State of Iowa v. Jorge Perez-Castillo ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0429
Filed December 15, 2021
JORGE PEREZ-CASTILLO,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Coleman McAllister,
Judge.
Jorge Perez-Castillo appeals the summary dismissal of his second
application for postconviction relief. AFFIRMED.
Michael J. Jacobsma of Jacobsma Law Firm, P.C., Orange City, for
appellant.
Thomas J. Miller, Attorney General, and Katie Krickbaum (until withdrawal)
and Kevin Cmelik, Assistant Attorneys General, for appellee.
Considered by Bower, C.J., Schumacher, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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DOYLE, Senior Judge.
In December 2004, a jury found Jorge Perez-Castillo guilty of two counts of
first-degree murder and two counts of attempted murder in relation to shootings
that occurred outside of a bar and the ensuing police chase and shootout. State
v. Perez-Castillo, No. 05-0362, 2006 WL 2419143, at *1 (Iowa Ct. App. Aug. 23,
2006). Perez-Castillo appealed asserting his trial counsel was ineffective in
several ways. Id. at *2. This court affirmed Perez-Castillo’s convictions and
preserved two of his ineffective-assistance-of-counsel claims for a possible
postconviction-relief (PCR) proceeding. Id. at *6. Procedendo issued in November
2006. In June 2007, Perez-Castillo filed his first PCR application. Perez-Castillo
v. State, No. 13-1557, 2017 WL 1405907, at *1 (Iowa Ct. App. Apr. 19, 2017). This
court affirmed the denial of his application. Id. at *2.
Perez-Castillo filed the present PCR application in January 2016, more than
nine years after procedendo issued in his direct appeal. His application was based
on, among other things, newly discovered evidence, and included an affidavit
written by his cousin, Remberto Hernandez-Virula. In his affidavit, Hernandez-
Virula stated someone other than Perez-Castillo was the shooter.1
The State moved for summary judgment on statute-of-limitation grounds,
contending the allegedly new evidence was available to Perez-Castillo at trial and
therefore did not serve as an exception to the statute of limitations. The PCR court
agreed with the State, concluding the record established it was “clear” Perez-
1We note that the affidavit relates only to the shots fired at the bar. Hernandez-
Virula was not a witness to shots fired at a police officer during a high-speed chase
and shoot-out after Perez-Castillo left the bar. Perez-Castillo’s conviction of one
count of attempted murder was based on the shots fired at a police officer.
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Castillo “had knowledge of the information he now claims is newly discovered at
the time of his underlying trial.” Having “failed to establish an exception to the
statute of limitations,” the court held Perez-Castillo’s PCR action was time-barred.
Perez-Castillo appeals.
PCR applications “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 (2016). Perez-Castillo’s PCR action
was filed over nine years after procedendo issued. “However, this limitation does
not apply to a ground of fact . . . that could not have been raised within the
applicable time period.” Id. Indeed, “[n]ewly discovered evidence would constitute
a ‘ground of fact’ under the statute.” Whitsel v. State, 525 N.W.2d 860, 863 (Iowa
1994). But Perez-Castillo makes no argument on appeal that the evidence “could
not have been raised within the applicable time period,” which is a requirement for
the exception to apply. See Iowa Code § 822.3. In any event, after our review of
the record, we agree with the PCR court that Perez-Castillo was aware of
Hernandez-Virula as a potential alibi witness at the time of his underlying trial.
Thus, the ground of fact could have been raised at trial and, afterward, within the
three-year statute of limitations period. So the evidence does not fall within the
exception to the statute of limitations. See id.; see also Whitsel, 525 N.W.2d at
863 (noting the proponent of a newly-discovered-evidence claim must show “that
the evidence was discovered after the verdict”). The action was time-barred under
section 822.3.
In trying to side-step this impediment, Perez-Castillo advances a new
argument on appeal. He now claims his PCR petition “was, in actuality, a motion
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to correct an illegal sentence and the three-year statute of limitations does not
apply,” and therefore
it was error for the district court to analyze [his] application . . . solely
on the grounds of whether the three-year statute of limitations
applied and whether Mr. Castillo’s claim is one that could not have
been raised within the applicable three-year period pursuant to Iowa
Code [s]ection 822.3.
Citing Iowa Rule of Criminal Procedure 2.24(5)(a), State v. Bruegger, 773 N.W.2d
862, 871 (Iowa 2009), and Schmidt v. State, 909 N.W.2d 778, 794 (Iowa 2018),
Perez-Castillo reasons: (1) he is actually innocent, (2) punishment of an innocent
person is cruel and inhuman, (3) imposition of cruel and unusual punishment is an
illegal sentence, (4) a claim that a sentence is illegal may be raised at any time,
and therefore, the section 822.3 three-year statute of limitations does not apply.
Sidestepping any error preservation or other issues, we conclude that Perez-
Castillo’s argument fails.
It is true our supreme court recently recognized a freestanding actual-
innocence PCR claim in Schmidt. And this court has stated, “‘Schmidt is a new
ground of law’ sufficient to avoid the time bar of section 822.3.” Quinn v. State,
954 N.W.2d 75, 76 (Iowa Ct. App. 2020) (citations omitted). But
Schmidt does not apply to overcome the statute of limitations where
the evidence put forward to support a claim of actual innocence was
available to the applicant or could have been discovered with due
diligence within the limitations period. See, e.g., Fischer v. State,
No. 18-0450, 2019 WL 1473066, at *2 (Iowa Ct. App. Apr. 3, 2019);
Bryant v. State, No. 18-1038, 2019 WL 1300439, at *2 (Iowa Ct. App.
Mar. 20, 2019), further review denied (May 16, 2019); see also
Brewbaker v. State, No. 18-1641, 2020 WL 5944205, at *2 (Iowa Ct.
App. Oct. 7, 2020) (finding reliance on Schmidt misplaced because,
“[u]nlike Schmidt, [the applicant’s] actual-innocence claim is not
based on a newly discovered fact that could not have been
discovered within the three-year time frame”). The new-ground-of-
fact analysis is a component of a claim of actual innocence based
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upon alleged newly discovered evidence found after the three-year
limitations period, and the ground-of-fact exception only overcomes
the statute of limitations if it could not have been raised within the
limitations period.
Id. at 77; see also Dewberry v. State, 941 N.W.2d 1, 5 (Iowa 2019). The record
establishes Perez-Castillo’s actual-innocence claim is not based on newly
discovered evidence that could not have been discovered within the three-year
time frame. Without newly discovered evidence, Perez-Castillo’s actual-innocence
claim fails as untimely. Without an actual-innocence claim, his illegal sentence
claim fails as well. The district court did not err in concluding Perez-Castillo’s PCR
action was time-barred as a matter of law.
AFFIRMED.