Donald Dockery, Applicant-Appellant v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0101
Filed January 27, 2016
DONALD DOCKERY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gregory W.
Steensland, Judge.
Donald Dockery appeals the dismissal of his second application for
postconviction relief. REVERSED AND REMANDED.
Francis E. Younes of High & Younes, L.L.C., Omaha, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., Mullins, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, Senior Judge.
Donald Dockery appeals the dismissal of his second application for
postconviction relief (PCR). He contends the court failed to comply with the
requirements for summary dismissal set forth in Iowa Code section 822.6 (2013).
We review his claim for correction of errors at law. See State v. Mulqueen, 188
N.W.2d 360, 362 (Iowa 1971).
Dockery initiated his first PCR action in 2009. After the action was
dismissed in September 2013, Dockery appealed, alleging his PCR counsel was
ineffective. Dockery filed a second PCR application while the first PCR action
was pending on appeal, again asserting ineffective assistance of PCR counsel.
Dockery also alleged he “has newly discovered evidence,” though he fails to
disclose what new evidence was discovered or how it would change the outcome
of the proceedings. On its own motion, the PCR court denied the second PCR
application, characterizing it as “another request by Petitioner to appeal cases
FECR045063 and PCCV102115, which have already been sent to the Iowa
Supreme Court” and finding “[n]o new cause of action is stated or new relief
requested.”
Iowa Code section 822.6 states that before dismissing a PCR application
on its own motion, the court must inform the parties of its intention to dismiss the
application, provide its reasons for dismissal, and grant the applicant an
opportunity to reply to the proposed dismissal. The “common thread” running
through this section “is that of protecting the applicant from having his application
dismissed by the court without an opportunity to resist in some manner, either at
hearing before the court or through an opportunity to reply to a court-proposed
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dismissal.” Hines v. State, 288 N.W.2d 344, 346 (Iowa 1980). The court failed to
conform to the requirements of section 822.6, and Dockery was not afforded the
right to resist dismissal in any manner. Accordingly, we must reverse and
remand to afford Dockery notice of any intention to dismiss his application and an
opportunity to respond.1 See Brewer v. State, 446 N.W.2d 803, 805-06 (Iowa
1989) (reversing dismissal of PCR application where applicant was not given an
opportunity to respond to PCR court’s reason for dismissal); Dodd, 232 N.W.2d
at 474 (holding the court’s failure to give PCR applicant notice of its intention to
dismiss his PCR application required remand for further proceedings).
REVERSED AND REMANDED.
1
The PCR court is not required to hear the merits of Dockery’s claims on remand. Dodd
v. State, 232 N.W.2d 472, 474 (Iowa 1975)