Spencer Antowyn Pierce v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: January 12, 2022
• Docket: 20-0044
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0044 Filed January 12, 2022

SPENCER ANTOWYN PIERCE, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.

Spencer Antowyn Pierce appeals the summary disposition of his second

application for postconviction relief. AFFIRMED.

Nicholas Einwalter, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.

Considered by May, P.J., Schumacher, J., and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2021). 2

SCHUMACHER, Judge.

Spencer Antowyn Pierce appeals the summary disposition of his second

application for postconviction relief (PCR) regarding his conviction for conspiracy to

deliver a controlled substance. He argues Allison v. State, 914 N.W.2d 866, 891 (Iowa

2018), permits him to bring his claims of ineffective assistance against his first PCR

counsel outside of time limit set forth in Iowa Code section 822.3 (2019). Given the

narrow constraints of Allison, we affirm the dismissal of Pierce’s second PCR application.

I. Facts & Proceedings

On June 7, 2013, police officers executed a search warrant at Pierce’s apartment

and discovered marijuana, methamphetamine, and drug paraphernalia. Police

subsequently arrested Pierce on five drug-related charges.1 Based on information later

provided by a confidential informant, law enforcement obtained and executed a search

warrant on a vehicle Pierce drove and found several bags containing methamphetamine

hidden inside. That discovery resulted in an additional three drug-related charges. Pierce

pled guilty to conspiracy to deliver a controlled substance in return for the dismissal of the

remaining charges. His judgment was finalized December 9, 2013. He did not file a direct

appeal.

Pierce filed his first PCR application in January 2014, raising several grounds of

ineffective assistance of his trial counsel. He alleged his trial counsel was ineffective by

1 A jury in a separate case found Pierce guilty of first-degree murder and first-degree robbery, for which the trial court sentenced him to concurrent sentences of life and twenty- five years in prison, respectively. The court ordered Pierce’s sentence for the conspiracy to deliver conviction of twenty-five years in prison to run concurrently to the murder and robbery sentences. This court reversed the murder and robbery convictions on direct appeal after finding insufficient evidence to support the verdicts. See State v. Pierce, No. 13-2004, 2015 WL 3613329, at *5 (Iowa Ct. App. June 10, 2015). 3

failing to seek suppression of evidence discovered during the stop and seizure of his

person, which he also claimed was illegal. He further argued counsel was ineffective by

failing to seek suppression of evidence discovered during the search of his apartment,

suggesting the warrant application contained intentionally false statements in violation of

Franks.2 Finally, he alleged his counsel failed to investigate and obtain police reports and

the interview of the confidential informant that the State suppressed in violation of Brady

v. Maryland, 373 U.S. 83, 87 (1963).

The first PCR court denied relief on the merits of Pierce’s application. The court

determined Pierce’s statements were voluntary and did not violate Miranda, that trial

counsel made a strategic decision to raise only those discrepancies counsel believed had

merit, and even if the discrepancies Pierce complained of were excised from the warrant

application, the remainder of the application showed probable cause. The court also

found Pierce was not prejudiced because he failed to show the information withheld by

the State was favorable to him. This court affirmed the denial of Pierce’s first PCR

application on appeal. See Pierce v. State, No. 17-0960, 2019 WL 2150806, at *1 (Iowa

Ct. App. May 15, 2019).

Pierce filed a second PCR application while the appeal of his first PCR was

pending, claiming ineffective assistance of his PCR counsel. The claims relevant to this

appeal relate to the legality of the initial stop, the alleged Franks violation in the first

2In Franks v. Delaware, 438 U.S. 154, 171–72 (1978), the United States Supreme Court held that if false information is used to obtain a search warrant, “the offensive material must be deleted and the remainder of the warrant reviewed to determine whether probable cause existed.” 4

warrant application, and the alleged Brady violation regarding the State’s failure to provide

Pierce with the interview of the confidential informant.

At the time Pierce filed his second PCR application on March 12, 2019, Iowa Code

section 822.3 (2019) required applicants to file their PCR applications within three years

of the date their conviction became final. In Allison v. State, 914 N.W.2d 866, 891 (Iowa

2018), our supreme court held that a second PCR application filed after the expiration of

that three-year limitation period could be considered if it alleged ineffective assistance of

first PCR counsel in presenting claims of ineffective assistance of trial counsel, provided

the applicant filed the first PCR application within the limitation period and the second

PCR application was filed promptly after the conclusion of the first PCR action.

Following Pierce’s second PCR application but before the court entered judgment,

the legislature amended the applicable code section, which appears to abrogate Allison.3

The amendment to section 822.3 now reads: “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.” 2019 Iowa Acts ch. 140, § 34 (codified at Iowa Code § 822.3 (Supp.

2019)).

Pierce filed his second application as a self-represented litigant. He was appointed

counsel, but later moved to terminate their services, requesting that he be permitted to

3 There remains questions regarding what affect the amendment has on PCR actions where, as is the case here, the application was pending when the amendment went into effect. See, e.g., Moon v. State, No. 19-2037, 2021 WL 610195, at *4 n.6 (Iowa Ct. App. Feb. 17, 2021) (“This amendment appears to abrogate Allison, although it is not yet clear what PCR applications the amended legislation affects.”); Johnson v. State, No. 19-1949, 2021 WL 210700, at *3 (Iowa Ct. App. Jan. 21, 2021) (“There is a question, however, as to whether the amendment applies to Johnson’s case, which was filed in June 2019.”). 5

represent himself. The motion was granted. The State moved for summary judgment,

arguing Pierce’s petition was untimely. Pierce did not resist the State’s motion. Instead,

Pierce responded with a motion to take depositions, a motion for a private investigator, a

motion to compel, a motion for discovery, and two separate motions to amend his initial

application.4 The court granted the State’s motion for summary judgment. Pierce

appeals.

II. Scope of Review

We review summary dismissals of PCR applications for errors at law. Schmidt v.

State, 909 N.W.2d 778, 784 (Iowa 2018). We apply the same standard to summary

disposition as summary judgment. Id. Accordingly, summary disposition is proper if “the

pleadings, depositions, answers to interrogatories, and admissions on file together with

the affidavits, if any, show . . . there is no genuine issue of material fact and . . . the moving

party is entitled to judgment as a matter of law.” Id. (quoting Davis v. State, 520 N.W.2d

319, 321 (Iowa Ct. App. 1994)).

III. Analysis

Pierce attempts to save his second PCR application with the ruling in Allison,

contending the PCR court erred in determining his second PCR application did not relate

back to the first. The Allison court determined that in order to relate back to an earlier

PCR application to avoid the time limitation of section 822.3, a PCR applicant must (1) file

the initial PCR application within three years of final conviction, (2) file a second PCR

application that alleges first PCR counsel was ineffective in presenting ineffective

4Both motions to amend the postconviction application were filed after the effective date of the amendment to Iowa Code section 822.3, and the dismissal of the amendments are not challenged in this appeal. 6

assistance of trial counsel claims, and (3) file the second PCR action “promptly” after the

conclusion of the first. 914 N.W.2d at 891. Significantly, Pierce agrees his second PCR

application does not specifically allege his PCR counsel was ineffective in presenting

claims of ineffective assistance of trial counsel. Pierce’s claims in his second application

assert:

1. PCR counsel was ineffective in failing to take depositions of the State witnesses;

2. PCR counsel was ineffective in failing to subpoena Detective McTaggert to the

PCR hearing;

3. PCR counsel was ineffective for not subpoenaing county attorney Voogt to the

4. PCR counsel was ineffective for not subpoenaing county attorney Cox to the PCR

hearing;

5. PCR counsel was ineffective for not properly examining the witnesses at the PCR

6. There was prosecutorial misconduct equating Brady violations; and

7. PCR counsel was ineffective for not calling Pierce’s trial attorney as a witness at

the PCR hearing.

The ineffective assistance of PCR counsel claims Pierce raises in his second PCR

application do not relate back to the ineffective assistance of his PCR counsel in the

original PCR action. He does not allege his PCR counsel was ineffective in presenting

claims of ineffective assistance of trial counsel. Pierce’s allegations concern only the

performance of his PCR counsel, and therefore cannot relate back to the filing of the first

PCR, if indeed Allison could still be used to save his second application. To the extent 7

Pierce asserts prosecutorial misconduct relating to a Franks violation, this claim was

already litigated in his first PCR filing.5

Pierce asserts, and the dissent determines, that he meets all three of the

requirements of Allison because he filed his first PCR application less than one month

after the trial court entered judgment on his conviction, he filed his second PCR

application while his first was pending on appeal, and that by reading Pierce’s second

application in context with the first, he alleges ineffective assistance of his trial counsel by

attacking his appellate PCR counsel. However, Allison is clear that there must be “a

successive PCR petition alleging postconviction counsel was ineffective in presenting the

ineffective-assistance-of-trial-counsel claim.” 914 N.W.2d at 891 (emphasis added).

Allison does not appear to contemplate searching outside of the second petition to find

support for a claim of ineffective assistance of PCR counsel for their failure to assert trial

counsel was ineffective.

Pierce’s petition fails to set out a claim that his first PCR counsel was ineffective in

pursuing the ineffective assistance of trial counsel claim. Accordingly, the order granting

summary disposition in favor of the State is affirmed.

AFFIRMED.

May, P.J., concurs; Carr, S.J., dissents.

5Pierce’s claim was addressed by this court on appeal, which determined “even if we were to excise these statements from the affidavit, probable cause still supports the warrant” and any motion to suppress that raised a Franks violation would have failed. Pierce, 2019 WL 2150806, at *5. 8

CARR, Senior Judge (dissenting).

The question before us is whether the claims raised in Pierce’s second PCR

application can be deemed to relate back sufficiently to the filing of his first, bringing them

within the narrow, and now closed, window of relief under Allison v. State, 914 N.W.2d

866 (Iowa 2018), to avoid the three-year statute of limitations. Like the majority, I assume

without deciding that Senate File 589 (the Omnibus Crime Bill),6 which amended Iowa

section 822.3 (2019) to abrogate Allison, does not apply to Pierce’s second PCR action,

which was pending when the legislation became effective. Because the claims in the

second PCR action impliedly allege Pierce’s first PCR counsel was ineffective in

advancing claims in his first PCR action, I would find his second PCR action falls within

the Allison exception and reverse.

Iowa Code section 822.7 provides that rules governing civil proceedings govern

PCR proceedings. See Linn v. State, 929 N.W.2d 717 (Iowa 2019). As the moving party,

the State bears the burden of showing there is no triable issue of fact. See Allison, 914

N.W.2d at 892. In considering the application, the court shall take account of substance

regardless of defects of form. Iowa Code § 822.6. The State’s motion for summary

disposition advanced only one point: the statute of limitations under section 822.3 had

expired and Allison did not apply to save it. The motion, and the trial court in sustaining

it, relied only on the allegations in the application and the noticed record of the prior

proceedings. In affirming, the majority focuses solely on the allegations in the second

application without considering their relationship to the first PCR action. Pierce’s first

6See generally 2019 Iowa Acts ch. 140, § 34 (effective July 1, 2019) (codified at Iowa Code § 822.3 (Supp. 2019)). 9

PCR action advanced claims of ineffective assistance of trial counsel in several

particulars, all centered on the warranted search of his apartment following his detention

soon after the murder and a later warranted search of his Durango motor vehicle after a

tip from a jailhouse informant. Pierce’s second PCR, now before us, alleges failures of

his first PCR counsel in presenting those claims.

Pierce concedes that his second PCR application does not explicitly state that his

first PCR counsel was ineffective in presenting claims of ineffective assistance of trial

counsel. But reading his claims in context with the prior PCR action, it is clear Pierce is

attacking his PCR counsel’s performance in raising ineffective-assistance-of-trial-counsel

claims. Pierce’s second PCR application alleges his PCR counsel was ineffective by:

(1) failing to subpoena a detective to the PCR hearing “to prove the cops unlawfully

detain[ed him] and the officers lacked probable cause to arrest”; (2) failing to properly

examine a detective at the PCR trial to show a Franks violation by allowing him to testify

that a phone number was registered to his codefendant in a different case when it was

but “was put in the search warrant application to ma[k]e it look like such”; (3) failing to

subpoena prosecutors to establish they violated Brady because they knew about the file

on the confidential informant and deliberately concealed it; and (4) failing to depose the

witnesses that testified in the first PCR trial because doing so would have allowed PCR

counsel to obtain the confidential informant file before trial to show it contained evidence

favorable to Pierce. In addition, at the summary disposition hearing, Pierce clarified that

he was “raising ineffective assistance of my original trial counsel and ineffective

assistance of the PCR counsel for how he failed to argue the ineffective assistance of the

original trial counsel.” 10

When I look to the “substance” of Pierce’s claims and disregard “defects of form”

as directed by section 822.6, I think he has adequately pled a claim for relief and should

be allowed to proceed. Therefore, I respectfully dissent.