IN THE COURT OF APPEALS OF IOWA
No. 16-1257 Filed July 19, 2017
KEITH C. WALKER, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
The applicant appeals from the district court’s denial of his application to
reinstate his postconviction-relief action. AFFIRMED.
Tod J. Deck of Deck Law, L.L.P., Sioux City, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ. 2
POTTERFIELD, Judge.
In 1990, Keith Walker was convicted of first degree murder and sentenced
to serve a life term in prison. The supreme court affirmed his conviction on direct
appeal two years later, and procedendo issued in April 1992.
Walker filed a timely application for postconviction relief (PCR) in July
1994. Walker maintained, among other things, that he had information that
“several jurors were biased,” including purported information about one juror who
stated she never associated with minorities and two other jurors who had
knowledge of the case before trial. He also claimed the prosecutor failed to
“relinquish” two pieces of exculpatory evidence.
A hearing on Walker’s PCR application was originally scheduled for
October 1994. Walker’s counsel filed a motion to continue, and the court granted
the motion, stating, “[T]his matter is removed from the assignment of October 27,
1994, and shall be reset upon application of the attorney for the plaintiff.”
In March 1995, the court set the hearing for July 1995.
In May, the court filed an order appointing Walker a new attorney.
On August 1, Walker’s new attorney was sent notice that the case would
be dismissed for want of prosecution if it was not tried prior to January 1, 1996.
The only person listed in the “to” section of the notice was Walker’s attorney. It is
unclear from the record before us why the July hearing did not take place as had
been previously scheduled.
Walker’s new attorney took no action, and the case was dismissed
pursuant to Iowa Rule of Civil Procedure 215.1 (now rule 1.944). 3
In December 1996, Walker filed a pro se application for reinstatement of
his PCR action. He maintained that the counsel who was appointed in May 1995
had never directly communicated with him about his case. He also stated that he
was told by his co-defendant’s counsel that appointed counsel had stated he was
no longer representing Walker. It was only when Walked filed a pro se motion for
appointment for new counsel in November 1996 that he learned from the clerk’s
office that his PCR application had already been dismissed by the court.
The district court denied Walker’s application for reinstatement because it
was filed more than six months after his PCR application was dismissed.
Walker appealed the district court’s ruling. Walker claimed that there
should be an exception to the six-month limit for reinstatement because his
counsel was ineffective, but the supreme court found that “[n]othing in rule 215.1
or our case law supports this position and we reject it.” Walker v. State, 572
N.W.2d 589, 590 (Iowa 1997). The supreme court affirmed the district court’s
ruling. Id. at 591.
Walker filed a second application for reinstatement in May 1998. The
district court again denied the petition, noting the supreme court had already
affirmed its denial of his first application and stating, “The Court will not entertain
further applications for postconviction relief from this Defendant.”
Walker initiated the present action in April 2016, when he filed a motion
asking the court to reinstate his first PCR action “in light of” Hrbek v. State, No.
13-1619, 2015 WL 6087572, at *3 (Iowa Ct. App. Oct. 14, 2015). The district
court denied Walker’s motion, stating, “The Court finds the Hrbek case is
distinguishable from Applicant’s, in that Applicant was given proper service and 4
notice of the motion to dismiss his postconviction relief and time to respond to the
dismissal, whereas the Applicant in Hrbek was not.”
Walker filed a motion to reconsider, claiming nothing in the record
suggested Walker was notified of the dismissal of his case before the six months
to file for reinstatement had lapsed. The district court denied Walker’s motion to
reconsider, and he appealed.
Walker’s underlying claim is that the attorneys who allowed his PCR
action to be dismissed without the underlying merits being considered provided
ineffective assistance. We review claims of ineffective assistance de novo. Lado
v. State, 804 N.W.2d 248, 250 (Iowa 2011).
Although the district court stated that Walker received “proper service and
notice of the motion to dismiss” his first PCR application, we do not believe the
record supports the assertion. The notice stating that the case would be
dismissed only states that it is “to” Walker’s attorney. There is a sentence at the
bottom stating, “This notice mailed or delivered to all parties entitled to notice
under R.C.P. 82 on the 1st day of August, 1995.” Rule 82 states, in part,
“Service upon a party represented by an attorney shall be made upon the
attorney unless service upon the party himself is ordered by the court.” Iowa R.
Civ. P. 82 (1995). Additionally, the copy of the form order by the Clerk of Court
dismissing the case in the record before us is not file stamped and it does not
include a certificate of service. Nothing suggests Walker ever personally
received such notice, and the claim that his attorney did—and then did nothing
about it—is what supports Walker’s claim his counsel was ineffective. 5
In Lado, the PCR applicant’s case was dismissed after the applicant’s
counsel had received notice the action would be dismissed for want of
prosecution (pursuant to rule 1.944). 804 N.W.2d at 250. The applicant
appealed, alleging the dismissal had resulted because his counsel had provided
ineffective assistance. Id. Our supreme court ruled, “Permitting a client’s
postconviction relief application to be dismissed because of inaction is never an
effective trial strategy. Counsel’s failure to seek a continuance of the case, or to
apply to have the case reinstated, resulted from abdication, not exercise, of
professional judgment.” Id. at 251. The court found that such failure was a
“structural error” because the applicant “was constructively without counsel
during his postconviction-relief proceeding as his application was dismissed
without any consideration of its merits or meaningful adversarial testing.” Id. at
253. In such a case, no specific showing of prejudice is required because
prejudice is presumed. Id. at 252, 253.
Although Lado appears at first blush to apply to Walker’s case, the
supreme court earlier considered Walker’s claim that his first PCR action should
be reinstated and denied it, finding no merit in the claim. See Walker, 572
N.W.2d at 590. “The doctrine of the law of the case represents the practice of
courts to refuse to reconsider what has once been decided.” State v. Grosvenor,
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IN THE COURT OF APPEALS OF IOWA
No. 16-1257 Filed July 19, 2017
KEITH C. WALKER, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
The applicant appeals from the district court’s denial of his application to
reinstate his postconviction-relief action. AFFIRMED.
Tod J. Deck of Deck Law, L.L.P., Sioux City, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ. 2
POTTERFIELD, Judge.
In 1990, Keith Walker was convicted of first degree murder and sentenced
to serve a life term in prison. The supreme court affirmed his conviction on direct
appeal two years later, and procedendo issued in April 1992.
Walker filed a timely application for postconviction relief (PCR) in July
1994. Walker maintained, among other things, that he had information that
“several jurors were biased,” including purported information about one juror who
stated she never associated with minorities and two other jurors who had
knowledge of the case before trial. He also claimed the prosecutor failed to
“relinquish” two pieces of exculpatory evidence.
A hearing on Walker’s PCR application was originally scheduled for
October 1994. Walker’s counsel filed a motion to continue, and the court granted
the motion, stating, “[T]his matter is removed from the assignment of October 27,
1994, and shall be reset upon application of the attorney for the plaintiff.”
In March 1995, the court set the hearing for July 1995.
In May, the court filed an order appointing Walker a new attorney.
On August 1, Walker’s new attorney was sent notice that the case would
be dismissed for want of prosecution if it was not tried prior to January 1, 1996.
The only person listed in the “to” section of the notice was Walker’s attorney. It is
unclear from the record before us why the July hearing did not take place as had
been previously scheduled.
Walker’s new attorney took no action, and the case was dismissed
pursuant to Iowa Rule of Civil Procedure 215.1 (now rule 1.944). 3
In December 1996, Walker filed a pro se application for reinstatement of
his PCR action. He maintained that the counsel who was appointed in May 1995
had never directly communicated with him about his case. He also stated that he
was told by his co-defendant’s counsel that appointed counsel had stated he was
no longer representing Walker. It was only when Walked filed a pro se motion for
appointment for new counsel in November 1996 that he learned from the clerk’s
office that his PCR application had already been dismissed by the court.
The district court denied Walker’s application for reinstatement because it
was filed more than six months after his PCR application was dismissed.
Walker appealed the district court’s ruling. Walker claimed that there
should be an exception to the six-month limit for reinstatement because his
counsel was ineffective, but the supreme court found that “[n]othing in rule 215.1
or our case law supports this position and we reject it.” Walker v. State, 572
N.W.2d 589, 590 (Iowa 1997). The supreme court affirmed the district court’s
ruling. Id. at 591.
Walker filed a second application for reinstatement in May 1998. The
district court again denied the petition, noting the supreme court had already
affirmed its denial of his first application and stating, “The Court will not entertain
further applications for postconviction relief from this Defendant.”
Walker initiated the present action in April 2016, when he filed a motion
asking the court to reinstate his first PCR action “in light of” Hrbek v. State, No.
13-1619, 2015 WL 6087572, at *3 (Iowa Ct. App. Oct. 14, 2015). The district
court denied Walker’s motion, stating, “The Court finds the Hrbek case is
distinguishable from Applicant’s, in that Applicant was given proper service and 4
notice of the motion to dismiss his postconviction relief and time to respond to the
dismissal, whereas the Applicant in Hrbek was not.”
Walker filed a motion to reconsider, claiming nothing in the record
suggested Walker was notified of the dismissal of his case before the six months
to file for reinstatement had lapsed. The district court denied Walker’s motion to
reconsider, and he appealed.
Walker’s underlying claim is that the attorneys who allowed his PCR
action to be dismissed without the underlying merits being considered provided
ineffective assistance. We review claims of ineffective assistance de novo. Lado
v. State, 804 N.W.2d 248, 250 (Iowa 2011).
Although the district court stated that Walker received “proper service and
notice of the motion to dismiss” his first PCR application, we do not believe the
record supports the assertion. The notice stating that the case would be
dismissed only states that it is “to” Walker’s attorney. There is a sentence at the
bottom stating, “This notice mailed or delivered to all parties entitled to notice
under R.C.P. 82 on the 1st day of August, 1995.” Rule 82 states, in part,
“Service upon a party represented by an attorney shall be made upon the
attorney unless service upon the party himself is ordered by the court.” Iowa R.
Civ. P. 82 (1995). Additionally, the copy of the form order by the Clerk of Court
dismissing the case in the record before us is not file stamped and it does not
include a certificate of service. Nothing suggests Walker ever personally
received such notice, and the claim that his attorney did—and then did nothing
about it—is what supports Walker’s claim his counsel was ineffective. 5
In Lado, the PCR applicant’s case was dismissed after the applicant’s
counsel had received notice the action would be dismissed for want of
prosecution (pursuant to rule 1.944). 804 N.W.2d at 250. The applicant
appealed, alleging the dismissal had resulted because his counsel had provided
ineffective assistance. Id. Our supreme court ruled, “Permitting a client’s
postconviction relief application to be dismissed because of inaction is never an
effective trial strategy. Counsel’s failure to seek a continuance of the case, or to
apply to have the case reinstated, resulted from abdication, not exercise, of
professional judgment.” Id. at 251. The court found that such failure was a
“structural error” because the applicant “was constructively without counsel
during his postconviction-relief proceeding as his application was dismissed
without any consideration of its merits or meaningful adversarial testing.” Id. at
253. In such a case, no specific showing of prejudice is required because
prejudice is presumed. Id. at 252, 253.
Although Lado appears at first blush to apply to Walker’s case, the
supreme court earlier considered Walker’s claim that his first PCR action should
be reinstated and denied it, finding no merit in the claim. See Walker, 572
N.W.2d at 590. “The doctrine of the law of the case represents the practice of
courts to refuse to reconsider what has once been decided.” State v. Grosvenor,
402 N.W.2d 402, 405 (Iowa 1987) “It is a rule which provides that the legal
principles announced and the views expressed by a reviewing court in an
opinion, right or wrong, are binding throughout further progress of the case upon
the litigants, the trial court and this court in later appeals.” Id. An exception
exists “when the controlling law has been clarified by judicial decisions following 6
remand.” United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 104 (Iowa
2000). But here, the holding of the supreme court’s decision in Walker’s case
still holds. Moreover, even if Lado did change the controlling law surrounding the
earlier refusal to reinstate Walker’s case, his motion to reinstate based on
Lado—five years after it was decided—is untimely. See, e.g., Phuoc Thanh
Nguyen v. State, 829 N.W.2d 183, 186 (Iowa 2013) (noting the applicant had
filed his PCR application “more than three years after procedendo had issued on
his original direct appeal, but less than three years after” a new ground of law
was announced in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006)); Frasier v.
State, No. 15-0533, 2016 WL 3269574, at *2 (Iowa Ct. App. June 15, 2016)
(recognizing an “implicit three-year limitation on raising the ground-of-law
exception”); Thompson v. State, No. 14-0138, 2015 WL 1332352, at *1 (Iowa Ct.
App. Mar. 25, 2015) (same); Claybon v. State, No. 12-1396, 2014 WL 1999057,
at *2 n.4 (Iowa Ct. App. May 14, 2014).
Also, we note that another panel of our court was recently asked to
consider the appeal from Walker’s fifth PCR application, in which he made the
same arguments regarding the dismissal of his first PCR action for his 1992
murder conviction. See Walker v. State, No. 16-0463, 2017 WL 2684333, at *2
(Iowa Ct. App. June 21, 2017). The panel noted, as we have above, that our
supreme court had already rejected Walker’s claim and concluded, “Having
finally adjudicated the issue, Walker is barred from raising the same ground for
relief.” Id. (citing Iowa Code § 822.8 (2013)). 7
For all the foregoing reasons, we affirm the district court’s refusal to
reinstate Walker’s initial PCR action.
AFFIRMED.