Opinion
No. 3-239 / 02-0995.
Filed June 25, 2003.
Appeal from the Iowa District Court for Butler County, Dale B. Hagen, Judge.
Reede Doty appeals from the district court ruling dismissing his application for postconviction relief. AFFIRMED.
Christopher Clausen of Boliver Law Firm, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, and Gregory Lievens, County Attorney, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Reede Doty appeals from the district court ruling dismissing his application for postconviction relief. We affirm.
Background Facts and Proceedings. In June 1990 Doty was convicted of three counts of sexual abuse in the second degree in violation of Iowa Code sections 709.1(3) and 709.2 (1991). The district court sentenced Doty to three consecutive twenty-five-year terms. Doty appealed, and his conviction was affirmed in State v. Doty, No. 90-1125 (Iowa Dec. 24, 1991). Subsequently, Doty filed his application for postconviction relief. We affirmed the denial of his postconviction relief application. Doty v. State, No. 7-131/96-292 (Iowa Ct.App. June 27, 1997). On January 2, 2001, Doty filed the present application for postconviction relief, which alleges a new ground of law exists which could not have been raised within the three-year statute of limitations. Following a hearing, the district court dismissed Doty's application because he failed to seek relief within the three-year limitations period and, alternatively, his claims were without merit. Doty appeals.
Standard of Review. Our review of postconviction relief proceedings can be for errors at law or de novo. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999). When the action implicates constitutional issues, our review is de novo. Id. We review dismissal of an application for postconviction relief for errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998).
Statute of Limitations. Iowa Code section 822.3 provides that a postconviction application "must be filed within three years after the issuance of procedendo in the event of an appeal. However, this limitation does not apply to a ground of fact or law that could not have been raised within the applicable time period." Iowa Code § 822.3 (2001). Doty concedes his application was not filed within the applicable time period; however, he argues that the three-year time limit should not apply to his case because of the decision in Mann v. Thalacker, 246 F.3d 1092 (8th Cir. 2001). In Thalacker, the Eight Circuit concluded Judge Mackey did not have a duty to recuse himself and/or inform the parties of the abuse he suffered as a child. Id. at 1097.
Defendant Jeremy Mann appealed his convictions for kidnapping in the first degree and attempted murder. One of the issues Mann raised on direct appeal was that Judge Mackey should have disclosed the abuse he suffered as a child before he waived his right to a jury trial. Our supreme court disagreed and affirmed his convictions. See State v. Mann, 512 N.W.2d 528, 532-33 (Iowa 1994). Mann was later granted habeas corpus relief but that ruling was later reversed by the Eighth Circuit. See Mann v. Thalacker, 246 F.3d 1092 (8th Cir. 2001).
Although the Thalacker case was unfavorable to his position, Doty contends this case represents a new ground of law that could not have been raised within the applicable time period because no similar case law existed prior to this case. We disagree. The issue of whether a trial judge has a duty to recuse himself due to an alleged bias is not a new ground of law. Further, the evidence shows that Doty's prior counsel, Stephen Rapp, was aware of Judge Mackey's potential bias as early as 1992. Therefore, we find Doty was aware of Judge Mackey's potential bias prior to his first postconviction hearing and the expiration of the statute of limitations. At that time, he made the decision not to pursue his claim regarding Judge Mackey's potential bias. The district court noted and we agree that the limitations section in 822.3
In November 1992 Judge Mackey sent Attorney Rapp a letter which included a copy of the his deposition in the Mann case. In December 1992 there was correspondence between Attorney Rapp and Butler County Attorney Greg Lievens indicating Rapp's decision not to pursue the issue of whether Judge Mackey should have recused himself due to an alleged bias until the supreme court decided Mann.
is in place to ensure that claims that could not have been raised within the statute of limitations are not lost when new information comes to light after the statue of limitations has run. It is not in place to revive a stale claim that Petitioner elected not to pursue in a prior application, simply because a subsequent ruling has increased the viability of the claim.
Accordingly, we find Doty's application was not filed within the statute of limitations and affirm the district court's dismissal of Doty's application.
We need not address Doty's other argument that his trial counsel was ineffective for failing to raise this argument within the applicable time period because we agree with the State that Doty has waived his claim by failing to adequately discuss the issue in his brief. Iowa Rule of Appellate Procedure 6.14(1)( c) provides: "Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."