                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0817
                               Filed June 15, 2016


DANIEL MAURICE CLAYBON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,

Judge.



      Daniel Claybon appeals the dismissal of his fourth application for

postconviction relief. AFFIRMED.




      Mark C. Meyer, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
                                         2


DANILSON, Chief Judge.

       Daniel Claybon appeals the district court’s dismissal of his fourth

application for postconviction relief (PCR), in which the district court concluded

Claybon’s claims were time-barred. We review the dismissal as time-barred for

errors of law. Harrington v. State, 659 N.W.2d 509, 519–20 (Iowa 2003).

       In 1990, Claybon was convicted of first-degree murder, with the jury

returning a guilty verdict on felony murder with the felony being “willful injury

and/or robbery.” Claybon’s conviction was affirmed on direct appeal in 1992, and

prior postconviction-relief actions have been denied. See Claybon v. State, No.

12-1396, 2014 WL 1999057, at *1–2 (Iowa Ct. App. May 14, 2014).              In the

appeal from the dismissal of his third PCR action, Claybon asserted his “case

should be remanded to the Black Hawk County District Court for a determination

as to whether retroactive application of Heemstra is required by the equal

protection, due process and separation of powers clauses of the Iowa

Constitution, or the equal protection clause of the United States Constitution.” Id.

at *2. We declined to address the claim because he had not made it in the

district court. Id.

       Claybon then filed the current PCR application in October 2014, asserting

the 2013 ruling in Nguyen v. State constitutes a new ground of law that could not

have been raised within three years of his conviction becoming final; retroactive

application of Heemstra is required by the equal protection, due process, and

separation of powers clauses of the Iowa Constitution, or the equal protection

clause of the United States Constitution; and his sentence was illegal. He claims

he is in a similar position as Nguyen because he was convicted of first-degree
                                         3


murder under the felony-murder alternative and the three-year PCR statute of

limitations ran before Heemstra was decided.

       In 2013, our supreme court issued the opinion in Nguyen, 829 N.W.2d

183, 188 (Iowa 2013),      in which the court determined its ruling in State v.

Heemstra, 721 N.W.2d 549 (2006), was a new ground of law so as to excuse the

three-year statute-of-limitations bar for postconviction-relief cases.   See Iowa

Code § 822.3 (2013) (noting all actions for postconviction relief must be filed

within three years from the date the conviction becomes final or the procedendo

is issued in the case of a direct appeal). Because Nguyen had filed his PCR

application within three years of the Heemstra decision, Nguyen’s case was

remanded for the district court to consider the merits of Nguyen’s constitutional

claims that Heemstra should be retroactivity applied.1 Nguyen, 829 N.W.2d at

189.

        Claybon asserts, as have several other PCR applicants, that the Nguyen

holding is itself a new ground of law when it held the Heemstra decision was a

new ground of law in order to avoid the three-year statute of limitations. The

district court denied Claybon’s argument, and we have denied similar arguments

on appeal.2


1
  In the prior appeal, we observed:
        Claybon already raised a Heemstra claim in his 2006 PCR application
        and did not then contend that the denial of retroactive application violated
        his constitutional rights. Nor did he make that claim in his third PCR
        application filed July 2011. Even if he had made the claim in this third
        application, it would have been time-barred as it was filed more than three
        years after Heemstra was decided.
Claybon, 2014 WL 1999057, at *2 n.4.
2
   See Smith v. State, 15-0266, ___ N.W.2d ___, ___ (Iowa Ct. App. 2016); see also
Burkett v. State, No. 14-0998, 2015 WL 5278970, at *3–4 (Iowa Ct. App. Sept. 10,
2015); see also Moore v. State, No. 14-1241, 2016 WL 1358489, at *2–3 (Iowa Ct. App.
                                         4


       Even assuming Claybon is somehow excepted from the three-year statute

of limitations of section 822.3, the merits of Nguyen’s arguments—that the Iowa

and United States Constitutions require the Heemstra decision to be retroactively

applied—were rejected by our supreme court. See Nguyen v. State, ___ N.W.2d

___, ___, 2016 WL 920320, at *9–14 (Iowa 2016). The supreme court ruled:

       [W]e conclude that Nguyen’s postconviction counsel were not
       ineffective for failing to pursue a nonconstitutional, common law
       retroactivity argument. We also conclude that the nonretroactive
       application of Heemstra does not violate the due process,
       separation of powers, or equal protection clauses of the Iowa
       Constitution or the Equal Protection Clause of the United States
       Constitution.

Id. at *14. Moreover, the Nguyen court observed that Montgomery v. Louisiana,

577 U.S. ___, 136 S. Ct. 718 (2016)—a case which Claybon raises as an

additional authority—did “not assist us in deciding this case. . . . Heemstra did

not create a new substantive rule of constitutional dimension.” Id. at 8 n.4.

       Claybon contends his sentence is illegal. This contention is grounded

upon his reliance on Montgomery.

       “A defendant may challenge an illegal sentence at any time.” State v.

Hoeck, 843 N.W.2d 67, 70 (Iowa 2014).

       [A] challenge to an illegal sentence includes claims that the court
       lacked the power to impose the sentence or that the sentence itself
       is somehow inherently legally flawed, including claims that the
       sentence is outside the statutory bounds or that the sentence itself
       is unconstitutional. This conclusion does not mean that any
       constitutional claim converts a sentence to an illegal sentence.



Apr. 6, 2016); Sihavong v. State, No. 14-0440, 2016 WL 351286, at *2 (Iowa Ct. App.
Jan. 27, 2016); Thompson v. State, No. 14-0138, 2015 WL 1332352, at *1 (Iowa Ct.
App. Mar. 25, 2015); Bear v. State, 13-2077, 2015 WL 1054977, at *1 (Iowa Ct. App.
Mar. 11, 2015); Claybon v. State, No. 12-1396, 2014 WL 1999057, at *2 n.4 (Iowa Ct.
App. May 14, 2014).
                                        5

State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009) (emphasis added).

      The rule does not allow litigants to “reassert or raise for the first time

constitutional challenges to their underlying conviction.” Id. The district court

correctly dismissed Claybon’s assertion that this conviction was erroneously

entered, and therefore, his sentence was illegal. See Kurtz v. State, 854 N.W.2d

474, 479 (Iowa Ct. App. 2014) (“[T]here is no Iowa authority to suggest that a

claim of an illegal sentence can be used to collaterally attack the conviction upon

which an illegal sentence is based.”).      Claybon’s conviction has not been

successfully challenged, and his assertion of an illegal sentence is a

mischaracterization of such a claim.

      We affirm the district court’s dismissal of Claybon’s PCR application.

      AFFIRMED.
