              IN THE SUPREME COURT OF IOWA
                              No. 16–1938

                        Filed February 23, 2018


FRANCISCO VILLA MAGANA,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      Appeal from the Iowa District Court for Marshall County, James C.

Ellefson, Judge.



      An applicant for postconviction relief seeks further review of a

court of appeals decision declining to reinstate his application.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED.



      Christopher Clausen of Clausen Law Office, Ames, for appellant.



      Thomas Miller, Attorney General, Timothy Mark Hau and Kevin

Cmelik, Assistant Attorneys General, Des Moines, for appellee.
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PER CURIAM.

      An application for postconviction relief was dismissed for want of

prosecution under Iowa Rule of Civil Procedure 1.944, and a motion to

reinstate the application was denied by the district court. The court of

appeals affirmed the district court.     We must determine whether the

denial of the motion to reinstate was erroneous. On further review, we

find our decision of Lado v. State, 804 N.W.2d 248 (Iowa 2011), controls

this matter. Accordingly, we vacate the decision of the court of appeals,

reverse the district court’s dismissal of the application, and remand for

further proceedings.

      I. Factual and Procedural Background.

      In 2011, Francisco Villa Magana pled guilty to various charges

related to failure to comply with the requirements of the sex offender

registry. He appealed his sentence and his sentence was affirmed. See

State v. Villa, No. 11–1134, 2012 WL 1247115 (Iowa Ct. App. 2012). Villa

then filed an application for postconviction relief (PCR) on October 17,

2012. Trial on the PCR application was initially set for August 1, 2013.

It was continued to February 13, 2014, and later to April 14.

      On March 25, 2014, Villa’s appointed PCR counsel was allowed to

withdraw because he was leaving his law firm and would be terminating

his public defender contract as of April 1. A new attorney was appointed.

This attorney immediately moved to withdraw because she had two jury

trials already scheduled in April.     A third attorney was appointed to

represent Villa. He moved for a continuance on the ground that he could

not adequately prepare by April 14. His request for a continuance was

granted. At a scheduling conference on May 12, the trial on Villa’s PCR

application was reset to July 31.
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       On July 9, the assistant county attorney moved to continue the

July 31 trial date because a personal scheduling conflict had arisen.

This request for continuance was also granted. Meanwhile, on July 15,

the clerk of court issued a rule 1.944 dismissal notice, stating the case

needed to be tried by December 31 or it would be subject to dismissal. 1

Following an August 22 scheduling conference, the PCR trial was reset to

December 11.

       On December 10, the assistant county attorney moved to continue

the December 11 trial because Villa’s original trial counsel had also

entered an appearance as Villa’s PCR counsel.                    In the motion to

continue, the State expressed concern that Villa’s claims and theories of

relief had changed.          In response, the district court ordered the court

administrator to reschedule the trial and said that it would use the

December 11 date to conduct a pretrial conference “defining [the] issues.”

It ordered both the attorney who had been appointed to represent Villa in

the PCR and the original trial counsel to appear in person.

       At the December 11 pretrial conference, Villa’s original trial

counsel explained he would be entering an appearance and filing a

motion for new trial in Villa’s original criminal case, not in the PCR


       1The   rule states,
       All cases at law or in equity where the petition has been filed more than
       one year prior to July 15 of any year shall be tried prior to January 1 of
       the next succeeding year. The clerk shall prior to August 15 of each year
       give notice to counsel of record as provided in rule 1.442 of the docket
       number, the names of parties, counsel appearing, and date of filing
       petition. The notice shall state that such case will be subject to
       dismissal if not tried prior to January 1 of the next succeeding year
       pursuant to this rule. All such cases shall be assigned and tried or
       dismissed without prejudice at plaintiff's costs unless satisfactory
       reasons for want of prosecution or grounds for continuance be shown by
       application and ruling thereon after notice and not ex parte.
Iowa R. Civ. P. 1.944(2).
                                      4

proceeding.     Accordingly, he was allowed to withdraw from the PCR

proceeding.    It was further noted that the motion for new trial might

render the PCR proceeding moot. The district court therefore entered an

order giving Villa’s trial counsel thirty days to file his motion for new trial

or advise the State he would not be filing such a motion. The court’s

order also extended the rule 1.944 deadline to December 31, 2015. The

order concluded, “This case will not be rescheduled for trial until the

motion for new trial on the underlying criminal case has been decided.

Counsel will be responsible for calling the need to reset this case for trial

to the court’s attention.”

        At this point, the proceeding essentially went dormant for over a

year.    On July 15, 2015, the clerk of court reconfirmed the district

court’s December 11 order by issuing a rule 1.944 notice that dismissal

would occur if the case was not tried by December 31.                 Nothing

happened thereafter, and on January 8, 2016, the court dismissed the

case.

        Nearly six months later, on June 26, Villa’s PCR counsel moved to

reinstate the case. He explained,

              1. In January, this matter was dismissed pursuant to
        Iowa Rule of Civil Procedure 1.944[.]

              2. The Petitioner had filed another action which
        needed to be resolved prior to the present action moving
        forward.

             3. The other action has now been completed and was
        unsuccessful.

              4. Rule 1.944 allows the case to be reinstated if
        application is made within 180 days and if the dismissal was
        the result of an oversight. The undersigned was on military
        duty at the time the case was dismissed and did not get the
        matter extended prior to going on military duty.

              5. That it is in the interest of justice for the Court to
        reinstate this case.
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      On September 9, the State filed a resistance to the motion to

reinstate. Villa responded with another filing, which added that Villa had

now been taken into custody by U.S. Immigration and Customs

Enforcement (ICE). This filing asserted that Villa had a viable claim for

relief under Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010),

because he had not been informed of the immigration consequences of

his guilty plea.       Villa’s attorney reiterated, “The case was dismissed

pursuant to rule 1.944, during a period of time in which the undersigned

was on military duty.” He added that “[t]he military duty [did] not excuse

the undersigned’s failure to file to exempt this case under [rule] 1.944,”

but did provide “reasonable cause” for reinstatement. 2 The State filed a

supplemental resistance.

      The district court held a hearing on September 12 and denied the

motion to reinstate. The court observed accurately that “this case went

for over 18 months, from December 11, 2014, until June 26, 2016,

without any filings by either party. The only filings during that time were

notices by the clerk.” The court found no basis for reinstatement.

      Villa appealed, and we transferred the case to the court of appeals.

That court affirmed.        The court found the dismissal of the application
was not “a result of oversight,” as Villa had maintained. See Iowa R. Civ.

P. 1.944(6).     Instead, the court concluded dismissal was the result of

simply “[i]gnoring notice while showing nothing more than excuse, plea,




      2Rule   1.944(6) provides,
      The trial court may, in its discretion, and shall upon a showing that such
      dismissal was the result of oversight, mistake or other reasonable cause,
      reinstate the action or actions so dismissed. Application for such
      reinstatement, setting forth the grounds therefor, shall be filed within six
      months from the date of dismissal.
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apology, or explanation,” which is “not sufficient to allow a party to

escape default.”

      Additionally,    the   court   refused   to   consider   Villa   Magana’s

argument that reversal of the dismissal was required under Lado. In a

footnote, the court of appeals explained,

            In his reply brief, Villa Magana “requests” we “consider
      the issue of whether trial counsel was ineffective as
      contemplated in Lado [v. State, 804 N.W.2d 248, 254 (Iowa
      2011)], requiring reversal of the dismissal.” An issue cannot
      be asserted for the first time in a reply brief. See Young v.
      Gregg, 480 N.W.2d 75, 78 (Iowa 1992). For that reason, we
      have not considered the claim.

(Alteration in original.)

      We granted Villa Magana’s application for further review.

      II. Standard of Review.

      We generally review denials of PCR applications for correction of

errors at law.     Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).

However, when an applicant claims denial of the statutory right to

effective assistance of PCR counsel, we apply a de novo review. See Lado,

804 N.W.2d at 250.

      III. Analysis.

      In Lado, we held that PCR counsel was ineffective in failing to

avoid dismissal of a PCR application under Iowa Rule of Civil Procedure

1.944, and that this constituted structural error.         Id. at 253.    Lado

involved a pro se application that languished in the district court for

eighteen months without activity. Id. at 250. Counsel was finally was

appointed on November 5, 2008. Id. By then, the case was subject to

dismissal on January 1, 2009, due to the operation of rule 1.944. Id.

Lado’s newly appointed counsel took some steps to pursue the matter

but never sought relief from rule 1.944 or opposed the state’s January 29
                                         7

motion for summary judgment, which asserted among other things the

expiration of the rule 1.944 deadline. Id. Following a March 17 hearing,

the court dismissed the PCR based on rule 1.944. Id. Lado appealed,

and the court of appeals affirmed. Id. That court found that Lado’s PCR

counsel had breached an essential duty but had failed to establish

prejudice, i.e., that the result of the proceeding would have been

different, on the existing record. Id.

      We reversed and remanded, deciding that prejudice did not have to

be shown because this was a “structural error.”      Id. at 252–53.    We

explained,

             The [district] court specifically warned Lado’s counsel
      that his postconviction relief application was subject to rule
      1.944 dismissal. Counsel at no point sought a continuance
      to obtain relief from the rule’s consequences. Additionally,
      after the court dismissed the case pursuant to the rule,
      counsel never made application to the court to have the case
      reinstated as allowed by the rule. When the State filed its
      motions for summary judgment and dismissal alleging
      Lado’s application should be dismissed pursuant to rule
      1.944, Lado’s counsel sat silent and did not respond. Not
      surprisingly, the court dismissed Lado’s application for
      failure to prosecute.       Lado was constructively without
      counsel during his postconviction relief proceeding as his
      application was dismissed without any consideration of its
      merits or meaningful adversarial testing. This is the type of
      error that renders the entire postconviction relief proceeding
      “presumptively unreliable.” Accordingly, Lado’s statutory
      right to effective counsel entitles him to have his
      postconviction relief dismissal reversed and to proceed with
      his postconviction relief proceeding.

Id.

      We believe Lado controls here and mandates reversal. As in Lado,

PCR counsel failed to take necessary action to prevent his client’s

application from being dismissed under rule 1.944. See id. at 250. To

borrow Lado’s terminology, Villa was “constructively without counsel”

during the time period from December 11, 2014, until June 26, 2016.
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Id. at 253. As a result, similar to the situation in Lado, the client never

had a PCR application considered by the district court with respect to the

convictions in question.        See id. It is true that Villa’s counsel, unlike

Lado’s, tried to get the PCR application reinstated, albeit without

success.      See id. at 250.    But the salient point remains: a rule 1.944

dismissal occurred here for essentially the same reasons as in Lado. See

id. at 250–51.

        The court of appeals declined to consider Villa’s Lado argument

because it was raised for the first time in his reply brief. Generally, we

will not consider issues raised for the first time in a reply brief. See State

v. Carroll, 767 N.W.2d 638, 644 (Iowa 2009).              Yet we have noted

exceptions. See State v. Lyle, 854 N.W.2d 378, 382–83 (Iowa 2014). In

Lyle, we identified “a constitutional challenge to an illegal sentence” as a

possible exception. Id. at 382. In Carroll, we held that a defendant was

not required to assert ineffective assistance of counsel with respect to a

guilty plea until the state pointed out in its answering brief that the

defendant’s plea had waived ineffective assistance of counsel with regard

to failure to file a motion to suppress. 767 N.W.2d at 644–45.

        This case presents a situation where the ineffective-assistance

argument should be considered even though it was not raised until the

reply brief. First, the underlying error is structural, as we discussed in

Lado.    See 804 N.W.2d at 253.         Second, the State anticipated a Lado

argument in its brief and actually responded to it. The State’s answering

brief said,

               The State would note that Villa does not assert an
        ineffective assistance of counsel claim in his brief, and this
        Court should not build the argument on his behalf or allow
        him to present it for the first time on reply. Reversing the
        district court in this instance would essentially create a per
        se rule of structural error where a postconviction relief
                                               9
        action was dismissed pursuant to rule 1.944. Such a
        construction would render rule 1.944 meaningless for
        purposes of postconviction relief and would encourage
        further dilatory conduct of postconviction relief counsel, not
        curb it.

(Citations omitted.)          Although the State may feel it should not be

penalized for this kind of proactive briefing, its anticipation of Villa’s

argument avoids any procedural unfairness. Third, Villa’s appellate PCR

counsel was always in a difficult spot to raise ineffective assistance by

Villa’s trial PCR counsel, because the two individuals were one and the
same.         Although Villa’s trial PCR counsel probably should have

withdrawn from handling this appeal, Villa himself should not suffer the

consequences. 3
        The State expresses legitimate concerns.                        Relieving a PCR

applicant from the effects of a rule 1.944 dismissal does limit the

usefulness of the rule to some extent in the PCR context. Fortunately,

other tools exist to address dilatory conduct in litigation by parties and

attorneys.

        For the foregoing reasons, we vacate the decision of the court of

appeals, reverse the orders of the district court dismissing and denying

reinstatement of Villa’s PCR application, and remand for further
proceedings consistent with this opinion.

        DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

        This opinion shall be published.




        3We   credit Villa’s PCR counsel for raising Lado explicitly in his reply brief.
