Pedro Perez-Fuentes, Applicant-Appellant v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0584
Filed August 17, 2016
PEDRO PEREZ-FUENTES,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Timothy J. Finn,
Judge.
An applicant for postconviction relief appeals the district court’s summary
dismissal of his second application. AFFIRMED.
Unes J. Booth of Booth Law Firm, Osceola, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee State.
Considered by Doyle, P.J., Bower, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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BLANE, Senior Judge.
Pedro Perez-Fuentes appeals the district court’s summary dismissal of his
second application for postconviction relief (PCR). Perez-Fuentes maintains the
district court erred when it granted the State’s untimely motion to dismiss.
Additionally, he claims his PCR counsel was ineffective for failing to preserve
error on the district court’s violation of his statutory rights by dismissing his
application without giving him an opportunity to respond and by holding a hearing
on the State’s motion without Perez-Fuentes being present. Finally, he contends
the district court erred when it stated he “waived” his rights under the Vienna
Convention.
I. Background Facts and Proceedings
Following a jury trial, Perez-Fuentes was convicted of first-degree murder
in September 2006. He filed a direct appeal, and a panel of our court rejected
each of his claims and affirmed his conviction. See State v. Perez-Fuentes, No.
06-1465, 2007 WL 4191962, at *5 (Iowa Ct. App. Nov. 29, 2007). Perez-Fuentes
applied to the Iowa Supreme Court for further review, and his application was
denied. Procedendo issued on January 25, 2008.
Perez-Fuentes filed his first pro se application for PCR on March 6, 2008.
He was appointed counsel and later filed an amended application. The district
court ultimately dismissed the application, and Perez-Fuentes appealed. Another
panel of our court reviewed Perez-Fuentes’s claims and affirmed the district
court’s dismissal. See Perez-Fuentes v. State, No. 13-0024, 2014 WL 4929806,
at *2 (Iowa Ct. App. Oct. 1, 2014).
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Perez-Fuentes filed his current pro se application for PCR on October 16,
2014. In his application, Perez-Fuentes asserted “[t]he conviction and sentence
is in violation of the Constitution of the U.S. and the Constitution and laws of the
state of Iowa;” “[t]here exists evidence of material facts not previously
presented . . . ;” and “[t]he conviction and sentence is otherwise subject to
collateral attack.” More specifically, Perez-Fuentes raised four claims of
ineffective assistance, stating each level of counsel—criminal trial, criminal
appeal and first PCR—was ineffective for failing (1) to “pursue the issue” of
another person’s DNA in the body of the deceased, (2) to raise and preserve the
issue Perez-Fuentes was “denied his right to consult a Mexican Consulate under
the Vienna Convention,” (3) to raise the issue that Perez-Fuentes did not have a
proper interpreter to waive his Miranda rights, and (4) to raise issues concerning
new rulings regarding the felony-murder rule.
On February 23, 2015, the State filed a motion to dismiss, alleging Perez-
Fuentes’s claims were time-barred by Iowa Code section 822.3 (2013). The
district court held a hearing on the motion on March 23, 2015. Perez-Fuentes
was not present at the hearing; his PCR counsel told the court he was waiving
his client’s presence because “this is not an evidentiary hearing but motion only.”
The next day, the district court filed an order, in which it noted that PCR
applications must be filed within three years from the date the writ of procedendo
issued, except where there are grounds of law or fact that could not have been
raised within the three years. Because Perez-Fuentes had only raised
allegations of ineffective assistance, which do not fall within the exception, Perez-
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Fuentes had not raised any issues that could survive dismissal. Additionally, the
court noted:
Finally, Perez-Fuentes specifically raises in his argument that prior
counsel were ineffective for not properly raising the issue of denial
of the Applicant’s right to consult a Mexican Consulate under the
Vienna Convention. This ground was waived because it was not
raised in the prior proceedings. Had it been raised, the outcome
would not have been different.
Perez-Fuentes appeals.
II. Standard of Review
We review postconviction proceedings, including summary dismissals, for
errors at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). However,
applications for postconviction relief that allege ineffective assistance raise a
constitutional claim, which we review de novo. Id.
III. Discussion
1. Dismissal of Application
Perez-Fuentes maintains the State’s motion to dismiss was untimely and
the district court erred by granting it. Perez-Fuentes claims the State had only
thirty days to file an answer pleading the affirmative defense of the statute of
limitations and it failed to do so in that time.
Applications for postconviction relief must be filed “within three years from
the date the conviction or decision is final or, in the event of an appeal, from the
date the writ of procedendo is issued.” Iowa Code § 822.3. The defense of the
statute of limitations “must be affirmatively asserted by a responsive pleading.”
Davis v. State, 443 N.W.2d 707, 708 (Iowa 1989). However, the State is not
required to plead the defense in an answer. Rather, “when it is obvious from the
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uncontroverted facts shown on the face of the challenged petition that the claim
for relief was barred when the action was commenced, the defense may properly
be raised by a motion to dismiss.” Id.
Here, it is clear on the face of the application that it was time-barred.
While Perez-Fuentes claimed there were material facts previous counsel failed to
present, he did not claim that those facts could not have been presented within
the three-year limitation. See Iowa Code § 822.3 (“[T]his limitation does not
apply to a ground of fact or law that could not have been raised within the
applicable time period.” (emphasis added)). Rather, Perez-Fuentes only claims
that each of his previous counsel was ineffective for failing to pursue and
preserve various arguments. These claims of ineffective assistance are not an
exception to the time limit of section 822.3. See Wilkins v. State, 522 N.W.2d
822, 824 (Iowa 1994) (holding that an applicant for PCR cannot circumvent the
effect of the three-year time-bar by merely claiming the ineffective assistance of
postconviction counsel because section 822.3 “creates an exception for untimely
filed application if they are based on claims that ‘could not’ have been previously
raised because they were not available”).
The State’s motion to dismiss properly raised the statute of limitations as
an affirmative defense, and the district court did not err by granting the motion.
2. Opportunity to Respond
Perez-Fuentes maintains this PCR counsel was ineffective for failing to
preserve error on the district court’s violation of Perez-Fuentes’s statutory rights
by dismissing his application without giving him an opportunity to respond.
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“To prevail on a claim of ineffective assistance, the applicant must
demonstrate both ineffective assistance and prejudice.” Ledezma v. State, 626
N.W.2d 134, 141 (Iowa 2001) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). Both claims must be proven by a preponderance of the evidence, and
we may end our analysis if either element is lacking. See id.
Here, Perez-Fuentes’s claim fails because he cannot establish that he
would have been successful on appeal if counsel had preserved the claim. See
Nguyen v. State, 878 N.W.2d 744, 754 (Iowa 2016) (“[P]ostconviction counsel
had no duty to pursue a meritless claim.”). The State filed its motion to dismiss
on February 23, 2015, and a hearing on the matter was scheduled to take place
one month later. In the meantime, nothing prevented Perez-Fuentes from filing a
resistance or a reply. “Section 822.6 contemplates that a claimant in a
postconviction case will be allowed to have extensive pro se participation in the
proceedings.” Gamble v. State, 723 N.W.2d 443, 445 (Iowa 2006). In fact, a
postconviction-relief “applicant may file application, briefs, resistances, motion,
and all other documents the applicant deems appropriate in addition to what the
applicant’s counsel files. This qualification should give the applicant assurance
that all matter the applicant wants raised before the district court will be
considered.” Leonard v. State, 461 N.W.2d 465, 468 (Iowa 1990). From the
record before us, it appears Perez-Fuentes was given the opportunity to respond;
he just failed to do so. As such, the district court did not err by dismissing his
application, and PCR counsel did not violate a duty to preserve the claim.
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3. Right to be Present
Perez-Fuentes also maintains this PCR counsel was ineffective for
waiving Perez-Fuentes’s presence at the hearing on the motion to dismiss, in
violation of his statutory rights.
While we agree it is not best practice to exclude the applicant from PCR
hearings, Perez-Fuentes cannot establish that he suffered prejudice from his lack
of testimony or presence at the hearing. See Webb v. State, 555 N.W.2d 824,
826–27 (Iowa 1996) (“In conclusion, [the applicant] was not denied any due
process or statutory rights to personally attend the postconviction hearing. He
was accorded opportunity to present testimony in compliance with the principles
of fundamental fairness and he waived those opportunities. Finally, [his]
postconviction counsel did not perform ineffectively [because the applicant
suffered no prejudice from his lack of testimony].”). As explained above, the four
claims in his application for PCR involved whether earlier counsel was ineffective
and evidence that was not presented in earlier proceedings—as opposed to not
able to have been presented. Neither of these types of claims are exceptions to
the three-year limitation found in section 822.6. See Wilkins, 522 N.W.2d at 824.
Even if Perez-Fuentes was present and able to testify about his claims in-depth,
it would not have changed the court’s ruling that they were time-barred. For that
reason, counsel was not ineffective for waiving Perez-Fuentes’s presence at the
hearing.
4. Vienna Convention
Perez-Fuentes maintains the district court erred by determining he had
waived his rights under the Vienna Convention. Although we question the use of
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the term “waived” in its order, the district court did not err in dismissing this claim
along with the others.
Perez-Fuentes did not raise an issue regarding his rights under the Vienna
Convention until his second application for PCR. See Fryer v. State, 325 N.W.2d
400, 405 (Iowa 1982) (“Even issues of constitutional magnitude will not be
addressed if not presented in the trial court.”); see also Ledezma, 626 N.W.2d at
141 (“Generally, a claim not raised on direct appeal cannot be raised in a
postconviction relief proceeding unless the applicant can demonstrate a sufficient
cause or reason for not properly raising the issue previously.” (citing Iowa Code
§ 822.8)). As such, his only option was to raise the issue under an ineffective-
assistance framework. See Iowa Code § 814.7(1) (“An ineffective assistance of
counsel claim . . . need not be raised on direct appeal from the criminal
proceedings in order to preserve the claim for postconviction relief.”); see also
Jones v. State, 545 N.W.2d 313, 314 (Iowa 1996) (“Ineffective assistance of
postconviction counsel can provide ‘sufficient reason’ under Iowa Code section
822.8 . . . for a successive postconviction application raising new issues.”).
Here, it appears the district court believed Perez-Fuentes was attempting
to make a direct challenge regarding his rights under the Vienna Convention and
thus found he had not preserved the error for review. 1 However, it is clear from
his written application that Perez-Fuentes claimed each of his previous counsel
1
We believe the court used “waived” when it meant to say Perez-Fuentes “had not
preserved error.” Compare Waive, Black’s Law Dictionary (10th ed. 2014) (“To
abandon, renounce, or surrender (a claim, privilege, right, etc); to give up (a right or
claim) voluntarily.”), with Preservation of Error, Black’s Law Dictionary (10th ed. 2014)
(“The taking of all steps necessary under the rules of procedure or at common law in
bringing an improper statement to the trial court’s attention so that, if not corrected, the
mistake can be reviewed on appeal.”).
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was “ineffective for failing to raise and preserve for error the issue of the
Applicant being denied his right to consult a Mexican Consulate under the Vienna
Convention.” Because ineffective-assistance-of-counsel claims are an exception,
Perez-Fuentes was not barred from raising the claim due to error-preservation
rules. See State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). However, as
explained above, claims of ineffective assistance do not fall within the exception
to section 822.3, so Perez-Fuentes’s claim regarding whether counsel was
ineffective for failing to inform him of his rights under the Vienna Convention was
still time-barred. See Wilkins, 522 N.W.2d at 824 (rejecting claim that ineffective
assistance from PCR counsel was an exception to the time limitation because
the “claims neither involve new evidence nor are they new legal claims”).
IV. Conclusion
Because it was clear on the face of Perez-Fuentes’s application that it was
time-barred, and in such a case the State may raise the statute of limitations
defense in a motion to dismiss, the district court did not err in granting the
motion. Because the district court did not err in dismissing Perez-Fuentes’s
application before he responded, counsel had no duty to preserve the district
court’s alleged error. Additionally, because Perez-Fuentes cannot establish that
his application would not have been dismissed if he was present at the motion to
dismiss hearing, he cannot establish that he was prejudiced by counsel’s alleged
failure in waiving Perez-Fuentes’s presence. Lastly, the district court did not err
in dismissing Perez-Fuentes’s claim regarding the Vienna Convention along with
his other untimely claims. For these reasons, we affirm.
AFFIRMED.