Jerry Allen Tolbert v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: August 30, 2023
• Docket: 22-1434
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1434 Filed August 30, 2023

JERRY ALLEN TOLBERT, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.

A defendant appeals the dismissal of his application for postconviction

relief. AFFIRMED.

Erin M. Carr of Carr Law Firm, P.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.

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

CHICCHELLY, Judge.

Jerry Tolbert appeals the dismissal of his application for postconviction relief

(PCR) concerning his conviction for robbery in the first degree. He challenges the

district court’s finding that his application was untimely. Reviewing the record for

errors at law, we affirm the district court’s dismissal. See Schmidt v. State, 909

N.W.2d 778, 784 (Iowa 2018) (setting forth standard of review).

On November 30, 2011, a jury convicted Tolbert of first-degree robbery. A

panel of our court upheld his conviction on direct appeal. See State v. Tolbert, No.

12–0046, 2012 WL 5605277, at *6 (Iowa Ct. App. Nov. 15, 2012). In 2013, Tolbert

filed his first PCR application based on ineffective assistance of counsel.

Concluding that Tolbert failed to show his counsel breached any essential duties

that prejudiced him, the PCR court denied his application and this court affirmed

that determination. See Tolbert v. State, No. 15–1369, 2016 WL 1697074, at *1

(Iowa Ct. App. April 27, 2016).

This appeal concerns Tolbert’s second PCR application, which he filed on

August 16, 2018. In May 2022, the State filed a motion to dismiss, arguing

Tolbert’s claims were both time-barred and substantively unsound. In August, the

district court dismissed Tolbert’s application as untimely. Tolbert filed a timely

notice of appeal.

Tolbert argues his application is not untimely because it relates back to the

filing of his first application under Allison v. State, 914 N.W.2d 866 (Iowa 2018).1

1 Tolbert’s application is untimely on its face because Iowa Code section 822.3

(2018) authorizes a three-year window to commence PCR proceedings, absent an applicable exception. 3

In Allison, the Iowa Supreme Court created an exception to the three-year statute

of limitations for ineffective-assistance-of-counsel claims targeting both trial and

prior PCR counsel. See 914 N.W.2d at 891. More specifically, the court ruled:

[W]here a PCR petition alleging ineffective assistance of trial counsel has been timely filed per section 822.3 and there is a successive PCR petition alleging postconviction counsel was ineffective in presenting the ineffective-assistance-of-trial-counsel claim, the timing of the filing of the second PCR petition relates back to the timing of the filing of the original PCR petition for purposes of Iowa Code section 822.3 if the successive PCR petition is filed promptly after the conclusion of the first PCR action.

Id. (emphasis added).2

Tolbert argues that he meets this exception because: (1) his first PCR

application was timely filed and alleged ineffectiveness of counsel, (2) his second

application alleges ineffective assistance of both trial and PCR counsel, and (3) his

second application was promptly filed within two months of the Allison decision.

However, Tolbert’s emphasis on the timing in relation to Allison is misplaced. The

language in Allison quite specifically explains that the successive petition must be

filed promptly in relation to “the conclusion of the first PCR action.” See id. In fact,

we already have precedent to this effect:

Allison says what it says. Nothing in Allison suggests that the clock for second PCRs runs from the filing of Allison. Rather, by its plain terms, Allison only applies to second PCRs “filed promptly after the conclusion of the first PCR action.” 914 N.W.2d at 891 (emphasis added). So, because [the applicant] did not file his second PCR “promptly after the conclusion of the first PCR action,” Allison cannot assist him.

2 The amendment to section 822.3 that prevented tolling the statute of limitations

in relation back to prior PCR applications abrogated the court’s ruling in Allison but took effect on July 1, 2019. See 2019 Iowa Acts ch. 140, § 34. Tolbert’s application was filed before the effective date of this legislation. We assume without deciding that Allison applies under these circumstances. 4

Velazquez-Ramirez v. State, 973 N.W.2d 598, 601 (Iowa Ct. App. 2022).

Tolbert attempts to distinguish our court’s ruling in Velazquez-Ramirez

based on the fact that he “filed his second application prior to the expiration of the

statute of limitations in his first application, whereas the subsequent application in

Valazquez-Ramirez was filed six years after the first application.” We believe this

claim stems from a misunderstanding of the three-year window. Tolbert seems to

suggest that our law allows filing within three years of the conclusion of the last

PCR action, but in fact, applications must generally “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.” Iowa Code § 822.3. Therefore, his second

PCR application was not filed prior to the expiration of the statute of limitations.

Tolbert’s second PCR application was filed over two years after our court

issued its decision regarding Tolbert’s first application. However, “we have

repeatedly concluded that delays of one year or more are not sufficiently prompt.”

Johnson v. State, No. 19-1949, 2021 WL 210700, at *2 (Iowa Ct. App. Jan. 21,

2021) (cleaned up) (concluding a delay of two years was not prompt under Allison);

see also Polk v. State, No. 18-0309, 2019 WL 3945964, at *1 (Iowa Ct. App. Aug.

21, 2019) (concluding a delay of six months did not meet the “prompt” filing

mandate in Allison). Accordingly, we find Tolbert’s second PCR application was

not promptly filed after the conclusion of his first PCR action. We conclude the

district court properly dismissed the application for untimeliness.

AFFIRMED.