                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1997
                            Filed December 23, 2015


MICHAEL HOWARD LANG,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson, Judge.



      An applicant appeals from the trial court’s refusal to permit an amendment

to his postconviction-relief application and its dismissal granted pursuant to the

State’s motion for summary judgment. AFFIRMED.



      Tod J. Deck of Deck Law, L.L.P., Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., Bower, J., and Goodhue, S.J.*

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

      Michael Howard Lang appeals from the trial court’s refusal to permit an

amendment to his postconviction-relief application and its dismissal granted

pursuant to the State’s motion for summary judgment.

   I. Background Facts and Proceedings

      Lang was convicted of kidnapping in the first degree in 1989 and

sentenced to prison for life without parole.      The conviction was based on

kidnapping accompanied by torture.       Lang appealed and the conviction was

affirmed. See State v. Lang, No. 88-1469,         WL      (Iowa Ct. App. Mar. 27,

1990). He has since filed six requests for postconviction relief and one action for

habeas corpus with the federal courts.

      The State filed a combined motion for summary judgment and statement

of undisputed facts asking the court to take judicial notice of Lang’s previous

applications for postconviction relief and their dismissal. The State asserted that

his claims were all barred by the three-year statute of limitations, by a failure to

raise the claim in a previous proceeding, or by a prior adjudication, all as

provided by statute. See Iowa Code § 822.3 (2013). To the extent that the

State’s motion consisted of a statement of undisputed facts, the asserted facts

were not resisted by Lang.

      After the State filed its motion for summary judgment, Lang filed a request

to supplement his application for postconviction relief accompanied by the

proposed supplemental application. The supplement’s sole claim was that the

sentence imposed on Lang constituted cruel and unusual punishment prohibited
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under the Eighth Amendment of the United States Constitution and article 1,

section 17 of the Iowa constitution.

       The trial court granted the State’s motion for summary judgment and

denied Lang’s request to have the supplemental application considered. The

court found that Lang’s claim of a violation of the prohibition against cruel and

unusual punishment had previously been considered and denied in one of Lang’s

prior appeals. See State v. Lang, No. 10-1797, 2011 WL 5867932 (Iowa Ct. App.

Nov. 23, 2011). The trial court reasoned that no justiciable issue existed and

therefore, the amendment should not be granted. In addition, the trial court,

pursuant to Iowa Code section 610A.3, sanctioned Lang by ordering that fifty

percent of any earned-time credits accrued should be forfeited and if no good-

time credits existed, twenty-five percent of the average balance of his inmate

account should be forfeited as provided for in Iowa Code section 904.7202.

       Lang has appealed and in his brief has challenged the trial court’s order of

sanctions, the denial of his request to file an amendment to the application for

postconviction relief, and the trial court’s finding that the issue of cruel and

unusual punishment had already been adjudicated.

   II. Error Preservation

       When there is a claim that a sentence is inherently illegal based on its

violation of a constitutional provision it may be brought at any time. State v.

Bruegger, 773 N.W.2d 862, 871 (Iowa 2009).

   III. Scope and Standard of Review

       A court’s denial of a request to amend is reviewed for a clear abuse of

discretion. Atlantic Veneer Corp. v. Sears, 232 N.W.2d 499, 503 (Iowa 1975). A
                                        4


trial court’s ruling on a motion to amend will be reversed only when a clear abuse

of discretion exists. Id. To the extent that the request to amend was in the

context of a request for postconviction relief, the review is for errors of law,

except when a constitutional issue is involved, the review is de novo. Lamasters

v. State, 821 N.W.2d 856, 862 (Iowa 2012).

   IV. Discussion

      Amendments are to be freely given when justice requires. Iowa R. Civ. P.

1.402(4).   Courts are further advised to grant amendments if an amendment

does not substantially change the issues or constitute a surprise to the other

party. Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 767 (Iowa 2002). Lang had

attacked his sentence in a previous postconviction-relief action on the grounds

that it constituted cruel and unusual punishment. See Lang, 2011 WL 5867932,

at *1. When an amendment presents no justiciable issue, it should be denied.

Midthun v. Pasternak, 420 N.W.2d 465, 468 (Iowa 1988).

      Lang contends the issue was not adequately briefed or argued in the

previous case.    Lang places reliance on the appellate court’s footnote that

observed the absence of the development of Lang’s claim of a cruel and unusual

sentence.   Lang, 2011 WL 5867932, at *3 n.1.        However, the trial court did

consider the issue, and the appellate court also considered the issue on its

review. Id. at *1-3. Lang further asserts that the court of appeals, in its ruling

stated above, completely ignored the rules relative to cruel and unusual

punishment as set out in the leading case of Solem v. Helm, 463 U.S. 277, 291-

92 (1983). The Solem case sets out a three-part test, with the initial or threshold

test being a preliminary judicial evaluation of whether the sentence reviewed is
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grossly disproportionate to the underlying crime. Bruegger, 773 N.W.2d at 873

(citing Solem, 463 U.S. at 292). The court of appeals, in its opinion considering

Lang’s previous claim of cruel and unusual punishment, specifically cited Iowa

cases holding that a life sentence for kidnapping, with one of the statutorily

prescribed enhancements raising it to first-degree kidnapping, did not amount to

disproportionate sentencing.     Lang, 2011 WL 5867932, at *2.            The court

concluded that Lang’s sentence fell under the same classification.         Id.   The

threshold set out in Solem was never met. Our supreme court has indeed stated

that it is a rare sentence in which a threshold comparison of the crime committed

and sentence imposed is so grossly disproportionate as to warrant further review.

State v. Musser, 721 N.W.2d 734, 749 (Iowa 2006). If Lang was dissatisfied with

the 2011 decision of the court of appeals, his remedy was to seek further review

from the supreme court.

       A postconviction proceeding is not a vehicle to relitigate issues that have

been previously litigated. State v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971).

The legislature reinforced the general concept of res judicata by a statute

providing that, “Any ground finally adjudicated . . . 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.” Iowa Code

§ 822.8.

       Lang contends that he has the right to challenge the cruel and unusual

punishment prohibition as to his particular offense, under the “progress of

society” analysis, citing Trop v. Dulles, 356 U.S. 86, 100-01 (1958). The rule that

an inherently illegal sentence based on the violation of a constitutional or
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statutory provision can be raised at any time eliminates the necessity to preserve

error. However, it does not give a party license to raise new attacks ad infinitum

on a conviction or sentence by raising a new reason or argument as to a claim or

issue already litigated. See Iowa Code § 822.8. The trial court did not abuse its

discretion in failing to grant Lang’s request for an amended petition.

   V. Sanctions Imposed

       The State does not contest error preservation as to this issue. Our review

is for abuse of discretion. See Maghee v. Iowa Dist. Ct., 712 N.W.2d 687, 695

(Iowa 2006). This is the sixth postconviction relief effort that Lang has made,

plus he appealed of the conviction and sentence and brought a federal habeas

corpus action. In addition, this postconviction action was predicated on a matter

raised by a previous proceeding instigated by Lang and ruled on adversely to his

claim. The power to sanction criminal defendants under certain circumstances

represents the legislature’s attempt to deter inmates from filing frivolous lawsuits.

Id. at 692. Given that Lang raised no unaddressed issue on this, his eighth

attack on his conviction and sentence, it was clearly frivolous. The sanctions

imposed appear appropriate.

       AFFIRMED.
