Opinion
No. 5-911 / 04-1770
Filed February 1, 2006
Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.
Charles E. Robinson appeals the dismissal of his third application for postconviction relief. AFFIRMED.
Kevin Hobbs, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
I. Background Facts and Proceedings.
Charles E. Robinson was convicted of first-degree murder and attempted murder in July 1987. We affirmed Robinson's convictions on direct appeal. State v. Robinson, No. 87-1105 (Iowa Ct.App. July 27, 1988). Procedendo issued on October 4, 1988. On September 19, 2003, Robinson filed his third application for post-conviction relief. Robinson's petition states:
The Applicant asserts that his trial counsel was ineffective for failing to object to continuous prosecutorial misconduct. The Applicant asserts that the prosecutor committed misconduct in two ways. First the prosecutor repeatedly referred to the Applicant as a liar, or someone who could not be believed. Further the Applicant asserts that the prosecutor repeatedly used another witness (expert) to bolster it's [sic] other witnesses [sic] testimony. The applicant alleges that these inexcusable actions by the State undermined his right to a fair trial and trial counsel thus had a duty to object. Further Appellate Counsel failed to appeal on said grounds, and previous PCR counsel failed to assert this argument.
The State moved to dismiss Robinson's application for the following reasons:
Petitioner now raises the ineffective assistance of trial counsel in his third postconviction relief action. Iowa Code § 822.8 requires that grounds must be all-inclusive. Petitioner is barred from litigating grounds that could have been raised in prior proceedings.
Petitioner, in his application, has failed to set forth any ground for which relief can be granted pursuant to Iowa Code § 822.2.
Petitioner's application is untimely, Iowa Code § 822.3.
The district court concluded that Robinson's ineffective assistance of counsel claims based on prosecutorial misconduct were precluded because he failed, without sufficient reason, to raise that issue in prior postconviction relief proceedings. The trial court also concluded that Robinson's September 2003 application for postconviction relief was untimely and was time barred by the three-year statute of limitations on postconviction relief claims. Robinson's application was accordingly dismissed, resulting in this appeal.
On appeal Robinson raises the following issues:
I. The district court improperly granted the State's Motion to Dismiss Robinson's argument of denial of a fair trial as a result of prosecutorial misconduct.
II. Robinson's ineffective assistance of counsel claim was not properly or adequately raised in appellant's previous appeals and postconviction relief applications under Iowa Code section 822.8 and therefore subsequent postconviction relief should be allowed.
III. Robinson's request for postconviction relief is not time barred under Iowa Code section 822.3 as the ground of fact or law upon which the petition for postconviction relief is based could not have been raised in the statutory time period.
II. Standard of Review.
Dismissal of an application for postconviction relief is reviewed to correct errors of law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998). The reviewing court "will affirm if the district court's findings of fact are supported by substantial evidence and the law was correctly applied." Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003) (citing Benton v. State, 199 N.W.2d 56, 57 (Iowa 1972)). Our review is de novo when there is an alleged denial of constitutional rights. McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995) (citing Kane v. State, 436 N.W.2d 624, 626 (Iowa 1989); Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984)).
III. The Merits.
Iowa Code section 822.3 requires that an application for postconviction relief be filed "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." The purpose of this limitation is "to limit postconviction litigation in order to conserve judicial resources, promote substantive goals of the criminal law, foster rehabilitation, and restore a sense of repose in our system of justice." State v. Edman, 444 N.W.2d 103, 106 (Iowa Ct.App. 1989) (citing Note, Relieving the Habeas Corpus Burden: A Jurisdictional Remedy, 63 Iowa L. Rev. 392, 411 (1977)). "However, this limitation does not apply to a ground of fact or law that could not have been raised within the applicable time period." Iowa Code § 822.3. This section "creates an exception for untimely filed applications if they are based on claims that `could not' have been previously raised because they were not available." Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994) (quoting Iowa Code § 822.3 (1993)). When a ground of law could not have been raised within the applicable time period, the application for postconviction relief "would be necessary to allow for a review of a conviction if there has been a change in the law that would effect the validity of the conviction." Edman, 444 N.W.2d at 106. Therefore, in such a case, the statute of limitations should not bar the court's consideration of the application. Id.
Procedendo issued on October 4, 1988, following disposition of Robinson's direct appeal of his convictions. Because Robinson's September 2003 application for postconviction relief was filed more than three years after October 4, 1988, it is time barred unless Robinson can establish his claim falls within the exceptions provided.
As noted earlier, the prosecutorial misconduct underlying Robinson's ineffective assistance of counsel claims concerns the prosecutor's repeated reference to him as a liar. Robinson argues that our supreme court's decision in State v. Graves, 668 N.W.2d 860 (Iowa 2003), condemning such conduct as a due process violation necessitating a new trial, was a change in the law placing his current application for postconviction relief within the earlier recited exception to the statute of limitations. We disagree.
In Graves, the court said:
A review of this court's prior cases reveals Iowa has joined those jurisdictions holding it improper to call the defendant a liar.
In a 1966 case, this court "frowned upon" statements by the prosecutor that the defendant was a "liar" and a "crook." State v. Leiss, 258 Iowa 787, 792, 140 N.W.2d 172, 175 (1966). Although we did not label such argument improper, we examined the propriety of the prosecutor's comments in the context of the entire record and the contested issues in the case, concluding sufficient prejudice had not been shown to warrant a new trial. Id. More recently, however, we condemned similar statements by a prosecutor, finding them "clearly improper." State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). In Rutledge, the prosecutor not only characterized the defense witnesses as "liars" and "druggees," but also stated that these witnesses "can't tell the truth," "couldn't be candid with you if they tried," "outright lied . . . through their teeth," and "would lie to save their own hides." Id. at 325-26 (holding prosecutor's attack on defense witnesses "was plainly out of bounds").
We conclude from these cases that Iowa follows the rule that it is improper for a prosecutor to call the defendant a liar, to state the defendant is lying, or to make similar disparaging comments.
State v. Graves, 668 N.W.2d 860, 876 (Iowa 2003).
The court's express acknowledgement of its prior cases holding it improper to call the defendant a liar, contradicts Robinson's claim that Graves established a new rule concerning the consequences of the prosecutorial misconduct condemned in Graves. Graves reaffirmed the court's prior decisions concerning prosecutorial misconduct and did not change the law. Because Robinson has failed to establish that his current postconviction claim falls within the stated exception to the three-year statute of limitations, the district court correctly dismissed it as time barred.
We have carefully considered all of Robinson's remaining claims on appeal and find that they are either without merit or controlled by the foregoing. See, e.g., Wilkins v. State, 522 N.W.2d at 824 (sufficient reason exception in section 822.8 applies to timely filed claims). The district court's ruling dismissing Robinson's postconviction relief application is affirmed.