David Lee Tomlinson Jr., Applicant-Appellant v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1146
Filed October 12, 2016
DAVID LEE TOMLINSON Jr.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Tama County, Sean W.
McPartland, Judge.
The applicant appeals from the district court’s dismissal of his third
application for postconviction relief. AFFIRMED.
Carl Frederick Stiefel II, Victor, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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POTTERFIELD, Presiding Judge.
Tomlinson appeals from the district court’s dismissal of his third
application for postconviction relief (PCR) as being time-barred. See Iowa Code
§ 822.3 (2013) (“All other applications must be filed within three years from the
date . . . the writ of procedendo is issued.”).
In 1999, Tomlinson was convicted of first-degree murder, second-degree
murder, and flight to avoid prosecution. He filed a direct appeal, and his
convictions were affirmed by the Iowa Court of Appeals in State v. Tomlinson,
No. 99-1818, 2001 WL 58436, at *13 (Iowa Ct. App. Jan. 24, 2001). Procedendo
issued on April 17, 2001.
Tomlinson filed his present application for PCR in September 2013. In it,
Tomlinson asserted his constitutional rights were violated when his trial attorneys
argued an insanity defense instead of presenting the defense that he was
factually innocent, as Tomlinson wished. He asserts that the trial attorneys’
failure to follow his wishes amounts to ineffective assistance and his other post-
trial counsel have been ineffective for not raising the claim sooner.
The PCR court determined that Tomlinson’s application was time-barred
and dismissed it. We agree. Tomlinson’s present application was not filed within
the three-year period required by section 822.3, and Tomlinson has not offered
any ground of fact or law that could not be raised within the time period. See
Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994) (holding claims of ineffective
assistance are not an exception to the time limit of section 822.3); see also
Holmes v. State, No. 02-1100, 2004 WL 893338, at *3 (Iowa Ct. App. Apr. 28,
2004) (“It is the failure to raise the issue in a timely manner that results in the
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statute of limitations running. Therefore, the statute of limitations is not tolled
during the time period in which his first postconviction action was pending.”).
AFFIRMED.