                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0350
                              Filed April 18, 2018


JOHN LESLIE NICHOLAS GRAVES,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.



      John Graves appeals from the dismissal of his application for postconviction

relief. AFFIRMED.




      Daniel M. Northfield, Urbandale, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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DANILSON, Chief Judge.

          John Graves appeals from the dismissal of his third application for

postconviction relief (PCR), arguing the district court improperly granted summary

judgment to the State. Finding no error in the dismissal of the application, we

affirm.

          In an appeal from the denial of Graves’s first PCR application, this court

rejected Graves’s argument that “his trial, appellate, and postconviction counsel

rendered ineffective assistance for failing to object to the felony murder and willful

injury jury instructions.” Graves v. State, No. 06-0369, 2007 WL 1484512, at *3

(Iowa Ct. App. May 23, 2007). We observed,

                 Graves’s argument is based on the application of State v.
          Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), to his case. That case,
          however, was decided after Graves’s trial and direct appeal. Until
          Heemstra, the instructions given at Graves’s trial were
          commensurate with the law. See Heemstra, 721 N.W.2d at 557-58.
          His counsel had no duty to anticipate the change. See State v.
          Liddell, 672 N.W.2d 805, 814 (Iowa 2003).
                 Furthermore, according to Heemstra,
                 The rule of law announced in this case regarding the
                 use of willful injury as a predicate felony for felony-
                 murder purposes shall be applicable only to the
                 present case and those cases not finally resolved on
                 direct appeal in which the issue has been raised in the
                 district court.
          Id.
                 Graves relies on Teague v. Lane, 489 U.S. 288, 299-300
          (1989), for the proposition that “once a new [constitutional rule of
          criminal procedure] is applied to the defendant in the case
          announcing the rule, evenhanded justice requires that it be applied
          retroactively to all who are similarly situated.” Graves’s argument is
          inapposite. We need not reach the question of retroactivity Graves
          urges because Heemstra did not announce a new constitutional rule
          of criminal procedure. Instead, the case interpreted a state statute.
          The Supreme Court cannot construe a state statute, whether it is
          procedural or substantive in nature, differently from the construction
          rendered by the state’s highest court. Johnson v. Fankell, 520 U.S.
                                           3

         911, 916 (1997). Therefore, the new law established in Heemstra is
         not applicable to Graves.

Graves, 2007 WL 1484512, at *3.

         Graves filed a second PCR application challenging the felony-murder

instruction. The application was denied on January 28, 2013, and no appeal was

filed.

         Graves filed this third PCR application on May 12, 2016.          The State

responded with a motion for summary judgment and dismissal. Graves resisted,

contending the application was grounded on new law, that is, “after multiple United

States Supreme Court cases came down from January to April of 2016 that directly

call into question whether or not Iowa Courts are required to apply Heemstra

retroactively.”1 Graves argued these cases started the three-year-limitation period

again. The court heard arguments on the parties’ positions and ruled:

                [Graves] argues that Montgomery v. Louisiana, 136 S. Ct. [at]
         728, demands the retroactive application of Heemstra.               In
         Montgomery, the United State Supreme Court held that new
         substantive rules of constitutional law must be applied retroactively.
         Id. The court does not need to consider whether Montgomery
         applies to the current case, as the Iowa Supreme Court has already
         decided that Montgomery does not require the retroactive application
         of Heemstra. In Nguyen [v. State, 878 N.W.2d 744, 754 (Iowa 2016)
         (Nguyen II)], the applicant submitted Montgomery as additional
         authority on the federal approach to retroactivity. Nguyen II, 878
         N.W.2d at 753, n.4. The court noted that Montgomery did not assist
         them in deciding the case, as Montgomery dealt with changes in
         constitutional law, and “Heemstra did not create a new substantive
         rule of constitutional dimension.” Id. In accordance with the ruling
         of the Iowa Supreme Court, this court must also rule that
         Montgomery does not require the retroactive application of
         Heemstra.


1
  Specifically, Graves cites Montgomery v. Louisiana, 136 S. Ct. 718, 723 (2016), Welch
v. United States, 136 S. Ct. 1257 (2016), and Johnson v. United States, 135 S. Ct. 2551
(2015), as having “clarified when a law was required to be applied retroactively.”
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               [Graves] also argues that Welch v. United States requires the
       retroactive application of Heemstra. . . . The Court in Welch did not
       announce a new framework for the determination of retroactivity; it
       simply applied existing frameworks to the issue before the Court.
       [136 S. Ct. at 1266-67.] As there was no new law announced in
       Welch, it cannot serve as a ground of new law to provide an
       exception to the statute of limitations in Iowa Code section 822.3.
       Further, the case examined in Welch was decided on constitutional
       grounds, therefore the analysis of retroactive application in Welch
       was of a new substantive rule of constitutional law. As stated above
       and in Nguyen II, such analysis does not assist the court in the
       determining the outcome of this case, as “Heemstra did not create a
       new substantive rule of constitutional dimension.” Nguyen II, 878
       N.W.2d at 753, n.4. [Graves] has not provided any new ground of
       law that would create an exception to Iowa Code section 822.3. As
       the writ of procedendo in [Graves’s] underlying conviction was issued
       more than three years ago, [Graves’s] application for postconviction
       relief is untimely under Iowa Code section 822.3 and is hereby
       dismissed.

       Graves appeals. Finding no error of law in the court’s analysis, we affirm.

See Iowa Ct. R. 21.26(1)(c), (d), (e).

       AFFIRMED.
