Willie James Herron, Jr. v. State of Iowa ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1909
Filed April 27, 2022
WILLIE JAMES HERRON, JR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Willie Herron appeals the denial of his second application for postconviction
relief. AFFIRMED.
Ronald W. Kepford, Winterset, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Tabor, P.J., May, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
VOGEL, Senior Judge.
In 2009, sentence was imposed upon Willie Herron’s convictions for two
counts of first-degree burglary and one count of first-degree robbery. We affirmed
on direct appeal, rejecting his various claims of error, abuse of discretion, and
ineffective assistance of counsel. See generally State v. Herron, No. 09-1836,
2011 WL 662412 (Iowa Ct. App. Feb. 23, 2011). Procedendo issued in April 2011.
Herron filed his first application for postconviction relief (PCR) in September
2011. That application was denied by the district court. We affirmed, rejecting
Herron’s claims of ineffective assistance of trial and PCR counsel. See generally
Herron v. State, No. 14-1196, 2016 WL 5929980 (Iowa Ct. App. Oct. 12, 2016).
Procedendo following that appeal issued in early March 2017.
Nearly ten months later, in late December 2017, Herron filed the PCR
application precipitating this appeal. Citing the supreme court’s recent decision in
State v. Plain, 898 N.W.2d 801 (2017), he argued his right to an impartial jury
drawn from a fair cross-section of the community was violated. In an amended
application, he added claims that trial, appellate, and his first PCR counsel were
ineffective in failing to raise the fair-cross-section claim.
In time, the State filed a motion for summary disposition, arguing Herron’s
application was barred by the three-year statute of limitations contained in Iowa
Code section 822.3 (2017), the second application was not promptly filed after the
conclusion of the first proceeding within the meaning of Allison v. State,1 and Plain
1 See 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a timely application is
filed within the statute of limitations alleging ineffective assistance of trial counsel,
the filing of a successive application that alleges ineffective assistance of
postconviction counsel in presenting the ineffective-assistance-of-trial-counsel
3
is not entitled to retroactive treatment. The court denied the motion on the basis
that genuine issues of material fact remained, and the matter proceeded to trial.
Following trial, the district court concluded the application was untimely,
Plain is not entitled to retroactive treatment, and none of Herron’s prior attorneys
rendered ineffective assistance in failing to raise the issue. The court denied
Herron’s application, and this appeal followed.
We ordinarily review the denial of a PCR application for legal error, but our
review is de novo when claims of ineffective assistance of counsel come into play.
Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021).
Herron first argues the court erred in finding his application was untimely.
He asserts his application was promptly filed following the conclusion of the first
proceeding within the meaning of Allison. Herron did not file his second application
until nearly ten months after the conclusion of the first proceeding. We decline
Herron’s invitation to reevaluate what qualifies as prompt, and we summarily
conclude his second application was not prompt within the meaning of Allison.
See, e.g., Maddox v. State, No. 19-1916, 2020 WL 5230367, at *3 (Iowa Ct. App.
Sept. 2, 2020) (finding 121 days, or roughly four months, does not qualify as
prompt), further review denied (Oct. 28, 2020); Polk v. State, No. 18-0309, 2019
WL 3945964, at *1 (Iowa Ct. App. Aug. 21, 2019) (finding application filed “nearly
six months” after procedendo issued was not filed promptly within the meaning of
Allison).
claim, the filing of the second application relates back to the time of the filing of the
original application so long as the successive application is filed promptly after the
conclusion of the original action).
4
Herron goes on to argue the filing of his application roughly six months after
the Plain decision satisfies the promptness requirement. But six months is also
not prompt. Maddox, 2020 WL 5230367, at *3; Polk, 2019 WL 3945964, at *1.
And the Allison decision was narrow and “says what it says.” Velazquez-Ramirez
v. State, ___ N.W.2d ___, ___, 2022 WL 108542, at *2 (Iowa Ct. App. 2022). “[B]y
its plain terms, Allison only applies to second PCRs ‘filed promptly after the
conclusion of the first PCR action.’” Id. (citation omitted). Having concluded
Allison does not save the application from the statute of limitations, we find it
unnecessary to address Herron’s position on what types of claims Allison allows
to be brought in a successive application.2
Next, Herron argues the district court erred in determining Plain is not
entitled to retroactive treatment. It is true that Plain serves as “a new ground of
law under section 822.3.” Thongvanh v. State, 938 N.W.2d 2, 16 (Iowa 2020).
That said, it “does not apply retroactively to cases on collateral review.” Id.“Because Plain cannot retroactively apply to [Herron’s] jury-composition claim, he
has no viable jury-composition claim in this PCR proceeding.” Nelson v. State,
No. 18-1928, 2020 WL 7021509, at *2 (Iowa Ct. App. Nov. 30, 2020). And because
Herron’s conviction was final when Plain was decided, he cannot rely on it to
support his claims of ineffective assistance of prior counsel, which we thus find
unnecessary to address. See, e.g., Bol v. State, No. 19-0225, 2020 WL 3571807,
at *3 (Iowa Ct. App. July 1, 2020).
2We note our recent “definitive” conclusion that the legislature invalidated Allison’s
relation-back doctrine as it relates to applications filed on or after July 1, 2019. See
Brooks v. State, No. 20-1652, 2022 WL 951080, at *1–2 (Iowa Ct. App. Mar. 30,
2022).
5
We affirm the denial of Herron’s PCR application.
AFFIRMED.