Allen Killings v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: April 14, 2021
• Docket: 20-0215
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0215 Filed April 14, 2021

ALLEN KILLINGS, Plaintiff-Appellant,

vs.

STATE OF IOWA, Defendant-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Samantha Gronewald,

Judge.

Allen Killings appeals the order granting the State’s motion for summary

disposition and dismissing his second applications for postconviction relief.

AFFIRMED.

Erin M. Carr of Carr Law Firm, P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Doyle and Mullins, JJ. Gamble, S.J., takes

no part. 2

DOYLE, Judge.

Allen Killings appeals the order granting the State’s motion for summary

disposition and dismissing his second applications for postconviction relief (PCR).

The district court held Killings’s application was untimely under Iowa Code section

822.3 (2018), which requires all PCR actions 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.” Procedendo issued on his first-degree murder

conviction in 2010 and on his sexual-abuse and robbery convictions in 2011. See

State v. Killings, No. 10-0858, 2011 WL 1781518 (Iowa Ct. App. May 11, 2011);

State v. Killings, No. 09-0739, 2010 WL 3894161 (Iowa Ct. App. Oct. 6, 2010).

After procedendo issued in his direct appeals, Killings filed timely PCR

applications in each case. The district court denied both applications, and this

court affirmed on appeal. Killings v. State, No. 16-1123, 2017 WL 4049411 (Iowa

Ct. App. Sept. 13, 2017); Killings v. State, No. 15-1061, 2017 WL 1735614 (Iowa

Ct. App. May 3, 2017). Killings filed second PCR actions in each case in August

2018, after the three-year limitation period in section 822.3 expired. But Killings

claims his second PCR applications fall under a narrow exception set forth in

Allison v. State, 914 N.W.2d 866, 890-91 (Iowa 2018), allowing an applicant to

claim ineffective assistance of PCR counsel in a second PCR action if filed

promptly after the conclusion of the first.

The PCR court rejected Killings’s claim that the Allison exception applies:

As it relates to Polk County Case No. PCCE083384, procedendo was issued on Killings’s first PCR application for the sexual assault and robbery convictions on November 2, 2017. His second PCR application on this charge was filed on August 9, 2018. There is nine months and seven days between the time of 3

procedendo and the time of the successive PCR application. This is not prompt. Turning to Polk County Case No. PCCE083388, procedendo was issued on Killings’[s] first PCR related to the murder charge on June 29, 2017. Killings filed his second PCR in relation to the murder charge on August 13, 2018. There is one year, one month, and fifteen days between the time of procedendo and the time of the successive PCR application. This is also not prompt.

We agree that Killings’s second PCR applications do not meet the requirements of

the narrow exception in Allison. See, e.g., Polk v. State, No. 18-0309, 2019 WL

3945964, at *2 (Iowa Ct. App. Aug. 21, 2019) (noting a gap in the neighborhood of

six months does not meet the definition of prompt); see also Johnson v. State, No.

19-1949, 2021 WL 210700, at *2 (Iowa Ct. App. Jan. 21, 2021) (collecting cases

on the meaning of “filed promptly”). Because his second PCR applications are

untimely under Iowa Code section 822.3, we affirm the order granting summary

disposition and dismissing the applications.