Chester Greenup, Applicant-Appellant v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: August 16, 2017
• Docket: 16-0826
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0826 Filed August 16, 2017

CHESTER GREENUP, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.

An applicant appeals the district court’s dismissal of his application for

postconviction relief. AFFIRMED.

Karmen Anderson of the Law Office of Karmen Anderson, Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.

Considered by Vogel, P.J., McDonald, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2

SCOTT, Senior Judge.

Chester Greenup appeals following the district court’s dismissal of his

application for postconviction relief (PCR). Greenup was convicted of first-

degree kidnapping in 1998. His conviction was affirmed by this court in June

2000. See State v. Greenup, No. 99-0256, 2000 WL 852799, at *3 (Iowa Ct.

App. June 28, 2000). Greenup filed his first application for PCR in 2001, which

was denied by the district court, and this court affirmed the district court’s denial.

See Greenup v. State, No. 07-0542, 2008 WL 4569878, at *4 (Iowa Ct. App. Oct.

15, 2008). Greenup filed a second PCR application on June 25, 2015. The

district court summarily dismissed this application on statute-of-limitations

grounds on May, 4, 2016, and this is the application at issue in the appeal.

The only claim Greenup raises on appeal is that his most recent PCR

counsel and all prior counsels of record were ineffective in failing to challenge the

victim’s identification of him from the photo lineup. This claim is barred by the

PCR statute of limitations.

Pursuant to Iowa Code section 822.3 (2015), a postconviction relief

proceeding must be commenced within three years of the issuance of

procedendo in the event of a direct appeal of the conviction. The writ of

procedendo following Greenup’s direct appeal was issued on September 27,

2000. The current application was not filed until June 2015. In his appellate

brief, Greenup asserts no exception to the application of the three-year statute of

limitations to this claim. Section 822.3 does provide the three-year limitation

“does not apply to a ground of fact or law that could not have been raised within

the applicable time period.” However, “the ineffective assistance of 3

postconviction relief counsel is not a ‘ground of fact’ within the meaning of

section 822.3. Consequently, it cannot serve as an exception to the three-year

statute of limitations found in that statute.” Dible v. State, 557 N.W.2d 881, 886

(Iowa 1996), abrogated on other grounds by Harrington v. State, 659 N.W.2d 509

(Iowa 2003). Greenup’s claim on appeal is barred by the statute of limitations.

In addition, we note our prior ruling in response to Greenup’s first PCR

application addressed a claim that Greenup’s trial counsel was ineffective for

failing to “move to suppress the victim’s identification of Greenup.” Greenup,

2008 WL 4569878, at *2. This claim was denied by the district court, and we

summarily affirmed that denial. Id. at *3. “Any ground finally adjudicated . . . may

not be the basis for a subsequent application . . . .” Iowa Code § 822.8.

Because the validity of the victim’s identification of Greenup has already been

raised and litigated in the prior PCR proceeding, it may not now be raised again

in a subsequent PCR proceeding.

We affirm the district court’s dismissal of Greenup’s second PCR

application.

AFFIRMED.