Owens Thompson v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 20-1002
Filed April 27, 2022

OWENS THOMPSON,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.

The applicant appeals the summary dismissal of his third application for

postconviction relief. AFFIRMED.

Christopher Kragnes, Sr., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.

Considered by May, P.J., Badding, J., and Potterfield, S.J.*

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

(2022).
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POTTERFIELD, Senior Judge.

More than twenty years after a jury first convicted Owens Thompson of first-

degree murder, Thompson brought this—his third—application for postconviction

relief (PCR). The district court summarily dismissed the application for being time-

barred. Thompson appeals, arguing Allison v. State, 914 N.W.2d 866, 891 (Iowa

2018), allows him to bring this action and requires the court to provide him an

evidentiary hearing to develop his claim of ineffective assistance of counsel.

I. Background Facts and Proceedings.

In 1996, a jury convicted Thompson of first-degree murder, finding that he

caused the death of his roommate’s two-year-old child. Thompson appealed his

conviction, challenging some of the instructions given to the jury. Our supreme

court affirmed Thompson’s conviction. State v. Thompson, 570 N.W.2d 765, 770

(Iowa 1997). Procedendo issued on January 12, 1998.

Thompson filed his first application for PCR in 2000. He claimed he

received ineffective assistance from appellate counsel,1 who failed to raise the

issue trial counsel provided ineffective assistance by failing to:

(1) retain an independent medical expert to testify regarding the time
and manner of the child’s death, (2) investigate a history of abuse at
the hands of his father, (3) investigate the role of the child’s mother
in his death; (4) file a motion to suppress the statement and
videotape, and (5) adequately advise him concerning his right to
testify at trial.

1 Thompson also alleged appellate counsel provided ineffective assistance by
failing to raise “(1) the timeliness of the prosecution's motion to amend the trial
information, (2) the prosecutor's allegedly improper statements during voir dire,
opening statements, and closing arguments, and (3) a challenge to the sufficiency
of the evidence.” Thompson v. State, No. 02-0810, 2003 WL 22087434, at *4
(Iowa Ct. App. Sept. 10, 2003). We concluded these claims were “too general to
address.”
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Thompson, 2003 WL 22087434, at *1. The district court rejected Thompson’s

claims, and we affirmed. See id. at *4.

Thompson brought his second PCR action in 2012. The district court

dismissed the application on the ground it was time-barred, and this court affirmed.

Thompson v. State, No. 14-0138, 2015 WL 1332352, at *1 (Iowa Ct. App. Mar. 25,

2015).

Thompson filed his third application for PCR in January 2019. The State

moved for summary dismissal, asserting Thompson’s third application was not

timely. See Iowa Code § 822.3 (2019) (requiring a PCR application to “be filed

within three years from the date the conviction or decision is final or, in the event

of an appeal, from the date the writ of procedendo is issued” to be timely, absent

certain exceptions). The State asserted the exception announced in Allison did

not save Thompson’s application from being time-barred. Thompson resisted. At

the hearing on the State’s motion, Thompson argued Allison applied to save his

case from the statute of limitations in Iowa Code section 822.3 because, while his

third application was not “promptly filed” after his first or second PCR application

were decided, it was filed about six months after the supreme court issued its

opinion in Allison. The court concluded the so-called Allison exception did not

apply to Thompson’s third PCR action and granted the State’s motion to dismiss.

Thompson filed a motion to amend, enlarge, and reconsider, arguing the

district court’s reliance on an unpublished Iowa Court of Appeals case, Kelly v.

State, was erroneous. No. 17-0382, 2018 WL 3650287, at *4 (Iowa Ct. App.

Aug. 1, 2018). The district court denied the motion, noting it could consider the
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unpublished case for its persuasive authority and stating it cited the case not as

binding precedent but rather “as illustrative of what is considered ‘prompt.’”

Thompson appeals.

II. Discussion.

“[W]e review a grant of a motion to dismiss a PCR [application] for

correction of errors at law.” Allison, 914 N.W.2d at 870. Thompson challenges the

district court’s ruling dismissing his third PCR action, arguing the narrow exception

in Allison applies to his case and he should get an evidentiary hearing to develop

the merits of his PCR action. He also questions the district court’s reliance on

unpublished Iowa Court of Appeals decisions to reach its decision.

Allison provides:

[W]here 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.

Despite Thompson’s best attempt to shoehorn his third PCR action into the

narrow Allison exception, we agree with the district court that it does not fit. As we

have repeatedly recognized, the Allison exception applies to only a second PCR

application—not a third or beyond. See Schawitsch v. State, No. 20-0535, 2021

WL 1399771, at *5 (Iowa Ct. App. Apr. 14, 2021) (collecting cases in support of

conclusion, “We remain consistent in our approach of denying relief when a third,

or in this case fourth, PCR cause of action is involved”).
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We are not bound by our previous unpublished decisions. See Iowa R. App.

P. 6.904(2)(c) (“Unpublished opinions or decisions shall not constitute controlling

legal authority.”). But, without persuasive argument that our previous rulings are

wrong, we continue to understand and apply the law in the same manner. Cf. State

v. Shackford, 952 N.W.2d 141, 149–50 (Iowa 2020) (McDonald, J., dissenting) (“[I]t

is not relevant whether the opinion is published or unpublished; the opinion is a

decision of this court and is authority, even if not controlling authority. The mere

fact that the opinion is unpublished does not give this court license to disregard its

own work.”). As we must; it is a basic tenet of the law that like cases are to be

treated alike. See June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2134 (2020)

(Roberts, C.J., concurring in the judgment) (“The legal doctrine of stare decisis

requires us, absent special circumstances, to treat like cases alike.”). Thompson

offers no argument to convince us Allison is meant to apply beyond a second PCR

application, and we continue to believe the plain language of the Allison holding

requires this narrow application.

Because Allison does not apply to save his application from being time-

barred by section 822.3, we agree with the district court’s summary dismissal of

Thompson’s third PCR application.

AFFIRMED.