Michael Lang v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0510
Filed April 14, 2021
MICHAEL LANG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane E.
Hoffmeyer, Judge.
Michael Lang appeals the district court’s summary dismissal of his eighth
postconviction-relief application and the denial of his motion for reconsideration of
the ruling. AFFIRMED.
Judy Freking of Judy L. Freking, P.C., Le Mars, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., Ahlers, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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VAITHESWARAN, Presiding Judge.
Michael Lang was convicted of first-degree kidnapping in 1988. He filed a
direct appeal, which was resolved in 1990, with procedendo issuing the same year.
Lang now appeals the district court’s summary dismissal of his eighth
postconviction-relief application and the denial of his motion for reconsideration of
the ruling.1 He raises four substantive challenges to his conviction. The State
responds that (1) Lang “failed to present any claim that could overcome the three-
year time bar”; (2) the issues he raises were neither raised nor decided in the
postconviction court, implicating error preservation concerns; and (3) the claims
were precluded by another statutory provision, Iowa Code section 822.8 (2019).
We find the State’s first responsive argument dispositive.
In pertinent part, Iowa Code section 822.3 requires a postconviction-relief
application to be filed within three years after procedendo issues in a direct appeal
unless the applicant raises a ground of fact or law that could not have been raised
within the applicable time period. See Iowa Code § 822.3. The supreme court
also has held that certain postconviction-relief applications may relate back to the
date of a timely-filed petition. See Allison v. State, 914 N.W.2d 866, 891 (Iowa
2018).
The postconviction court concluded the action was time-barred. The court
reasoned that “[t]he current application for postconviction relief was filed . . . more
than three years after procedendo issued” and “[n]o valid reason [was] provided
1Lang represented himself after the postconviction court raised his failure to file
an application for court-appointed counsel. The court discussed the issue with him
and advised him that it might not “necessarily” be in his “best interest” to proceed
without counsel.
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as to why the grounds in this current postconviction relief action could not have
been raised within the statutory time period.”
Lang’s only effort to address the court’s reasoning appears in his reply brief,
where he states: “Allison and equitable tolling should apply to this case.” See id.(stating the relation-back holding adopted by the court is “a variant of the equitable
doctrine . . . to allow a petitioner in federal habeas to avoid a procedural default in
state court”). Recent legislation raises doubts about his ability to invoke Allison as
a means to avoid the time-bar. See 2019 Iowa Acts ch. 140, § 34 (codified at Iowa
Code § 822.3 (Supp. 2019)) (effective July 1, 2019, amending Iowa Code section
822.3 to state, “[a]n allegation of ineffective assistance of counsel in a prior case
under this chapter shall not toll or extend the limitation periods in this section nor
shall such claim relate back to a prior filing to avoid the application of the limitation
periods”); Johnson v. State, No. 19-1949, 2021 WL 210700, at *3 (Iowa Ct. App.
Jan. 21, 2021) (stating, “[t]his amendment appears to abrogate Allison”). Lang’s
postconviction-relief application was filed after the effective date of the
amendment, arguably foreclosing his reliance on Allison to avoid the limitations
period. But, even if the amendment does not apply to his case, his eighth
postconviction-relief application cannot relate back to his original application
because it was not filed “promptly” within the meaning of Allison. See Finch v.
State, No. 19-1982, 2021 WL 810859, at *1 (Iowa Ct. App. Mar. 3, 2021) (quoting
Allison, 914 N.W.2d at 891). It is also worth noting that, if Lang is referencing an
equitable tolling doctrine other than the one authorized by Allison, this court has
declined to apply the doctrine to section 822.3. See James v. State, 858 N.W.2d
32, 33 (Iowa Ct. App. 2014).
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The postconviction court did not err in concluding Lang’s eighth
postconviction-relief application was time-barred. We affirm the court’s summary
dismissal of the application.
AFFIRMED.