Donald Lynn Boss, Applicant-Appellant v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: January 25, 2017
• Docket: 15-2037
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-2037 Filed January 25, 2017

DONALD LYNN BOSS, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Plymouth County, Mary Jane

Sokolovske, Judge.

Donald Boss appeals from the district court’s dismissal of his second

application for postconviction relief. AFFIRMED.

Judy L. Freking of Judy L. Freking, P.C., LeMars, for appellant.

Donald Lynn Boss, Fort Dodge, pro se.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.

Considered by Danilson, C.J., and Mullins and Bower, JJ. 2

MULLINS, Judge.

Donald Boss appeals from the district court’s dismissal of his second

application for postconviction relief (PCR) due to untimeliness. He raises

numerous claims of ineffective assistance of counsel and argues the district court

incorrectly dismissed his PCR application because he timely raised his claims in

his first PCR action but the court did not directly rule on them.1

Our review of a district court’s dismissal of an application for PCR based

“on the State’s statute-of-limitations defense is for correction of errors at law.”

Harrington v. State, 659 N.W.2d 509, 519–20 (Iowa 2003). “[W]e will affirm if the

trial court's findings of fact are supported by substantial evidence and the law

was correctly applied.” Id.

In 2002, Boss was convicted of first-degree murder of his son. Boss

appealed, and we affirmed his conviction. See State v. Boss, No. 03-0092, 2004

WL 137627, at *5 (Iowa Ct. App. Jan. 28, 2004). In 2005, Boss filed his first PCR

application, which the district court denied. Our court affirmed on appeal. See

Boss v. State, No. 08-1504, 2010 WL 3155198, at *6 (Iowa Ct. App. Aug. 11,

2010). Procedendo issued on November 8, 2010. Boss then sought federal

habeas corpus relief. The federal district court denied the petition, and the denial

was affirmed on appeal. See Boss v. Ludwick, 760 F.3d 805, 811 (8th Cir.

2014). On August 21, 2014, Boss filed his second PCR application. The district 1 Boss also asks this court to clarify an ambiguity in the law and determine whether his conviction was unconstitutional. Boss has waived these claims because he failed to raise them in the district court. See State v. Derby, 800 N.W.2d 52, 60 (Iowa 2011) (“Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal.” (citation omitted)); Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“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.”). 3

court dismissed Boss’s second PCR application as being barred by the statute of

limitations because he filed the application more than three years after the writ of

procedendo. See Iowa Code § 822.3 (2014) (providing PCR 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”).

Boss has failed to prove any exceptions to the statute of limitations. Upon

our review, we conclude the district court correctly determined Boss’s application

was time-barred. We affirm without further opinion, pursuant to Iowa Court Rule

21.26(1)(a), (c), and (e).

AFFIRMED.