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

• Court: Court of Appeals of Iowa
• Decided: October 12, 2016
• Docket: 15-1146
• Status: Published

Opinion

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. ________________________________________________________________

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. 2

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 3

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.