Michael Howard Lang, Applicant-Appellant v. State of Iowa ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1997
Filed December 23, 2015
MICHAEL HOWARD LANG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey L.
Poulson, Judge.
An applicant appeals from the trial court’s refusal to permit an amendment
to his postconviction-relief application and its dismissal granted pursuant to the
State’s motion for summary judgment. AFFIRMED.
Tod J. Deck of Deck Law, L.L.P., Sioux City, for appellant.
Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., Bower, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.
Michael Howard Lang appeals from the trial court’s refusal to permit an
amendment to his postconviction-relief application and its dismissal granted
pursuant to the State’s motion for summary judgment.
I. Background Facts and Proceedings
Lang was convicted of kidnapping in the first degree in 1989 and
sentenced to prison for life without parole. The conviction was based on
kidnapping accompanied by torture. Lang appealed and the conviction was
affirmed. See State v. Lang, No. 88-1469, WL (Iowa Ct. App. Mar. 27,
1990). He has since filed six requests for postconviction relief and one action for
habeas corpus with the federal courts.
The State filed a combined motion for summary judgment and statement
of undisputed facts asking the court to take judicial notice of Lang’s previous
applications for postconviction relief and their dismissal. The State asserted that
his claims were all barred by the three-year statute of limitations, by a failure to
raise the claim in a previous proceeding, or by a prior adjudication, all as
provided by statute. See Iowa Code § 822.3 (2013). To the extent that the
State’s motion consisted of a statement of undisputed facts, the asserted facts
were not resisted by Lang.
After the State filed its motion for summary judgment, Lang filed a request
to supplement his application for postconviction relief accompanied by the
proposed supplemental application. The supplement’s sole claim was that the
sentence imposed on Lang constituted cruel and unusual punishment prohibited
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under the Eighth Amendment of the United States Constitution and article 1,
section 17 of the Iowa constitution.
The trial court granted the State’s motion for summary judgment and
denied Lang’s request to have the supplemental application considered. The
court found that Lang’s claim of a violation of the prohibition against cruel and
unusual punishment had previously been considered and denied in one of Lang’s
prior appeals. See State v. Lang, No. 10-1797, 2011 WL 5867932 (Iowa Ct. App.
Nov. 23, 2011). The trial court reasoned that no justiciable issue existed and
therefore, the amendment should not be granted. In addition, the trial court,
pursuant to Iowa Code section 610A.3, sanctioned Lang by ordering that fifty
percent of any earned-time credits accrued should be forfeited and if no good-
time credits existed, twenty-five percent of the average balance of his inmate
account should be forfeited as provided for in Iowa Code section 904.7202.
Lang has appealed and in his brief has challenged the trial court’s order of
sanctions, the denial of his request to file an amendment to the application for
postconviction relief, and the trial court’s finding that the issue of cruel and
unusual punishment had already been adjudicated.
II. Error Preservation
When there is a claim that a sentence is inherently illegal based on its
violation of a constitutional provision it may be brought at any time. State v.
Bruegger, 773 N.W.2d 862, 871 (Iowa 2009).
III. Scope and Standard of Review
A court’s denial of a request to amend is reviewed for a clear abuse of
discretion. Atlantic Veneer Corp. v. Sears, 232 N.W.2d 499, 503 (Iowa 1975). A
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trial court’s ruling on a motion to amend will be reversed only when a clear abuse
of discretion exists. Id. To the extent that the request to amend was in the
context of a request for postconviction relief, the review is for errors of law,
except when a constitutional issue is involved, the review is de novo. Lamasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012).
IV. Discussion
Amendments are to be freely given when justice requires. Iowa R. Civ. P.
1.402(4). Courts are further advised to grant amendments if an amendment
does not substantially change the issues or constitute a surprise to the other
party. Rife v. D.T. Corner, Inc., 641 N.W.2d 761, 767 (Iowa 2002). Lang had
attacked his sentence in a previous postconviction-relief action on the grounds
that it constituted cruel and unusual punishment. See Lang, 2011 WL 5867932,
at *1. When an amendment presents no justiciable issue, it should be denied.
Midthun v. Pasternak, 420 N.W.2d 465, 468 (Iowa 1988).
Lang contends the issue was not adequately briefed or argued in the
previous case. Lang places reliance on the appellate court’s footnote that
observed the absence of the development of Lang’s claim of a cruel and unusual
sentence. Lang, 2011 WL 5867932, at *3 n.1. However, the trial court did
consider the issue, and the appellate court also considered the issue on its
review. Id. at *1-3. Lang further asserts that the court of appeals, in its ruling
stated above, completely ignored the rules relative to cruel and unusual
punishment as set out in the leading case of Solem v. Helm, 463 U.S. 277, 291-
92 (1983). The Solem case sets out a three-part test, with the initial or threshold
test being a preliminary judicial evaluation of whether the sentence reviewed is
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grossly disproportionate to the underlying crime. Bruegger, 773 N.W.2d at 873
(citing Solem, 463 U.S. at 292). The court of appeals, in its opinion considering
Lang’s previous claim of cruel and unusual punishment, specifically cited Iowa
cases holding that a life sentence for kidnapping, with one of the statutorily
prescribed enhancements raising it to first-degree kidnapping, did not amount to
disproportionate sentencing. Lang, 2011 WL 5867932, at *2. The court
concluded that Lang’s sentence fell under the same classification. Id. The
threshold set out in Solem was never met. Our supreme court has indeed stated
that it is a rare sentence in which a threshold comparison of the crime committed
and sentence imposed is so grossly disproportionate as to warrant further review.
State v. Musser, 721 N.W.2d 734, 749 (Iowa 2006). If Lang was dissatisfied with
the 2011 decision of the court of appeals, his remedy was to seek further review
from the supreme court.
A postconviction proceeding is not a vehicle to relitigate issues that have
been previously litigated. State v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971).
The legislature reinforced the general concept of res judicata by a statute
providing that, “Any ground finally adjudicated . . . in the proceeding that resulted
in the conviction or sentence, or in any other proceeding the applicant has taken
to secure relief, may not be the basis for a subsequent application.” Iowa Code
§ 822.8.
Lang contends that he has the right to challenge the cruel and unusual
punishment prohibition as to his particular offense, under the “progress of
society” analysis, citing Trop v. Dulles, 356 U.S. 86, 100-01 (1958). The rule that
an inherently illegal sentence based on the violation of a constitutional or
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statutory provision can be raised at any time eliminates the necessity to preserve
error. However, it does not give a party license to raise new attacks ad infinitum
on a conviction or sentence by raising a new reason or argument as to a claim or
issue already litigated. See Iowa Code § 822.8. The trial court did not abuse its
discretion in failing to grant Lang’s request for an amended petition.
V. Sanctions Imposed
The State does not contest error preservation as to this issue. Our review
is for abuse of discretion. See Maghee v. Iowa Dist. Ct., 712 N.W.2d 687, 695
(Iowa 2006). This is the sixth postconviction relief effort that Lang has made,
plus he appealed of the conviction and sentence and brought a federal habeas
corpus action. In addition, this postconviction action was predicated on a matter
raised by a previous proceeding instigated by Lang and ruled on adversely to his
claim. The power to sanction criminal defendants under certain circumstances
represents the legislature’s attempt to deter inmates from filing frivolous lawsuits.
Id. at 692. Given that Lang raised no unaddressed issue on this, his eighth
attack on his conviction and sentence, it was clearly frivolous. The sanctions
imposed appear appropriate.
AFFIRMED.