Daniel Ray Penticoff v. State of Iowa ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0975
Filed September 2, 2020
DANIEL RAY PENTICOFF,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,
Judge.
Daniel Penticoff appeals the district court order dismissing his
postconviction-relief application as time barred. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
R.E. Breckenridge of Breckenridge Law P.C., Ottumwa, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Tabor, P.J., and May and Greer, JJ.
2
GREER, Judge.
Daniel Penticoff appeals the district court ruling that his postconviction-relief
action (PCR) is time-barred, arguing his application falls under exceptions to the
three-year statute of limitations. We reverse the dismissal of his actual-innocence
claim and remand for further proceedings.
I. Background Facts and Proceedings.
On April 13, 2015, when Penticoff was seventeen, the district court
accepted his guilty plea to one count of robbery in the first degree in violation of
Iowa Code section 711.1 (2014). The same day, he was sentenced to a
suspended twenty-five-year prison sentence and placed on probation. Penticoff
did not appeal.
In December, the district court revoked Penticoff’s probation and
suspended sentence and sent him to prison after he admitted to probation
violations. In June 2016, the court reconsidered its decision to incarcerate
Penticoff and again placed him on probation on the condition that he reside at a
residential correctional facility. Less than a month later, Penticoff again violated
the conditions of his probation when he escaped from the residential facility and
fled to Wisconsin. He was later arrested and returned to Iowa. On December 23,
after a hearing, the court sent him back to prison. Penticoff asked the court to
reconsider the sentence, which the court declined. Penticoff has been
incarcerated since the second revocation.
On March 23, 2018, the Iowa Supreme Court decided Schmidt v. State,
which reversed a line of cases that prohibited criminal defendants who knowingly
and voluntarily pled guilty from raising challenges extrinsic to the plea and “created
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a new standard for freestanding actual-innocence claims.” 909 N.W.2d 778, 798–
99 (Iowa 2018). About three weeks later, on April 13, the statute of limitations on
Penticoff’s PCR claims expired.
On August 17, almost five months after the Iowa Supreme Court decided
Schmidt and almost four months after his three-year PCR deadline, Penticoff filed
a PCR application, raising five constitutional claims, including a freestanding
actual-innocence claim based on Schmidt. The State moved to dismiss, claiming
the postconviction application was filed outside the statute of limitations. Penticoff
resisted, arguing the statute of limitations did not apply as there were facts and law
that could not have been raised within the three-year time limit.
The district court held an unreported hearing on the motion to dismiss in
March 2019. In a written ruling, the court determined that Penticoff’s conviction
and sentence were final on April 13, 2015, and “[t]he grounds of fact or law raised
by [Penticoff] in support of his request for relief are ones that could have been
raised within the three-year limitation period,” so the application was time-barred.
The court granted the State’s motion to dismiss Penticoff’s PCR application.
Penticoff appeals.
II. Scope of Review.
“We review summary dismissals of postconviction-relief applications for
errors at law.” Schmidt, 909 N.W.2d at 784. “[F]or a summary disposition to be
proper, the State must be able to prevail as if it were filing a motion for summary
judgment in a civil proceeding.” Id. “Applying summary judgment principles,
summary disposition is proper ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show . . .
4
there is no genuine issue of material fact and . . . the moving party is entitled to a
judgment as a matter of law.’” Id. (citation omitted). “We view the record in the
light most favorable to the nonmoving party” and we will “draw all legitimate
inferences from the evidence in favor of the nonmoving party.” Id.
III. Analysis.
Iowa Code section 822.3 (2018) provides that “[a]ll . . . 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.” “However, this
limitation does not apply to a ground of fact or law that could not have been raised
within the applicable time period.” Iowa Code § 822.3.
Penticoff accepts April 13, 2018, as his deadline to file a PCR application
but argues his actual-innocence claim falls under the “ground of fact or law”
exception.1 As for the ground-of-law exception, Penticoff argues that a
freestanding actual-innocence claim was unavailable to him until Schmidt, which
was filed three weeks before the statute of limitations for his PCR claims expired.
Penticoff argues Schmidt is a ground of law that he could not have raised within
the limitations period.
A ground of law sufficient to avoid the time bar of section 822.3 includes “a
ground of law that had been clearly and repeatedly rejected by controlling
precedent from the court with final decision-making authority” and “a category of
legal claims that were viewed as fruitless at the time but became meritorious later
on.” Nguyen v. State, 829 N.W.2d 183, 188 (Iowa 2013). It does not include a
1 Penticoff does not challenge the district court’s dismissal of his other PCR claims.
5
mere “clarification of the law” or “an application of preexisting law.” Id. (citation
omitted).
Schmidt recognized a freestanding actual-innocence claim and concluded
these claims were “available to applicants even though they pled guilty.” Schmidt,
909 N.W.2d at 795. Schmidt overruled prior law that did not allow for extrinsic
challenges to guilty pleas. 909 N.W.2d at 790 (“[W]e overrule our cases holding
that defendants may only attack the intrinsic nature. . . of their pleas.”); see also
id. at 800 (Cady, C.J., concurring) (describing the actual-innocence challenge to a
guilty plea as a “new claim”); State v. Bendickson, No. 18-0229, 2018 WL 4915912,
at *3 (Iowa Ct. App. Oct. 10, 2018) (recognizing, in a direct appeal, that Schmidt
“created a new standard” by “recogniz[ing] a new exception to the principle that
guilty pleas waive all defenses and objections not intrinsic to those pleas.”). For
that reason, Schmidt is a new ground of law.
Here, while Schmidt was decided before the statute of limitations ran, it is
unclear whether Penticoff learned of the decision in the three weeks between the
opinion and the limitations period expiring. Penticoff raised his actual-innocence
claim within five months of the Schmidt opinion. See Nguyen, 829 N.W.2d at 188
(implying that a PCR filed outside the statute of limitations but within three years
of a new ground of law was filed within a reasonable amount of time); Dixon v.
State, No. 16-1978, 2018 WL 739259, at *2 (Iowa Ct. App. Feb. 7, 2018)
(discussing the implied three-year period from Nguyen); Burkett v State, No. 14-
0998, 2015 WL 5278970, at *3 (Iowa Ct. App. Sept. 10, 2015) (“Nguyen suggests
an applicant should have to raise a change in the law within a reasonable period
after the change is announced and the opinion implies the reasonable period is
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three years.”). But see Fischer v. State, No. 18-0450, 2019 WL 1473066, at *2
(Iowa Ct. App. Apr. 3, 2019) (concluding that “all of [the applicant’s] arguments
were available to him within th[e] three-year period . . . and Schmidt does not
provide an additional exception applicable to [the applicant]”); Abdic v. State, No.
18-0321, 2018 WL 6707752, at *2 (Iowa Ct. App. Dec. 19, 2018) (concluding that
even if there were a change in the law based on a new supreme court opinion, the
change occurred when the applicant had over two years to raise the claim before
the statute of limitations ran).
Using Nguyen as our guidepost, we conclude Penticoff raised his actual-
innocence claim within a reasonable time after the Schmidt opinion and his actual-
innocence claim falls under the ground-of-law exception to section 822.3. Because
we resolve Penticoff’s appeal on the ground-of-law exception to the statute-of-
limitations, we need not address the ground-of-fact exception.
The district court did not reach the merits of Penticoff’s actual-innocence
claim, and for that reason, neither do we.2 We remand to the district court for
further proceedings on that claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Tabor, P.J., concurs; May, J., dissents.
2We note Penticoff’s motion to compel discovery was pending while the dismissal
was considered by the court.
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MAY, Judge (dissenting).
“The onus” was on Penticoff to demonstrate he “could not” have raised his
postconviction-relief (PCR) claims within three years after his sentencing. See
Moon v. State, 911 N.W.2d 137, 143 (Iowa 2018). But Penticoff failed to do so.
So Penticoff’s claims are time-barred under Iowa Code section 822.3 (2018). We
should affirm. I respectfully dissent.
I. Iowa Code section 822.3.
PCR actions are governed by Iowa Code chapter 822. We find the Code’s
meaning in its words. See Fishel v. Redenbaugh, 939 N.W.2d 660, 663 (Iowa Ct.
App. 2019).
Section 822.3 contains a time limit.3 It states in relevant part:
All [PCR4] 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. However, this limitation
does not apply to a ground of fact or law that could not have been
raised within the applicable time period.
Iowa Code § 822.3 (emphasis added).
Through this text, the legislature required most PCR claims to “be filed
within three years from the date the conviction or decision is final or, in the event
3 A historical note: our Code did not always include a limitation period for PCR
claims. The limitation contained in section 822.3 was not enacted until 1984.
Sahinovic v. State, 940 N.W.2d 357, 359 (Iowa 2020) (citing 1984 Iowa Acts ch.
1193, § 1 (then codified at Iowa Code § 663A.3 (1985))); Brewer v. Iowa Dist. Ct.,
395 N.W.2d 841, 842 (Iowa 1986)). Before then, there was “no deadline for” any
kind of PCR claim. Sahinovic, 940 N.W.2d at 359; cf. 39 Am. Jur. 2d Habeas
Corpus § 166 (2020 Update) (noting “[u]nder the Uniform Post-Conviction
Procedure Act, an application for postconviction relief may be filed at any time”
(citing Unif. Post-Conviction Procedure Act § 3(b) (1980))).
4 There is a special exception for applicants “seeking relief under section 822.2,
subsection 1, paragraph ‘f.’” Because Penticoff does not seek relief under section
822.2(1)(f), this exception is not relevant here.
8
of an appeal, from the date the writ of procedendo is issued.” Id. But the legislature
created an exception for claims based on “ground[s] of fact or law that could not
have been raised within the” three-year period. Id. (emphasis added). The three-
year “limitation does not apply” to those claims. Id.; see Burkett v. State, No. 14-
0998, 2015 WL 5278970, at *2 (Iowa Ct. App. Sept. 10, 2015) (noting “[t]he statute
says nothing about a deadline for raising the ‘ground of law’ exception”).5
Here, it is undisputed Penticoff failed to file this PCR case within three years
after his April 13, 2015 sentencing, from which he took no direct appeal. So the
only question is whether Penticoff’s claims fit the exception for “a ground of fact or
law that could not have been raised within the” statutory three-year period. Iowa
Code § 822.3 (emphasis added). If not, Penticoff’s case is time-barred.
Penticoff alleges his Schmidt v. State claim fits the exception. See 909
N.W.2d 778, 784 (Iowa 2018). But allegations alone are not enough. Rather,
Penticoff bears the burden of demonstrating his Schmidt claim “could not” have
been brought within three years of his sentencing. See Moon, 911 N.W.2d at 143
(noting “[t]he onus is on the applicant” to show “he or she could not have raised
the ground of fact within the limitations period”).6 Yet Penticoff has cited no record
5 As will be discussed, however, several decisions have held that claims based on
a “ground of fact or law that could not have been raised within the” statutory three-
year period must be filed within three years after the new ground of fact or law
becomes available. See, e.g., Dixon v. State, No. 16-1978, 2018 WL 739259, at
*2 (Iowa Ct. App. Feb. 7, 2018).
6 See, e.g., Martin v. State, No. 17-1543, 2018 WL 3655092, at *2 (Iowa Ct. App.
Aug. 1, 2018) (“Martin has the burden to show his application comes within the
exception to the three-year statute of limitations.”); Gonzales Becerra v. State,
No. 15-2067, 2017 WL 2461435, at *1 (Iowa Ct. App. June 7, 2017) (“He bears the
burden of showing the exception applies to his PCR application.”); Blair v. State,
No. 15-0482, 2016 WL 3003378, at *2 (Iowa Ct. App. May 25, 2016) (“The burden
of showing a PCR application was filed within the exception to the three-year
9
evidence to support his allegation. See Iowa R. App. P. 6.903(2)(f). Nor have I
found any. For example, the record contains no affidavit describing what led
Penticoff to file when he did. Nor does other evidence show why Penticoff failed
to file within the three-year period—even though the supreme court filed Schmidt
before the three-year period expired. See 909 N.W.2d at 778 (listing the filing date
as March 23, 2018).7
Because Penticoff did not meet his burden of showing “a ground of fact or
law that could not have been raised within” three years of his sentencing, Penticoff
was required to file his claims within those three years. He failed to do so. So the
district court was right to dismiss his suit.
II. The Second Three-Year Period.
As explained, the words of section 822.3 describe a single three-year
limitation period. It begins on “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.
statute of limitations is on the applicant.”); Moore v. State, No. 14-1241, 2016 WL
1358489, at *2 (Iowa Ct. App. Apr. 6, 2016) (“Moore has the burden to show his
application comes within the exception to the three-year statute of limitations.”);
Sihavong v. State, No. 14-0440, 2016 WL 351286, at *1 (Iowa Ct. App. Jan. 27,
2016) (“Sihavong has the burden to show his application comes within the
exception to the three-year statute of limitations.”);.
7 In his brief, Penticoff says it is “nonsensical” to “expect an inmate” to have learned
of Schmidt and then to have filed a PCR petition in the short time period between
Schmidt’s filing on March 23, 2018, and the three-year-anniversary of Penticoff’s
sentencing on April 13, 2018. This might or might not be true. The record does
not allow us to know. For all we know, Penticoff could have learned of Schmidt on
the day it was issued. For all we know, Penticoff’s lawyer could have offered to
file an actual-innocence PCR action on the same day Schmidt was decided. The
record simply does not show what happened. And so the record does not show
Penticoff “could not” have raised his Schmidt claim within three-years after his
sentencing.
10
But several decisions have recognized that another three-year limitation
period can apply in some cases. These decisions include Nguyen v. State
(Nguyen I), 829 N.W.2d 183, 188 (Iowa 2013), Nguyen v. State (Nguyen II), 878
N.W.2d 744, 752 (Iowa 2016), and several court of appeals decisions. They
suggest that, even when an applicant relies on a “ground of fact or law that could
not have been raised . . . within” the three-year period described in the statute, the
applicant must still file their PCR action within a second three-year limitation period
that begins when a previously-unavailable “ground of fact or law” first becomes
available.8
8 It appears the second three-year limitation period was first recognized in Nguyen
I, 829 N.W.2d at 188. There, the supreme court suggested that, although the
applicant had been convicted in 1999 and procedendo issued in 2002, the
applicant’s second PCR application was timely because it was filed “within three
years of [the court’s] decision in State v. Heemstra, 721 N.W.2d 549 (2006).” Id.
at 184. Later, in Nguyen II, the court held that, although the applicant had been
convicted in 1999 and procedendo issued in 2002, the applicant’s 2015 claim of
ineffective assistance of PCR counsel was timely because it was filed within three
years of April 5, 2013, “[t]he first time [postconviction-relief] counsel could have
been ineffective.” Nguyen II, 878 N.W.2d at 752.
Following the lead of Nguyen I and Nguyen II, several court of appeals
decisions have recognized an “implied” three-year limitation period that runs from
the appearance of a ground of fact or law that could not have been raised within
the original three-year limitation period. See, e.g., Dixon, 2018 WL 739259, at *2
(noting that, in Nguyen I, the “court implied the ground-of-law exception could be
raised within three years of the law-changing decision rather than three years from
when procedendo issued in the direct appeal, as set forth in section 822.3”);
Burkett, 2015 WL 5278970, at *1 (“Nguyen [I] suggests an applicant should have
to raise a change in the law within a reasonable period after the change is
announced and the opinion implies the reasonable period is three years. Burkett
essentially concedes the applicability of this implied limitation period.”); see also
Moore, 2016 WL 1358489, at *3 n.2 (collecting cases in which the court of appeals
has concluded “that a PCR application challenging a conviction based on the
Heemstra holding should be filed within three years after Heemstra was decided
in order to be timely”); Thompson v. State, No. 14-0138, 2015 WL 1332352, at *1
(Iowa Ct. App. Mar. 25, 2015) (“In [Nguyen I], the supreme court held that a
Heemstra challenge to felony murder jury instructions fell within the new-ground-
of-law exception to the statute of limitations. Implicit in that holding, however, was
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But the Nguyen cases and their progeny are not relevant here. In those
cases, the applicants relied on grounds of facts or law that did not exist—and,
therefore, “could not have been raised”—during the three years after their
convictions were final and their appeals were completed.9 That is not Penticoff’s
situation. Penticoff does not rely on facts or law that were nonexistent during the
three years after his sentencing. Instead, Penticoff relies on Schmidt—a case
decided during the three years after Penticoff was sentenced. On this record, I
see no reason to give Penticoff the benefit of a second three-year period.
III. Conclusion.
Penticoff’s claims are barred by Iowa Code section 822.3 because (1)
Penticoff failed to demonstrate his claims are based “a ground of fact or law that
could not have been raised within” the three years after he was sentenced; and (2)
Penticoff failed to file his application within those three years. Id. (emphasis
the requirement that the postconviction-relief application asserting such a claim be
filed within three years of the Heemstra decision.” (internal citation omitted)).
9 For example, in Nguyen I, the applicant asserted claims based on the supreme
court’s decision in Heemstra. See 829 N.W.2d at 186. Because Heemstra was
not decided until 2006, however, Heemstra was a new ground of law that the
applicant in Nguyen I could not have raised within three years from the issuance
of procedendo in 2002. See id. at 188.
Likewise, in Nguyen II, the applicant asserted claims based on ineffective
assistance of postconviction-relief counsel. See 878 N.W.2d at 751. Because
counsel could not have been ineffective until 2013, the applicant could not have
raised counsel’s ineffectiveness—it had not even occurred—within three years of
procedendo, filed in 2002. Id. at 752; see also Dixon, 2018 WL 739259, at *2
(applying section 822.3 to an application filed in 2014; noting that, although the
applicant’s conviction had become final in 2001, the applicant claimed a new
“ground of law” was created by Heemstra and subsequent cases, including the
supreme court’s 2013 decision in Nguyen I); Burkett, 2015 WL 5278970, at *1
(applying section 822.3 to a PCR application filed in 2013 and noting that, although
the applicant’s conviction had become final in 1984, the applicant claimed a new
“ground of law” was created by the court’s 2013 decision in Nguyen I).
12
added). The district court was right to dismiss Penticoff’s application. I respectfully
dissent.