Francisco Villa Magana v. State of Iowa ( 2018 )


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  •               IN THE SUPREME COURT OF IOWA
                                  No. 16–1938
    
                            Filed February 23, 2018
    
    
    FRANCISCO VILLA MAGANA,
    
          Appellant,
    
    vs.
    
    STATE OF IOWA,
    
          Appellee.
    
    
    
          Appeal from the Iowa District Court for Marshall County, James C.
    
    Ellefson, Judge.
    
    
    
          An applicant for postconviction relief seeks further review of a
    
    court of appeals decision declining to reinstate his application.
    
    DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
    
    JUDGMENT REVERSED AND CASE REMANDED.
    
    
    
          Christopher Clausen of Clausen Law Office, Ames, for appellant.
    
    
    
          Thomas Miller, Attorney General, Timothy Mark Hau and Kevin
    
    Cmelik, Assistant Attorneys General, Des Moines, for appellee.
                                         2
    
    PER CURIAM.
    
          An application for postconviction relief was dismissed for want of
    
    prosecution under Iowa Rule of Civil Procedure 1.944, and a motion to
    
    reinstate the application was denied by the district court. The court of
    
    appeals affirmed the district court.     We must determine whether the
    
    denial of the motion to reinstate was erroneous. On further review, we
    
    find our decision of Lado v. State, 
    804 N.W.2d 248
     (Iowa 2011), controls
    
    this matter. Accordingly, we vacate the decision of the court of appeals,
    
    reverse the district court’s dismissal of the application, and remand for
    
    further proceedings.
    
          I. Factual and Procedural Background.
    
          In 2011, Francisco Villa Magana pled guilty to various charges
    
    related to failure to comply with the requirements of the sex offender
    
    registry. He appealed his sentence and his sentence was affirmed. See
    
    State v. Villa, No. 11–1134, 
    2012 WL 1247115
     (Iowa Ct. App. 2012). Villa
    
    then filed an application for postconviction relief (PCR) on October 17,
    
    2012. Trial on the PCR application was initially set for August 1, 2013.
    
    It was continued to February 13, 2014, and later to April 14.
    
          On March 25, 2014, Villa’s appointed PCR counsel was allowed to
    
    withdraw because he was leaving his law firm and would be terminating
    
    his public defender contract as of April 1. A new attorney was appointed.
    
    This attorney immediately moved to withdraw because she had two jury
    
    trials already scheduled in April.     A third attorney was appointed to
    
    represent Villa. He moved for a continuance on the ground that he could
    
    not adequately prepare by April 14. His request for a continuance was
    
    granted. At a scheduling conference on May 12, the trial on Villa’s PCR
    
    application was reset to July 31.
                                               3
    
           On July 9, the assistant county attorney moved to continue the
    
    July 31 trial date because a personal scheduling conflict had arisen.
    
    This request for continuance was also granted. Meanwhile, on July 15,
    
    the clerk of court issued a rule 1.944 dismissal notice, stating the case
    
    needed to be tried by December 31 or it would be subject to dismissal. 1
    
    Following an August 22 scheduling conference, the PCR trial was reset to
    
    December 11.
    
           On December 10, the assistant county attorney moved to continue
    
    the December 11 trial because Villa’s original trial counsel had also
    
    entered an appearance as Villa’s PCR counsel.                    In the motion to
    
    continue, the State expressed concern that Villa’s claims and theories of
    
    relief had changed.          In response, the district court ordered the court
    
    administrator to reschedule the trial and said that it would use the
    
    December 11 date to conduct a pretrial conference “defining [the] issues.”
    
    It ordered both the attorney who had been appointed to represent Villa in
    
    the PCR and the original trial counsel to appear in person.
    
           At the December 11 pretrial conference, Villa’s original trial
    
    counsel explained he would be entering an appearance and filing a
    
    motion for new trial in Villa’s original criminal case, not in the PCR
    
    
           1The   rule states,
           All cases at law or in equity where the petition has been filed more than
           one year prior to July 15 of any year shall be tried prior to January 1 of
           the next succeeding year. The clerk shall prior to August 15 of each year
           give notice to counsel of record as provided in rule 1.442 of the docket
           number, the names of parties, counsel appearing, and date of filing
           petition. The notice shall state that such case will be subject to
           dismissal if not tried prior to January 1 of the next succeeding year
           pursuant to this rule. All such cases shall be assigned and tried or
           dismissed without prejudice at plaintiff's costs unless satisfactory
           reasons for want of prosecution or grounds for continuance be shown by
           application and ruling thereon after notice and not ex parte.
    Iowa R. Civ. P. 1.944(2).
                                          4
    
    proceeding.     Accordingly, he was allowed to withdraw from the PCR
    
    proceeding.    It was further noted that the motion for new trial might
    
    render the PCR proceeding moot. The district court therefore entered an
    
    order giving Villa’s trial counsel thirty days to file his motion for new trial
    
    or advise the State he would not be filing such a motion. The court’s
    
    order also extended the rule 1.944 deadline to December 31, 2015. The
    
    order concluded, “This case will not be rescheduled for trial until the
    
    motion for new trial on the underlying criminal case has been decided.
    
    Counsel will be responsible for calling the need to reset this case for trial
    
    to the court’s attention.”
    
            At this point, the proceeding essentially went dormant for over a
    
    year.    On July 15, 2015, the clerk of court reconfirmed the district
    
    court’s December 11 order by issuing a rule 1.944 notice that dismissal
    
    would occur if the case was not tried by December 31.                 Nothing
    
    happened thereafter, and on January 8, 2016, the court dismissed the
    
    case.
    
            Nearly six months later, on June 26, Villa’s PCR counsel moved to
    
    reinstate the case. He explained,
    
                  1. In January, this matter was dismissed pursuant to
            Iowa Rule of Civil Procedure 1.944[.]
    
                  2. The Petitioner had filed another action which
            needed to be resolved prior to the present action moving
            forward.
    
                 3. The other action has now been completed and was
            unsuccessful.
    
                  4. Rule 1.944 allows the case to be reinstated if
            application is made within 180 days and if the dismissal was
            the result of an oversight. The undersigned was on military
            duty at the time the case was dismissed and did not get the
            matter extended prior to going on military duty.
    
                  5. That it is in the interest of justice for the Court to
            reinstate this case.
                                               5
    
          On September 9, the State filed a resistance to the motion to
    
    reinstate. Villa responded with another filing, which added that Villa had
    
    now been taken into custody by U.S. Immigration and Customs
    
    Enforcement (ICE). This filing asserted that Villa had a viable claim for
    
    relief under Padilla v. Kentucky, 
    559 U.S. 356
    , 
    130 S. Ct. 1473
     (2010),
    
    because he had not been informed of the immigration consequences of
    
    his guilty plea.       Villa’s attorney reiterated, “The case was dismissed
    
    pursuant to rule 1.944, during a period of time in which the undersigned
    
    was on military duty.” He added that “[t]he military duty [did] not excuse
    
    the undersigned’s failure to file to exempt this case under [rule] 1.944,”
    
    but did provide “reasonable cause” for reinstatement. 2 The State filed a
    
    supplemental resistance.
    
          The district court held a hearing on September 12 and denied the
    
    motion to reinstate. The court observed accurately that “this case went
    
    for over 18 months, from December 11, 2014, until June 26, 2016,
    
    without any filings by either party. The only filings during that time were
    
    notices by the clerk.” The court found no basis for reinstatement.
    
          Villa appealed, and we transferred the case to the court of appeals.
    
    That court affirmed.        The court found the dismissal of the application
    was not “a result of oversight,” as Villa had maintained. See Iowa R. Civ.
    
    P. 1.944(6).     Instead, the court concluded dismissal was the result of
    
    simply “[i]gnoring notice while showing nothing more than excuse, plea,
    
    
    
    
          2Rule   1.944(6) provides,
          The trial court may, in its discretion, and shall upon a showing that such
          dismissal was the result of oversight, mistake or other reasonable cause,
          reinstate the action or actions so dismissed. Application for such
          reinstatement, setting forth the grounds therefor, shall be filed within six
          months from the date of dismissal.
                                           6
    
    apology, or explanation,” which is “not sufficient to allow a party to
    
    escape default.”
    
          Additionally,    the   court   refused   to   consider   Villa   Magana’s
    
    argument that reversal of the dismissal was required under Lado. In a
    
    footnote, the court of appeals explained,
    
                In his reply brief, Villa Magana “requests” we “consider
          the issue of whether trial counsel was ineffective as
          contemplated in Lado [v. State, 
    804 N.W.2d 248
    , 254 (Iowa
          2011)], requiring reversal of the dismissal.” An issue cannot
          be asserted for the first time in a reply brief. See Young v.
          Gregg, 
    480 N.W.2d 75
    , 78 (Iowa 1992). For that reason, we
          have not considered the claim.
    
    (Alteration in original.)
    
          We granted Villa Magana’s application for further review.
    
          II. Standard of Review.
    
          We generally review denials of PCR applications for correction of
    
    errors at law.     Lamasters v. State, 
    821 N.W.2d 856
    , 862 (Iowa 2012).
    
    However, when an applicant claims denial of the statutory right to
    
    effective assistance of PCR counsel, we apply a de novo review. See Lado,
    
    804 N.W.2d at 250.
    
          III. Analysis.
    
          In Lado, we held that PCR counsel was ineffective in failing to
    
    avoid dismissal of a PCR application under Iowa Rule of Civil Procedure
    
    1.944, and that this constituted structural error.         Id. at 253.    Lado
    
    involved a pro se application that languished in the district court for
    
    eighteen months without activity. Id. at 250. Counsel was finally was
    
    appointed on November 5, 2008. Id. By then, the case was subject to
    
    dismissal on January 1, 2009, due to the operation of rule 1.944. Id.
    
    Lado’s newly appointed counsel took some steps to pursue the matter
    
    but never sought relief from rule 1.944 or opposed the state’s January 29
                                             7
    
    motion for summary judgment, which asserted among other things the
    
    expiration of the rule 1.944 deadline. Id. Following a March 17 hearing,
    
    the court dismissed the PCR based on rule 1.944. Id. Lado appealed,
    
    and the court of appeals affirmed. Id. That court found that Lado’s PCR
    
    counsel had breached an essential duty but had failed to establish
    
    prejudice, i.e., that the result of the proceeding would have been
    
    different, on the existing record. Id.
    
          We reversed and remanded, deciding that prejudice did not have to
    
    be shown because this was a “structural error.”      Id. at 252–53.    We
    
    explained,
    
                 The [district] court specifically warned Lado’s counsel
          that his postconviction relief application was subject to rule
          1.944 dismissal. Counsel at no point sought a continuance
          to obtain relief from the rule’s consequences. Additionally,
          after the court dismissed the case pursuant to the rule,
          counsel never made application to the court to have the case
          reinstated as allowed by the rule. When the State filed its
          motions for summary judgment and dismissal alleging
          Lado’s application should be dismissed pursuant to rule
          1.944, Lado’s counsel sat silent and did not respond. Not
          surprisingly, the court dismissed Lado’s application for
          failure to prosecute.       Lado was constructively without
          counsel during his postconviction relief proceeding as his
          application was dismissed without any consideration of its
          merits or meaningful adversarial testing. This is the type of
          error that renders the entire postconviction relief proceeding
          “presumptively unreliable.” Accordingly, Lado’s statutory
          right to effective counsel entitles him to have his
          postconviction relief dismissal reversed and to proceed with
          his postconviction relief proceeding.
    
    Id.
    
          We believe Lado controls here and mandates reversal. As in Lado,
    
    PCR counsel failed to take necessary action to prevent his client’s
    
    application from being dismissed under rule 1.944. See id. at 250. To
    
    borrow Lado’s terminology, Villa was “constructively without counsel”
    
    during the time period from December 11, 2014, until June 26, 2016.
                                             8
    
    Id. at 253. As a result, similar to the situation in Lado, the client never
    
    had a PCR application considered by the district court with respect to the
    
    convictions in question.        See id. It is true that Villa’s counsel, unlike
    
    Lado’s, tried to get the PCR application reinstated, albeit without
    
    success.      See id. at 250.    But the salient point remains: a rule 1.944
    
    dismissal occurred here for essentially the same reasons as in Lado. See
    
    id. at 250–51.
    
            The court of appeals declined to consider Villa’s Lado argument
    
    because it was raised for the first time in his reply brief. Generally, we
    
    will not consider issues raised for the first time in a reply brief. See State
    
    v. Carroll, 
    767 N.W.2d 638
    , 644 (Iowa 2009).              Yet we have noted
    
    exceptions. See State v. Lyle, 
    854 N.W.2d 378
    , 382–83 (Iowa 2014). In
    
    Lyle, we identified “a constitutional challenge to an illegal sentence” as a
    
    possible exception. Id. at 382. In Carroll, we held that a defendant was
    
    not required to assert ineffective assistance of counsel with respect to a
    
    guilty plea until the state pointed out in its answering brief that the
    
    defendant’s plea had waived ineffective assistance of counsel with regard
    
    to failure to file a motion to suppress. 767 N.W.2d at 644–45.
    
            This case presents a situation where the ineffective-assistance
    
    argument should be considered even though it was not raised until the
    
    reply brief. First, the underlying error is structural, as we discussed in
    
    Lado.    See 804 N.W.2d at 253.         Second, the State anticipated a Lado
    
    argument in its brief and actually responded to it. The State’s answering
    
    brief said,
    
                   The State would note that Villa does not assert an
            ineffective assistance of counsel claim in his brief, and this
            Court should not build the argument on his behalf or allow
            him to present it for the first time on reply. Reversing the
            district court in this instance would essentially create a per
            se rule of structural error where a postconviction relief
                                                   9
            action was dismissed pursuant to rule 1.944. Such a
            construction would render rule 1.944 meaningless for
            purposes of postconviction relief and would encourage
            further dilatory conduct of postconviction relief counsel, not
            curb it.
    
    (Citations omitted.)          Although the State may feel it should not be
    
    penalized for this kind of proactive briefing, its anticipation of Villa’s
    
    argument avoids any procedural unfairness. Third, Villa’s appellate PCR
    
    counsel was always in a difficult spot to raise ineffective assistance by
    
    Villa’s trial PCR counsel, because the two individuals were one and the
    same.         Although Villa’s trial PCR counsel probably should have
    
    withdrawn from handling this appeal, Villa himself should not suffer the
    
    consequences. 3
            The State expresses legitimate concerns.                        Relieving a PCR
    
    applicant from the effects of a rule 1.944 dismissal does limit the
    
    usefulness of the rule to some extent in the PCR context. Fortunately,
    
    other tools exist to address dilatory conduct in litigation by parties and
    
    attorneys.
    
            For the foregoing reasons, we vacate the decision of the court of
    
    appeals, reverse the orders of the district court dismissing and denying
    
    reinstatement of Villa’s PCR application, and remand for further
    proceedings consistent with this opinion.
    
            DECISION OF COURT OF APPEALS VACATED; DISTRICT
    
    COURT JUDGMENT REVERSED AND CASE REMANDED.
    
            This opinion shall be published.
    
    
    
    
            3We   credit Villa’s PCR counsel for raising Lado explicitly in his reply brief.
    

Document Info

DocketNumber: 16-1938

Filed Date: 2/23/2018

Modified Date: 2/28/2018