Ricky Joe Blodgett v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1877
Filed October 6, 2021
RICKY JOE BLODGETT,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, John G. Linn,
Judge.
Ricky Joe Blodgett appeals the denial of his fourth application for
postconviction relief. AFFIRMED.
William Monroe, Burlington, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee State.
Considered by May, P.J., Greer, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
VOGEL, Senior Judge.
In 2002, a jury found Ricky Joe Blodgett guilty of robbery in the first degree
and burglary in the first degree. We affirmed his convictions and sentences on
direct appeal. See State v. Blodgett, No. 03-0229, 2003 WL 22900539, at *1–3
(Iowa Ct. App. Dec. 10, 2003). Procedendo on his direct appeal issued April 7,
2004.
Thereafter, Blodgett filed a series of unsuccessful applications for
postconviction relief (PCR). He filed his first PCR application on May 3, 2004. The
district court denied his application, and we affirmed the denial on appeal. See
Blodgett v. State, 05-2137, 2007 WL 1201755, at *1–3 (Iowa Ct. App. Apr. 25,
2007). Procedendo on his first PCR appeal issued May 31, 2007. His second
PCR application was filed August 10, 2009, and dismissed February 2, 2011. His
third PCR application was filed October 26, 2015, and dismissed February 1, 2017.
Blodgett filed his fourth and current PCR application on May 9, 2018,1
claiming his trial and prior PCR counsels provided ineffective assistance. After a
hearing, the district court denied Blodgett’s application as barred by the statute of
limitations. He appeals. We apply de novo review to a PCR claim of ineffective
assistance of counsel. Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018).
Generally, a PCR application is timely only if filed within three years of
procedendo issuing on the direct criminal appeal. See Iowa Code § 822.3 (2018).
“However, this limitation does not apply to a ground of fact or law that could not
have been raised within the applicable time period.” Id. This exception applies to
1The district court found the filing date was May 9, 2018. Blodgett asserts his
current PCR action began with his pro se document filed January 29, 2018.
3
“claims that ‘could not’ have been previously raised because they were not
available.” Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994). Blodgett points to
his expert’s opinion questioning the accuracy of eyewitnesses who identified him
as the offender, but he offers no explanation of why this opinion could not have
been raised within the three-year limitation period. His allegations that his prior
counsels were ineffective also do not create a new ground of fact or law to trigger
the exception. See Dible v. State, 557 N.W.2d 881, 886 (Iowa 1996), abrogated
on other grounds by Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003).
Additionally, Blodgett argues his application is timely because his current
claim that his prior counsels were ineffective allows this PCR application to relate
back to a time within the three-year limitations period.2 See Allison, 914 N.W.2d
at 891. However, relation back under Allison only applies when a successive PCR
application is “filed promptly after the conclusion of the first PCR action.” Id. The
district court began by finding, “Blodgett’s second PCR action was not ‘promptly
filed’ because it was filed more than two years after the conclusion of the first PCR
action.” It also found his third PCR application was not promptly filed because it
was filed more than four years after the dismissal of his second PCR application.
Finally, the court found fifteen months passed between dismissal of Blodgett’s third
PCR action and the filing of the current PCR action, although Blodgett argues the
gap is only eleven months based on his earlier pro se filing. Even if we assume
2An amendment to section 822.3 states, “An allegation of ineffective assistance
of counsel in a prior case under this chapter shall not toll or extend the limitation
periods in this section nor shall such claim relate back to a prior filing to avoid the
application of the limitation periods.” This amendment took effect July 1, 2019,
after Blodgett filed his current PCR application. See 2019 Iowa Acts ch. 140, § 34.
The State does not argue this 2019 amendment bars his relation-back argument.
4
Blodgett is correct and the time between dismissal of the third action and filing of
the fourth action is the applicable time under Allison, an eleven-month gap is not
“filed promptly.” See id.; see also Johnson v. State, No. 19-1949, 2021 WL
210700, at *3 (Iowa Ct. App. Jan. 21, 2021) (collecting cases considering when a
PCR application is “filed promptly”). Moreover, our court has repeatedly held that
“Allison only applies to a ‘second PCR petition.’” Dixon v. State, No. 19-1886, 2021
WL 1907152, at *2 (Iowa Ct. App. May 12, 2021) (quoting Allison, 914 N.W.2d at
891) (collecting cases), further review denied (July 7, 2021). So Allison could not
apply to Blodgett's current PCR action, his fourth. Harrington v. State, No. 19-
1102, 2021 WL 210976, at *3 (Iowa Ct. App. Jan. 21, 2021) (noting we have
“repeatedly held Allison does not apply to third or subsequent PCR actions” and
collecting cases); see also Allison, 914 N.W.2d at 898 (Waterman, J., dissenting)
(opining the “exception to the three-year time-bar will swallow that time-bar,” which
could “open[ ] the floodgates to stale PCR actions”).
Finally, Blodgett argues he was actually innocent of the charges. See
Schmidt v. State, 909 N.W.2d 778, 795 (Iowa 2018) (recognizing free standing
claims of actual innocence). This actual-innocence argument is not preserved for
our review because the PCR court from which this appeal stems did not rule on
this argument. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised
and decided by the district court before we will decide them on appeal.”). Even if
it were preserved for our review, a timely actual-innocence claim must be based
on a new ground of fact in addition to the new ground of law announced in Schmidt.
See 909 N.W.2d at 798–99; see also Quinn v. State, 954 N.W.2d 75, 77 (Iowa Ct.
5
App. 2020) (collecting cases). As explained above, Blodgett has not provided a
new ground of fact to overcome the three-year limitation period. Therefore, even
if his actual-innocence claim were preserved for our review, it would still be time
barred.
Because Blodgett’s entire PCR application is barred by the statute of
limitations, we affirm the denial of his application. We do not reach his additional
pro se claims.
AFFIRMED.