                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0440
                             Filed January 27, 2016


TONY SIHAVONG,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
_______________________________________________________________

      Appeal from the Iowa District Court for Polk County, Rebecca Goodgame

Ebinger, Judge.



      Applicant appeals the district court decision denying his request for

postconviction relief from his conviction for first-degree murder. AFFIRMED.



      John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for

appellant.

      Tony Sihavong, Anamosa, appellant pro se.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Alexandra Link,

Assistant Attorneys General, for appellee.



      Considered by Vogel, P.J., Vaitheswaran, J., and Scott, S.J.*

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

       Applicant Tony Sihavong appeals the district court decision denying his

request for postconviction relief from his conviction for first-degree murder. We

determine Sihavong’s application is untimely under Iowa Code section 822.3

(2013).     We conclude the district court properly denied his request for

postconviction relief and affirm.

       I.      Background Facts & Proceedings

       Sihavong was convicted of first-degree murder in 2002 and was

sentenced to life in prison. His conviction was affirmed on appeal. See State v.

Sihavong, No. 02-1447, 2003 WL 22697627, at *1 (Iowa Ct. App. Nov. 17, 2003).

Procedendo was issued on February 13, 2004.

       Sihavong filed an application for postconviction relief, which was

dismissed as frivolous on March 16, 2007. He then filed a second application for

postconviction relief, arguing State v. Heemstra, 721 N.W.2d 549 (Iowa 2006),

should be applied retroactively.1 On March 23, 2010, the Iowa Supreme Court

granted the State’s motion to affirm the district court’s decision denying his

second request for postconviction relief.            Sihavong’s third application for

postconviction relief was dismissed as frivolous on July 6, 2012.

       Sihavong filed his present and fourth application for postconviction relief

on February 7, 2013. He asserted the failure to apply Heemstra retroactively

violated his rights under the equal protection clause of the United States

Constitution and the equal protection, due process, and separation of powers

1
   The case of Heemstra held “if the act causing willful injury is the same act that causes
the victim’s death, the former is merged into the murder and therefore cannot serve as
the predicate felony for felony-murder purposes.” 721 N.W.2d at 588.
                                          3


clauses of the Iowa Constitution.         The State claimed Sihavong’s fourth

application for postconviction relief was untimely under the three-year statute of

limitations in section 822.3.   The district court discussed whether Sihavong’s

application was untimely, but found the issue was not determinative because the

application was also barred under section 822.8 due to “Sihavong’s new

arguments related to the retroactivity of Heemstra should have and could have

been raised in his second application for postconviction relief.”         Sihavong

appeals the district court’s decision.

       II.    Standard of Review

       In general, our review of the denial of an application for postconviction

relief is for the correction of errors at law. Perez v. State, 816 N.W.2d 354, 356

(Iowa 2012). When there is an allegation of a constitutional error, however, we

review de novo in light of the totality of the circumstances. Id.

       III.   Timeliness of Application

       On appeal, the State claims Sihavong’s application is untimely under

section 822.3. Because the issue was raised in the district court and discussed

by the court, although it was not the basis for the court’s decision, we conclude it

has been preserved for our review. See DeVoss v. State, 648 N.W.2d 56, 61

(Iowa 2002) (“We have in a number of cases upheld a district court ruling on a

ground other than the one upon which the district court relied provided the

ground was urged in that court.”).

       Section 822.3 provides that an application for postconviction relief “must

be filed within three years from the date the conviction or decision is final or, in
                                           4


the event of an appeal, from the date the writ of procedendo is issued.” Here,

procedendo from Sihavong’s direct appeal was issued on February 13, 2004,

and the present application for postconviction relief was filed almost nine years

later, on February 7, 2013. The application is thus untimely unless it comes

within the exception for “a ground of fact or law that could not have been raised

within the applicable time period.” See Iowa Code § 822.3. Sihavong has the

burden to show his application comes within the exception to the three-year

statute of limitations. See Cornell v. State, 529 N.W.2d 606, 610 (Iowa Ct. App.

1994).

         In Nguyen v. State, 829 N.W.2d 183, 184 (Iowa 2013), the applicant

sought postconviction relief after the three-year statute of limitations in section

822.3 had expired, but within three years after the Iowa Supreme Court decided

Heemstra.      The court concluded, “section 822.3 does not bar Nguyen’s

constitutional claims” because Heemstra, which “expressly overruled the prior

law,” constituted a ground of law that could not have been raised within the

applicable time period. Nguyen, 829 N.W.2d at 188.

         Unlike Nguyen, however, Sihavong did not file this fourth application for

postconviction relief within three years after Heemstra was decided.2 Heemstra

was filed on August 25, 2006, and Sihavong’s application for postconviction relief

was filed on February 7, 2013. We conclude Sihavong’s application is untimely


2
   This same conclusion, that for an application for postconviction relief challenging a
conviction based on the holding in Heemstra to be timely it should be filed within three
years after Heemstra was decided, has been reached in other Iowa Court of Appeals
opinions. See Burkett v. State, No. 14-0998, 2015 WL 5278970, *3 (Iowa Ct. App. Sept.
10, 2015); Thompson v. State, No. 14-0138, 2015 WL 1332352, *1 (Iowa Ct. App. Mar.
25, 2015).
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under section 822.3.      Furthermore, even if the application was timely,

Sihavgong’s claims would be barred by section 822.8 because there was no

sufficient cause or reason why he could not have raised the claims in his second

application for postconviction relief. See Iowa Code § 822.8 (providing grounds

for relief may not be raised if they could have been raised in an earlier

proceeding, unless there is a “sufficient reason” for not raising the grounds

earlier).

       We affirm the decision of the district court denying Sihavong’s request for

postconviction relief.

       AFFIRMED.
