Tommy Gines, Jr. v. State of Iowa ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0770
Filed June 15, 2022
TOMMY GINES JR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.
Tommy Gines, Jr. appeals the dismissal of his third application for
postconviction relief. AFFIRMED.
Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Richard Bennett, Special Counsel,
for appellee State.
Heard by Vaitheswaran, P.J., and Tabor and Badding, JJ.
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VAITHESWARAN, Presiding Judge.
This is an appeal from the district court’s dismissal of Tommy Gines Jr.’s
third application for postconviction relief, filed in 2020, following his 2014 guilty
pleas to two counts of intimidation with a dangerous weapon with intent by threats
and one count of felon in possession of a firearm, all as an habitual offender. The
facts and a partial procedural history are set forth in State v. Gines, 844 N.W.2d
437, 441–42 (Iowa 2014). Those details are largely irrelevant to the district court’s
disposition of the third postconviction-relief application.
Turning to that disposition, the court preliminarily concluded the application
fell “outside the three-year limitations period” prescribed by Iowa Code
section 822.3 (2020) and Gines failed to point “to any ground of fact or law that
could not have been raised within the limitations period.” See Iowa Code § 822.3.
The court next considered a supreme court opinion authorizing a limited
exception to the time bar. The opinion, Allison v. State, 914 N.W.2d 866, 891 (Iowa
2018), holds:
[W]here a PCR petition alleging ineffective assistance of trial counsel
has been timely filed per section 822.3 and there is a successive
PCR petition alleging postconviction counsel was ineffective in
presenting the ineffective-assistance-of-trial-counsel claim, the
timing of the filing of the second PCR petition relates back to the
timing of the filing of the original PCR petition for purposes of Iowa
Code section 822.3 if the successive PCR petition is filed promptly
after the conclusion of the first PCR action.
The district court rejected Gines’ request to fit his application within the Allison
exception, reasoning that a 2019 amendment to section 822.3 “legislatively
abrogated” Allison.
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The court finally addressed Gines’ constitutional challenges to the 2019
amendment. The amendment 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.” Iowa Code § 822.3. Gines’ equal protection
challenge to the amendment failed, the court said, because, “even if the 2019
amendment prohibiting reliance on ineffective assistance of PCR counsel is not
applied, Gines PCR matter would be time-barred, and there could be no equal
protection argument.” As for Gines’ due process challenge based on a claimed
denial of his right to be heard, the court explained that Gines “had the right to be
heard within the statute of limitations and [was] now outside that time limitation”
and the 2019 amendment did “not affect the availability of PCR review for Gines,
as even Allison would not have provided relief.”
On appeal, Gines asserts (1) his “successive PCR application falls within
the Allison rule’s exception to the three-year statute of limitations”; (2) “application
of the post-Allison amendment to Iowa Code section 822.3 violates [his] Equal
Protection rights” and his “Due Process rights”; and (3) this court “should address
the substantive merits of [his] claims so they are not procedurally defaulted for
federal habeas review.”
As to the first point, the district court correctly concluded that the 2019
amendment to section 822.3 legislatively abrogated Allison. See Brooks v. State,
No. 20-1652, 2022 WL 951080, at *2 (Iowa Ct. App. Mar. 30, 2022); Johnson v.
State, No. 19-1949, 2021 WL 210700, at *3 (Iowa Ct. App. Jan. 21, 2021). But,
even if the legislature had not abrogated Allison, the holding, by its terms, was
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inapplicable. Allison specified that the first postconviction-relief application had to
raise an ineffective-assistance-of-counsel claim. See 914 N.W.2d at 891 (applying
exception to “a PCR petition alleging ineffective assistance of trial counsel [that]
has been timely filed per section 822.3” (emphasis added)). Gines’ first
postconviction-relief application, filed in July 2015, did not raise an ineffective-
assistance-of-counsel claim. And, Allison granted a limited exception to the time
bar for a second postconviction-relief application. See id. (holding “the timing of
the filing of the second PCR petition relates back to the timing of the filing of the
original PCR petition for purposes of Iowa Code section 822.3” (emphasis added)).
This was Gines’ third application, not his second. See Velazquez-Ramirez v.
State, 973 N.W.2d 598, 601 (Iowa Ct. App. 2022) (clarifying Allison only applies to
second PCR actions); Hering v. State, No. 21-0688, 2022 WL 1487111, at *3 (Iowa
Ct. App. May 11, 2022) (concluding Allison did not apply to third postconviction-
relief application); Thompson v. State, No. 20-1002, 2022 WL 1232625, at *2 (Iowa
Ct. App. Apr. 27, 2022) (“As we have repeatedly recognized, the Allison exception
applies to only a second PCR application—not a third or beyond.”); Goode v. State,
No. 20-0282, 2021 WL 4889249, at *3 (Iowa Ct. App. Oct. 20, 2021) (citing cases).
Finally, Allison required the successive application to be filed “promptly.” See 914
N.W.2d at 891. Assuming Gines could overcome the previous two hurdles, his
third application was filed approximately two years after the conclusion of the
previous postconviction-relief action. Lesser delays have not satisfied this
standard. See Velazquez-Ramirez, 973 N.W.2d at 601 (“[W]e have repeatedly
concluded that ‘delays [of] one year or more’ are not sufficiently ‘prompt.’” (second
alteration in original) (citation omitted)); Herron v. State, No. 19-1909, 2022 WL
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1236762, at *1 (Iowa Ct. App. Apr. 27, 2022) (finding application filed nearly ten
months after the conclusion of the first proceeding was not prompt and citing
cases). In short, Gines could not avail himself of the limited exception to the
statutory time bar set forth in Allison.
It follows that, if Allison was unavailing, the 2019 statutory amendment
abrogating Allison had no effect on Gines’ third postconviction-relief application
and we need not reach Gines’ equal protection and due process challenges to the
amendment. As the State asserts, “[y]ou cannot lose what you never had.”
That said, similar constitutional challenges have been rejected. See Davis
v. State, 443 N.W.2d 707, 711 (Iowa 1989) (“We conclude that the legislature, in
providing the time limit in [section 822.3], afforded defendant a reasonable
opportunity to be heard, thus ensuring his federal and state due process rights.”);
Garcia v. State, No. 20-0883, 2022 WL 108561, at *4 (Iowa Ct. App. Jan. 12, 2022)
(rejecting an equal protection challenge to the amendment on the ground that the
applicant was “not similarly situated to those who can effectively utilize Allison’s
relation-back doctrine” and rejecting a due process challenge on the ground that
the applicant did “not have a due process right to advance stale claims”).
In light of our conclusion that Gines’ third postconviction-relief application
was untimely, we decline to reach the merits of his application.
AFFIRMED.