Raymond E. Thomas v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 20-0045
Filed July 21, 2021
RAYMOND E. THOMAS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Samantha J.
Gronewald, Judge.
The applicant appeals from the dismissal of his third application for
postconviction relief. AFFIRMED.
Raymond E. Thomas, Fort Madison, self-represented appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee State.
Considered by Mullins, P.J., Greer, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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POTTERFIELD, Senior Judge.
In 2006, a jury convicted Raymond Thomas of third-degree kidnapping, first-
degree burglary,1 second-degree robbery, and two counts of assault on a peace
officer. He directly appealed his convictions, which this court affirmed in State v.
Thomas, No. 06-0582, 2007 WL 3376888 (Iowa Ct. App. Nov. 15, 2007).
Procedendo issued December 19, 2007. Thomas then filed two separate,
unsuccessful applications for postconviction relief (PCR)—one in 2008 and one in
2012.
He filed the instant application, his third, on June 27, 2019—more than
eleven years after procedendo issued. In it, Thomas maintained his application
was timely because of “the doctrine of fraudulent concealment” and the “relation-
back doctrine” outlined in Allison v. State, 914 N.W.2d 866 (Iowa 2018). As for the
substance of his application, Thomas claimed the State failed to properly file the
amended trial information under which he was tried and convicted, “which caused
prejudice involving life and liberty of his person.” He asserted he should receive a
new trial due to this failure. The State moved to have Thomas’s third application
dismissed as time-barred. See Iowa Code § 822.3 (2019). The district court
granted the motion, finding Thomas did not establish an exception to the statute of
limitations. Thomas appeals. “Generally, we review a grant of a motion to dismiss
a PCR petition for correction of errors at law.” Allison, 914 N.W.2d at 870.
1 The jury also convicted Thomas of assault with intent to commit sexual abuse
causing bodily injury, which the district court concluded merged with his conviction
for first-degree burglary. The court sentenced Thomas to a term of incarceration
not to exceed thirty-five years.
3
Thomas maintains an exception to the three-year statute of limitations
applies to save his third PCR application and the district court was wrong to rule
otherwise.
First, he mentions in passing that the district court was wrong to conclude
he did not raise a new ground of fact or law that could not have been raised earlier.
See Iowa Code § 822.3 (providing applications must be filed within three years
from when the writ of procedendo is issued but “this limitation does not apply to a
ground of fact or law that could not have been raised within the applicable time
period”). As the State points out, Thomas did not raise this argument to the district
court, so it is not preserved for our review on appeal. See Goode v. State, 920
N.W.2d 520, 526 (Iowa 2018) (“As a general rule, we do not address issues
presented on appeal for the first time . . . .”).
Second, Thomas maintains his application is saved by the holding in Allison,
in which our supreme court held:
that where 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.
914 N.W.2d at 891 (emphasis added). But this is Thomas’s third application, not
his second. See, e.g., Smitherman v. State, 19-0331, 2020 WL 3571814, at *2
(Iowa Ct. App. July 1, 2020) (“[Allison] does not apply to a third or subsequent PCR
application.”). And, furthermore, he filed his third application more than eighteen
months after procedendo issued on his second application, which is not a “prompt”
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successive filing. See, e.g., Maddox v. State, No. 19-1916, 2020 WL 5230367, at
*3 (Iowa Ct. App. Sept. 2, 2020) (concluding 121-day delay did not meet the
requirement of “filed promptly”). The Allison exception does not apply here.2
Finally, Thomas argues his application is not time-barred because of the
doctrine of fraudulent concealment. A plaintiff can rely on the doctrine of fraudulent
concealment to avoid the statute of limitations. See Christy v. Miulli, 692 N.W.2d
694, 703 (Iowa 2005). But to do so, the party relying on the doctrine “must prove
the [other party] did some affirmative act to conceal the plaintiff’s cause of action
independent of and subsequent to the liability-producing conduct.” Id. And “the
plaintiff’s reliance must be reasonable.” Id. Here, Thomas relies on the State’s
failure to file the amended trial information for both the substance of his application
(i.e. “liability-producing conduct”) and as his reason for his untimely filing. But the
amended trial information reduced the charges against Thomas, and he knew of
the amendment at least as of the time the trial began because the prosecutor read
the correct, amended trial information to the jury. Additionally, at Thomas’s
sentencing, the discrepancy in information was noted, as the preparer of the
presentence investigation did not have the most recent version. The prosecutor
pointed out at that time that she had read the correct one to the jury at the
2 In 2019, our legislature amended section 822.3 to include the following, “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 (Supp. 2019). This amendment appears to abrogate Allison, and it
took effect on July 1, 2019—while Thomas’s third application was pending. But
because Thomas’s application does not meet the narrow exception set out in
Allison, we need not determine whether the amended section 822.3 applies to his
case.
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beginning of the trial, and the court instructed the prosecutor “to provide us with
the amended charges that then will be attached to the [PSI].” Assuming the
doctrine of fraudulent concealment applies to PCR actions, Thomas has not
proved it is applicable here.
Because Thomas has not established an exception to the statute of
limitations to save his third PCR application, we affirm the district court’s dismissal.
AFFIRMED.