                   IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0534
                                  Filed July 27, 2016


ALBERT BENNY WHITESIDE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      Albert Benny Whiteside appeals the dismissal of his postconviction-relief

application as untimely. AFFIRMED.




      Lauren M. Phelps, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

       Albert Benny Whiteside appeals the dismissal of his postconviction-relief

(PCR) application, alleging the PCR court erred in finding his application

untimely. We affirm.

       I.     Background Facts and Proceedings

       In 2000, a jury convicted Whiteside of kidnapping in the first degree and

sexual abuse in the third degree. His conviction was affirmed on appeal. See

State v. Whiteside, No. 00-941, 2001 WL 709540, at *5 (Iowa Ct. App. June 13,

2001). Whiteside filed his first PCR application in 2001, which was denied. The

appeal of the denial was dismissed as frivolous and procedendo issued

December 3, 2003.1 Whiteside then filed a pro se PCR application in June 2011,

which is now before this court.

       In his application, Whiteside alleged, in relevant part, newly discovered

evidence, prosecutorial misconduct for failing to disclose the criminal history of a

State witness, and ineffective assistance of counsel based on trial counsel’s

failure to investigate the criminal background of the State witness. In June 2014,

Whiteside filed pro se a document entitled “Legal Memorandum Concerning

Brady Violation and Newly Discovered in Light of Liggins v. State.” Whiteside

alleged the State failed to disclose that the same State witness was a paid

informant and reiterated that the witness had a criminal record the State had

suppressed. In a forty-page pro se brief filed with the district court in support of



1
 In 2010, Whiteside filed a pro se motion to produce; it was summarily denied by the
district court. Whiteside appealed, which the Iowa Supreme Court treated as an
application for discretionary review and denied in January 2011.
                                            3


his PCR application,2 Whiteside repeatedly stated the purported newly

discovered evidence consisted of the criminal record of the State’s key witness. 3

         In January 2015, the State moved to dismiss the action as time-barred

under Iowa Code section 822.3 (2011). Whiteside resisted, arguing the PCR

application was based on the newly discovered evidence of the State witness’s

criminal history. The PCR court granted the State’s motion on February 5, 2015.

Whiteside filed a motion to amend or enlarge, which the PCR court denied.

Whiteside appeals the PCR court’s ruling and also asserts his PCR counsel was

ineffective.

         II.   Standard and Scope of Review

         PCR proceedings, including summary dismissal of PCR applications, are

generally reviewed for errors at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa

2011).

         We review ineffective-assistance-of-counsel claims de novo. See State v.

Tompkins, 859 N.W.2d 631, 636 (Iowa 2015). In order to prove an ineffective-

assistance-of-counsel claim, an appellant must show by a preponderance of the

evidence that counsel (1) failed to perform an essential duty and (2) prejudice

resulted. Id. at 637. We can resolve ineffective-assistance-of-counsel claims

under either prong. State v. Ambrose, 861 N.W.2d 550, 556 (Iowa 2015).




2
  The pro se brief was filed with the PCR court on February 4, 2015, as an attachment to
the resistance to the motion to dismiss. The State indicates the brief was originally filed
in 2011 as part of the initiation of the PCR claim.
3
  Whiteside also makes reference in this brief to the witness having undisclosed aliases.
                                          4


       III.   Analysis

       Iowa Code section 822.3 provides that a PCR action must be commenced

“within three years from the date the conviction or decision is final or, in the event

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

contends he is exempt from this time limitation because the basis of his PCR

claim is newly discovered evidence. See Iowa Code § 822.3 (“However, this

limitation does not apply to a ground of fact or law that could not have been

raised within the applicable time period.”); Perez v. State, 816 N.W.2d 354, 360

(Iowa 2012) (“A reasonable interpretation of [Iowa Code section 822.3] compels

the conclusion that exceptions to the time bar would be, for example, newly-

discovered evidence or a ground that the application was at least not alerted to in

some way.” (citation omitted)). The alleged newly discovered evidence proffered

by Whiteside on appeal is that a witness for the State at trial had a criminal

record, was a paid police informant, and was possibly coerced by the State.

       To fall within the section 822.3 time-bar exception, Whiteside must

demonstrate “the alleged ground of fact could not have been raised earlier” and

“a nexus between the asserted ground of fact and the challenged conviction.”

Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003). To show the facts could

not have been raised earlier, Whiteside must prove “they were discovered after

the verdict in his criminal trial and that they could not have been discovered

earlier than they were discovered in the exercise of due diligence.” Id. at 521.

       With regard to Whiteside’s substantive claim, a PCR application based on

newly discovered evidence is subject to the same analysis as a motion for new

trial based on the same.      See Schawitsch v. State, No. 11-0743, 2012 WL
                                        5


1439223, at *3 (Iowa Ct. App. Apr. 25, 2012) (“It is obvious the legislature

intended the sufficiency of the showing necessary to obtain a new trial based on

newly discovered evidence to be the same whether the ground is raised in a

motion for new trial or in a postconviction application.” (quoting State v. Sims,

239 N.W.2d 550, 555 (Iowa 1976))). To prevail on a newly-discovered-evidence

claim, Whiteside must show the proffered evidence (1) was discovered after the

verdict, (2) could not have been discovered “earlier in the exercise of reasonable

diligence,” (3) “is material to the issues in the case and not merely cumulative or

impeaching,” and (4) “probably would have changed the result of the trial in

which [he] was convicted.” State v. Weaver, 554 N.W.2d 240, 246 (Iowa 1996);

see also State v. Romeo, 542 N.W.2d 543, 550 (Iowa 1996). While this standard

applies to a substantive PCR claim based on newly discovered evidence under

section 822.2(4), our supreme court has expressly rejected “any requirement that

an applicant must show the ground of fact [under section 822.3] would likely or

probably have changed the outcome of the underlying criminal case in order to

avoid a limitations defense.” Harrington, 659 N.W.2d at 520-21.

      In granting the State’s motion to dismiss, the PCR court determined the

criminal-record evidence did not fall within the section 822.3 exception because it

could have been discovered in the first PCR action, had the defendant “simply

requested, pursuant to the rules of discovery in the Iowa Rules of Civil

Procedure, that [the witness’s] criminal history be revealed.” We agree that there

is nothing in the record that indicates this information could not have been

discovered, in the exercise of reasonable diligence, at the time of trial or during

Whiteside’s first PCR action.
                                          6


       On appeal, Whiteside contends there were two additional pieces of newly

discovered evidence: the witness was a paid informant and she was possibly

coerced by the State.

       As to the claim the State witness was a paid informant, Whiteside failed to

assert this in his PCR application, brief in support of his PCR application, or in his

resistance to the motion to dismiss. Following the court’s ruling on the motion to

dismiss, Whiteside, through counsel, filed a motion to amend or enlarge pursuant

to Iowa Rule of Civil Procedure 1.904(2). Nowhere in this motion did Whiteside

request that the PCR court consider the additional allegation that the State

witness was a paid informant. Accordingly, this claim is not preserved for our

review.   See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a

fundamental doctrine of appellate review that issues ordinarily be both raised and

decided by the district court before we will decide them on appeal. . . . When a

district court fails to rule on an issue properly raised by a party, the party who

raised the issue must file a motion requesting a ruling in order to preserve error

for appeal.”); see also Jerweng v. State Dep’t of Human Servs., No. 13-1626,

2014 WL 3748542, at *2-3 (Iowa Ct. App. July 30, 2014) (finding error was not

preserved on a claim that was not pled and to which the party made only a

“passing reference” in its resistance to the State’s motion to dismiss).

       Further, Whiteside makes only one, unsubstantiated claim that the witness

was a paid police informant—which appeared in the “Legal Memorandum” filed in

June 2014 but was not otherwise referenced in Whiteside’s PCR application or

resistance to the State’s motion to dismiss. Whiteside wholly failed to allege how

this information was obtained, from whom this information was obtained, when
                                            7


this information was obtained, and why it could not have been discovered in the

exercise of reasonable diligence.

       As to the claim of coercion, Whiteside did not assert before the PCR court

that he had obtained newly discovered evidence that the State witness was

coerced. Instead, Whiteside claimed evidence of the witness’s criminal record

would serve “not only just to attack her credibility and show that she’s a

dishonest person but to also show that [her] testimony was something coerced

and motivated by the State’s threat[s].” Whiteside’s claim is, therefore, not that

there is separate newly discovered evidence, but rather that the same alleged

newly discovered evidence—that of the witness’s criminal record—could be

evidence of coercion. Further, this basis was not raised in his resistance to the

motion to dismiss or in the motion to amend or enlarge.4

       Finally, Whiteside alleges his PCR counsel was ineffective for failing to

provide documents to the PCR court, failing to prepare for the PCR hearing, and

failing to amend the pro se PCR application.                 But “an application for

postconviction relief cannot circumvent the effect of the three-year time bar by

4
  On appeal, Whiteside also argues the PCR court failed to consider his claim that the
State committed a Brady violation by withholding evidence about the witness. See
generally Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding the prosecution’s failure to
disclose evidence favorable to a defendant violates the Due Process Clause of the
Fourteenth Amendment). But before the PCR court could consider the merits of
Whiteside’s claim, it was obligated to first consider the timeliness of the claim. See
Harrington, 659 N.W.2d at 514 (determining first whether the PCR claim fell within the
section 822.3 ground-of-fact exception and, having found it did, considering the Brady
challenge on its merits). Moreover, Whiteside’s only reference to Brady was in the
“Legal Memorandum.” It was not raised in the PCR application or in his resistance to the
motion to dismiss. While Whiteside did allege “prosecutorial misconduct in not
disclosing state key witness’s lengthy criminal history” in his PCR application and brief,
the PCR court rightly found this information could have been discovered by Whiteside in
the exercise of due diligence. Again, Whiteside did not raise this alleged omission by
the PCR court in his motion to amend or enlarge. See Jerweng, 2014 WL 3748542, at
*2-3.
                                        8

merely claiming the ineffective assistance of postconviction counsel.” Jackson v.

State, No. 12-1496, 2013 WL 4505114, at *2 (Iowa Ct. App. Aug. 21, 2013)

(quoting Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995)).             “The

‘ground of fact’ exception does not extend to ineffectiveness of postconviction

counsel of any kind—including postconviction appellate counsel.”          Id.    As

Whiteside’s claims are untimely, we need not reach their merits. See Dible v.

State, 557 N.W.2d 881, 884 (Iowa 1996) (“Because the ‘ground of fact’

exception . . . is limited to grounds that would likely have changed the result of

the criminal case, such grounds may include the ineffectiveness of trial counsel,

but cannot include the ineffectiveness of appellate or postconviction counsel.”),

abrogated on other grounds by Harrington, 659 N.W.2d 509.

      For the foregoing reasons, we affirm the ruling of the PCR court.

      AFFIRMED.
