Roger Pegram v. State of Iowa , 919 N.W.2d 636 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0795
Filed May 2, 2018
ROGER PEGRAM,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,
Judge.
Roger Pegram appeals from the dismissal of his second application for
postconviction relief. AFFIRMED.
Jeffrey M. Lipman and Arielle M. Lipman of Lipman Law Firm, P.C., West
Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.
Roger Pegram appeals from the dismissal of his second application for
postconviction relief after the district court granted the State’s motion for summary
disposition. We affirm.
I. Background Facts and Proceedings.
In May 1991, Roger Pegram was convicted of first-degree murder, and this
court affirmed his conviction on direct appeal. See Pegram v. State, No. 99-1093,
2001 WL 913817, at *1 (Iowa Ct. App. Aug. 15, 2001). Pegram subsequently filed
an application for postconviction relief (PCR), which was denied and dismissed by
the district court. See id. We affirmed the denial and dismissal on appeal. See
id.In March 2016, Pegram filed a second PCR application, based upon the
Iowa Supreme Court’s ruling in Nguyen v. State, 829 N.W.2d 183, 188 (Iowa
2013). In Nguyen,
the court determined its ruling in State v. Heemstra, 721 N.W.2d 549,
558 (Iowa 2006), was a new ground of law so as to excuse the three-
year statute-of-limitations bar for PCR cases. See Iowa Code
§ 822.3 (2013) (noting all actions for [PCR] must be filed within three
years from the date the conviction becomes final or the procedendo
is issued in the case of a direct appeal). Because Nguyen had filed
his PCR application within three years of the Heemstra decision,
Nguyen’s case was remanded for the district court to consider the
merits of Nguyen’s constitutional claims that Heemstra should be
retroactiv[ely] applied. Nguyen, 829 N.W.2d at 189.
Smith v. State, 882 N.W.2d 126, 127 (Iowa Ct. App. 2016). In his PCR application,
Pegram basically argued he is in a similar position as Nguyen because he was
convicted of first-degree murder and the three-year PCR statute of limitations ran
before Heemstra was decided. However, unlike Nguyen, Pegram did not file his
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PCR application within three years of the Heemstra decision. Instead Pegram
waited until Nguyen’s challenge to the three-year PCR statute of limitations was
successful before filing his own PCR challenge.
The State subsequently filed a motion for summary judgment and dismissal.
See Iowa Code § 822.6 (2016). The State argued Nguyen did not provide an
exception to the three-year statute of limitations set out in section 822.3, and
Pegram’s PCR application was time-barred by more than twenty years. Following
a hearing on the State’s motion, the district court granted the State’s motion for
summary disposition and dismissed Pegram’s PCR application.
Pegram appeals.
II. Standard of Review.
We review PCR proceedings, including the summary disposition of a PCR
application, for correction of errors at law. See Moon v. State, ___ N.W.2d ___,
___ (Iowa 2018). Summary disposition is appropriate when, viewing the facts in
the light most favorable to the nonmoving party, “it appears from the pleadings,
depositions, answers to interrogatories, and admissions and agreements of fact,
together with any affidavits submitted, that there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” See Iowa
Code § 822.6; see also Moon, ___ N.W.2d at ___ (“We apply our summary
judgment standards to summary disposition of [PCR] applications. Therefore, on
further review we will apply our summary judgment/disposition standards.”);
Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002) (noting “the principles
underlying summary judgment procedure apply to motions of either party for
disposition of an application for [PCR] without a trial on the merits”). These same
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summary-dismissal standards apply “to the statute-of-limitations issue.” Moon,
___ N.W.2d at ___.
III. Discussion.
“[T]o conserve judicial resources, promote substantive goals of the criminal
law, foster rehabilitation, and restore a sense of repose in our system of justice,”
our legislature limited the time to bring PCR actions. Wilkins v. State, 522 N.W.2d
822, 824 (Iowa 1994). To that end, section 822.3 expressly provides that
“[a]ll . . . applications must 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 or
procedendo is issued.” The legislature did include an exception: “[T]his 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. Consequently, “to avoid the three-
year statute of limitations contained in section 822.3, an applicant must show he
or she could not have raised the ground of fact within the applicable time period.”
Schmidt v. State, ___ N.W.2d ___, ___ (Iowa 2018). Additionally, the applicant
“must show the ground of fact is relevant to the challenged conviction.” Id. “It
would be absurd to toll the statute of limitations pending the discovery of a trivial
fact that could not possibly affect the challenged conviction.” Harrington v. State,
659 N.W.2d 509, 520 (Iowa 2003). “Every limitation statute sets up an arbitrary
date after which certain actions cannot be brought or certain rights cannot be
enforced. One cannot escape the effect of such statutes by showing they were
only violated a little bit.” In re Detention of Fowler, 784 N.W.2d 184, 190-91 (Iowa
2010). At the summary-disposition stage, to overcome a challenge based upon
the running of the statute of limitations, an applicant does not have to prove the
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“fact would likely or probably have changed the outcome of the underlying criminal
case.” Schmidt, ___ N.W.2d at ___. Rather, the applicant must show the ground
of fact is “of the type that has the potential to qualify as material evidence for
purposes of a substantive claim under section 822.2.” Id.Here, Pegram’s arguments are two-fold. First, he argues the court “abused
its discretion in dismissing the [PCR application] without first allowing counsel the
opportunity to review the criminal file.” He also asserts his PCR counsel was
ineffective in failing to amend his PCR application to “raise and cite to recent
dispositive case law.”
A. Discovery.
There is no question that the three-year limitation period has run. Thus,
summary disposition and dismissal of his application is proper unless Pegram
establishes a genuine issue of material fact exists as to whether he could have
raised the ground of fact or law within the applicable time period. See Moon, ___
N.W.2d at ___. Pegram insists his most recent PCR counsel should have been
allowed time to review his criminal file to see if there were any violations of Brady
v. Maryland, 373 U.S. 83, 87 (1963), which held “failure of prosecution to disclose
evidence that may be favorable to the accused is a violation of the Due Process
Clause of the Fourteenth Amendment.” Harrington, 659 N.W.2d at 516. But there
is neither evidence nor a factual allegation specific to a Brady violation here, nor
is there any explanation as to why such violation could not have been brought
within the applicable time period. See Iowa Code § 822.3; see also id. § 822.8
(“All grounds for relief available to an applicant under this chapter must be raised
in the applicant’s original . . . application . . . unless the court finds a ground for
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relief asserted which for sufficient reason was not asserted or was inadequately
raised in the original . . . application.”). When Pegram was given an opportunity to
explain his current PCR claims at the latest hearing, he stated:
Here’s where I’m at on this. I believe that the felony murder
rule was found unconstitutional through Heemstra. I think we all
understand that. Maybe I’m wrong. However, I think the highest
courts have found that not applying Heemstra retroactively
concerning that felony murder rule would be unconstitutional
considering Nguyen in other cases since Nguyen.
Now, all this other extraneous stuff that we’re talking about
right now in this summary judgment claim by the State in wanting to
dismiss the case and all that, you know, I’m—I’m resisting that, of
course.
But I think that we all understand what’s going on here and it’s
all unconstitutional. That felony murder rule thing is unconstitutional.
I think this summary judgment thing should be denied.
There was no allegation of any Brady violation by Pegram. Pegram’s PCR counsel
even admitted that the likelihood of finding evidence of a Brady violation would be
low, even with a full review of the record.
It is true that, under section 822.7, “[a]ll rules and statutes applicable in civil
proceedings including pretrial and discovery procedures are available to the
parties.” Nevertheless, Pegram had his opportunity to litigate his PCR claims,
including any Brady violation, within the statutory-time period in his first PCR
application. The second time around, Pegram had to provide specific facts rather
than mere legal conclusions to satisfy the requirements of chapter 822. See Arnold
v. State, 540 N.W.2d 243, 246 (Iowa 1995). The mere filing of a subsequent PCR
application does not entitle the applicant access to the discovery process, and to
allow Pegram to do so would undermine the legislative intent behind the statutory-
time limitation. That is not to say there are not circumstances where discovery
may be appropriate, even outside the three-year time period. See Moon, ___
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N.W.2d at ___ (holding PCR court’s grant of summary disposition not appropriate
because a genuine issue of material fact existed as to whether applicant could
have raised the ground of fact earlier); Schmidt, ___ N.W.2d at ___ (holding PCR
court’s grant of summary disposition not appropriate where victim’s “recantation
was not available to Schmidt within the three-year period following the date of his
conviction and Schmidt could not have discovered the recantation earlier than he
did in the exercise of due diligence”); Harrington, 659 N.W.2d at 516, 521-25(holding PCR court incorrectly found application was time barred where police
reports were allegedly not disclosed in violation of Brady at the time of trial and
were not discovered until well after PCR statute of limitations had run). But insofar
as Pegram’s second PCR application claimed a Brady violation, specific factual
allegations were required to establish a genuine issue of material fact to survive
summary disposition. See, e.g., Moon, ___ N.W.2d at ___ (stating applicant’s
claim was “based on an alleged Brady violation arising from the State’s failure to
turn over exculpatory evidence, such as notes, statements, and interview reports
of [a State’s witness]”). Consequently, the PCR court did not err in dismissing the
PCR application without allowing further time for review of the underlying criminal
file.
B. Ineffective Assistance.
As to his felony-murder constitutionality claims, Pegram maintains on
appeal that his trial counsel was ineffective because he did not assert any
arguments related to the Supreme Court’s opinion in Welch v. United States, 136
S. Ct. 1257 (2016). In Welch, the Court held a prior opinion finding a statutory
provision void for vagueness was “a substantive decision and so has retroactive
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effect under Teague [v. Lane, 489 U.S. 288 (1989)] in cases on collateral review.”
Welch, 136 S. Ct. at 1265. Pegram claims that Welch constitutes a change in law
and allows Heemstra to be applied retroactively. Even assuming that assessment
is accurate, Welch has no bearing on our statute-of-limitations analysis. See
Nguyen v. State, 878 N.W.2d 744, 754 (Iowa 2016).
Heemstra was filed in 2006. Pegram’s current PCR application was filed in
2016, more than three years after Heemstra. Pegram’s application was therefore
time barred. Even if PCR counsel had advanced an argument invoking Welch,
Pegram’s PCR application would still be time barred and the PCR court could not
have reached his retroactivity claim. See also Nguyen, 878 N.W.2d at 754 (noting
PCR counsel has “no duty to pursue a meritless claim”). Consequently, the PCR
court did not err in granting the State’s motion for summary disposition and
dismissing Pegram’s PCR application because it was time barred.
IV. Conclusion.
Because Pegram’s second PCR application was time barred, the court did
not err in granting the State’s motion for summary disposition and in dismissing the
PCR application. Accordingly, we affirm the ruling of the district court.
AFFIRMED.