IN THE COURT OF APPEALS OF IOWA
No. 14-1328 Filed October 26, 2016
TIMOTHY PALMER, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,
Judge.
Applicant appeals the district court’s decision granting the State’s motion
for summary judgment and denying his application for postconviction relief.
AFFIRMED.
Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., Mullins, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
GOODHUE, Senior Judge.
Timothy Palmer appeals from the district court’s grant of the State’s
motion for summary judgment and dismissal of his sixth request for
postconviction relief (PCR).
I. Background Facts and Proceedings
Timothy Palmer was convicted by a jury of first-degree murder and first-
degree robbery and was sentenced to a life sentence and twenty-five years,
respectively, on November 22, 1995. Palmer appealed, and on June 26, 1997,
his conviction was affirmed by the Iowa Court of Appeals. See State v. Palmer,
569 N.W.2d 614, 618 (Iowa Ct. App. 1997). The factual background leading to
the charges and conviction are set out in the opinion affirming his conviction in
the direct appeal. Id. at 615. There is no reason to repeat them in this
proceeding.
Palmer filed this, his sixth PCR application, on May 9, 2013. The State
filed a motion for summary judgment, asking that Palmer’s petition be dismissed.
The motion was granted based on the following findings: (1) the issues raised in
the sixth PCR had already been raised in previous PCRs or in the direct appeal,
and (2) the three-year statute of limitations relative to PCR claims had expired.
See Iowa Code § 822.3 (2013). Palmer contends he is raising “new grounds of
law” that could not have been raised within the applicable time period or in his
previous PCRs and he is therefore excused from the three-year statute of
limitations. See id.
The issues which Palmer claims constitute new law are as follows. First,
the instructions relative to joint criminal conduct given to the jury were 3
determined to be inadequate in a subsequent case and constitute a change of
law. See State v. Smith, 739 N.W.2d 289, 293-94 (Iowa 2007). The instructions
given in Palmer’s trial regarding the charge of joint criminal conduct did not
include an instruction that “a ‘different crime’ must be committed by another
participant in furtherance of the defendant’s offense,” as required by Smith. See
id. at 294. Second, the access to mental health records of a witness as set out
by State v. Cashen, 789 N.W.2d 400, 408-10 (Iowa 2010), and later by Iowa
Code section 622.10(4)(a), which took effect on March 30, 2011, were not
available to him at the time of trial. One of the co-defendants that testified
against Palmer is alleged to have sought medical services for her mental health
problems and had a juvenile record. Palmer asserts that at the time of his trial,
he could not have discovered the mental health records of the witness because
of the confidentiality provisions of professional communications provided by Iowa
Code section 622.10.
II. Error Preservation
The State does not contest error preservation.
III. Standard of Review
A district court’s ruling on postconviction relief actions is ordinarily
reviewed for errors of law. Harrington v. State, 659 N.W.2d 509, 519 (Iowa
2003).
IV. Merits
A. Joint Criminal Conduct Instructions
Palmer relies exclusively on Smith, 739 N.W.2d at 295, for his contention
the case set forth a new law that creates an exception to the three-year statute of 4
limitations for PCR actions. In Smith, 739 N.W.2d at 294, the court explicitly
stated that the instruction clarification it directed to be used in future joint-
criminal-conduct cases was an expression of current or preexisting law and did
not constitute new law. Although trial courts were not previously expressly
directed to include as an element of joint criminal conduct the language set out in
Smith, the concept was clearly set out prior to the date of Palmer’s trial. See
State v. Hohle, 510 N.W.2d 847, 848 (Iowa 1994). Smith did not create new law.
It was instead a clarification of the instructions to be used in future cases.
This is not a case like Nguyen v. State, 829 N.W.2d 183, 188 (Iowa 2013),
where a change of law was held to have taken place. In Nguyen, the court held
that the elimination of willful injury as a predicate felony for application of the
felony-murder rule as set out in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa
2006), was, in fact, a change of law. Nguyen, 829 N.W.2d at 188. The felony-
murder instruction had been repeatedly upheld until Heemstra. Id. Furthermore,
in the direct appeal, Palmer had already raised an issue as to the joint-criminal-
conduct instruction. Palmer, 569 N.W.2d at 618. The instructions as used were
not considered prejudicial or reversible error in the direct appeal. Id.
B. The Mental Health Records of a Witness
Once again, neither Cashen, 789 N.W.2d at 408-10, nor Iowa Code
section 622.10(4)(a), created new law. Mental health records were available
prior to Cashen. See Heemstra, 721 N.W.2d at 563; Chidester v. Needles, 353
N.W.2d 849, 852 (Iowa 1984). Cashen and Iowa Code section 622.10(4)(a) set
out procedures required to be used to make privileged records available and did
not set out new substantive law. Arguably, the procedures required, as set out 5
by Cashen and then by Iowa Code section 622.10(4)(a), made it more difficult to
obtain mental health records than before the specific procedures were adopted.
Furthermore, Palmer raised the witnesses’ juvenile records in one of his previous
PCRs and his request for relief because of his inability to obtain those records
was denied. See Palmer v. State, No. 10-1615, 2011 WL 5867055, at *4-5 (Iowa
Ct. App. Nov. 23, 2011).
C. Ineffective Assistance of Counsel
To the extent Palmer claims ineffective assistance of counsel negates the
three-year statute of limitations, his claim is denied. A claim alleging ineffective
assistance of counsel does not save a PCR application from being time barred
under the three-year rule. Whitsel v. State, 525 N.W.2d 860, 864-65 (Iowa
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IN THE COURT OF APPEALS OF IOWA
No. 14-1328 Filed October 26, 2016
TIMOTHY PALMER, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,
Judge.
Applicant appeals the district court’s decision granting the State’s motion
for summary judgment and denying his application for postconviction relief.
AFFIRMED.
Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., Mullins, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
GOODHUE, Senior Judge.
Timothy Palmer appeals from the district court’s grant of the State’s
motion for summary judgment and dismissal of his sixth request for
postconviction relief (PCR).
I. Background Facts and Proceedings
Timothy Palmer was convicted by a jury of first-degree murder and first-
degree robbery and was sentenced to a life sentence and twenty-five years,
respectively, on November 22, 1995. Palmer appealed, and on June 26, 1997,
his conviction was affirmed by the Iowa Court of Appeals. See State v. Palmer,
569 N.W.2d 614, 618 (Iowa Ct. App. 1997). The factual background leading to
the charges and conviction are set out in the opinion affirming his conviction in
the direct appeal. Id. at 615. There is no reason to repeat them in this
proceeding.
Palmer filed this, his sixth PCR application, on May 9, 2013. The State
filed a motion for summary judgment, asking that Palmer’s petition be dismissed.
The motion was granted based on the following findings: (1) the issues raised in
the sixth PCR had already been raised in previous PCRs or in the direct appeal,
and (2) the three-year statute of limitations relative to PCR claims had expired.
See Iowa Code § 822.3 (2013). Palmer contends he is raising “new grounds of
law” that could not have been raised within the applicable time period or in his
previous PCRs and he is therefore excused from the three-year statute of
limitations. See id.
The issues which Palmer claims constitute new law are as follows. First,
the instructions relative to joint criminal conduct given to the jury were 3
determined to be inadequate in a subsequent case and constitute a change of
law. See State v. Smith, 739 N.W.2d 289, 293-94 (Iowa 2007). The instructions
given in Palmer’s trial regarding the charge of joint criminal conduct did not
include an instruction that “a ‘different crime’ must be committed by another
participant in furtherance of the defendant’s offense,” as required by Smith. See
id. at 294. Second, the access to mental health records of a witness as set out
by State v. Cashen, 789 N.W.2d 400, 408-10 (Iowa 2010), and later by Iowa
Code section 622.10(4)(a), which took effect on March 30, 2011, were not
available to him at the time of trial. One of the co-defendants that testified
against Palmer is alleged to have sought medical services for her mental health
problems and had a juvenile record. Palmer asserts that at the time of his trial,
he could not have discovered the mental health records of the witness because
of the confidentiality provisions of professional communications provided by Iowa
Code section 622.10.
II. Error Preservation
The State does not contest error preservation.
III. Standard of Review
A district court’s ruling on postconviction relief actions is ordinarily
reviewed for errors of law. Harrington v. State, 659 N.W.2d 509, 519 (Iowa
2003).
IV. Merits
A. Joint Criminal Conduct Instructions
Palmer relies exclusively on Smith, 739 N.W.2d at 295, for his contention
the case set forth a new law that creates an exception to the three-year statute of 4
limitations for PCR actions. In Smith, 739 N.W.2d at 294, the court explicitly
stated that the instruction clarification it directed to be used in future joint-
criminal-conduct cases was an expression of current or preexisting law and did
not constitute new law. Although trial courts were not previously expressly
directed to include as an element of joint criminal conduct the language set out in
Smith, the concept was clearly set out prior to the date of Palmer’s trial. See
State v. Hohle, 510 N.W.2d 847, 848 (Iowa 1994). Smith did not create new law.
It was instead a clarification of the instructions to be used in future cases.
This is not a case like Nguyen v. State, 829 N.W.2d 183, 188 (Iowa 2013),
where a change of law was held to have taken place. In Nguyen, the court held
that the elimination of willful injury as a predicate felony for application of the
felony-murder rule as set out in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa
2006), was, in fact, a change of law. Nguyen, 829 N.W.2d at 188. The felony-
murder instruction had been repeatedly upheld until Heemstra. Id. Furthermore,
in the direct appeal, Palmer had already raised an issue as to the joint-criminal-
conduct instruction. Palmer, 569 N.W.2d at 618. The instructions as used were
not considered prejudicial or reversible error in the direct appeal. Id.
B. The Mental Health Records of a Witness
Once again, neither Cashen, 789 N.W.2d at 408-10, nor Iowa Code
section 622.10(4)(a), created new law. Mental health records were available
prior to Cashen. See Heemstra, 721 N.W.2d at 563; Chidester v. Needles, 353
N.W.2d 849, 852 (Iowa 1984). Cashen and Iowa Code section 622.10(4)(a) set
out procedures required to be used to make privileged records available and did
not set out new substantive law. Arguably, the procedures required, as set out 5
by Cashen and then by Iowa Code section 622.10(4)(a), made it more difficult to
obtain mental health records than before the specific procedures were adopted.
Furthermore, Palmer raised the witnesses’ juvenile records in one of his previous
PCRs and his request for relief because of his inability to obtain those records
was denied. See Palmer v. State, No. 10-1615, 2011 WL 5867055, at *4-5 (Iowa
Ct. App. Nov. 23, 2011).
C. Ineffective Assistance of Counsel
To the extent Palmer claims ineffective assistance of counsel negates the
three-year statute of limitations, his claim is denied. A claim alleging ineffective
assistance of counsel does not save a PCR application from being time barred
under the three-year rule. Whitsel v. State, 525 N.W.2d 860, 864-65 (Iowa
1994).
V. Palmer’s Pro Se Brief
In addition to the two issues already discussed, Palmer in his pro se brief
objects to the summary disposition of his petition. He claims that by doing so the
court ignored his motion for discovery, motion for relief because of the State’s
failure to file an answer, and his motion to continue. The State may respond to a
PCR petition by motion as opposed to an answer. Iowa Code § 822.6. The
motion may be a motion for summary judgment when no issue of material fact
appears. Id. An order entered January 24, 2014, set a hearing for March 25.
Palmer filed a resistance to the motion for summary judgment on March 7,
indicating that he had time to create a response. The State’s motion for
summary disposition was based on the three-year limitation for such proceedings
and on the fact the issues Palmer was asserting had been decided either on 6
direct appeal or in a previous PCR. The facts clearly supported the State’s
position. Palmer’s conviction, appeal, and prior PCRs and the decisions
rendered therein were all items of which judicial notice could be taken. See Iowa
R. Evid. 5.201. Palmer did not object when the State asked the court to take
judicial notice of the above items. Palmer, in effect, was granted time to resist
the motion and a resistance was in fact filed. An answer was also filed by the
State at a later date. The postconviction court’s grant of the State’s motion for
summary judgment made further proceedings unnecessary.
VI. Conclusion
The summary disposition made by the postconviction court is in all
respects affirmed.