Terrance Burnett v. State of Iowa ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0865
Filed May 2, 2018
TERRANCE BURNETT,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Richard H.
Davidson, Judge.
Applicant challenges the dismissal of his second application for
postconviction relief. AFFIRMED.
Marti D. Nerenstone, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, and Benjamin M. Parrott, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.
Terrance Burnett appeals from the dismissal of his second application for
postconviction relief. He contends the district court erred in dismissing his
application as time barred. This court has twice laid out the facts in Burnett’s case,
see Burnett v. State, No. 14-1128, 2016 WL 530130, at *1 (Iowa Ct. App. Feb. 10,
2016); State v. Burnett, No. 11-0361, 2012 WL 836656, at *1–2 (Iowa Ct. App.
Mar. 14, 2012), and they need not be repeated herein.
On review for the correction of legal error, see Dible v. State, 557 N.W.2d
881, 883 (Iowa 1996), abrogated on other grounds by Harrington v. State, 659
N.W.2d 509 (Iowa 2003), we conclude the district court did not err in dismissing
Burnett’s untimely second application for postconviction relief. Iowa Code section
822.3 (2016) requires postconviction-relief applications “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” absent a ground of fact or law that could
not have been raised within the statutory period. It is not disputed Burnett’s second
application is untimely. Burnett contends his untimely application should be
excused because his postconviction appellate counsel was ineffective in not
seeking further review of this court’s decision affirming the dismissal of his first
application for postconviction relief. The ineffective assistance of postconviction
appellate counsel is not a ground of fact or law excusing an untimely application
for postconviction relief. See Dible, 557 N.W.2d at 886; Greenup v. State, No. 16-
0826, 2017 WL 3505293, at *1 (Iowa Ct. App. Aug. 16, 2017) (“However, the
ineffective assistance of postconviction relief counsel is not a ‘ground of fact’ within
the meaning of section 822.3. Consequently, it cannot serve as an exception to
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the three-year statute of limitations found in that statute.”); Allison v. State, No. 16-
0764, 2017 WL 706330, at *1–2 (Iowa Ct. App. Feb. 22, 2017) (holding the
ineffective assistance of postconviction counsel is not a “ground of fact” within the
exception to the three-year statute of limitations); Kelly v. State, No. 12-0838, 2014
WL 4224731, at *1 (Iowa Ct. App. Aug. 27, 2014) (holding the “ineffective
assistance of postconviction appellate counsel” was not an exception to the statute
of limitations); Jackson v. State, No. 12-1496, 2013 WL 4505114, at *2 (Iowa Ct.
App. Aug. 21, 2013) (“Jackson argues his case is distinguishable as he is claiming
his postconviction appellate counsel is ineffective, but our case law is clear that
postconviction counsel's conduct does not have a direct impact on the validity of
the criminal conviction and does not qualify as a ground of fact that will avoid the
limitations period.”). The district court correctly dismissed Burnett’s application for
postconviction relief as time barred.
AFFIRMED.