran Good Samaritan Soc’y, 886 N.W.2d 601, 611

(Iowa 2016) (interpreting statutory language guided by principle that
                                     12

statutes should be construed to avoid constitutional questions in case

involving only statutory claims); In re Guardianship of Kennedy, 845

N.W.2d 707, 711–14 (Iowa 2014) (interpreting a statute to avoid doubts

as to constitutionality when constitutional argument not raised).

      In this statutory interpretation case, it is important to understand

the constitutional context in which this case arises.     For example, did

Allison have a constitutional or statutory right to counsel in his first PCR

action? If so, is he constitutionally or statutorily entitled to a remedy for

ineffective assistance of counsel, which is a constitutional deficiency

ordinarily imputed to the state? If so, would application of the statute of

limitations in Iowa Code section 822.3 to his second PCR action

effectively prevent him from obtaining a remedy for the constitutional or

statutorily established right-to-counsel violation? In order to understand

the constitutional implications of our statutory interpretation of section

822.3 in this case, we canvass equal protection, due process, and right-

to-counsel cases. As will be seen below, the constitutional terrain has

been fragmented and highly contested.

      2. Navigating the constitutional shoals: early federal caselaw

related to right to counsel, equal protection, and due process in criminal

cases.   Decades ago, the United States Supreme Court developed the

right of a criminal defendant to counsel in a series of landmark cases.

The fountainhead case is, of course, Powell v. Alabama, 287 U.S. 45, 53

S. Ct. 55 (1932). In Powell, seven black men charged with the rape of

two white women were convicted and given death sentences when the

state failed to provide counsel until the morning of trial. Id. at 49–51, 53

S. Ct. at 57. The Supreme Court held that the defendants were entitled

to the meaningful assistance of counsel in their defense in a state

murder prosecution. Id. at 73, 53 S. Ct. at 65. The Supreme Court in
                                    13

Powell utilized many themes, including the notion that “[e]ven the

intelligent and educated layman . . . requires the guiding hand of counsel

at every step in the proceedings against him.” Id. at 69, 53 S. Ct. at 64.

      Powell was only the beginning. Although limited to the facts of the

case, its principles were potentially protean. Nonetheless, expansion of

the right to counsel beyond Powell proved gradual. For instance, while in

Johnson v. Zerbst, the Supreme Court extended the right to counsel to

federal prosecutions for felonies generally, 304 U.S. 458, 463, 469, 58

S. Ct. 1019, 1022–23, 1025 (1938), in Betts v. Brady, the Court declined

to hold categorically that criminal defendants were entitled to counsel,

316 U.S. 455, 461–62, 62 S. Ct. 1252, 1256 (1942), overruled by Gideon

v. Wainwright, 372 U.S. 335, 345, 83 S. Ct. 792, 797 (1963).

      While the Supreme Court moved cautiously with respect to

expansion of the Sixth Amendment right to counsel, other constitutional

theories were available, in effect, to extend the right to counsel in

criminal proceedings. In Griffin v. Illinois, the Supreme Court considered

whether a criminal defendant could be required to pay for transcripts in

order to appeal a criminal conviction. 351 U.S. 12, 13, 76 S. Ct. 585,

588 (1956). The Griffin Court emphasized that the state is not required

by the United States Constitution to “provide appellate courts or a right

to appellate review at all.” Id. at 18, 76 S. Ct. at 590. But, the Court

held, if the state in its discretion established a right of appeal, it could

not administer its appellate process in a discriminatory manner and still

be consistent with the Due Process and Equal Protection Clauses of the

Fourteenth Amendment. Id. at 19, 76 S. Ct. at 591. Griffin introduced

the notion that access to the courts cannot be provided on a

discriminatory basis based on wealth, a notion which was soon applied

in the context of the right of an indigent defendant to appointed counsel.
                                     14

      In 1963, the Supreme Court decided two seminal right-to-counsel

cases that built on and extended the reach of prior precedents.         In

Gideon, the Court, in applying the Sixth Amendment right to counsel to

the states pursuant to the Due Process Clause of the Fourteenth

Amendment, departed from the notion that right to counsel was afforded

on a case-by-case basis. 372 U.S. at 343–44, 83 S. Ct. at 796. Instead,

the Gideon Court established the categorical rule that a criminal

defendant facing serious crimes was entitled to the assistance of counsel

in all state court cases. Id. at 345, 83 S. Ct. at 797.

      In a companion case, Douglas v. California, the Supreme Court

considered a challenge to a California rule of criminal procedure wherein

a court would engage in an ex parte examination to determine whether

an appeal merited the appointment of counsel. 372 U.S. 353, 354–55,

83 S. Ct. 814, 815 (1963).      The Douglas Court held that denying an

indigent defendant appointed counsel on a first appeal as a matter of

right infringed upon the “equality demanded by the Fourteenth

Amendment.” Id. at 357–58, 83 S. Ct. at 816–17. The Court reasoned

the California scheme, which required an indigent defendant to run a

procedural gauntlet in order to obtain appointed counsel, did not

comport with fair procedure. Id. at 357, 83 S. Ct. at 816. According to

the Douglas Court, a rich man could require the court to listen to a

lawyer in making its decision on the merits while a poor person could not

do so.   Id. at 357, 83 S. Ct. at 817.    As noted in Douglas, where the

record is unclear or errors are hidden, the right of appeal for an indigent

defendant thus becomes “a meaningless ritual” while the rich defendant

has “a meaningful appeal.”      Id. at 358, 83 S. Ct. at 817.    Although

utilizing the theories of due process and equal protection, the Douglas

Court, like in Powell and Gideon, emphasized the importance of the
                                    15

assistance of counsel and minimized the ability of indigent defendants to

proceed effectively on a pro se basis. Id. at 355–57, 83 S. Ct. at 815–16.

      Yet Gideon and Douglas’s emphases on the need for trained

counsel and the limited abilities of pro se defendants did not carry the

day nearly a decade later in Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437

(1974).   In Ross, the Supreme Court considered whether there was a

right to appointed counsel for discretionary state appeals or certiorari

petitions to the Supreme Court. Id. at 602–03, 94 S. Ct. at 2440. By a

6–3 majority, the Court concluded there was no right to appointed

counsel for discretionary appeals. Id. at 618–19, 94 S. Ct. at 2447–48.

The Ross majority stated that an indigent defendant could file an

application for discretionary review pro se by simply following the

briefing prepared by counsel in the prior appeal of right. Id. at 615, 94

S. Ct. at 2446.     Nevertheless, the majority qualified its ruling by

prohibiting the state from adopting procedures that leave indigent

defendants “ ‘entirely cut off from any appeal at all’ by virtue of . . .

indigency.” Id. at 612, 94 S. Ct. at 2445 (quoting Lane v. Brown, 372

U.S. 477, 481, 83 S. Ct. 768, 771 (1963)). The question, according to the

Ross majority, was “not one of absolutes but one of degrees.” Id.

      The Ross dissenters, led by Justice Douglas, emphasized that an

application for discretionary appeal, such as certiorari before the

Supreme Court, has technical requirements that are hazards for the

untrained. Id. at 620–21, 94 S. Ct. at 2448–49 (Douglas, J., dissenting).

Further, the dissenters noted the factors that a court may deem relevant

for discretionary review are not within the normal knowledge of an

indigent appellant. Id. at 621, 94 S. Ct. at 2449. The Ross dissenters

simply did not buy the notion that imprisoned indigent defendants are in

a position to meaningfully develop applications for discretionary review
                                    16

by filing, without the assistance of counsel, a cut-and-paste job based on

prior briefing. See id. at 620–21, 94 S. Ct. 2448–49.

       Instead of extending the right to counsel to habeas proceedings

generally, the Supreme Court held in Bounds v. Smith that in order to

provide inmates without counsel with access to the courts, state

authorities are required to provide inmates with adequate law libraries or

adequate assistance from persons trained in law. 430 U.S. 817, 830–32,

97 S. Ct. 1491, 1499–500 (1977). The constitutional right of access to

the courts requires providing state prisoners with some form of

assistance but not necessarily a lawyer.      Id. at 831–32, 97 S. Ct. at

1499–500.

       3. Finley and Murray: developing the contours of right to counsel in

PCR.    The first recent United States Supreme Court case specifically

considering the question of whether a defendant has a right to counsel in

PCR proceedings is Finley. In Finley, an indigent petitioner, who lost her

direct appeal, filed a petition for PCR raising “the same issues that the

Supreme Court of Pennsylvania had rejected on the merits” on direct

appeal. 481 U.S. at 553, 107 S. Ct. at 1992. The trial court had denied

relief, but the Pennsylvania Supreme Court reversed, holding the

petitioner was entitled to appointed counsel under state law. Id. at 553,

107 S. Ct. at 1992. The trial court then appointed trial counsel, but trial

counsel moved to withdraw from the case without complying with the

procedures in Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396,

1400 (1967). Finley, 481 U.S. at 553–54, 107 S. Ct. at 1992–93. The

trial court approved appointed counsel’s motion to withdraw without

application of Anders’s procedures and dismissed the petition for PCR.

Id. at 553, 107 S. Ct. at 1992.
                                    17

      The petitioner obtained new counsel, who appealed the dismissal.

Id.   On appeal, the Pennsylvania Superior Court found counsel’s

withdrawal    without     application    of    Anders’s   procedures   was

unconstitutional. Id. at 553–54, 107 S. Ct. at 1992. The Pennsylvania

Superior Court remanded the case to the trial court for further

proceedings. Id. at 554, 107 S. Ct. at 1992.

      By a 6–3 majority, the Finley Court stated, “We have never held

that prisoners have a constitutional right to counsel when mounting

collateral attacks upon their convictions, and we decline to so hold

today.”   Id. at 555, 107 S. Ct. at 1993 (citation omitted).    The Court

emphasized the procedural posture of the case, noting “[o]ur cases

establish that the right to appointed counsel extends to the first appeal

of right, and no further.” Id.

      The Finley majority rejected claims that the Griffin–Douglas type of

equal protection and due process required the appointment of counsel in

the case.    Id. at 554–55, 107 S. Ct. at 1993.       On the due process

argument, the Finley Court emphasized that the prisoner had, in fact,

been provided an opportunity to assert the presumption of innocence

and attack the conviction on direct appeal.       Id. at 555, 107 S. Ct. at

1993. Accordingly, due process did not require appointment of counsel

when used “as a sword to upset the prior determination of guilt.” Id. at

555–56, 107 S. Ct. at 1993 (quoting Ross, 417 U.S. at 610–11, 107 S. Ct.

at 2444 (majority opinion)).

      With respect to equal protection, the Finley majority emphasized

that PCR is “even further removed from the criminal trial than is

discretionary direct review,” for which counsel is not required under

federal law. Id. at 556–57, 107 S. Ct. at 1994. The Court stressed that

PCR “is not part of the criminal proceeding itself, and it is in fact
                                    18

considered to be civil in nature.” Id. at 557, 107 S. Ct. at 1994; see Fay

v. Noia, 372 U.S. 391, 423–24, 83 S. Ct. 822, 841 (1963), overruled in

part on other grounds by Wainwright v. Sykes, 433 U.S. 72, 85, 97 S. Ct.

2497, 2505 (1977). The Finley Court emphasized the ability of prisoners

to proceed pro se in PCR, noting that defendants who have had the

benefit of a trial and direct appeal had access to the trial record and

appellate briefs and opinions. 481 U.S. at 557, 107 S. Ct. at 1994.

      In a dissent, Justice Brennan emphasized that the applicant in the

case had a mandatory, state-provided right to appointed counsel and, as

a result, a right to effective assistance of counsel.   Id. at 562–63, 107

S. Ct. at 1997 (Brennan, J., dissenting).   Justice Brennan argued the

right to effective assistance, once granted, cannot be “withdrawn in a

manner inconsistent with equal protection and due process.” Id. at 567,

107 S. Ct. at 1999.       According to Justice Brennan, it would be

fundamentally unfair to deny indigents an adequate opportunity to

present their claims fairly in PCR proceedings. Id. at 568, 107 S. Ct. at

2000. Further, Justice Brennan asserted that equal protection requires

appointed counsel to comply with Anders’s requirements. Id. at 567–68,

107 S. Ct. at 2000.

      Obviously, the Finley case produced controversy among the

justices.   There were, however, clear limitations in the Finley majority

opinion.    In the first paragraph of the opinion, the Finley majority

emphasized that the prisoner “raised the same issues that the Supreme

Court of Pennsylvania had rejected on the merits.” Id. at 553, 107 S. Ct.

at 1992 (majority opinion). And the Finley majority later noted that “in

this case,” the United States Constitution does not command a different

result. Id. at 556, 107 S. Ct. at 1994.
                                      19

      These passages make clear that the Finley majority did not

determine whether the Federal Constitution requires appointment of

counsel in PCR proceedings where the issues presented were not decided

on the merits on direct appeal. Indeed, the entire rationale of Finley is

based on the notion that the indigent defendant had her claims heard on

the merits in at least one appellate forum, thereby shifting the case from

one involving an appeal of a conviction to one attacking a conviction

already examined once and found valid.

      The next United States Supreme Court case in the procession of

right-to-counsel cases is Murray v. Giarratano, 492 U.S. 1, 109 S. Ct.

2765 (1989). In Murray, Virginia death row inmates brought a 42 U.S.C.

§ 1983 action against various state officials, alleging that the state’s

failure to provide them with appointed counsel in PCR proceedings

denied their constitutional right of access to the courts. Id. at 4, 109

S. Ct. at 2767 (plurality opinion).    The federal district court held the

inmates were entitled to relief. Id. at 6, 109 S. Ct. at 2768. The district

court cited three special considerations supporting this result, namely,

the limited amount of time petitioners had to prepare petitions, the

complexity of death penalty cases, and the impact that the shadow of

impending death would have on their ability to do legal work. Id. at 4–5,

109 S. Ct. at 2767.

      The district court also rejected Virginia’s assertions that it had

provided assistance to death row inmates by other means. Id. at 5, 109

S. Ct. at 2768. The district court found Virginia’s approach of providing

“unit attorneys” in various penal institutions, who did not actually

represent inmates, was “too limited.”      Id.   While Virginia courts had

discretion to appoint counsel at a later stage of PCR proceedings for
                                     20

death row inmates, the process of discretionary appointment did not

provide “continuous assistance of counsel.” Id. at 6, 109 S. Ct. at 2768.

      The United States Court of Appeals for the Fourth Circuit, sitting

en banc, affirmed the district court.     Id.   The Fourth Circuit held the

district court’s special considerations amounted to findings of fact on the

question of death-row inmates’ access to the courts, a question not

considered in Finley. Id. at 6–7, 109 S. Ct. at 2768. The Fourth Circuit

cited Bounds, 430 U.S. 817, 97 S. Ct. 1491, where the Supreme Court

held a prisoner’s right of access to the courts requires the state to

furnish a prison library in order to prepare petitions for judicial relief.

Murray, 492 U.S. at 7, 109 S. Ct. at 2768.

      The Supreme Court could not muster a majority opinion in Murray.

The plurality opinion, written by Chief Justice Rehnquist, generally

found that the approach in Finley was dispositive. Id. at 10, 109 S. Ct.

at 2770. It declined to hold that a different approach should apply to

death-penalty cases. Id. The plurality rejected Bounds as authority for

limiting Finley. Id. at 11, 109 S. Ct. at 2771.

      Justice O’Connor filed a brief concurring opinion. Id. at 13, 109

S. Ct. at 2772 (O’Connor, J., concurring).             She emphasized that

postconviction proceedings are “civil action[s] designed to overturn a

presumptively valid criminal judgment.”         Id.   She also noted that the

principles of the plurality were not inconsistent with Bounds because

states have broad discretion in providing inmates with access to the

courts. Id.

      Justice Kennedy filed an opinion concurring in the judgment. Id.

at 14, 109 S. Ct. at 2772 (Kennedy, J., concurring). He recognized that

the complexity of death-penalty jurisprudence made it unlikely that

defendants would “be able to file successful petitions for collateral relief
                                      21

without the assistance of persons learned in the law.”        Id.   He noted,

however, that on the record before the court, no prisoner on death row

had been unable to obtain counsel in postconviction proceedings and

that Virginia’s prison system provided institutional counsel to help

inmates prepare petitions for PCR.         Id. at 14–15, 109 S. Ct. at 2773.

Under the facts presented, Kennedy found no constitutional violation.

Id. at 15, 209 S. Ct. at 2773.

      Justice Stevens, joined by Justices Brennan, Marshall, and

Blackmun, dissented.      Id. (Stevens, J., dissenting).     The dissenters

emphasized that the unique features of the death penalty require

additional protections.    Id. at 20–22, 109 S. Ct. at 2775–76.          The

dissenters noted that in federal habeas cases, capital petitioners were

successful in seeking relief in sixty to seventy percent of cases. Id. at 23–

24, 109 S. Ct. at 2778.          As a result, according to the dissenters,

“meaningful appellate review” in capital cases “extends beyond the direct

appellate process.” Id. at 24, 109 S. Ct. at 2778.

      The Murray dissenters further emphasized that some claims,

including ineffective-assistance-of-counsel claims, usually cannot be

considered on direct appeal. Id. The dissenters noted that where trial

counsel fails to raise a variety of potentially meritorious issues, such

claims are precluded on direct review by Virginia law. Id. As a result of

the inability to raise potentially meritorious claims on appeal, the PCR

proceedings are “key to meaningful appellate review of capital cases.” Id.

at 25–26, 109 S. Ct. at 2778–79.

      Finally, the Murray dissenters noted that the plight of a death-

penalty inmate in Virginia makes it unlikely that the inmate could

prepare his or her own pleadings. Id. at 27, 109 S. Ct. at 2779–80. In

Virginia, an execution may be carried out at any time following thirty
                                      22

days after sentencing. Id. at 27 n.20, 109 S. Ct. at 2780 n.20. Further,

capital litigation is complex, and the inmate must also be preparing him

or herself and his or her family for the impending execution. Id. at 28,

109 S. Ct. at 2780.    Under the circumstances, the dissenters believed

meaningful access to the courts requires the assistance of counsel in

PCR proceedings. Id. at 29, 109 S. Ct. at 2781.

      4. Coleman and its progeny: further exploration. The United States

Supreme Court returned to the question of whether a criminal defendant

is entitled to counsel in PCR proceedings in another case that split the

members of the Court, Coleman v. Thompson, 501 U.S. 722, 111 S. Ct.

2546 (1991), superseded by statute on other grounds, 28 U.S.C. § 2254

(2000).   In Coleman, the defendant was convicted of murder and rape

and sentenced to death.         Id. at 726–27, 111 S. Ct. at 2552.      His

convictions were affirmed on direct appeal.       Id. at 727, 111 S. Ct. at

2552. Coleman then filed a petition for a writ of habeas corpus in state

court, alleging “numerous federal constitutional claims that he had not

raised on direct appeal.” Id. The state court ruled against him on all

claims after a hearing.   Id.     Coleman’s lawyer, however, did not file a

notice of appeal until thirty-three days after the entry of judgment. Id. at

727, 111 S. Ct. at 2552–53. As a result, the appeal was untimely and

dismissed by the Virginia Supreme Court. Id. at 727–28, 111 S. Ct. at

2553. Coleman then filed a petition for habeas corpus in federal court.

Id. at 728, 111 S. Ct. at 2553.

      In the federal district court, Coleman raised eleven federal

constitutional claims. Id. Four of the claims were the same as on direct

appeal before the Virginia Supreme Court, and seven were presented for

the first time in the state habeas proceeding.      Id.   The Fourth Circuit

affirmed. Id. The Fourth Circuit found Coleman defaulted on his appeal
                                     23

of the seven claims raised in the state habeas proceeding and, as a result

of his procedural default, federal habeas relief was not available. Id. at

728–29, 111 S. Ct. at 2553.

      The United States Supreme Court affirmed in a divided opinion.

Id. at 757, 111 S. Ct. at 2568.      Justice O’Connor’s majority opinion

emphasized that a determination based upon independent and adequate

state grounds generally bars federal habeas corpus review of the

underlying federal constitutional issues. Id. at 729, 111 S. Ct. at 2553.

The majority found it clear that the Virginia Supreme Court relied upon

Coleman’s procedural default in rejecting his appeal.       Id. at 744, 111

S. Ct. at 2561.   As a result, the majority concluded Coleman was not

entitled to be heard on his defaulted claims in a federal habeas

proceeding. See id. at 750, 111 S. Ct. at 2565.

      The majority rejected Coleman’s effort to avoid the general rule by

claiming that his counsel was ineffective in failing to file a timely appeal.

Id. at 757, 111 S. Ct. at 2568.    The majority noted that under Finley,

Coleman had no right to effective assistance of counsel in postconviction

proceedings.   Id. at 752, 111 S. Ct. at 2566.        In the absence of a

constitutional violation, according to the Coleman majority, the petitioner

must “bear the risk of attorney error.” Id. at 752–53, 111 S. Ct. at 2566

(quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645

(1986)).

      Importantly, the majority expressly reserved the question of

whether an applicant is entitled to assistance of counsel under the Sixth

Amendment in PCR proceedings where the applicant can raise the claim

in the first instance only in PCR and, as a result, PCR functions as the

first appeal of right.   Id. at 755, 111 S. Ct. at 2567.      The Coleman

majority recognized the problem emphasized by the dissenters in Murray,
                                     24

492 U.S. at 24, 109 S. Ct. at 2778.       In Coleman’s case, however, the

majority noted that there was no claim that Coleman’s counsel was

ineffective before the trial court in the postconviction action. Coleman,

501 U.S. at 755, 111 S. Ct. at 2567–68.

      Justice Blackmun, along with Justices Marshall and Stevens,

dissented. Id. at 758, 111 S. Ct. at 2569 (Blackmun, J., dissenting). The

bulk of the dissent attacked the majority’s approach to independent state

grounds.   Id. at 759–71, 111 S. Ct. at 2569–76.     But the dissent also

attacked the conclusion that the petitioner was not entitled to relief

based on ineffective assistance of counsel. Id. at 771–74, 111 S. Ct. at

2576–78.   The dissent asserted that no federal court rule “can deter

gross incompetence.” Id. at 773, 111 S. Ct. at 2577. According to the

dissent,

      if a State desires to remove from the process of direct
      appellate review a claim or category of claims, the
      Fourteenth Amendment binds the State to ensure that the
      defendant has effective assistance of counsel for the entirety
      of the procedure where the removed claims may be raised.

Id. at 773–74, 111 S. Ct. at 2577.

      The express reservation of the Coleman majority with respect to
claims presented for the first time in PCR and where counsel is allegedly

ineffective before the PCR trial court has not always been recognized.

Indeed, it has mostly been ignored. For instance, in Mackall v. Angelone,

the Fourth Circuit cited Coleman for the broad and unqualified

proposition that the Sixth Amendment does not require counsel in PCR

proceedings. 131 F.3d 442, 448 (4th Cir. 1997) (en banc).

      The dissent in Mackall, however, recognized the question reserved

in Coleman and stressed that a person charged with a serious crime has

the right to counsel at trial, Gideon, 372 U.S. at 336–45, 83 S. Ct. at
                                      25

792–97, that right extends to a first appeal, Douglas, 372 U.S. at 355–58,

83 S. Ct. at 815–17, and constitutionally required counsel must be

competent, Strickland v. Washington, 466 U.S. 668, 684–87, 104 S. Ct.

2052, 2062–64 (1984).         Mackall, 131 F.3d at 451 (Butzner, J.,

dissenting). The Mackall dissent asserted that while the Supreme Court,

generally, has ruled there is no right to counsel in PCR, there must be an

exception to the general rule where PCR proceedings are “in reality a

direct attack on the competency of [the petitioner’s] trial and appellate

counsel   in   the   only   forum   available   to   him—a   habeas   corpus

proceeding.”    Id. at 452.   According to the Mackall dissent, “for this

limited purpose,” a criminal defendant is “entitled to the assistance of

competent counsel” in PCR proceedings. Id. See generally Emily Garcia

Uhrig, A Case for a Constitutional Right to Counsel in Habeas Corpus, 60

Hastings L.J. 541, 588–89 (2009) [hereinafter Uhrig, Constitutional Right

to Counsel].

      Similarly, a federal appeals court considered the question of

whether a defendant is entitled to counsel in PCR in Jeffers v. Lewis, 68

F.3d 295 (9th Cir.), vacated, 68 F.3d 299 (9th Cir. 1995) (en banc). The

three-judge panel that first considered the issue emphasized that

      granting relief to Jeffers would not start an endless chain of
      permissible habeas relief . . . . There is a right to one,
      conflict-free set of counsel to pursue the claim that prior
      counsel were ineffective at trial, sentencing and on direct
      appeal.

Id. at 297.    The Ninth Circuit, sitting en banc, however, reversed the

panel over the dissent of four judges. Jeffers, 68 F.3d at 300–01. See

generally Uhrig, Constitutional Right to Counsel, 60 Hastings L.J. at 591–

94.
                                       26

      The United States Supreme Court returned to the question of

whether an indigent petitioner is entitled to counsel in PCR proceedings

in Martinez v. Ryan, 566 U.S. 1, 5, 132 S. Ct. 1309, 1313 (2012).          In

Martinez, the petitioner was convicted of two counts of sexual conduct

with a minor. Id. Arizona law prohibited raising ineffective-assistance-

of-trial-counsel claims on direct appeal, and no such claims were made.

Id. at 6, 132 S. Ct. at 1314. Oddly, while Martinez’s direct appeal was

pending, his lawyer filed a “Notice of Post-Conviction Relief” with the trial

court and later filed a statement that she was unable to identify any

colorable claim for PCR. Id. The trial court dismissed the PCR action,

and the Arizona Court of Appeals affirmed. Id.

      Martinez’s new counsel filed a second PCR petition on his behalf in

the state trial court. Id. at 6–7, 132 S. Ct. at 1314. In his second PCR

petition, Martinez alleged that his trial counsel was ineffective for failing

to challenge expert testimony explaining the victim’s recantation and to

present a rebuttal expert. Id. at 7, 132 S. Ct. at 1314. Martinez further

alleged that counsel was ineffective for failing to provide an exculpatory

explanation for the presence of his DNA on the victim’s nightgown. Id.

The trial court dismissed the petition as procedurally barred under state

law because of the failure to raise the issues in the first PCR petition. Id.

The Arizona Court of Appeals again affirmed. Id.

      Martinez then filed a federal habeas corpus action, again raising

his claims of ineffective assistance of trial counsel.      Id.   The district

court, citing Coleman, 501 U.S. at 753–54, 111 S. Ct. at 2567 (majority

opinion),   denied   the   petition,   concluding   the   procedural   default

amounted to an independent state ground to deny relief. Martinez, 566

U.S. at 7–8, 132 S. Ct at 1315. The Ninth Circuit affirmed. Id. at 8, 132

S. Ct. at 1315.
                                         27

      In an opinion by Justice Kennedy, the Supreme Court reversed the

Ninth Circuit.     Id. at 18, 132 S. Ct. at 1321.          The Martinez Court

recognized that Coleman left open whether there is a right to counsel in

“collateral proceedings which provide the first opportunity to raise a

claim of ineffective assistance at trial.” Id. at 8, 132 S. Ct. at 1315. It

described   such       collateral   proceedings   as   “initial-review   collateral

proceedings.”    Id.     The Court recognized there was a constitutional

question regarding the right to counsel in such proceedings but stated

that the case could be decided on a narrower ground, namely, whether

the attorney’s ignorance or inadvertence in a PCR proceeding might

excuse a procedural default. Id. at 9, 132 S. Ct. at 1315.

      In considering this issue, the Court, seizing on the reasoning of the

dissenters in Finley, Murray, and Coleman, noted that when an attorney

errs in an initial-review collateral proceeding, it is unlikely that the state

court will hear the petitioner’s claim at any level. Id. at 11, 132 S. Ct. at

1317. The Court explained that the initial-review collateral proceeding

“is in many ways the equivalent of a prisoner’s direct appeal as to the

ineffective-assistance claim.” Id.

      The Martinez Court emphasized the importance of effective

assistance of counsel in an initial-review collateral proceeding. Id. at 11–

12, 132 S. Ct. at 1317. It cited Gideon for the “obvious truth” that an

indigent person “cannot be assured of a fair trial unless counsel is

provided.” Id. at 12, 132 S. Ct. at 1317 (quoting Gideon, 372 U.S. at 344,

83 S. Ct. at 796).       But rather than declaring a constitutional right to

effective assistance of counsel in an initial-review collateral proceeding,

the Court simply held the procedural default that resulted from the

ineffective assistance could be waived “as an equitable matter,” thus
                                           28

allowing Martinez’s substantive claim to be heard in federal court. Id. at

14, 132 S. Ct. at 1318.

       The Martinez Court declined to hold there is a right to counsel in

initial-review habeas proceedings on federalism grounds. Id. at 16, 132

S. Ct. at 1319. The Court was concerned that a constitutional approach

would impose the same system of appointing counsel in every state and

would not permit states to experiment with a variety of systems for

appointment of counsel. Id. at 16, 132 S. Ct. at 1319–20. Once again,

federalism concerns generated a reluctance on the part of the United

States Supreme Court to impose federal constitutional norms on the

states. See id.

       Justice Scalia, joined by Justice Thomas, dissented. Id. at 18, 132

S. Ct. at 1321 (Scalia, J., dissenting).             He declared that while the

majority was seeking to advance the values of federalism by avoiding a

constitutional holding, it achieved the same result it sought to avoid,

namely, a rule requiring federal courts to review claims from state courts

where the otherwise independent and adequate ground for dismissal of

the claim—a state procedural default—was caused by ineffective

assistance of counsel. Id. at 19, 132 S. Ct. at 1321. 1

       All of these cases demonstrate a number of propositions.                     They

establish multiple theories for the right to counsel that indigent

petitioners may use to obtain counsel to challenge criminal convictions.

Nonetheless, the United States Supreme Court has been fragmented and




       1In  Trevino v. Thaler, the Supreme Court held that the approach in Martinez
applies not only when the state does not necessarily bar all ineffective-assistance-of-
counsel claims from being heard on direct appeal, but also where it is highly likely that,
in a typical case, such a claim cannot be heard on direct appeal. 569 U.S. 413, 429,
133 S. Ct. 1911, 1921 (2013).
                                    29

sharply divided regarding the constitutional questions surrounding the

provision of counsel to indigent petitioners in postconviction proceedings.

      Recent United States Supreme Court majorities are less than

enthusiastic about a general expansion of the right to counsel in PCR

contexts. See, e.g., id. at 9, 16, 132 S. Ct. at 1315, 1319–20 (majority

opinion). Some of the reasoning of these recent, more restrictive cases

emphasizes the difference between a direct appeal in a criminal case and

a PCR action, which is civil in nature. See, e.g., id. at 14, 132 S. Ct. at

1318. These restrictive cases tend to emphasize the ability of indigent

defendants to file their own legal papers. See, e.g., Ross, 417 U.S. at

615, 94 S. Ct. at 446 (majority opinion). And the restrictive holdings of

the United States Supreme Court are motivated, at least in part, by

concepts of federalism and the resulting reluctance of the United States

Supreme Court to declare national rules under the aegis of the United

States Constitution. See, e.g., Martinez, 566 U.S. at 16, 132 S. Ct. at

1319–20.

      Yet the Supreme Court has struggled with the very situation

presented in this case—an indigent defendant claims that trial counsel

provided ineffective assistance, his claim is not capable of being

addressed on direct appeal, and in the first forum to hear the ineffective-

assistance claim, his counsel was, once again, ineffective.       Where a

habeas proceeding is the first forum to hear a challenge to a criminal

conviction, the defendant is functionally in the same situation as in

Douglas, where the Supreme Court held that appointed counsel must be

provided as a matter of due process and equal protection. 372 U.S. at

357–58, 83 S. Ct. at 817.

      In Martinez, although the Court stopped short of announcing a

constitutional rule, the Court invoked equitable principles to excuse the
                                      30

procedural defaults that occurred in the state court proceedings and

ordinarily would have barred the defendant from a federal habeas action.

566 U.S. at 16, 132 S. Ct. at 1319.        Martinez has generated energetic

debate, with commentators discussing whether the holding will be

limited to its facts or will lead to a more general recognition of the right to

counsel in PCR. See, e.g., Ty Alper, Toward a Right to Litigate Ineffective

Assistance of Counsel, 70 Wash. & Lee L. Rev. 839, 868–80 (2013); Allen

L. Bohnert, Wrestling with Equity: Identifiable Trends as the Federal

Courts Grapple with the Practical Significance of Martinez v. Ryan &

Trevino v. Thaler, 43 Hofstra L. Rev. 945, 975 (2015); Emily Garcia

Uhrig, Why Only Gideon?: Martinez v. Ryan and the “Equitable” Right to

Counsel in Habeas Corpus, 80 Mo. L. Rev. 771, 808 (2015).

      In particular, one commentator has noted the potential interaction

between Martinez and the federal statute of limitations for habeas

proceedings.   Justin F. Marceau, Is Guilt Dispositive? Federal Habeas

After Martinez, 55 Wm. & Mary L. Rev. 2071, 2167–68 (2014). It has

been suggested that “[i]f Martinez opens the door to vindicating otherwise

unavailable constitutional claims, the same equitable concerns that

undergird the rule ought to prevent the federal statute of limitations from

closing off such relief.” Id.; see McQuiggin v. Perkins, 569 U.S. 383, 391,

133 S. Ct. 1924, 1931 (2013) (discussing equitable tolling); Holland v.

Florida, 560 U.S. 631, 650, 130 S. Ct. 2549, 2563 (2010) (same).

      F. State Cases Dealing with the Right to Counsel in PCR.

There are two state court cases of interest dealing with the right to

counsel in PCR proceedings.

      The first case is the pre-Coleman case of Honore v. Washington

State Board of Prison Terms & Paroles, 466 P.2d 485 (Wash. 1970) (en

banc). In Honore, the Washington Supreme Court considered whether an
                                   31

indigent is entitled to the assistance of appointed counsel when

appealing the dismissal of his action for PCR. Id. at 487–88.

      The Washington court began its discussion by emphasizing the

important role of habeas corpus proceedings, starting with the Magna

Carta and extending into present day state and federal constitutional

provisions prohibiting suspension of the writ except in extreme

circumstances.   Id.   The Honore court noted habeas proceedings have

been frequently characterized as civil in nature but that label is inexact

in the context of postconviction proceedings. Id. at 488. The court also

noted that while the United States Supreme Court had not addressed the

question, the majority of courts had declined to extend the right to

counsel to habeas proceedings because they are characterized as civil

proceedings. Id. at 488–49.

      In considering whether there was a right to counsel in PCR

proceedings, the Honore court addressed the state’s argument that many

PCR claims are “frivolous and can be submitted over and over again.” Id.

at 492.   With respect to the question of frivolous petitions, the court

concluded the proper approach is not to discriminate against the poor in

the appointment of counsel but to discriminate against the frivolous

petitions. Id. On the issue of successive petitions, the court noted the

proper response is to reject summarily claims that have already been

decided without the appointment of counsel.       Id.   Citing Griffin and

Douglas, the court concluded that the Equal Protection Clause of the

United States Constitution requires that counsel be furnished on appeal

in a PCR proceeding. Id. at 493. In short, the Honore court extended the

principle of Douglas to an initial-review PCR claim. See id. Cases in a

number of other states have taken a similar approach. See, e.g., Nichols

v. State, 425 P.2d 247, 254 (Alaska 1967) (finding right to counsel for
                                       32

ineffectiveness claim on first habeas petition); Duncan v. Robbins, 193

A.2d 362, 367 (Me. 1963) (observing the postconviction and collateral

nature of case had little meaning when issues bear on constitutional

liberty); Jackson v. State, 732 So. 2d 187, 190 (Miss. 1999) (“Certain

issues must often be deferred until the post-conviction stage, such as the

claim of ineffective assistance of counsel.”).

      Other   state   court   cases,   however,   reject   the   notion   of   a

constitutionally based right to counsel in postconviction proceedings,

often by broadly declaring that PCR proceedings are civil in nature. See,

e.g., Barnes v. State, 744 S.E.2d 795, 797 n.1 (Ga. 2013) (“[A] habeas

corpus proceeding is a collateral, civil proceeding to which there is no

right to appointed counsel.”); State ex rel. Hall v. Meadows, 389 S.W.2d

256, 260 (Tenn. 1965) (declaring “[i]t has been repeatedly held that a

habeas corpus proceeding is a civil proceeding” and, thus, the state and

federal constitutional right to counsel “has no application”); Ex Parte

Mines, 26 S.W.3d 910, 912–13 & nn.12 & 16 (Tex. Crim. App. 2000) (en

banc) (emphasizing language in right-to-counsel provisions of United

States and Texas Constitutions limiting right to counsel to “all criminal

prosecutions”). Whether the labeling of PCR actions as civil is dispositive

has, however, been contested. See Ex Parte Sandoval, 508 S.W.3d 284,

288–91 (Tex. Crim. App. 2016) (Alcala, J., dissenting) (noting the first

opportunity to make most ineffective-assistance claims is via collateral

attack and pro se litigants lack the skill to prosecute the claims).

      G. Iowa Constitutional Precedent Related to the Right to

Counsel in PCR.       There are several older cases where we considered

whether a right to counsel exists in postconviction proceedings.               In

Waldon v. District Court, we declared, in conclusory language, that the

Due Process and Equal Protection Clauses of the United States
                                    33

Constitution did not require appointment of counsel in PCR proceedings.

256 Iowa 1311, 1315, 130 N.W.2d 728, 731 (1964). The Waldon court,

however, did not consider the specific question posed in this case,

namely, whether a petitioner is entitled to the assistance of counsel when

the PCR action is the initial forum for challenging ineffective assistance

of counsel at trial.   See id.; see also Hawkins v. Bennett, 160 N.W.2d

487, 492 (Iowa 1968) (“There is no constitutional right to appointment of

counsel in all habeas corpus proceedings.”); Larson v. Bennett, 160

N.W.2d 303, 305 (Iowa 1968) (“It is well settled there is no constitutional

right to representation by counsel in habeas corpus proceedings in the

federal courts.”).

      These older Iowa precedents are flawed for several reasons. First,

the broad statements in these cases do not confront the problem

identified in Coleman and Martinez, namely, that PCR in some cases

amounts to an initial review of a substantive claim.             There is a

substantial question, as a matter of federal constitutional law, whether a

criminal defendant is entitled to at least one effective counsel, and that

might well require the appointment of effective counsel in a PCR

proceeding.      Indeed,   in   cases   involving   initial-review   collateral

proceedings, the petitioner stands in the same position as in Douglas,

where the Supreme Court held that equal protection required the

appointment of counsel for the first appeal as of right. See Martinez, 566

U.S. at 5, 11, 132 S. Ct. at 1313, 1317.

      Second, there appears to have been no distinct challenge in these

older Iowa cases under article I, section 10 of the Iowa Constitution. As

recently observed in State v. Young, the right to counsel in the Iowa

Constitution differs linguistically from that in the United States

Constitution and arose in a different historical context. 863 N.W.2d 249,
                                    34

278–79 (Iowa 2015).     The Sixth Amendment provides, “In all criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel.”      U.S. Const. amend. VI.      Under the Sixth

Amendment, it is arguable, from a linguistic point of view, that the

phrase “all criminal prosecutions” implies the exclusion of cases

characterized as civil in nature.

      But article I, section 10 of the Iowa Constitution provides, “In all

criminal prosecutions, and in cases involving the life, or liberty of an

individual the accused shall have a right . . . to have the assistance of

counsel.”   Iowa Const. art. I, § 10 (emphasis added).         Plainly and

indisputably, the language of article I, section 10 is more expansive than

the “all criminal prosecutions” language of the Sixth Amendment.         In

addition to all criminal cases, the Iowa Constitution extends the right to

counsel in all cases involving life and liberty. Id. Lawyers and judges

who believe constitutional text matters must give the additional Iowa

constitutional language its full meaning.

      Further, the expansive language in article I, section 10 arose in the

historical context of a fierce battle over enforcement of the Fugitive Slave

Act in Iowa and across the nation.           See 2 The Debates of the

Constitutional Convention of the State of Iowa 737 (W. Blair Lord rep.,

1857), publications.iowa.gov/7313/2/The_Debates_of_the_Constitutional_

Convention_Vol%232.pdf (recording that delegate Clark defended the “all

cases involving the life, or liberty” language as necessary to allow an

alleged fugitive slave to have the right to counsel). See generally State v.

Senn, 882 N.W.2d 1, 36–46 (Iowa 2016) (Wiggins, J., dissenting).

Proceedings to enforce the Fugitive Slave Act against alleged fugitive

slaves were, of course, civil and not criminal in nature.      Young, 863

N.W.2d at 278–79. Thus, the law-by-label conclusion that the right to
                                     35

counsel does not extend to PCR actions because they are civil in nature

may apply under the Sixth Amendment, but it has no application at all

under article I, section 10 of the Iowa Constitution, which was expressly

designed to cover civil proceedings where “life, or liberty” is involved.

      In addition to the linguistic and historical differences, there is also

an important structural difference. As is evident in Martinez, the United

States Supreme Court has been reluctant to establish robust civil

liberties protections under the United States Constitution because of

concerns about federalism.      566 U.S. at 16, 132 S. Ct. at 1319–20;

accord Coleman, 501 U.S. at 731, 111 S. Ct. at 2554–55 (justifying the

doctrine of rejecting federal habeas petitions when there was a

procedural default in state court because of federalism concerns); Francis

v. Henderson, 425 U.S. 536, 541, 96 S. Ct. 1708, 1711 (1976) (stressing

“considerations of comity and federalism” require concern for legitimate

interests of the state when the Court is asked to overturn a criminal

conviction and rejecting a habeas petition because of no showing of

actual prejudice when state excluded African-Americans from grand jury

and defendant did not object before trial). As Justice Harlan pointed out

years ago and has been repeatedly and powerfully demonstrated ever

since, one of the disadvantages of incorporation of the provisions of the

Bill of Rights against the states is the pressure to dilute the scope of

those rights out of concern about adopting a nationwide approach to

constitutional questions.    See Malloy v. Hogan, 378 U.S. 1, 16–17, 84

S. Ct. 1489, 1498 (1964) (Harlan, J., dissenting) (arguing against the

incorporation doctrine because “compelled uniformity . . . is achieved

either by encroachment on the States’ sovereign powers or by dilution in

federal law enforcement of the specific protections found in the Bill of

Rights”).   The diluting pressure of federalism that the United States
                                      36

Supreme Court has repeatedly cited in refusing to enforce constitutional

guarantees has no bearing when we consider constitutional questions

under the Iowa Constitution.

        Further, the early Iowa cases do not recognize the history behind

article I, section 10. In Young, we emphasized that the Iowa founders did

not want the Bill of Rights to be read in a “cramped, stingy, or fearful

fashion.” 863 N.W.2d at 278. As a matter of historical context, we noted

that the “cases” clause was, in part, designed “to provide protections to

persons subject to return to slavery under the Federal Fugitive Slave

Act,” a distinctly civil context.      Id.     The linguistic, historical, and

functional features of article I, section 10 led us to conclude the right to

counsel under the Iowa Constitution should be interpreted more

expansively than the United States Supreme Court has construed the

right to counsel under the Sixth Amendment.              Id. at 279.   Young, of

course, does not directly provide a rule of decision for this case, but it

does stand for the proposition that the scope of the right to counsel

under     the   Iowa   Constitution   is     not   limited   by   narrow   federal

constitutional precedent.

        H. Iowa Cases Applying Iowa Code Section 822.3 to a Claim of

Ineffective Assistance of Counsel in a PCR Proceeding.

        1. Iowa authority related to statute of limitations in PCR actions. In

1984, the Iowa legislature amended the PCR statute. 1984 Iowa Acts ch.

1193, § 1 (codified at Iowa Code § 663A.3 (1985)).            Prior to 1984, the

statute provided that an applicant could file a petition for PCR at any

time. Iowa Code § 663A.3 (1983). The legislature amended the statute to

require that applicants file their petitions within three years of the date of

conviction or issuance of procedendo following appeal, whichever is later.

Iowa Code § 822.3 (2015). The amended statute provided an exception,
                                    37

however, with respect to claims based upon “a ground of fact or law that

could not have been raised within the applicable time period.”         Id.;

Brewer v. Iowa Dist. Ct., 395 N.W.2d 841, 844 n.1 (Iowa 1986) (quoting

Iowa Code § 663A.3 (1985)).

      We first considered the meaning of the “ground of fact or law”

exception in Hogan v. State, 454 N.W.2d 360 (Iowa 1990), overruled in

part by Harrington, 659 N.W.2d at 521. In Hogan, the applicant plead

guilty to manslaughter in 1971, served his sentence, and was discharged

in 1974. Id. at 360. Subsequently, in 1985, the applicant was convicted

of murder in Nevada and sentenced to death. Id. In upholding the death

penalty, the Nevada Supreme Court recognized the 1971 manslaughter

conviction as a factor against leniency. Id.

      In Hogan, the applicant sought to challenge his 1971 conviction

more than a decade later. Id. He claimed that his conviction was invalid

because the plea proceedings did not comport with constitutional

requirements establishing the voluntariness of the charge. Id. at 361.

The applicant alleged the “ground of fact or law” was that at the time he

entered his plea, he was unaware that his conviction could be used to

“severely enhance the penalty for a subsequent crime.” Id.

      We rejected the claim. Id. The Hogan court stated that “no nexus

exists between the ground of fact Hogan asserts and the conviction he

seeks to set aside.” Id. The Hogan court further emphasized that the

exonerating ground of fact must be “relevant and . . . likely [to] change

the result of the case.”    Id. (alterations in original) (quoting State v.

Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989)). The Hogan court

noted that the applicant’s “newfound insight” fell well outside this

category.   Id.   While in Brewer we provided parties with a one-year

extension to file claims until June 30, 1987, 395 N.W.2d at 844, the
                                      38

Hogan court noted that the applicant failed to meet the Brewer deadline

even though he was aware of the use of his prior conviction in the

Nevada proceedings in May of 1985 when the Nevada Supreme Court

decided his case. 454 N.W.2d at 361.

       We returned to the new statute in Wilkins v. State, 522 N.W.2d 822

(Iowa 1994) (per curiam). In Wilkins, the applicant filed his second PCR

application nine years after “procedendo was issued on his appeal

affirming his conviction for first-degree murder.”    Id. at 823.   Wilkins

claimed that his trial counsel provided ineffective assistance by failing to

preserve the victim’s shirt and have it tested for powder burns.         Id.

Wilkins asserted that had the shirt been preserved and tested, it would

have shown the shots were delivered at close range, thereby tending to

support his claim of self-defense. Id. Wilkins further claimed that the

absence of the shirt gave rise to an improper presumption and inference

that the victim was shot at a distance.      Id. According to Wilkins, his

counsel on direct appeal and his counsel in his first PCR proceeding were

ineffective for failing to raise the ineffectiveness of trial counsel in his

trial. Id.

       The Wilkins court decided the case in a per curiam opinion. Id.

The Wilkins court noted that Iowa Code section 822.8 claims are barred

“unless the court finds a ground for relief asserted which for sufficient

reason was not asserted or was inadequately raised in the original,

supplemental, or amended application.” Id. (emphasis omitted) (quoting

Iowa Code § 822.8 (1993)).        The Wilkins court contrasted this broad

language with the narrow language in Iowa Code section 822.3, which

provided that only “claims that ‘could not’ have been previously raised

because they were not available” may be heard after the three-year

limitations period. Id. at 824.
                                      39

      The Wilkins court noted that the applicant had three opportunities

to raise the issue—namely, at trial, in his first PCR proceedings, and his

second PCR proceeding. Id. The court noted that the applicant could

not claim ignorance of his claim because he either knew or should have

known of counsel’s failure to raise the shirt issue.       Id.   The court

declared that the interpretation furthered the legislature’s goal “to limit

postconviction litigation in order to conserve judicial resources, promote

substantive goals of the criminal law, foster rehabilitation, and restore a

sense of repose in our system of justice.”       Id. (quoting Edman, 444

N.W.2d at 106). The Wilkins court, however, gave no consideration to the

constitutional implications of the ruling.

      The next case involving the amended PCR statute is Dible, 557

N.W.2d at 882. Dible plead guilty to suborning perjury and third-degree

criminal mischief in March of 1989. Id. He filed a timely application for

PCR in 1990, alleging “ineffective assistance of trial counsel and newly-

discovered evidence as grounds for relief.” Id. The PCR action, however,

was not timely brought to trial and was dismissed under Iowa Rule of

Civil Procedure 215.1.     Id.   The applicant unsuccessfully attempted to

determine the status of his case from his attorney. Id. at 882–83. Dible

finally contacted the clerk of court in May 1994 and learned of the

dismissal.   Id. at 883.   He then filed a pro se motion to reinstate his

application, but his motion was denied because it fell outside the six-

month reinstatement period established by rule 215.1. Id.

      In November 1994, Dible filed a second petition for PCR. Id. He

repeated the allegations in his first petition and further alleged that his

first PCR attorney provided ineffective assistance “in allowing the first

postconviction action to be dismissed.” Id. The state filed a motion to

dismiss Dible’s second petition as untimely. Id. Dible claimed the first
                                     40

PCR counsel’s ineffectiveness “excused the untimeliness of his second

postconviction action.” Id.

      In Dible, a 5–4 majority held the claim was time barred. Id. at 886.

The Dible majority first reviewed prior caselaw.      Id. at 883–84.    With

respect to Wilkins, the Dible majority noted that he “had three

opportunities to claim ineffective assistance of trial counsel before the

time bar became enforceable against him.”        Id. at 884.   The majority

further noted that in Hogan, the “ground of fact” limitation was reserved

for grounds that “would likely have changed the result of the criminal

case.” Id. Thus, the Dible majority concluded that while ineffectiveness

of trial counsel might be a “ground of fact,” ineffectiveness of appellate or

PCR counsel is not. Id. The Dible majority emphasized that the proper

focus is on whether Dible knew or should have known of the errors made

by counsel at trial. Id.

      The Dible court next turned to the statutory language. Id. at 885.

As in Wilkins, the Dible court contrasted the language of Iowa Code

section 822.8 with the provisions of section 822.3. Id. It concluded that

while the language in Iowa Code section 822.8 allows a second

application where a claim was not raised or was inadequately raised in

the first application, no similar exception was provided in 822.3.        Id.

Thus, while section 822.8 allows successive petitions in cases involving

ineffective assistance of counsel in the original PCR proceeding, any

successive petition generally must be filed within the three-year window

established in section 822.3. Id.

      The Dible majority finally turned to the question of legislative

intent.   Id.   Citing prior caselaw, it concluded that any other holding

“would result in an endless procession of postconviction actions, and the
                                     41

legislature’s hope to avoid stale claims and to achieve a sense of repose

in the criminal justice system would not be realized.” Id. at 886.

      Four justices dissented. Id. (McGiverin, C.J., dissenting). In an

opinion by Chief Justice McGiverin, the dissenters pointed out that

under the majority’s narrow approach to section 822.3, Dible was

“effectively denie[d] . . . any opportunity to have his postconviction claims

heard.” Id. The dissenters noted that Dible’s application for PCR was

dismissed because of the failure of his counsel to prosecute the claim

and that counsel failed to communicate the dismissal to Dible. Id. Thus,

although Dible had a right to the effective assistance of counsel in his

PCR proceeding, Dible never got a hearing on his issues and had “no

opportunity to test the validity of the conviction in relation to the ground

of fact or law” alleged in his first postconviction action.     Id. (quoting

Wilkins, 522 N.W.2d at 824). The dissenters argued that the legislature

did not intend for PCR applicants to be precluded from bringing claims,

“unless any untimeliness was due to their own inaction.” Id.

      The dissenters also challenged the majority’s assertion that there

is a distinction between ineffective assistance of counsel at trial and

ineffective assistance of appellate or PCR counsel. Id. According to the

dissent, ineffective assistance of appellate or postconviction counsel

could change the result in the underlying trial and, as a result, an

applicant could not be precluded from bringing a claim based upon their

ineffectiveness. Id. at 887.

      The next case dealing with the exception to the three-year statute

of limitations in section 822.3 is Harrington.        659 N.W.2d at 512.

Harrington was convicted of first-degree murder in 1978. Id. at 514. He

filed his PCR action more than twenty years after his conviction. Id. at

515. His claim for PCR was based upon undisclosed police reports and
                                     42

recantation evidence that could not have been discovered earlier in the

exercise of due diligence. Id. at 515–16. The Harrington court concluded

that the undisclosed police reports and recantation evidence had “the

potential to qualify as material evidence that probably would have

changed the outcome of Harrington’s trial.”        Id. at 521 (emphasis

omitted).   The court held that under the circumstances, “Harrington

asserted a relevant ground of fact or law ‘that could not have been raised

within the applicable time period.’ ” Id.

      From these cases, the following principles may be gleaned. First,

while Iowa Code section 822.8 generally requires that all claims for relief

must be raised in the original, supplemental, or amended petition, this

limitation may be avoided if counsel ineffectively fails to comply. Iowa

Code § 822.8 (2015). However, there is no comparable avenue for relief

from Iowa Code section 822.3, which generally states that claims for PCR

must be filed within three years of the date the conviction is final or, if

appealed, within three years of procedendo. Id. § 822.3. An application

based on new evidence that could not have been discovered through

reasonable diligence, however, is not subject to the three-year limitation.

See id. An applicant need only allege that the newly discovered evidence

or other error is relevant to the case and has the potential to provide a

basis for reversal. See Harrington, 659 N.W.2d at 521.

      Although there is language in Dible suggesting that ineffective

assistance of appellate and postconviction counsel did not affect the

underlying conviction and thus did not form a basis for PCR, our later

caselaw eschews any such broad conclusion.           Yet the notion that

ineffective assistance of appellate or postconviction counsel may provide

a substantive basis for PCR does not answer the question in this case,

namely, whether such a claim may be brought, under the facts and
                                    43

circumstances, beyond the three-year limitations period in Iowa Code

section 822.3.

      2. Postconviction cases from other jurisdictions.   We now turn to

cases from other jurisdictions, understanding that the statutes may

employ different language than Iowa Code chapter 822 and that their

approach is only as persuasive as the reasoning employed. In Silva v.

People, the Supreme Court of Colorado permitted a PCR proceeding to

proceed outside the generally applicable three-year limitations period.

156 P.3d 1164, 1165 (Colo. 2007) (en banc).        Notably, however, the

Colorado statue, unlike Iowa Code section 822.3, allows the applicant to

establish that “justifiable excuse or neglect” prevented presentation of

the claim. Id. at 1166.

      The Supreme Court of Nevada recently considered a case involving

successive petitions alleging ineffective assistance of counsel. Rippo v.

State, 368 P.3d 729, 733 (Nev. 2016) (per curiam), vacated sub nom.

Rippo v. Baker, 580 U.S. ___, 137 S. Ct. 905 (2017). Under Nevada law,

the statute of limitations for filing a postconviction action was one year

but delay could be excused subject to a showing of “good cause” for the

delay. Id. at 738. The Nevada Supreme Court, however, punted on the

good-cause issue by finding that the ineffective-assistance claim failed on

the merits. Id. at 756. The United States Supreme Court vacated the

Nevada Supreme Court’s judgment because the Nevada court used an

incorrect standard in evaluating the petitioner’s claim of judicial bias

under the Due Process Clause and remanded the case for further

proceedings.     Rippo, 580 U.S. at ___, 137 S. Ct. at 907.   In Silva and

Rippo, the statutory language differs from that in Iowa Code chapter 822,

making their discussions of statutory interpretation of limited value in

this case.
                                    44

      I. Discussion.     There are both statutory and constitutional

considerations that must be brought to bear in this case. As the Dible

court noted, there is a difference in the exception language of the

antisuccessive petition provision of Iowa Code section 822.8 and the

exception language of the generally applicable three-year statute of

limitations in Iowa Code section 822.3.     557 N.W.2d at 885 (majority

opinion). The use of different language in sections of a statute covering

the same subject matter gives rise to the inference that the legislature

intended the sections to have a different meaning. Freedom Fin. Bank v.

Estate of Boesen, 805 N.W.2d 802, 811 (Iowa 2011).

      The phrase “ground of fact or law that could not have been raised”

in the proceeding could be interpreted differently.        See Iowa Code

§ 822.3.    Because of the ineffective assistance of Allison’s first

postconviction attorney, the ground of fact or law—his criminal trial

counsel’s ineffective assistance—could not have been raised in the first

PCR proceeding.

      Further, the Dible interpretation, as applied in this and other

cases, is potentially problematic in light of the constitutional backdrop.

A defendant could have an ineffective lawyer at trial and then an

ineffective lawyer in a timely PCR proceeding. The end result is that a

potentially meritorious claim may not be raised within the three-year

statute of limitations because of bungling lawyers.

      Such a possible result is troubling. There is no question that an

accused is constitutionally entitled to assistance of counsel at trial under

both the Iowa and United States Constitutions. McMann v. Richardson,

397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14 (1970); State v.

Boggs, 741 N.W.2d 492, 506 (Iowa 2007); Collins v. State, 588 N.W.2d

399, 401 (Iowa 1998). A corollary to the right to counsel, of course, is
                                     45

the right to effective assistance of counsel. Strickland, 466 U.S. at 686,

104 S. Ct. at 2063; State v. Dahl, 874 N.W.2d 348, 352 (Iowa 2016). The

constitutional right to effective assistance of counsel at a criminal trial is

the bedrock of our system of justice. Strickland, 466 U.S. at 685, 104

S. Ct. at 2063; Gideon, 372 U.S. at 343, 83 S. Ct. at 796.

      Where counsel has been ineffective at trial, however, an action for

PCR is, in most cases, an essential prerequisite to enforce the

constitutional guarantee. As noted in Coleman and Martinez, this is so

because, on most appeals, the trial record will be inadequate to

determine if the requirement of prejudice has been met under Strickland.

In these cases, if postconviction counsel is also ineffective in presenting

the underlying claim of ineffective assistance at trial, the underlying

constitutional entitlement to effective assistance of counsel at trial will be

a nullity and lie unenforced. In short, the unquestionable constitutional

right to effective counsel at trial may be rendered meaningless for

defendants who suffer from successive ineffective assistance.

      We bristle at the notion that a criminal defendant has no

constitutionally protected right to at least one competent attorney. While

the Dible majority suggests that the right to counsel is only statutory and

that it can be truncated by application of a statute of limitations, this

reasoning does not wash if one believes in the right to counsel in the first

instance.

      This awkward result is mitigated in at least two ways. First, under

Iowa Code section 822.8, successive petitions for PCR may be filed if

counsel is ineffective in the first petition. Thus, when counsel files a first

petition and ineffectively fails to raise a ground for reversal, a successive

petition may be filed.
                                        46

       According to Dible, however, the second petition must be filed

within the three-year limitations period of section 822.3.         Meeting the

three-year requirement may be difficult because a nonlawyer applicant

may not recognize that PCR counsel has been ineffective until after the

expiration of the statute of limitations.     Thus, under Dible, there is a

distinct possibility that a defendant may be convicted of serious crimes

even though he never had an effective lawyer at trial or in PCR and, thus,

was deprived of the opportunity to have potentially meritorious issues

determined by a court.          No one can find much comfort in such an

outcome.

       A second mitigating feature is the availability of an actual-

innocence claim. A person convicted of a crime seeking relief through

asserting actual innocence carries a heavy burden, and such a claim is

available to correct only the most egregious miscarriages of justice. An

accused who may not be able to establish actual innocence may have

nonetheless been deprived of an opportunity for a fair trial because of

ineffective assistance of counsel.

       We have several options. Although Dible has been overturned on

other grounds, we can affirm the district court on the ground that, as in

Dible, a second application alleging ineffective assistance of counsel at

trial must be filed within the three-year time period of section 822.3,

even in cases involving initial-review collateral proceedings.

       A second option is to depart from Dible and declare that when a

timely PCR petition alleging trial counsel was ineffective is filed under

section 822.3, the ineffectiveness of postconviction counsel in presenting

the claim is a ground of fact sufficient to avoid the statute of limitations.

This   result   is   arguably    more   consistent   with   the   constitutional
                                     47

requirement of effective assistance of counsel and the notion that an

unenforceable constitutional right is a nullity.

      We think the best approach is to qualify Dible.          While Dible

engaged in textual and functional analysis of section 822.3, it gave no

consideration to the fundamental constitutional interests at stake when

an accused alleges ineffective assistance of trial counsel and the PCR

proceeding is the first opportunity to raise the issue. In that setting, the

posture is precisely the same as in Douglas, namely, the first appeal as a

matter of right. Where the defendant essentially invokes a first appeal as

a matter of right in an initial-review PCR proceeding, application of the

equal protection principles in Douglas would require appointment of

counsel even under the Federal Constitution. Further, the rationales for

not providing counsel under the Sixth Amendment—the distinction

between criminal and civil proceedings and the diluting influences of

federalism—have less application under article I, section 10 of the Iowa

Constitution.

      Decided in 1996, Dible did not have the benefit of the subsequent

development in cases of the United States Supreme Court which focused

on the peculiar problem of initial-review collateral proceedings. Further,

Dible made no effort to consider the expansive right-to-counsel provisions

of the Iowa Constitution in which the distinction between civil and

criminal cases has no linguistic or historical support.

      In order to avoid the difficult constitutional position that would

result in denying a remedy where defense counsel allegedly provided

ineffective assistance at trial and postconviction counsel is ineffective in

raising that claim, we think the best approach is to hold that where a

PCR petition alleging ineffective assistance of trial counsel has been

timely filed per section 822.3 and there is a successive PCR petition
                                      48

alleging   postconviction   counsel   was    ineffective   in   presenting   the

ineffective-assistance-of-trial-counsel claim, the timing of the filing of the

second PCR petition relates back to the timing of the filing of the original

PCR petition for purposes of Iowa Code section 822.3 if the successive

PCR petition is filed promptly after the conclusion of the first PCR action.

The doctrine of relation back is used “to preserve rights as of the earlier

date, or otherwise to avoid injustice.” Windey v. N. Star Farmers Mut.

Ins., 43 N.W.2d 99, 102 (Minn. 1950).          Here, the application of the

relation-back doctrine ensures that the right to effective assistance of

counsel in PCR is not cut off by the running of the statute of limitations

in situations like the one in this case.

      This is a variant of the equitable doctrine employed in Martinez to

allow a petitioner in federal habeas to avoid a procedural default in state

court. Under this equitable doctrine, the three-year statute of limitations

is tolled from the time of the filing of the first petition for PCR until the

first PCR proceeding’s conclusion.         Upon the conclusion of the first

action, the three-year statute of limitations commences to run again.

      While there may be more claims under this approach, we do not

fear the deluge.      Lawyers must have a good-faith basis for filing a

pleading, and this principle applies in postconviction proceedings.

Further, our court system is fully capable of quickly disposing of claims

that have no basis in law or fact.

      Nothing in the above discussion, however, suggests that Allison is

entitled to relief.   Indeed, it may well be that prior counsel, despite

diligent efforts, could not develop the claim that Allison seeks to present.

Or, it may be that the facts do not support the underlying claim of juror

bias at all. Nonetheless, the proper manner to deal with the question is
                                     49

not to grant a motion to dismiss but to permit Allison to develop the

ineffectiveness issue.

      IV. Discussion of Dismissal of Additional Claims in Amended
Petition for PCR.

       We now turn to whether the district court properly dismissed the

additional claims Allison presented in his amended second petition for

PCR.

       A. Preservation of Error.       We first consider whether Allison

preserved the additional issues in the district court. In this case, the

district court order recognized that additional claims were presented in

the amended petition, noted that the amended petition did not alter the

“core basis” presented, and entered an order of dismissal. The district

court did not enter separate rulings on the claims in the amended

petition from those raised in the original petition.

       We have held that issues were preserved in other cases where the

district court acknowledged the existence of other claims but did not

explicitly or separately address them in a ruling.        For instance, in

Lamasters v. State, the district court described the applicant’s claims

and then denied the application in general terms without individually
ruling on the claims presented. 821 N.W.2d 856, 862 (Iowa 2012). We

held that the described claims were preserved without the filing of a rule

1.904 motion to obtain a more specific ruling. Id. at 864–65. Similarly,

in Meier v. Senecaut, we noted that a claim raised need not actually be

used as the basis for the decision to be preserved if the record reveals the

court was aware of the claim or issue and decided the issue. 641 N.W.2d

532, 540 (Iowa 2002). We think that under Lamasters and Meier, the

claims raised in the amended petition are sufficiently preserved for our

review.
                                      50

      B. Dismissal as “Vague.” We next turn to the State’s contention

that the additional claims in the amended petition were properly

dismissed. The State does not defend the district court’s order on the

ground that the new allegations did not change “the core basis” in the

case. Instead, the State suggests that the allegations in the petition were

“too vague” and that the district court did not err in dismissing the

claims.

      At the outset, we note that Iowa Code section 822.7 provides that

in a PCR proceeding, “[a]ll rules and statutes applicable in civil

proceedings including pretrial and discovery procedures are available to

the parties.” See also Nuzum v. State, 300 N.W.2d 131, 132–33 (Iowa

1981) (“Rules and statutes governing the conduct of civil proceedings are

applicable to postconviction proceedings.”). Applying the ordinary rules

and procedures that apply in civil cases, for example, we have held that

when the state seeks to avoid a full trial of relevant facts through a

motion for summary judgment, the state, as the moving party, has the

burden of showing the absence of triable issues.     Arnold v. State, 540

N.W.2d 243, 246 (Iowa 1995).

      In this case, the State filed a motion to dismiss the claims in the

amended petition. As in the case of summary judgment, the rules and

procedures that apply to a motion to dismiss a PCR action are the same

as those that apply in civil cases.

      In civil cases, we approach motions to dismiss with great caution.

“A motion to dismiss should only be granted if the allegations in the

petition, taken as true, could not entitle the plaintiff to any relief.”

Sanchez v. State, 692 N.W.2d 812, 816 (Iowa 2005). Ordinarily, cases

are not resolved on the pleadings.     U.S. Bank v. Barbour, 770 N.W.2d

350, 353 (Iowa 2009). A motion to dismiss should be granted only when
                                       51

there is no conceivable state of facts that might support the claim for

relief.    Kingsway Cathedral v. Iowa Dep’t of Transp., 711 N.W.2d 6, 7

(Iowa 2006); Golden v. O’Neill, 366 N.W.2d 178, 179 (Iowa 1985); Lakota

Consol. Indep. Sch. v. Buffalo Ctr./Rake Cmty. Schs., 334 N.W.2d 704,

708 (Iowa 1983). We construe the “allegations in the light most favorable

to the pleader” and resolve doubts in the pleader’s favor. Meyn v. State,

594 N.W.2d 31, 33 (Iowa 1999); Curtis v. Bd. of Supervisors, 270 N.W.2d

447, 448 (Iowa 1978).

          The State has not shown that there is no conceivable state of facts

to support the additional claims. If the State believes the allegations in a

PCR petition are not sufficiently precise to allow it to file an answer, the

State may file a motion for a more specific statement. Iowa R. Civ. P.

1.433 (“A party may move for a more specific statement of any matter not

pleaded with sufficient definiteness to enable the party to plead to it and

for no other purpose.       It shall point out the insufficiency claimed and

particulars desired.”).

          We cannot say based upon the pleading in this case, that there is

no conceivable state of facts that might support the claim for relief. See

Kingsway Cathedral, 711 N.W.2d at 7; Golden, 366 N.W.2d at 179;

Lakota Consol. Indep. Schs., 334 N.W.2d at 708.            As a result, the

additional claims in the amended second petition for PCR should not

have been dismissed. See Watson v. State, 294 N.W.2d 555, 557 (Iowa

1980) (holding that claims in a PCR application should not have been

dismissed even though they did not “justify relief as a matter of law” and

that even if assertions are “deemed improbable,” applicant is entitled “to

present to the court whatever proof he may have to support” the claim or

to amend the application to be more clear about grounds for relief); Hines

v. State, 288 N.W.2d 344, 346 (Iowa 1980) (holding a motion to dismiss
                                   52

in a PCR proceeding is properly granted when “there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter

of law”); Chartier v. State, 223 N.W.2d 255, 257–58 (Iowa 1974) (holding,

in a case where pro se petitioner inartfully pled that his conditional

release was unlawfully revoked, when petition for PCR sufficiently raised

grounds under the statute for granting relief, the matter required a

hearing to develop the record). Of course, we take no view on the merits

of Allison’s claims.

      V. Conclusion.

      For the above reasons we vacate the decision of the court of

appeals, reverse the judgment of the district court, and remand the case

for further proceedings.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND REMANDED.

      All justices concur except Waterman, Mansfield, and Zager, JJ.,

who dissent.
                                     53
                                                    #16–0764, Allison v. State

WATERMAN, Justice (dissenting).

      I respectfully dissent and would affirm the decision of the court of

appeals and judgment of the district court that correctly dismissed Brian

Allison’s   untimely   second   petition   for   postconviction   relief   (PCR)

challenging his convictions for sexually abusing his young stepdaughter.

This case presents a question of statutory interpretation of Iowa Code

section 822.3 (2015)—whether ineffective assistance of PCR counsel falls
within an exception to the three-year statute of limitations. We correctly

answered “no” to that question over two decades ago in Dible v. State,

557 N.W.2d 881, 886 (Iowa 1996) (en banc) (holding “ineffective

assistance of postconviction relief counsel is not a ‘ground of fact’ within

the meaning of section 822.3”), abrogated in part on other grounds by

Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003). The legislature

never amended section 822.3 in response to Dible. Neither Allison nor

the majority explain how intervening events since 1996 show Dible was

wrongly decided. I would affirm based on the text of the PCR statute, the

venerable doctrine of stare decisis, legislative acquiescence, and sound

policy considerations.

      I. The Text of the PCR Statute Is Clear.

      Iowa Code chapter 822 governs PCR actions. Section 822.3 sets

forth the three-year time-bar and states in part,

      All other applications [i.e., those not filed under section
      822.2(1)(f)] 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.

Iowa Code § 822.3.       Section 822.3 must be read together with section

822.8, which covers ineffective assistance of PCR counsel and states,
                                     54
      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 was inadequately raised in the original,
      supplemental, or amended application.

Id. § 822.8.

      Section 822.3 and section 822.8 are separate limits on the filing of
PCR applications. Thus, all grounds for relief must be presented in the

first application, unless “for sufficient reason [the ground] was not

asserted or was inadequately raised” in the first application.        See id.

But, in any event, all applications must be filed within three years,

including second, third, and further applications, unless the ground is

one that could not have been raised earlier. See id. § 822.3.

      In other words, the excuse of “inadequately raised” allows the

defendant to file a second or subsequent application, see id. § 822.8, but

it is not a basis for relief from the three-year bar. Id. § 822.3. This is the

only plausible way to read the two sections.            The legislature has

specifically   provided   that   defendants   whose    prior   PCR   counsel

inadequately raised an issue may have another bite at the apple, but that

bite is subject to the three-year time-bar.

      This statutory text controls the outcome here—Allison claims his

first PCR counsel inadequately raised his challenge to a possibly biased

juror, so he should get another chance to raise the issue. But he did so

too late because his second PCR action was filed more than three years

after his conviction became final.     The majority fails to confront this

insurmountable textual bar to its result.
                                      55

      Allison never argued that he avoids the statute of limitations

because his claims in this action “relate back” to his previously

adjudicated and dismissed PCR action. The majority errs by relying on

the relation-back doctrine.     We have never held that an amendment

related back to a pleading in a prior action. An amendment to a pleading

can only relate back to the original pleading in the same action. See Iowa

R. Civ. P. 1.402(5); Jacobson v. Union Story Tr. & Sav. Bank, 338 N.W.2d

161, 164 (Iowa 1983) (“Rule 89 [now rule 1.402] does provide authority

for an amendment to a suit to relate back in time to the filing of the

original suit.”); Butler v. Woodbury County, 547 N.W.2d 17, 19 (Iowa Ct.

App. 1996) (permitting relation back in “a pending lawsuit”).

      Federal courts interpreting the almost identically worded relation-

back language in Federal Rule of Civil Procedure 15(c) uniformly reject

the argument that an amendment relates back to a pleading in a prior

action. See Rowell v. Stecker, 698 F. App’x 693, 697 (3d Cir. 2017) (“The

plaintiffs cite no legal authority and we have found none for their claim

that their complaint can or should be construed to relate back to

pleadings   filed   against   different    parties   in   a   different   lawsuit.

Accordingly, the relation back doctrine cannot circumvent the time limit

on the plaintiffs’ claims.”   (Citation omitted.)); Barnes v. United States,

776 F.3d 1134, 1143 (10th Cir. 2015) (noting the relation-back doctrine

“applies to an amendment to a pleading in the same action” and

therefore rejecting plaintiffs’ claim that the second lawsuit was not time-

barred because it related back to plaintiffs’ first lawsuit); Velez-Diaz v.

United States, 507 F.3d 717, 719 (1st Cir. 2007) (“Rule 15(c), by its

terms, applies to amended pleadings in the same action as an original,

timely pleading: the pleading sought to be amended may not be a

pleading filed in a different case.”); Bailey v. N. Ind. Pub. Serv. Co., 910
                                        56

F.2d 406, 413 (7th Cir. 1990) (“Rule 15(c), by its terms, only applies to

amended pleadings in the same action as the original, timely pleading.”),

superseded by statute as recognized by Rush v. McDonald’s Corp., 966

F.2d 1104, 1119–20, 1119 n.55 (7th Cir. 1992). It makes a mockery of

the statute of limitations to allow an untimely pleading in a new action to

relate back to a prior action. Again, the text of the governing statutes

establish that Allison’s action is time-barred.

      II. The Majority’s Constitutional Concerns Are Overblown.

      Disregarding the statutory language, the majority instead travels

on what it aptly describes as a “winding” road.          Page after page, the

majority introduces us to the ins and outs of various United States

Supreme Court opinions, although they are primarily dissenting

opinions.   None of these are on point because we have squarely, and

repeatedly, held there is no constitutional right, only a statutory right, to

counsel in PCR actions. See Lado v. State, 804 N.W.2d 248, 250 (Iowa

2011) (“Lado, however, has a statutory, not constitutional right to

effective assistance of counsel on postconviction relief.”). “[N]o state or

federal constitutional grounds for counsel exist in such proceedings.”

Wise v. State, 708 N.W.2d 66, 69 (Iowa 2006); see also Fuhrmann v.

State, 433 N.W.2d 720, 722 (Iowa 1988) (“[W]e detect no state or federal

constitutional grounds for counsel in such a proceeding.”).

      Rather than take the majority’s winding road, I would follow the

direct path that leads me to the foregoing Iowa cases.            The majority

ignores our own precedent and fails to mention our unanimous decisions

upholding the constitutionality of the three-year time-bar. See Perez v.

State, 816 N.W.2d 354, 360 (Iowa 2012) (reiterating that “[w]e have

upheld   the   constitutionality   of   [section   822.3]”);   Davis v. State,

443 N.W.2d 707, 710 (Iowa 1989) (addressing purposes of time-bars for
                                     57

PCRs and stating “due process requires that the interest of the state and

the defendant be balanced in determining the reasonableness” of the

limitations period).

       Additionally, there are several reasons why article I, section 10 of

the Iowa Constitution does not apply to PCR actions just based on the

text of the provision.     When filing a PCR, an applicant is not an

“accused.”    Rather, he or she is already convicted and is affirmatively

asking the court for relief. Also, if article I, section 10 applied to PCR

actions, there would have to be a right to a jury trial. There would have

to be a right to confrontation, and PCR applicants would have to be

present in person for all critical stages of the PCR proceeding. Section 10

is not a cafeteria where you can pick and choose which rights a person

gets but a complete package. An “accused” in a criminal case or a case

involving life or liberty gets all the rights enumerated therein.

       In the end, the winding road leads nowhere because the majority

acknowledges the result that it reaches is not constitutionally compelled.

Nor is today’s reinterpretation of section 822.3 justified to avoid a

constitutional question. There is no serious constitutional question, nor

is there any ambiguity when section 822.3 and section 822.8 are

considered together.     We have made clear the constitutional-avoidance

doctrine cannot be used to alter unambiguous statutory language. In re

Prop. Seized for Forfeiture from Young, 780 N.W.2d 726, 729 (Iowa 2010)

(“[W]e cannot avoid the constitutional issue posed by the [statute’s] plain

language . . . .”).

       III. There Is No Reason to Overrule Dible.

       Dible was correctly decided in 1996, and nothing has changed to

warrant overruling it.    We unanimously reaffirmed Dible in Walker v.
                                    58

State, 572 N.W.2d 589, 590 (Iowa 1997) (per curiam). Dible provides a

clear, bright-line rule that has worked well in practice for decades.

      Dible has been applied in numerous unpublished court of appeals

decisions.    For example, there were four opinions in 2016 alone.      See

Whiteside v. State, No. 15–0534, 2016 WL 4051578, at *3 (Iowa Ct. App.

July 27, 2016); Bergantzel v. State, No. 15–1273, 2016 WL 2745065, at

*2 (Iowa Ct. App. May 11, 2016); Griggs v. State, No. 15–0510, 2016 WL

2746051, at *1 (Iowa Ct. App. May 11, 2016); Woodberry v. State,

No. 14–1434, 2016 WL 889727, at *1 (Iowa Ct. App. Mar. 9, 2016).

Opinions in this area go unpublished because the law is so obvious and

clear. Notably, every one of these unpublished cases is now a case that

will be reheard under today’s decision.

      Under Dible, merely alleging ineffective assistance of PCR counsel

presents no basis for relief from the underlying convictions. Rather, the

ground of fact must be one that trial counsel could not have reasonably

discovered and that could have avoided the conviction. A breach of duty

by PCR counsel is not a new ground of fact. See Dible, 557 N.W.2d at

886. Dible properly distinguished between ineffective assistance of trial

counsel and PCR counsel:

            It is important not to confuse the effect of ineffective
      assistance of trial counsel with the ineffective assistance of
      appellate or postconviction counsel.     The errors of trial
      counsel have a direct impact on the validity of a criminal
      conviction.   In contrast, the incompetency of appellate
      counsel or postconviction counsel cannot have this type of
      impact because their involvement postdates the defendant’s
      conviction.

Id. at 884.     Dible provided a sound interpretation of the statutory

language. See id. at 885. And Dible “carries out th[e] legislative intent by

giving effect to the statute of limitations as it was drafted by the general

assembly.” Id. at 886. We noted, “Any other decision would result in an
                                       59

endless procession of postconviction actions” and would thwart “the

legislature’s hope to avoid stale claims and to achieve a sense of repose

in the criminal justice system.” Id.

      We too should follow our precedent because Allison cannot show

that our long-established interpretation of section 822.3 is wrong or

harmful. See McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005) (“From

the very beginnings of this court, we have guarded the venerable doctrine

of stare decisis and required the highest possible showing that a

precedent should be overruled before taking such a step.” (quoting

Kiesau v. Bantz, 686 N.W.2d 164, 180 n.1 (Iowa 2004) (Cady, J.,

dissenting))).    This is especially true given the decades of legislative

acquiescence in Dible’s interpretation of section 822.3. See Ackelson v.

Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013) (“[W]e

presume the legislature is aware of our cases that interpret its statutes.

When many years pass following such a case without a legislative

response,    we     assume   the   legislature   has   acquiesced   in   our

interpretation.” (Citation omitted.)).

     IV. Other Courts Hold Ineffective Assistance of PCR Counsel
Does Not Avoid the Statute of Limitations.

      Even if caselaw from other jurisdictions mattered more than Iowa

caselaw (and it does not), the majority cites no helpful or persuasive

out-of-state authority.

      Midway through its opinion, the majority references a 1970

Washington Supreme Court case as being “of interest.” Yet the majority

disregards a 2015 Washington Supreme Court case that is directly on

point—and directly opposed to the majority’s view of the case.

      Notably, the Washington Supreme Court recently and unanimously

rejected “a new exception to the time bar” for ineffective assistance of
                                    60

PCR counsel. In re Pers. Restraint of Yates, 353 P.3d 1283, 1285 (Wash.

2015) (en banc).    The Yates court noted the state’s one-year “time bar

and its exceptions are creatures of statute and thus adding additional

exceptions to the statute is a matter for the legislature, not this court.”

Id. This is likewise true of Iowa’s more generous three-year time-bar in

Iowa Code section 822.3.     The Yates court also rejected the argument

that ineffective assistance of PCR counsel constituted newly discovered

evidence. Id. (“The only thing ‘new’ here is that Yates’s new attorney has

a new idea for a claim.”). Here, Allison’s claim that a juror was biased

has already been rejected in his first PCR action, and his second PCR

lawyer offers no new information supporting that claim. The Yates court

honored stare decisis, declining to overturn its precedent without “a clear

showing that [the] established rule is incorrect and harmful.”           Id.

(quoting W.G. Clark Constr. Co. v. Pac. Nw. Reg’l Council of Carpenters,

322 P.3d 1207, 1212 (Wash. 2014) (en banc)).

      The Pennsylvania Superior Court held that a second PCR petition

filed after the one-year deadline was time-barred notwithstanding alleged

ineffective assistance of counsel in the direct appeal and first PCR action.

Commonwealth v. Saunders, 60 A.3d 162, 163, 165 (Pa. Super. Ct.

2013); see also Commonwealth v. Pursell, 749 A.2d 911, 915 (Pa. 2000)

(“[W]hile layered claims of counsel’s ineffectiveness may avoid the waiver

restrictions in the [Postconviction Relief Act], we have repeatedly held

that claims of ineffective assistance of counsel do not automatically

qualify pursuant to the exceptions to the one-year limitation provided” by

statute.).   And the majority today ignores still other decisions holding

that allegations of ineffective assistance of counsel do not avoid the

statute of limitations for PCR claims.     See, e.g., Baker v. State, 667

So. 2d 50, 51 (Ala. 1995) (holding petitioner’s PCR claim based upon
                                     61

ineffective assistance of counsel was procedurally barred by two-year

statute of limitations); Bevill v. State, 669 So. 2d 14, 17 (Miss. 1996)

(“[T]his Court has never held that merely raising a claim of ineffective

assistance of counsel is sufficient to surmount the procedural bar.

Therefore, Bevill’s ineffective assistance of counsel claim is insufficient to

surmount the procedural bar” on his PCR claim.); Winward v. State, 293

P.3d 259, 265 (Utah 2012) (concluding “the mere allegation that counsel

was ineffective is not a reasonable justification for missing the [Post-

Conviction Remedies Act]’s time limitations”).

      Missing from the majority opinion is any persuasive caselaw

supporting its decision. That silence speaks volumes. The majority fails

to even mention our unanimous decisions in Davis and Perez upholding

the constitutionality of the three-year time-bar of section 822.3.        The

majority instead relies on dissenting opinions of other courts. Dissents

are not the law. The majority’s analysis is irrelevant to the interpretation

of Iowa Code section 822.3.

     V. The Bad Policy Effects of Today’s Decision Will Be
Far-Reaching.

      The majority provides no limiting principle for today’s decision.
Going forward, any allegation of ineffective assistance by PCR counsel

will avoid the three-year statute of limitations. This opens the floodgates

to stale PCR actions. In effect, there is no longer a statute of limitations

in PCR actions. The majority’s exception to the three-year time-bar will

swallow that time-bar.

      One bad consequence of today’s decision is that our courts are

going to be overwhelmed with PCR filings. Until today, the three-year bar

had been a way to summarily dispose of meritless and repetitive PCR

applications. No more. Each one of these will have a hearing.
                                      62

      Like it or not (and I do not happen to like it), the criminal justice

resources in this state are limited by budgetary pressures.       If a large

portion of the public defender budget has to be devoted to stale,

repetitive PCR applications, that means less of that budget will be

available for trials, initial appeals, and initial PCRs.

      Also, it is unfair for victims—years after the fact—to be forced to

relive traumatic experiences.       For many victims, learning that the

perpetrator will get a new “hearing” is painful enough. Today’s decision

will also result in unfairness to the state, as cases thought to be finally

resolved years earlier are relitigated long after memories have faded or

key witnesses and evidence have become unavailable.          See Davis, 443

N.W.2d at 710 (addressing purposes of time-bars for PCRs and stating

“due process requires that the interest of the state and the defendant be

balanced in determining the reasonableness” of the limitations period).

      I dissented in Schmidt v. State, but I would note that decision

already establishes an escape valve for actually innocent defendants.

909 N.W.2d 778, 790, 797–98 (Iowa 2018).           Today’s case goes further

and creates an escape valve for all defendants—so long as the defendant

filed an initial PCR application of some kind within the initial three-year

period after the conviction became final.

     VI. The Facts of This Case Do Not Warrant a Change in Our
Established Law.

      Also missing from the majority decision is any discussion of the

facts of the crimes of conviction and the absence of any evidentiary basis

for relief in Allison’s serial PCR actions. The Iowa jury convicted Allison

on all three counts of sexually abusing his early teen stepdaughter. The

sexual abuse began when his stepdaughter was in seventh grade and

continued into her sophomore year of high school at home in the
                                    63

bathroom and Allison’s bedroom while his wife worked the night shift.

State v. Allison, No. 11–0774, 2012 WL 2819324, at *1, *5 (Iowa Ct. App.

July 11, 2012) (direct appeal).      Several witnesses corroborated the

victim’s account by testifying to unusual activity such as Allison and his

stepdaughter frequently sleeping in the same bed; Allison and his

stepdaughter lying on the bed together underneath a blanket, dressed

only in underwear; and Allison commenting on his stepdaughter’s

breasts. Id. at *6.

      Allison even now makes no showing he was wrongfully convicted or

is entitled to a new trial.     The district court and court of appeals

previously rejected Allison’s claim that a juror was biased because the

juror waved at his ex-wife during a recess in his trial. Allison v. State,

No. 14–0925, 2015 WL 5278968, at *1–2 (Iowa Ct. App. Sept. 10, 2015)

(first PCR appeal; holding no breach of duty by trial counsel).        Allison

offers no evidence now that an investigation by trial counsel then would

have led to the juror’s disqualification or a new trial.       See State v.

Webster, 865 N.W.2d 223, 239 (Iowa 2015) (noting that “[i]f we

disqualified jurors because they empathized with the family of crime

victims, we would have no jurors” and rejecting challenge to juror who

“liked” comment by victim’s stepmother on Facebook during trial). This

is not a compelling test case to blow up the statute of limitations.

      VII. This Is a Matter for the Legislature.

      I would defer to the legislature to make the policy decision whether

to extend the deadlines for PCR actions to allow multiple bites at the

apple and unlimited time to challenge a criminal conviction. See Davis,

443 N.W.2d at 710–11 (upholding constitutionality of three-year time-bar

for PCR actions and stating that “the legislature, within its sound

discretion, may determine the proper limitation period”).
                                    64

      Unlike Schmidt, which was decided under the Iowa Constitution,

today’s decision is based on statutory interpretation. See 909 N.W.2d at

993–95. The legislature can have the last word and should amend the

statute to abrogate today’s decision.

    VIII. The Other        Grounds       Raised    by   Allison   Are   Also
Nonmeritorious.

      The court of appeals in Allison’s latest PCR appeal correctly held

that he failed to preserve error on his claim that his proposed amended

petition avoided section 822.3’s time-bar through a cryptic, conclusory

allegation that he “has reason to believe that the victim and other

witnesses have recanted their testimony.” He provided no affidavit of the

victim or any witness purporting to recant trial testimony. The district

court did not decide that claim, and Allison failed to file a motion to

enlarge or amend under Iowa Rule of Civil Procedure 1.904(2) as required

for appellate review. Even if we overlook error preservation, I agree with

the court of appeals that those “vague and unsupported statements” in

his proposed amended petition “are insufficient to avoid a motion to

dismiss [because he] does not even assert the new facts and law ‘could

not have been raised within the applicable time period.’ ”
      For these reasons, I respectfully dissent.

      Mansfield and Zager, JJ., join this dissent.
