Opinion
No. 5-792 / 04-0355
Filed November 23, 2005
Appeal from the Iowa District Court for Winneshiek County, John Bauercamper, Judge.
Robert E. Wemark appeals from the district court's dismissal of his second postconviction relief application. AFFIRMED.
Christopher R. Riker of Strand Riker Law Office, Decorah, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, and Andrew F. Van Der Maaten, County Attorney, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
In 1993, Robert E. Wemark was found guilty of first-degree murder in connection with the death of his wife. In the intervening years, Wemark unsuccessfully pursued numerous avenues of relief. The history of those proceedings is recounted in several state and federal court opinions, and will not be repeated here. See State v. Wemark, No. 93-1276 (Iowa Ct.App. Jan. 23, 1995); Wemark v. State, 602 N.W.2d 810 (Iowa 1999); Wemark v. Iowa, 2002 WL 1724022 (N.D. Iowa March 6, 2002); Wemark v. Iowa, 322 F.3d 1018 (8th Cir.), cert. denied Wemark v. Mathes, 540 U.S. 870, 124 S. Ct. 195, 157 L. Ed. 2d 128 (2003).
We are now faced with an appeal from the district court's dismissal of Wemark's second postconviction relief application, filed eight years after our court decided his direct appeal. In dismissing the application, the district court relied, in part, on a three-year statute of limitations. We will focus on this ground, reviewing the district court's ruling for errors of law. Iowa R. App. P. 6.4.
I. Statute of Limitations
Postconviction relief applications must be filed within three years from the date the conviction or decision is final, or in the case of an appeal, from the date procedendo is issued. Iowa Code § 822.3 (2003). This limitation period "does not apply to a ground of fact or law that could not have been raised within the applicable time period." Id.
More than three years have elapsed since procedendo issued in Wemark's direct appeal. Therefore, Wemark's second application for postconviction relief is time-barred unless a "ground of fact or law" exists that could not have been raised earlier.
In addressing this exception, the district court stated:
Wemark's claim is not saved by the exception provided to the three year statute of limitations, for ". . . a ground of fact or law that could not have been raised within the applicable time period . . ." All of the relevant facts . . . were known to everyone at all relevant times. The legal issue was not so new or novel that counsel could not have raised it at the time of the first post conviction relief action, as required by section 822.8, Code of Iowa.
We discern no error of law in this ruling.
We turn first to the "ground of fact" exception. This exception is premised on a conflict of interest that arose between trial counsel and Wemark when counsel advised Wemark to disclose the location of the murder weapon, if asked by the State's expert. Wemark now contends previous attorneys were ineffective in failing to argue that this conflict triggered a presumption of prejudice under Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). In his view, "his first Application for Post-Conviction Relief which asserted ineffective assistance of trial counsel based on the disclosure of the knife, tolled the three years statute of limitations set in 822.3."
The Iowa Supreme Court has addressed and rejected this argument. See Whitsel v. State, 525 N.W.2d 860, 864 (Iowa 1994) (stating ineffective assistance of counsel "does not . . . constitute a claim that `could not have been raised within the applicable time period' under section 822.3"); see also Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994). Like Wilkins, Wemark had several "opportunities to claim ineffectiveness of trial counsel before the time bar became enforceable against him." 522 N.W.2d at 824. Like Wilkins, he "cannot assert ignorance of the claim because he should have at least been alerted to trial counsel's failure" and subsequent counsels' "failure to raise ineffectiveness claims." Id. Because this "ground of fact" could have been raised within the three-year time frame but was not, it cannot serve as an exception to the three-year bar. Id. See also Dible v. State, 557 N.W.2d 881, 883-84 (Iowa 1996), abrogated on other grounds by Harrington v. State, 659 N.W.2d 509 (Iowa 2003) ("If the legislature had intended that ineffective assistance of counsel serve as an exception to the statute of limitations, it would have said so. It certainly knew how to do so, as shown by the language it used in section 822.8.").
Turning to the "ground of law" exception, Wemark argues "the new ground of law is the conflict of interest" recognized on appeal from the dismissal of his first postconviction relief application. See Wemark v. State, 602 N.W.2d 810 (Iowa 1999). This cannot serve as the new ground of law because the conflict was apparent at the time of trial, as was the United States Supreme Court opinion on which it was grounded. See Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). The fact that counsel did not initially cite this opinion and the presumed prejudice standard articulated within it does not alter our conclusion because, as noted in our "ground of fact" discussion, the key question is whether counsel had an opportunity to do so. See Wilkins, 522 N.W.2d at 824 (stating section 822.3 is based on claims that "could not" be raised because they were not available). As Cuyler was extant for more than a decade prior to trial and post-trial proceedings in this matter, counsel had that opportunity.
The district court correctly found Wemark's second postconviction relief application time-barred under Iowa Code section 822.3.
II. Disposition
We find it unnecessary to address Wemark's remaining arguments for reversal. We affirm the district court's dismissal of Wemark's second postconviction relief application.