Berlou Joe Barnard v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: August 21, 2024
• Docket: 23-2053
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-2053 Filed August 21, 2024

BERLOU JOE BARNARD, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Charles C. Sinnard,

Judge.

An applicant appeals the dismissal of his application for postconviction

relief. AFFIRMED.

Daniel M. Northfield, Urbandale, for appellant.

Brenna Bird, Attorney General, and Joseph D. Ferrentino, Assistant

Attorney General, for appellee State.

Considered by Ahlers, P.J., and Chicchelly and Buller, JJ. 2

BULLER, Judge.

Berlou Barnard appeals the dismissal of his application for postconviction

relief, filed six months past the three-year statute of limitations codified at Iowa

Code section 822.3 (2023). The postconviction court found Barnard had not

adequately pled any exception to the statute of limitations, such as newly

discovered evidence. We affirm.

A Jasper County jury found Barnard guilty of four counts of sexual abuse in

the second degree, class “B” felonies in violation of Iowa Code section 709.3(1)(b)

(2018), for offenses against his granddaughter; and one count of obstructing

prosecution for destroying evidence related to those offenses, an aggravated

misdemeanor in violation of section 719.3. This court affirmed his convictions on

direct appeal. See State v. Barnard, No. 18-0757, 2019 WL 5792578, at *4, *6

(Iowa Ct. App. Nov. 6, 2019) (rejecting evidentiary challenges concerning the

forensic interview and what Barnard claimed was a prior false allegation).

Procedendo issued on February 4, 2020.

More than three years later—on August 14, 2023—Barnard applied for

postconviction relief, asserting among other claims “actual innocence” and “newly

discovered evidence.” The application did not offer any specific facts on either

issue, nor was it supported by affidavits or attachments. The State moved to

dismiss the application as time-barred. Barnard amended his application but still

did not offer any details.

At a hearing on the State’s motion, Barnard’s counsel offered no evidence

and declined to elaborate beyond what the postconviction court called the

application’s “generic allegation that there is new evidence”—except to say the 3

new evidence “relates to testimony of the victim from trial.” The court found

Barnard offered “[n]othing of substance that could support an actionable claim” and

instead “ma[d]e general and vague allegations to buy time to engage in a fishing

expedition.” The court concluded the statute of limitations barred the application

and dismissed it.

Barnard appeals, and we review the application of chapter 822’s time bar

for correction of errors at law. See Harrington v. State, 659 N.W.2d 509, 519

(Iowa 2003). “A party claiming an exception to a normal limitations period must

plead and prove the exception.” Cornell v. State, 529 N.W.2d 606, 610 (Iowa Ct.

App. 1994). Even claims of actual innocence must satisfy the statute of limitations

or an exception (like newly discovered evidence). See Quinn v. State, 954

N.W.2d 75, 77 (Iowa Ct. App. 2020).

We agree with the postconviction court that Barnard’s claim was barred by

the statute of limitations and that he failed to adequately plead any exception. As

we have said before, “At minimum, [a postconviction applicant] ha[s] to plead at

least some evidence that would let a reasonable fact-finder conclude his claim

involved a new ground of fact that could not have been discovered within the

limitations period, and . . . failure to do so warrant[s] dismissal.” McGinnis v. State,

No. 23-0309, 2024 WL 3291805, at *1 (Iowa Ct. App. July 3, 2024). In other words,

a generic allegation of newly discovered evidence is not enough to survive a

motion to dismiss in postconviction proceedings. Since Barnard relies solely on

such a generic allegation, the postconviction court correctly dismissed his

application.

AFFIRMED.