IN THE COURT OF APPEALS OF IOWA
No. 21-0688 Filed May 11, 2022
DAVID HERING, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, John Telleen,
Judge.
David Hering appeals the denial of his third application for postconviction
relief. AFFIRMED.
David Hering, Ft. Madison, self-represented appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee State.
Considered by Schumacher, P.J., Ahlers, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 2
MULLINS, Senior Judge.
David Hering appeals the dismissal of his third application for postconviction
relief (PCR) as untimely. He essentially argues (1) his actual-innocence claim
serves as a new ground of fact excepting him from the statute of limitations
contained in Iowa Code section 822.3 (2018); (2) the statute of limitations violates
equal protection; (3) ineffective assistance of prior PCR counsel should completely
override the statute of limitations; (4) he presented new grounds of law excepting
him from the statute of limitations; (5) the PCR court erred or abused its discretion
by not ruling on claims he raised pro se while represented by counsel; and (6) his
PCR counsel was ineffective in failing to raise meritorious arguments and ensure
they were preserved for appeal.
I. Background Facts and Proceedings
In 2004, sentence was imposed upon Hering’s criminal convictions for one
count of first-degree murder and two counts of attempted murder. On direct
appeal, we affirmed his convictions and rejected his claims of ineffective
assistance of counsel. See generally State v. Hering, No. 04-1222, 2005 WL
2756388 (Iowa Ct. App. Oct. 26, 2005). On further review, the supreme court
affirmed his convictions but preserved his ineffective-assistance claims for PCR.
See generally Hering v. State, No. 04-1222, 2006 WL 60678 (Iowa Jan. 11, 2006).
Procedendo issued in January 2006.
In April 2006, Hering filed his first PCR application. We affirmed the district
court’s denial of that application. See generally Hering v. State, No. 13-1945, 2016
WL 3269454 (Iowa Ct. App. June 15, 2016). He filed a second application in
January 2014, the district court dismissed it as barred by the three-year statute of 3
limitations, and we affirmed. See generally Hering v. State, No. 14-0762, 2016 WL
3285445 (Iowa Ct. App. June 15, 2016). Procedendo following both PCR appeals
issued on August 29, 2016.
Hering filed the application precipitating this appeal, his third, in December
2018. His specific claims for relief included “actual innocence” and ineffective
assistance of prior PCR counsel. His claim of actual innocence was generally
based on factual assertions relating to occurrences leading up to the crimes, during
the resulting investigation, and during trial. His initial and amended applications
asserted prior PCR counsel was ineffective in various respects. The State filed a
motion to dismiss, arguing the application was barred by the statute of limitations
and res judicata.
At the ensuing hearing on the motion, Hering argued he was excepted from
the statute of limitations because his application was filed promptly after our
supreme court issued its decision in Allison v. State.1 As to his claim of actual
innocence, Hering asserted he forwarded “several allegations of information that
wasn’t considered in his original case.”
In its ultimate ruling, the district court found the information put forward by
Hering to support his claim of actual innocence was available to him or
1 See 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a timely application is filed within the statute of limitations alleging ineffective assistance of trial counsel, the filing of a successive application that alleges ineffective assistance of PCR counsel in presenting the ineffective-assistance-of-trial-counsel claim, the filing of the second application relates back to the time of the filing of the original application so long as the successive application is filed promptly after the conclusion of the original action); see also Iowa Code § 822.3 (noting “applications must 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”). 4
discoverable within the limitations period and therefore did not serve as a ground
of fact sufficient to except him from the statute of limitations. The court found the
application was not filed promptly after the conclusion of the prior PCR action and,
in any event, Allison does not specifically apply to third PCR applications. As such,
the court found the application was barred by the statute of limitations and granted
the State’s motion to dismiss.
Hering now appeals.
II. Standard of Review
We ordinarily review the dismissal of a PCR application for legal error, but
our review is de novo when claims of ineffective assistance of counsel come into
play. Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021); Thongvanh v. State,
938 N.W.2d 2, 8 (Iowa 2020).
III. Analysis
Beginning with the actual-innocence claim, Hering argues he was unaware
he needed to present all of the evidence supporting his claim to survive dismissal.
But his application only alleged factual information that was clearly available at the
time of the criminal trial. While Hering argues, for purposes of his actual-innocence
claim, that evidence “[s]hould be regarded as new [if] it was not presented at his
trial due to counsel[’]s ineffectiveness,” that is not the state of the law under
chapter 822. Rather, a claim of actual innocence “does not apply to overcome the
statute of limitations where the evidence put forward to support [the] claim . . . was
available to the applicant or could have been discovered with due diligence within
the limitations period.” Quinn v. State, 954 N.W.2d 75, 77 (Iowa Ct. App. 2020).
Hering appears to agree the information he forwards to support his claim of actual 5
innocence was available to him within the limitations period. So the information
does not serve as a new ground of fact to except him from the statute of limitations.
To the extent Hering argues the district court should have granted him relief
on his actual-innocence claim pursuant to other vehicles outside of chapter 822,
we agree with the State that this claim was neither raised or decided below and is
therefore not preserved for appellate review. See, e.g., Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). In any event, while chapter 822 is “not the exclusive
vehicle[] to bring freestanding actual-innocence claims,” “the legislature has
provided the present, appropriate vehicle in chapter 822.” Schmidt v. State, 909
N.W.2d 778, 798 (Iowa 2018). And Hering fails to pinpoint under what other
vehicles we should consider his claim. We affirm the dismissal of Hering’s actual-
innocence claim as not excepted from the statute of limitations.
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IN THE COURT OF APPEALS OF IOWA
No. 21-0688 Filed May 11, 2022
DAVID HERING, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, John Telleen,
Judge.
David Hering appeals the denial of his third application for postconviction
relief. AFFIRMED.
David Hering, Ft. Madison, self-represented appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee State.
Considered by Schumacher, P.J., Ahlers, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 2
MULLINS, Senior Judge.
David Hering appeals the dismissal of his third application for postconviction
relief (PCR) as untimely. He essentially argues (1) his actual-innocence claim
serves as a new ground of fact excepting him from the statute of limitations
contained in Iowa Code section 822.3 (2018); (2) the statute of limitations violates
equal protection; (3) ineffective assistance of prior PCR counsel should completely
override the statute of limitations; (4) he presented new grounds of law excepting
him from the statute of limitations; (5) the PCR court erred or abused its discretion
by not ruling on claims he raised pro se while represented by counsel; and (6) his
PCR counsel was ineffective in failing to raise meritorious arguments and ensure
they were preserved for appeal.
I. Background Facts and Proceedings
In 2004, sentence was imposed upon Hering’s criminal convictions for one
count of first-degree murder and two counts of attempted murder. On direct
appeal, we affirmed his convictions and rejected his claims of ineffective
assistance of counsel. See generally State v. Hering, No. 04-1222, 2005 WL
2756388 (Iowa Ct. App. Oct. 26, 2005). On further review, the supreme court
affirmed his convictions but preserved his ineffective-assistance claims for PCR.
See generally Hering v. State, No. 04-1222, 2006 WL 60678 (Iowa Jan. 11, 2006).
Procedendo issued in January 2006.
In April 2006, Hering filed his first PCR application. We affirmed the district
court’s denial of that application. See generally Hering v. State, No. 13-1945, 2016
WL 3269454 (Iowa Ct. App. June 15, 2016). He filed a second application in
January 2014, the district court dismissed it as barred by the three-year statute of 3
limitations, and we affirmed. See generally Hering v. State, No. 14-0762, 2016 WL
3285445 (Iowa Ct. App. June 15, 2016). Procedendo following both PCR appeals
issued on August 29, 2016.
Hering filed the application precipitating this appeal, his third, in December
2018. His specific claims for relief included “actual innocence” and ineffective
assistance of prior PCR counsel. His claim of actual innocence was generally
based on factual assertions relating to occurrences leading up to the crimes, during
the resulting investigation, and during trial. His initial and amended applications
asserted prior PCR counsel was ineffective in various respects. The State filed a
motion to dismiss, arguing the application was barred by the statute of limitations
and res judicata.
At the ensuing hearing on the motion, Hering argued he was excepted from
the statute of limitations because his application was filed promptly after our
supreme court issued its decision in Allison v. State.1 As to his claim of actual
innocence, Hering asserted he forwarded “several allegations of information that
wasn’t considered in his original case.”
In its ultimate ruling, the district court found the information put forward by
Hering to support his claim of actual innocence was available to him or
1 See 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a timely application is filed within the statute of limitations alleging ineffective assistance of trial counsel, the filing of a successive application that alleges ineffective assistance of PCR counsel in presenting the ineffective-assistance-of-trial-counsel claim, the filing of the second application relates back to the time of the filing of the original application so long as the successive application is filed promptly after the conclusion of the original action); see also Iowa Code § 822.3 (noting “applications must 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”). 4
discoverable within the limitations period and therefore did not serve as a ground
of fact sufficient to except him from the statute of limitations. The court found the
application was not filed promptly after the conclusion of the prior PCR action and,
in any event, Allison does not specifically apply to third PCR applications. As such,
the court found the application was barred by the statute of limitations and granted
the State’s motion to dismiss.
Hering now appeals.
II. Standard of Review
We ordinarily review the dismissal of a PCR application for legal error, but
our review is de novo when claims of ineffective assistance of counsel come into
play. Sothman v. State, 967 N.W.2d 512, 522 (Iowa 2021); Thongvanh v. State,
938 N.W.2d 2, 8 (Iowa 2020).
III. Analysis
Beginning with the actual-innocence claim, Hering argues he was unaware
he needed to present all of the evidence supporting his claim to survive dismissal.
But his application only alleged factual information that was clearly available at the
time of the criminal trial. While Hering argues, for purposes of his actual-innocence
claim, that evidence “[s]hould be regarded as new [if] it was not presented at his
trial due to counsel[’]s ineffectiveness,” that is not the state of the law under
chapter 822. Rather, a claim of actual innocence “does not apply to overcome the
statute of limitations where the evidence put forward to support [the] claim . . . was
available to the applicant or could have been discovered with due diligence within
the limitations period.” Quinn v. State, 954 N.W.2d 75, 77 (Iowa Ct. App. 2020).
Hering appears to agree the information he forwards to support his claim of actual 5
innocence was available to him within the limitations period. So the information
does not serve as a new ground of fact to except him from the statute of limitations.
To the extent Hering argues the district court should have granted him relief
on his actual-innocence claim pursuant to other vehicles outside of chapter 822,
we agree with the State that this claim was neither raised or decided below and is
therefore not preserved for appellate review. See, e.g., Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002). In any event, while chapter 822 is “not the exclusive
vehicle[] to bring freestanding actual-innocence claims,” “the legislature has
provided the present, appropriate vehicle in chapter 822.” Schmidt v. State, 909
N.W.2d 778, 798 (Iowa 2018). And Hering fails to pinpoint under what other
vehicles we should consider his claim. We affirm the dismissal of Hering’s actual-
innocence claim as not excepted from the statute of limitations.
After finding Hering’s actual-innocence claim was not excepted from the
statute of limitations, the district court found his remaining claims of ineffective
assistance of PCR counsel were also time-barred. Hering does not appear to
contest that conclusion. Instead, he raises issues that were either not raised in, or
decided by, the district court. First, Hering suggests the three-year statute of
limitations violates equal protection. While this argument was raised in a pro se
amended application, the district court did not rule on it and was therefore not
preserved. The court also did not rule on Hering’s appellate claim that ineffective
assistance of prior PCR counsel completely overrides the statute of limitations.
Finally, the court did not rule on Hering’s claims that McCoy v. Louisiana, 138 S. Ct.
1500 (2018), and Krogmann v. State, 914 N.W.2d 293 (Iowa 2018), serve as new 6
grounds of law excepting him from the statute of limitations. So none of these
issues were preserved, and we do not consider them further.
Somewhat in relation to the foregoing points, Hering argues the district court
erred or abused its discretion by failing to consider or rule on the grounds for relief
he raised pro se. He complains the district court “duped” him into thinking it would
consider all of the claims he raised pro se, “even though counsel was assigned to
the case.” See Iowa Code § 822.3A(1) (Supp. 2019). Hering did not obtain a
ruling on his pro se post-ruling motion to reconsider, enlarge, or amend, so error
is not preserved on this complaint either.2 See Lamasters v. State, 821 N.W.2d
856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that issues
must ordinarily be both raised and decided by the district court before we will
decide them on appeal. When a district court fails to rule on an issue properly
raised by a party, the party who raised the issue must file a motion requesting a
ruling in order to preserve error for appeal.” (quoting Meier, 641 N.W.2d at 537
(Iowa 2002))).
Lastly, Hering argues his PCR counsel in this proceeding was ineffective in
failing to raise meritorious arguments and ensure error was preserved on the
foregoing issues. This claim is largely based on factual assertions that are not
2 While still represented by counsel in the district court, Hering filed a post-hearing motion in an apparent attempt to obtain some additional rulings. He did not obtain a ruling on his motion before a notice of appeal was filed. See, e.g., Lajeunesse v. State, No. 19-1715, 2022 WL 469408, at *4 & n.5 (Iowa Ct. App. Feb. 16, 2022) (finding error not preserved where applicant filed a motion for expanded findings but notice of appeal was filed before motion was ruled upon by the district court). After the notice of appeal was filed in this case, he filed a pro se motion seeking a remand in an effort to obtain a ruling on his post-hearing motion. The supreme court acknowledged he was proceeding pro se and denied his motion for remand. 7
included in the record. And even if we were to consider this claim as yet another
claim for PCR, it is untimely under both former law and the state of the current law.
See Iowa Code § 822.3 (providing, effective July 1, 2019, “An 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”); Allison, 914 N.W.2d
at 891 (establishing relation-back doctrine for second PCR applications filed
promptly after the conclusion of the first proceeding); Dible v. State, 577 N.W.2d
881, 886 (Iowa 1996) (previously concluding ineffective assistance of PCR counsel
could not overcome the three-year statute of limitations and allow for the filing of a
successive application outside of the limitations period), abrogated on other
grounds by Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003); see also Brooks
v. State, No. 20-1652, 2022 WL 951080, at *1–2 (Iowa Ct. App. Mar. 30, 2022)
(definitively concluding that the legislature invalidated Allison’s relation-back
doctrine as it relates to applications filed on or after July 1, 2019); Velazquez-
Ramirez v. State, ___ N.W.2d ___, ___, 2022 WL 108542, at *2 (Iowa Ct. App.
2022) (expressly clarifying Allison only applies to second PCR actions filed
promptly after the conclusion of the first).
IV. Conclusion
Finding no cause for reversal on the issues properly preserved and
presented for our review, we affirm.
AFFIRMED.