Mark Douglas Morgan v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 21-1834
Filed December 21, 2022
MARK DOUGLAS MORGAN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Thomas Bitter,
Judge.
Mark Douglas Morgan appeals the summary dismissal of his pro se
application for postconviction relief. AFFIRMED.
David James Hanson of Hofmeyer & Hanson, P.C., Fayette, for appellant.
Thomas J. Miller, Attorney General, and John R. Lundquist, Assistant
Attorney General, for appellee State.
Considered by Bower, C.J., Schumacher, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
SCOTT, Senior Judge.
Mark Douglas Morgan appeals the summary dismissal of his pro se
application for postconviction relief (PCR). Because Morgan has not alleged facts
entitling him to PCR, the district court did not err in dismissing the PCR
application.1
On September 3, 2020, Morgan filed a handwritten PCR application alleging
he was “serving prison sentences for various sex offenses”; he has served twenty-
one years of his sentences with a tentative discharge date of July 3, 2023; he
completed the state-mandated sex-offender treatment program on July 28, 2020;
and his case was referred to the Iowa Attorney General’s (AG) office on September
28, 2020, for consideration of whether Morgan should be civilly committed under
chapter 229A (2020), the AG had not acted on the referral, “he has a clear statutory
liberty interest in meeting the qualifications for parole, and the State is denying him
this liberty interest by failing to promptly review his case.”
On September 15, the district court—without notice—dismissed the PCR
application stating:
Th[e] application does not identify the proceeding in which the
Applicant was convicted or the date of the conviction, as required by
Iowa Code Section 822.4. Further, the application does not allege
any of the grounds enumerated under Iowa Code section 822.2(1).
Lastly, the Applicant indicates he has been in prison for [twenty-one]
years. As such, his application was filed more than three years after
the conviction and therefore violates Iowa Code section 822.3.
1 On February 17, 2022, the supreme court, on its own motion, required the parties
to address the issue of the dismissal of the application without notice to either party
by the district court. The State responded. Morgan did not respond. Because
Morgan has not moved for reversal on this ground, we do not address the matter
in this opinion.
3
Morgan filed a motion to reconsider, enlarge, or amend in which he stated
he was convicted in 2001 of specified charges, he was serving a fifty-year term
with no mandatory minimum, and he has submitted his PCR application pursuant
to Iowa Code section 822.2(1)(e), (f), and (h).2 Specifically, Morgan alleges his
parole release has been unlawfully revoked; [he] is otherwise
unlawfully held in custody; the results of DNA profiling ordered
pursuant to an application filed under section 81.10 would have
changed the outcome of trial, or void the factual basis of a guilty plea
had the profiling been conducted prior to the conviction.
He also asserted the three-year filing is not applicable, and he was relying on Belk
v. State, 905 N.W.2d 185 (Iowa 2017), and Franklin v. State, 905 N.W.2d 170(Iowa 2017), in which the Iowa Supreme Court “clarified that the district court does
have jurisdiction, and that the proper method to bring these claims is a PCR filed
in the county of conviction.” He also noted Iowa’s parole statute is like the Montana
parole statute, which the United States Supreme Court in Board of Pardons v.
Allen, 482 U.S. 369 (1987), found had created a liberty interest of gaining access
to parole once all the mandated prerequisites were completed. The court
summarily denied the motion to reconsider on November 10.
2 Paragraphs (e), (f), and (h) of section 822.2(1) allow a PCR application to be filed
if a convicted person claims:
e. The person’s sentence has expired, or probation, parole, or
conditional release has been unlawfully revoked, or the person is
otherwise unlawfully held in custody or other restraint.
f. The person’s reduction of sentence pursuant to
sections 903A.1 through 903A.7 has been unlawfully forfeited and
the person has exhausted the appeal procedure of section 903A.3,
subsection 2.
....
h. The results of DNA profiling ordered pursuant to an
application filed under section 81.10 would have changed the
outcome of the trial or voided the factual basis of a guilty plea had
the profiling been conducted prior to the conviction.
4
Morgan appeals, contending the court erred in dismissing his application as
time-barred and the court should have accepted as true all the well-pleaded facts.3
Morgan argues that because of the AG’s “unconscionable delay” in acting on the
board of parole’s referral to consider whether the AG intended to seek a civil
commitment, he is being deprived of the ability to be paroled. Fundamentally, his
complaint is against the AG’s office.
A PCR proceeding is a civil action, which we review for correction of errors
of law. Iowa R. App. P. 6.907. Generally, we review dismissals based on a motion
to dismiss.4 There was no motion to dismiss here—the court dismissed the
application sua sponte without notice to either party.
“[I]t appears to be generally recognized trial courts may sua sponte dismiss
where the case has not been diligently prosecuted, where issues have become
moot, [or] where the court discovers it lacks jurisdiction.” Rush v. Sioux City, 240
N.W.2d 431, 438–39 (Iowa 1976) (internal citations omitted), overruled on other
grounds by Hoffert v. Luze, 578 N.W.2d 681 (Iowa 1998). Yet, our supreme court
has “emphasized the need to exercise this authority sparingly.” Teleconnect Co.
3 He also contends we should require the parole board to act to vindicate the
court’s authority and his liberty interests. We do not reach the merits of Morgan’s
claims. The question before us is limited to whether the district court improperly
dismissed the PCR application.
4 Iowa Code section 822.6(1) provides:
Within thirty days after the docketing of the application, or
within any further time the court may fix, the state shall respond by
answer or by motion which may be supported by affidavits. At any
time prior to entry of judgment the court may grant leave to withdraw
the application. The court may make appropriate orders for
amendment of the application or any pleading or motion, for pleading
over, for filing further pleadings or motions, or for extending the time
of the filing of any pleading. In considering the application the court
shall take account of substance regardless of defects of form.
5
v. Iowa State Com. Comm’n, 366 N.W.2d 515, 519 (Iowa 1985). Iowa Code
section 822.6(1) provides, “In considering the application the court shall take
account of substance regardless of defects of form.”
Iowa Code section 822.6 allows the district court to dismiss a PCR
application in limited circumstances:
When a court is satisfied, on the basis of the application, the
answer or motion, and the record, that the applicant is not entitled to
postconviction relief and no purpose would be served by any further
proceedings, the court may indicate to the parties its intention to
dismiss the application and the reasons for dismissal. The applicant
shall be given an opportunity to reply to the proposed dismissal. In
light of the reply, or on default thereof, the court may order the
application dismissed or grant leave to file an amended application
or direct that the proceedings otherwise continue. Disposition on the
pleadings and record is not proper if a material issue of fact exists.
(Emphases added.)
The State “acknowledges that the court is to accept as true the allegations
contained in [Morgan’s] pleading and all reasonable inferences in his favor drawn
therefrom.” See Belk, 905 N.W.2d at 188 (“The application does not have to allege
ultimate facts supporting each element of the cause of action, but it ‘must contain
factual allegations that give the [State] “fair notice” of the claim asserted so the
[State] can adequately respond to the application.’ The application meets the ‘fair
notice’ requirement ‘if it informs the [State] of the [events] giving rise to the claim
and of the claim’s general nature.’ We view the applicant’s allegations ‘in the light
most favorable to the [applicant] with doubts resolved in that party’s favor.’”
(alterations in original) (internal citations omitted)).
The essence of Morgan’s PCR application is that he is being unlawfully held
in custody or unlawfully deprived of a liberty interest in the chance at parole by the
6
AG’s failure to act on the board of parole’s notice of Morgan’s tentative discharge
date.5 On appeal, Morgan summarizes:
This [PCR] appeal challenges the illegal and unconstitutional
“slow-walk” of Appellant’s qualification for parole. Despite his having
completed sex offender behavioral treatment, Appellant cannot
obtain a parole hearing due to the Board’s undue deference to Iowa
[AG]’s position: before parole may be considered (the [AG]) must first
decide whether or not to prosecute Appellant for involuntary
committal under Code chapter 229A.
The State asserts the dismissal was proper because “neither the parole
release decisions nor chapter 229A civil commitment proceedings fall within the
authority of the postconviction court to hear under Iowa Code section 822.2.” We
agree.
Morgan does not claim the department of corrections has failed to offer sex
offender treatment program (SOTP) and thus does not fall within the court’s Belk
ruling. See 905 N.W.2d at 190–91 (noting “[w]e have allowed postconviction-relief
actions to challenge SOTP classification decisions, work release revocations, and
disciplinary actions involving a substantial deprivation of liberty or property
interests” and holding “an inmate may proceed under Iowa Code
section 822.2(1)(e) when alleging an unconstitutional denial of his or her liberty
interest based on the [department of correction’s] failure to offer SOTP when SOTP
is a necessary prerequisite to parole”). In fact, Morgan alleges he has completed
SOTP. Rather, Morgan’s claim is directed at the AG’s office and its failure to
decide whether it will seek to file a civil petition for Morgan’s commitment as a
5The allegations included in his motion to reconsider that parole release has been
unlawfully revoked and the results of DNA profiling ordered pursuant to an
application filed under section 81.10 would have changed the outcome of trial are
not asserted on appeal, so we do not discuss them further.
7
sexually violent predator under chapter 229A. He asserts the AG’s inaction is
delaying the board of parole from considering him for parole because of the board’s
undue deference. Even assuming the facts alleged by Morgan are true, we are
not persuaded section 822.1 offers him a path to relief. See Doe v. State, 688
N.W.2d 265, 268–71 (Iowa 2004) (affirming the dismissal of an inmate’s PCR
application and rejecting claims that the chapter 229A process violated various
constitutional rights).6
In Belk, the court was not convinced by the State’s assertions that an
administrative appeal was the proper way to challenge the SOTP issue because
the court stated the applicant’s “complaint is really with the [the department of
corrections] rather than the [board of parole].” 905 N.W.2d at 191; see also id. at
192 (“[I]t is important to note, Belk’s claim is not about the actions of the [board of
parole] in denying him parole. Rather, Belk is claiming the actions of the
[department of corrections]—in delaying his access to SOTP based on his tentative
discharge date and then recommending against his parole to the [board of parole]
because of his failure to complete SOTP—has unconstitutionally violated his
6The court wrote
We initially question the factual basis for Doe’s argument that
he has been denied a timely decision on whether he qualifies for
consideration for possible work release. Under the statute, prison
officials are not required to initiate any inquiry regarding the inmate’s
classification for [sexually violent predator act] purposes until ninety
days prior to the inmate’s anticipated discharge date. Because Doe’s
anticipated discharge date is not until December 29, 2005, the
referral of his case to the attorney general was well before the ninety
days provided by statute. Any deprivation of Doe’s consideration for
early release has therefore been visited upon him by the statute—
not the DOC policy.
Doe, 688 N.W.2d at 268–69.
8
protected liberty interest.”). The same is not true here, so we affirm the dismissal
of Morgan’s PCR application.
AFFIRMED.