                  IN THE SUPREME COURT OF IOWA
                                  No. 16–0860

                             Filed August 31, 2018


CHARLES NICHOLES,

          Appellant,

vs.

STATE OF IOWA,

          Appellee.



          On review from the Iowa Court of Appeals.

          Appeal from the Iowa District Court for Dallas County, Gregory A.

Hulse, Judge.



          An applicant requests further review of a court of appeals decision

affirming the district court’s denial of his application for postconviction

relief.     DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AFFIRMED.



          Susan R. Stockdale, Windsor Heights, for appellant.



          Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant

Attorney General, for appellee.
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PER CURIAM.

      We granted the State’s petition for rehearing and now withdraw our

original opinion. On further consideration, we vacate the decision of the

court of appeals because it concluded Charles Nicholes’s plea of guilty did

not allow him to make an absolute innocence claim. See Schmidt v. State,

909 N.W.2d 778, 798 (Iowa 2018).

      We affirm, however, the district court’s decision dismissing

Nicholes’s postconviction action on its merits.        The district court

concluded,

      However, [Nicholes] openly concedes that he was aware his
      trial counsel had not yet fully interviewed witnesses at the
      time of his plea, and that the [Nicholes] instead made the
      decision to plead guilty. . . . [Nicholes] certainly could have
      raised this issue in a postconviction proceeding within three
      years from his conviction “and thus [the issue was] available
      to be addressed then.” Lopez-Penaloza v. State, 804 N.W.2d
      537, 542 (Iowa 2011).

      We agree with these findings of fact and its conclusion of law.

Accordingly, we affirm the judgment of the district court.
      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.

      This opinion shall not be published.
