Mohamed Hassan Ali v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 20-1421
Filed March 2, 2022

MOHAMED HASSAN ALI,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for O’Brien County, Charles Borth,

Judge.

Mohamed Hassan Ali appeals the summary disposition of his application

for postconviction relief. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee State.

Considered by Bower, C.J., and Greer and Badding, JJ.
2

BADDING, Judge.

To avoid being deported to Somalia, Mohamed Hassan Ali filed an

application for postconviction relief seeking to set aside a March 2003 conviction

for possession of a controlled substance, a serious misdemeanor. See Iowa Code

§ 124.401(5) (2002). Ali claims his trial counsel failed to inform him about the

immigration consequences of pleading guilty to that offense. The district court

summarily disposed of Ali’s application as time-barred under Iowa Code section

822.3 (2020). We affirm.

I. Background Facts and Proceedings

On March 17, 2003, Ali filed a written guilty plea to possession of a

controlled substance. On the same day Ali’s guilty plea was filed, the district court

sentenced Ali to a fine and applicable surcharges. There is nothing in the record

to indicate the court addressed Ali in open court1 to inform him of and determine

his understanding that “a criminal conviction . . . may affect a defendant’s status

under federal immigration laws,” as required by then Iowa Rule of Criminal

Procedure 2.8(2)(b)(3), or that Ali approved waiver of such procedure, as

authorized by rule 2.8(2)(b)(5) when the offense is a serious misdemeanor.2 Ali

did not appeal.

More than ten years later, on August 14, 2013, Ali filed a pro se “Petition to

Reduce Sentence” in the criminal case. The pleading stated that Ali was “currently

1 The judgment entry noted Ali appeared “by his written guilty plea.”
2 Rule 2.8(2)(b) was amended in late 2004, after Ali entered his plea, to provide:
“If the above procedures are waived . . . , the defendant shall sign a written
document that includes a statement that conviction of a crime may result in the
defendant’s deportation or other adverse immigration consequences if the
defendant is not a United States citizen.”
3

[being] detained by the ICE Immigration Custom and Enforcement due to” his guilty

plea to possession of a controlled substance. Believing he had been sentenced

to “365 days suspended jail time,” Ali asked to “reduce the [s]entence only one

day” to avoid deportation. In support of that request, Ali alleged that he “was not

advised by counsel that he could face a problem with Immigration Services based

on his plea[], or that his Immigration Status would be [j]eopardize[d].” The district

court treated Ali’s filing as an application for postconviction relief, noted he had not

been sentenced to jail, and dismissed the application as untimely under Iowa Code

section 822.3 (2013). Once again, Ali did not appeal this adverse ruling.

Still subject to deportation proceedings, Ali tried again in December 2019 to

wipe the drug conviction off his record. Using a pro se “motion to vacate” form

from the Florida court system where he was being detained, Ali alleged his guilty

plea was not voluntary because his “attorney failed to correctly advise the

defendant of the consequences of the ensuing immigration (I.C.E.) action.” The

district court denied this motion on the same day it was filed, summarily stating it

was “both untimely and without merit.”

Ali’s current attempt to set aside his conviction began on April 20, 2020,

with the filing of an application for postconviction relief. This time, he requested

the assistance of counsel. The district court granted his request, after which Ali’s

counsel filed an amended application. Like Ali’s past pro se filings, the amended

application alleged that trial counsel did not advise Ali “of the immigration

consequences prior to entering his guilty plea.” In resistance to the State’s motion

to summarily dispose of the application as untimely, Ali noted a removal order was

first entered on November 19, 2013. But he asserted the claim could not have
4

been raised “until after the immigration removal proceedings became final” in

December 2019, thus making his application timely.

The district court disagreed, reasoning that Ali’s

removal was first ordered by the Immigration Court on November 19,
2013. Even if the court were to accept [Ali’s] argument that his
removal from the country by immigration authorities was a “ground
of fact or law that could not have been raised within the applicable
time period,” then the best-case scenario for [Ali] would still have the
statute of limitations expiring on November 19, 2016. He was
undoubtedly aware of the immigration consequences upon entry of
the Immigration Court’s November 19, 2013 removal order. The
court nonetheless concludes that the statute of limitations actually
expired even earlier on March 18, 2006, long before the Immigration
Court’s involvement. . . . The immigration consequences of his plea
were already in existence . . . during the three-year limitations period.
A claim of “lack of knowledge” is not provided as a ground for
exception from the effects of the statutes of limitations.

The court accordingly granted the State’s motion for summary disposition. Ali

appeals.3

II. Scope and Standards of Review

A district court’s decision dismissing a postconviction-relief application as

untimely is reviewed for the correction of errors at law. Harrington v. State, 659

N.W.2d 509, 519 (Iowa 2003). To the extent any constitutional violations are

raised, our review is de novo. Id.

3 Many of the claims Ali makes on appeal were not raised in or decided by the
district court. To get around this error-preservation problem, see Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002), Ali asserts his postconviction
counsel was ineffective. Because we find the claims Ali raises on appeal are
without merit, we find no breach of duty on the part of postconviction counsel. See
State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009) (“[C]ounsel has no duty to raise
an issue that has no merit.”).
5

III. Analysis

Iowa Code section 822.3 (2020) contains the statute of limitations for

postconviction-relief actions, requiring them to “be filed within three years from the

date the conviction or sentence is final or, in the event of an appeal, from the date

the writ of procedendo is issued.” Ali concedes that his April 20, 2020 application

was filed outside of this deadline. But he offers several reasons why that should

not matter.

Building his argument like a wobbly Jenga tower, Ali first claims that “his

application meets the escape hatch of section 822.3,” which provides that its

limitation period “does not apply to a ground of fact . . . that could not have been

raised within the applicable time period.” Ali argues the ground of fact that could

not have been raised within the applicable time period was “the adverse

immigration consequences of his guilty plea.” Realizing that he was at least aware

of those consequences by 2013, Ali then asserts his current application should

“relate back” to his August 2013 petition to reduce his sentence because he was

denied his constitutional right to counsel in that proceeding. If that claim is

rejected, Ali argues we “should apply the doctrine of equitable tolling and find his

application timely.” To succeed with each of these claims, Ali would have us

overrule longstanding precedent. And even then, his tower would fall.

Ali’s first claim—that lack of knowledge of immigration consequences

qualifies as a new ground of fact under section 822.3—was rejected by this court

in Lopez-Penaloza v. State, 804 N.W.2d 537, 542 (Iowa 2011). We reasoned that

because such consequences “were in existence during the three-year period of

section 822.3” and “available to be addressed then,” they could not qualify as a
6

new ground of fact. Lopez-Penaloza, 804 N.W.2d at 542. We further noted a

“claimed lack of knowledge ‘is not provided as a ground for exception from the

effects of the statute of limitations.’” Id. (quoting State v. Edman, 444 N.W.2d 103,

106 (Iowa Ct. App. 1989)); accord Ibrahim v. State, No. 13-1049, 2013 WL

1714493, at *1 (Iowa Ct. App. Apr. 30, 2014); Fuentes v. State, No. 12-0909, 2013

WL 1453013, at *2 (Iowa Ct. App. Apr. 10, 2013).

Ali argues Lopez-Penaloza should be overruled because the “Iowa

Supreme Court has consistently held that any claim not properly raised on direct

appeal may not be litigated in a postconviction relief action unless sufficient reason

or cause is shown,” which Ali asserts includes a “factual or legal matter that was

excusably unknown at the time of trial and appeal.” The underpinnings of this

argument come from section 822.8,4 which is a rule of error preservation that our

supreme court has recognized is “not coextensive” with the statute of limitations in

section 822.3. Dible v. State, 557 N.W.2d 881, 885 (Iowa 1996), abrogated in part

on other grounds by Harrington, 659 N.W.2d at 520. Unlike section 822.8, which

allows claims to be raised that “for sufficient reason” were not asserted earlier,

section 822.3 applies to “claims that ‘could not’ have been previously raised

because they were not available,” like newly discovered evidence. See Wilkins v.

State, 522 N.W.2d 822, 824 (Iowa 1994).

While Ali may not have known about the deportation consequences of his

drug conviction, he knew that he was a non-citizen when he pled guilty in 2003.

4Section 822.8 requires that all grounds for relief “must be raised in the applicant’s
original, supplemental or amended application” for postconviction relief “unless the
court finds a ground for relief asserted which for sufficient reason was not asserted
or was inadequately raised in the original, supplemental, or amended application.”
7

Armed with this knowledge, Ali should have at least been alerted to the potential

claim before it expired. See Cornell v. State, 529 N.W.2d 606, 611 (Iowa Ct. App.

1994) (noting the “focus of our inquiry” under the ground-of-fact exception in

section 822.3 is “whether the applicant was or should have been ‘alerted’ to the

potential claim before the limitation period expired”). And even if we accepted Ali’s

invitation to overrule Lopez-Penaloza, his claim would still be untimely. Ali was

aware of the immigration consequences of his guilty plea as early as August 14,

2013, when he filed his petition to reduce his sentence. We know this because in

that filing, Ali stated he was “currently detained by the ICE Immigration Custom

and Enforcement due to” his 2003 drug conviction. If we use that date as our

starting point, the statute of limitations on Ali’s claim ran out on August 14, 2016.

To avoid this result, Ali asserts his “current postconviction application

should relate back to his prior filing in 2013 because of the district court’s effective

denial of Ali’s statutory and constitutional rights.” But the United States Supreme

Court and our supreme court “have repeatedly stated there is no constitutional

right to counsel in postconviction cases.” Hrbek v. State, 958 N.W.2d 779, 787

(Iowa 2021). Yet Ali argues that we should recognize a constitutional right to

counsel in postconviction cases because section 814.7 now prohibits criminal

defendants from bringing ineffective-assistance claims on direct appeal.

We reject Ali’s request to recognize a constitutional right to counsel in

postconviction cases first because “[w]e are not at liberty to overturn Iowa

Supreme Court precedent.” State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct.

App. 1990). And second because section 814.7 was not effective until July 1,

2019. Before then, as Ali recognizes, “section 814.7 gave defendants the option
8

of litigating their ineffective-assistance-of-counsel claims either on direct appeal or

in postconviction.” So when Ali’s conviction was final in 2003, he could have raised

an ineffective-assistance-of-counsel claim on direct appeal.

As far as Ali’s statutory right to counsel, see Iowa Code § 822.5, he did not

request that counsel be appointed or claim that he was indigent when he filed the

2013 petition to reduce his sentence. Ali provides no authority for his offhand

mention that “the district court did not inquire as to whether Ali wanted or needed

the assistance of counsel.” See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite

authority in support of an issue may be deemed waiver of that issue.”); see also

Wise v. State, 708 N.W.2d 66, 69 (Iowa 2006) (stating “that ‘an attorney need not

always be appointed to represent an indigent postconviction applicant’” (citation

omitted)).

In any event, the relation-back doctrine in the postconviction context has

only been applied in a very narrow manner by our supreme court in Allison v. State,

914 N.W.2d 866, 891 (Iowa 2018), which held

that where a [postconviction-relief] petition alleging ineffective
assistance of trial counsel has been timely filed per section 822.3
and there is a successive [postconviction-relief] petition alleging
postconviction counsel was ineffective in presenting the ineffective-
assistance-of-trial-counsel claim, the timing of the second
[postconviction-relief] petition relates back to the timing of the filing
of the original [postconviction-relief] petition for purposes of Iowa
Code section 822.3 if the successive [postconviction-relief] petition
is filed promptly after the conclusion of the first [postconviction-relief]
petition.

Ali’s 2020 application for postconviction relief was clearly not filed promptly after

the 2013 petition he is trying to revive. And he cannot claim postconviction counsel

was ineffective because he was not represented by an attorney in the 2013
9

proceedings. So the limited relation-back doctrine recognized by our court in

Allison, a decision which may have been abrogated by the legislature in 2019,5

does not apply to Ali.

Ali is left with his claim that he should be “able to pursue his postconviction

claim under the doctrine of equitable tolling.” But this may be the shakiest

argument of all because, as Ali acknowledges, our court “has stated that Iowa law

has never before applied the doctrine to the statute of limitations for postconviction

actions under Iowa Code section 822.3.” See, e.g., James v. State, 858 N.W.2d

32, 33 (Iowa Ct. App. 2014). We are not willing to do so now.

In the end, Ali’s application for postconviction relief was simply untimely

under section 822.3. We affirm summary disposition.

AFFIRMED.

5 The legislature amended section 822.3 in 2019 to add the following statement:
“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 a 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); see Johnson v. State, No.
19-1949, 2021 WL 210700, at *3 (Iowa Ct. App. Jan. 21, 2021) (noting “[t]his
amendment appears to abrogate Allison”).