Jesse Raymond Neitzel v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1622
Filed November 23, 2021
JESSE RAYMOND NEITZEL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Carroll County, Adria A.D. Kester,
Judge.
Jesse Neitzel appeals the district court’s denial of his fifth postconviction-
relief application. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
2
VAITHESWARAN, Judge.
Jesse Neitzel filed his fifth postconviction-relief application in 2020 following
this court’s 2011 affirmance of his conviction for second-degree sexual abuse. See
State v. Neitzel, 801 N.W.2d 612, 616–17 (Iowa Ct. App. 2011). The State moved
for summary disposition on the ground that “Iowa Code Section 822.3 [2020]
places a three-year limitation on post-conviction proceedings with limited
exceptions” and Neitzel “failed to allege any of the exceptions and it has been more
than three years since the conviction.”
Neitzel amended his application to raise a claim of actual innocence. The
State responded with an amended answer asserting Neitzel “now cannot,
consistent with Iowa Code Ch 822 in his Fifth Application for Postconviction Relief,
12 years after his trial, simply come forward and say “I didn’t do it” as legally
sufficient grounds for vacating the conviction.” The State also reasserted the
section 822.3 time bar. The district court granted the State’s summary disposition
motion. On appeal, Neitzel argues the district court erred in concluding his actual
innocence claim was time-barred.
Iowa Code section 822.3 requires postconviction-relief applications to 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 of procedendo is issued,” but states “this
limitation does not apply to a ground of fact or law that could not have been raised
within the applicable time period.” Neitzel concedes his fifth application was not
filed within three years of procedendo. He also concedes an argument he made
in the district court—that an allegation of actual innocence is an independent
exception to the section 822.3 time bar—is foreclosed by Schmidt v. State, 909
3
N.W.2d 778, 795, 798 (Iowa 2018), the opinion authorizing freestanding claims of
actual innocence. There, the court stated postconviction-relief applicants raising
freestanding claims of actual innocence must either bring a claim within the three-
year period identified in section 822.3 or show they “could not have raised [a]
ground of fact within the applicable time period,” with the ground of fact needing to
have “the potential to qualify as material evidence for purposes of a substantive
claim under section 822.2.” Schmidt, 909 N.W.2d at 98–99. Neitzel failed to raise
any ground of fact let alone one that could not have been raised within the
applicable time period.
Neitzel attempts to shoehorn his application into a limited exception
afforded postconviction-relief applicants under Allison v. State, 914 N.W.2d 866,
891 (Iowa 2018), an exception he concedes the legislature abrogated before he
filed his fifth postconviction-relief application. See Iowa Code § 822.3. As a fall-
back, he challenges the constitutionality of section 822.3. Neither his reliance on
Allison nor his constitutional challenge to its abrogation was preserved for review.
See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“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.”)
In his final attempt to circumvent the time-bar, Neitzel contends his
postconviction trial counsel was ineffective in failing to present facts to support his
actual innocence claim.1 But, in Goode v. State, 920 N.W.2d 520, 527 (Iowa 2018),
1 Because the allegation is founded on trial counsel’s performance in this case
rather than a prior case, the legislative abrogation of Allison is inapplicable. See
Iowa Code § 822.3 (“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
4
the supreme court stated, “we decline to remand claims of ineffective assistance
of postconviction counsel raised for the first time on appeal to the district court to
hear and decide. Instead, the claims must be filed as a separate application in
district court.” Goode is controlling. As the State notes, “[t]his claim is
indistinguishable. Neitzel cannot show breach or prejudice without establishing
that competent [postconviction] counsel would have found something to offer—
and he cannot, on this record.”
The district court did not err in granting the State’s motion for summary
disposition.
AFFIRMED.
nor shall such claim relate back to a prior filing to avoid the application of the
limitation periods.” (emphasis added)). On the other hand, Neitzel’s claim that all
prior counsel were ineffective in failing to search for evidence of actual innocence
is foreclosed by section 822.3. And, even if newly-enacted section 822.3 did not
foreclose the claim relating to all prior counsel, this court has stated, “allegations
that [] prior counsel were ineffective [] do[es] not create a new ground of fact or law
to trigger the exception.” Blodgett v. State, No. 19-1877, 2021 WL 4592782, at *1
(Iowa Ct. App Oct. 6, 2021) (citing 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)).