                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-0489
                               Filed December 20, 2017


FLOYD EUGENE CROSS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



      An applicant appeals the district court’s summary dismissal of his

application for postconviction relief. AFFIRMED.




      Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.

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

General, for appellee State.




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

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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SCOTT, Senior Judge.

       Floyd Cross was convicted of first-degree robbery and willful injury causing

serious injury in 2007. He appealed, and this court affirmed his conviction. See

State v. Cross, No. 07-0599, 2008 WL 3916703, at *3 (Iowa Ct. App. Aug. 27,

2008). Following the appeal, procedendo was entered October 24, 2008. Cross

then filed a postconviction relief (PCR) application, raising a number of ineffective-

assistance-of-counsel claims. His application was denied, and we affirmed in part

and reversed in part that denial on appeal. See Cross v. State, No. 10-0968, 2012

WL 5356167, at *2-5 (Iowa Ct. App. Oct. 31, 2012) (finding Cross failed to prove

his trial counsel was ineffective but his two convictions should be merged).

       Cross then filed a second application for PCR September 24, 2015. The

State filed a motion for summary judgement, asserting Cross’s application was

time-barred under Iowa Code section 822.3 (2015). The motion came on for a

hearing before the district court, and in a written ruling, the district court granted

the State’s motion for summary judgment and dismissed Cross’s application. The

court concluded Cross’s application was time-barred and he failed to prove he was

raising a new ground of fact or law, which would have satisfied the exception to

the three-year statute of limitations. See Iowa Code § 822.3 (providing all PCR

applications “must be filed within three years from the date . . . the writ of

procedendo is issued” but the “limitation does not apply to a ground of fact or law

that could not have been raised within the applicable time period”).

       On appeal, Cross claims his application is excused from the statute of

limitations because of a ground of law that could not have been raised within the

applicable three-year period. Specifically, he claims the case of State v. Smith,
                                         3


739 N.W.2d 289 (Iowa 2007), changed the substantive law regarding how juries

are to be instructed on joint criminal conduct, Smith should be applied retroactively

to his case, and he could not have raised this argument earlier until the case of

State v. Shorter, No. 14-1239, 2016 WL 3272291, at *3-4 (Iowa Ct. App. June 15,

2016), was decided.

       We begin by noting our decision in Shorter has been vacated by the

supreme court and is no longer good law for Cross to rely on in his attempt to

excuse the late filing of his PCR claim. See State v. Shorter, 893 N.W.2d 65, 68

(Iowa 2017). Secondly, Cross never asserted in the district court that our decision

in Shorter in any way affected his argument that the ground-of-law exception to

three-year statute of limitations should apply to his PCR application. Thus, his

argument that Shorter is a new ground of law that could not have been raised

within the statute of limitations has not been preserved. Lamasters v. State, 821

N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that

issues must ordinarily be both raised and decided by the district court before we

will decide them on appeal.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 537

(Iowa 2002)). Finally, even if our decision in Shorter were still good law and

assuming such claim had been preserved, our decision in Shorter did not “change”

the law with respect to the jury instruction for joint criminal conduct; it merely

attempted to apply the then-existing law as articulated by State v. Tyler, 873

N.W.2d 741, 752–54 (Iowa 2016), and Smith, 739 N.W.2d at 295. See State v.

Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989) (holding the ground-of-law

exception is meant “to allow for a review of a conviction if there has been a change

in the law that would [a]ffect the validity of the conviction” (emphasis added)).
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Thus, our opinion in Shorter does not excuse Cross’s late filing of his second PCR

application.

       Cross did assert in the district court that Smith, 739 N.W.2d at 295, changed

the law with respect to the joint-criminal-conduct jury instruction and this change

should be retroactively applied to his case.1 However, as noted by the district

court, Smith was decided in 2007, and thus, this claim could have been raised in

Cross’s first PCR application,2 which was filed within the applicable three-year

statute of limitations. The decision in Smith does not satisfy the ground-of-law

exception to the three-year statute of limitations in order to save Cross’s second

PCR application.

       Finally, Cross cites the case of Tyler, 873 N.W.2d at 752–54, in his brief in

support of his appeal. While the Tyler decision was filed after the expiration of the

three-year statute of limitations, it cannot satisfy the exception to the three-year

bar because, again, the case merely applied the Smith decision.                  Tyler, 873




1
  We also note that even if Cross could get beyond the three-year statute of limitations for
his claim, the Smith case provided that its holding would be applicable to future cases.
See 739 N.W.2d at 295 (“In the future, if a court is going to instruct the jury on the theory
of joint criminal conduct, it should incorporate the elements of joint criminal conduct as set
forth in this opinion, rather than instructing the jury with the general language of section
703.2.” (emphasis added)).
2
  We also note Cross did challenge the joint-criminal-conduct jury instruction in his first
PCR application. See Cross, 2012 WL 5356167, at *4. In the appeal from the first PCR
application, this court rejected Cross’s assertion he received ineffective assistance
because his counsel did not object to the jury instruction on aiding and abetting and joint
criminal conduct. Id. We concluded:
         [T]he marshaling instruction directed the jury to consider Cross’s conduct
         alone. Therefore, he would have been found guilty based on his own
         conduct. See State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998) (finding
         there was no error in giving an instruction on joint criminal conduct where
         there was no opportunity for the defendant to have been found guilty based
         on anything other than his own conduct).
Id.
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N.W.2d at 752–54. As stated earlier, the ground-of-law exception allows “for a

review of a conviction if there has been a change in the law that would [a]ffect the

validity of the conviction.” Edman, 444 N.W.2d at 106 (emphasis added). Tyler

did not change the law, and thus, it does not satisfy the ground-of-law exception.

       The procedendo following Cross’s direct appeal was entered October 24,

2008, and Cross did not file this current PCR application until September 24, 2015,

more than three years later. None of the cases cited by Cross satisfy the ground-

of-law exception to the statute of limitations. Therefore, we agree with the district

court’s conclusion that Cross’s second PCR application is time-barred, and we

affirm the dismissal.

       AFFIRMED.
