Bobby Ray Devers v. State of Iowa ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0121
Filed January 23, 2019
BOBBY RAY DEVERS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Mark J.
Eveloff, Judge.
Applicant appeals the district court’s summary dismissal of his fourth
postconviction-relief action. AFFIRMED.
Joel Baxter of Wild, Baxter & Sand, P.C., Guthrie Center, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
2
VOGEL, Chief Judge.
Bobby Ray Devers, appeals the district court’s summary dismissal of his
fourth postconviction-relief (PCR) action. Because he has failed to generate a
genuine issue of material fact to warrant a trial on the merits, we affirm.
We review this summary dismissal of the PCR application for errors at law.
Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018).
Devers was convicted of sexual abuse with a minor in 2004. We affirmed
his conviction on direct appeal. See State v. Devers, No. 04-0478, 2005 WL
724081, at *7 (Iowa Ct. App. Mar. 31, 2005). Three subsequent PCR applications
have been dismissed.1 In this fourth PCR application he raised two issues of
newly-discovered evidence, which he asserts provide an exception to the three-
year statute of limitations under Iowa Code section 822.3 (2017). However, the
PCR court, in a detailed discussion of the claims, found neither to be newly
discovered. Moreover, the State offered evidence that both claims were belied by
the original trial record and exhibits—namely a photographic line-up and testimony
as to what the victim was wearing. In addition, Devers admitted at the PCR hearing
that he was present at a pre-trial deposition and aware at the time—in 2003—of
an apparent inconsistency in descriptions of the victim’s clothing.
1
The dismissal of Devers’ first PCR application was affirmed by this court in Devers v.
State, No. 08-0592, 2009 WL 1676643, at *5 (Iowa Ct. App. June 17, 2009). The second
was dismissed as untimely in 2012 and was dismissed by our supreme court as frivolous
in 2013 on direct appeal. The third application was filed in January 2014 and summarily
dismissed in March 2014. Similar claims asserted in a federal habeas action were denied
in 2011. See Devers v. Fayram, No. C09-139 EJM, 2011 WL 6328389, at *1 (N.D. Iowa
Dec. 16, 2011).
3
We agree with the PCR court that neither claim Devers now makes would
be newly-discovered evidence. Therefore, the PCR court’s grant of summary
dismissal is affirmed without further opinion. See Iowa Ct. R. 21.26(1)(b), (d), (e).
AFFIRMED.