Raymond E. Thomas v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: July 21, 2021
• Docket: 20-0045
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0045 Filed July 21, 2021

RAYMOND E. THOMAS, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Samantha J.

Gronewald, Judge.

The applicant appeals from the dismissal of his third application for

postconviction relief. AFFIRMED.

Raymond E. Thomas, Fort Madison, self-represented appellant.

Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee State.

Considered by Mullins, P.J., Greer, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021). 2

POTTERFIELD, Senior Judge.

In 2006, a jury convicted Raymond Thomas of third-degree kidnapping, first-

degree burglary,1 second-degree robbery, and two counts of assault on a peace

officer. He directly appealed his convictions, which this court affirmed in State v.

Thomas, No. 06-0582, 2007 WL 3376888 (Iowa Ct. App. Nov. 15, 2007).

Procedendo issued December 19, 2007. Thomas then filed two separate,

unsuccessful applications for postconviction relief (PCR)—one in 2008 and one in

2012.

He filed the instant application, his third, on June 27, 2019—more than

eleven years after procedendo issued. In it, Thomas maintained his application

was timely because of “the doctrine of fraudulent concealment” and the “relation-

back doctrine” outlined in Allison v. State, 914 N.W.2d 866 (Iowa 2018). As for the

substance of his application, Thomas claimed the State failed to properly file the

amended trial information under which he was tried and convicted, “which caused

prejudice involving life and liberty of his person.” He asserted he should receive a

new trial due to this failure. The State moved to have Thomas’s third application

dismissed as time-barred. See Iowa Code § 822.3 (2019). The district court

granted the motion, finding Thomas did not establish an exception to the statute of

limitations. Thomas appeals. “Generally, we review a grant of a motion to dismiss

a PCR petition for correction of errors at law.” Allison, 914 N.W.2d at 870.

1 The jury also convicted Thomas of assault with intent to commit sexual abuse causing bodily injury, which the district court concluded merged with his conviction for first-degree burglary. The court sentenced Thomas to a term of incarceration not to exceed thirty-five years. 3

Thomas maintains an exception to the three-year statute of limitations

applies to save his third PCR application and the district court was wrong to rule

otherwise.

First, he mentions in passing that the district court was wrong to conclude

he did not raise a new ground of fact or law that could not have been raised earlier.

See Iowa Code § 822.3 (providing applications must be filed within three years

from when the writ of procedendo is issued but “this limitation does not apply to a

ground of fact or law that could not have been raised within the applicable time

period”). As the State points out, Thomas did not raise this argument to the district

court, so it is not preserved for our review on appeal. See Goode v. State, 920

N.W.2d 520, 526 (Iowa 2018) (“As a general rule, we do not address issues

presented on appeal for the first time . . . .”).

Second, Thomas maintains his application is saved by the holding in Allison,

in which our supreme court held:

that where 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.

914 N.W.2d at 891 (emphasis added). But this is Thomas’s third application, not

his second. See, e.g., Smitherman v. State, 19-0331, 2020 WL 3571814, at *2

(Iowa Ct. App. July 1, 2020) (“[Allison] does not apply to a third or subsequent PCR

application.”). And, furthermore, he filed his third application more than eighteen

months after procedendo issued on his second application, which is not a “prompt” 4

successive filing. See, e.g., Maddox v. State, No. 19-1916, 2020 WL 5230367, at

*3 (Iowa Ct. App. Sept. 2, 2020) (concluding 121-day delay did not meet the

requirement of “filed promptly”). The Allison exception does not apply here.2

Finally, Thomas argues his application is not time-barred because of the

doctrine of fraudulent concealment. A plaintiff can rely on the doctrine of fraudulent

concealment to avoid the statute of limitations. See Christy v. Miulli, 692 N.W.2d

694, 703 (Iowa 2005). But to do so, the party relying on the doctrine “must prove

the [other party] did some affirmative act to conceal the plaintiff’s cause of action

independent of and subsequent to the liability-producing conduct.” Id. And “the

plaintiff’s reliance must be reasonable.” Id. Here, Thomas relies on the State’s

failure to file the amended trial information for both the substance of his application

(i.e. “liability-producing conduct”) and as his reason for his untimely filing. But the

amended trial information reduced the charges against Thomas, and he knew of

the amendment at least as of the time the trial began because the prosecutor read

the correct, amended trial information to the jury. Additionally, at Thomas’s

sentencing, the discrepancy in information was noted, as the preparer of the

presentence investigation did not have the most recent version. The prosecutor

pointed out at that time that she had read the correct one to the jury at the

2 In 2019, our legislature amended section 822.3 to include the following, “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.” Iowa Code § 822.3 (Supp. 2019). This amendment appears to abrogate Allison, and it took effect on July 1, 2019—while Thomas’s third application was pending. But because Thomas’s application does not meet the narrow exception set out in Allison, we need not determine whether the amended section 822.3 applies to his case. 5

beginning of the trial, and the court instructed the prosecutor “to provide us with

the amended charges that then will be attached to the [PSI].” Assuming the

doctrine of fraudulent concealment applies to PCR actions, Thomas has not

proved it is applicable here.

Because Thomas has not established an exception to the statute of

limitations to save his third PCR application, we affirm the district court’s dismissal.

AFFIRMED.