IN THE COURT OF APPEALS OF IOWA

No. 20-1056

Filed August 4, 2021

DEWANN MARQUISE STONE,

Petitioner-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, 

Judge.

Dewann Stone appeals the dismissal of his application for postconviction 

relief. AFFIRMED.

Jessica M. Donels of Parrish Kruidenier Dunn Gentry Brown Bergmann & 

Messamer L.L.P., for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney 

General, for appellee State.

Considered by Mullins, P.J., and May and Ahlers, JJ.
2

MULLINS, Presiding Judge.

In 2007, sentence was imposed upon Dewann Stone’s conviction of firstdegree murder. We affirmed on direct appeal, rejecting his claims the trial court 

erred in excluding testimony about another suspect, allowing evidence of prior bad 

acts, permitting improper rebuttal evidence, and denying his motion for a new trial. 

State v. Stone, No. 07-1009, 2008 WL 4724865, at *1–6 (Iowa Ct. App. Oct. 29, 

2008). We also rejected his claim his trial counsel was ineffective based on 

cumulative error. Id. at *7. Procedendo issued in early 2009.

Stone filed his first application for postconviction relief (PCR) in late 2009, 

arguing a constitutionally deficient jury instruction on reasonable doubt was 

employed at his trial and his counsel at trial and on direct appeal were ineffective 

in failing to raise the issue and to argue his constitutional rights relating to 

discovery, confrontation, and due process were violated by the State’s withholding 

of evidence. In a supplemental application, he also raised claims of newly 

discovered evidence and ineffective assistance relating to prosecutorial 

misconduct. The district court denied the application on the merits in late 2015. 

We affirmed. See generally Stone v. State, No. 16-0136, 2017 WL 3077917 (Iowa 

Ct. App. July 19, 2017). In addition to rejecting his claims of error by the PCR 

court, we rejected his claims his PCR attorneys were ineffective in not 

communicating with him, advocating against him in agreeing subpoenas should be 

quashed, not establishing when trial counsel received certain evidence, and not 

obtaining a ruling on a purported violation of Brady v. Maryland, 373 U.S. 83 

(1963). Id. at *4–5. Procedendo issued in September 2017.
3

Stone filed the PCR application precipitating this appeal in March 2020. He 

argued first PCR counsel was ineffective in failing to investigate “potential 

exculpatory evidence,” the State committed Brady violations during the criminal 

trial, the reasonable doubt instruction employed at trial was deficient, and 

ineffective assistance of trial counsel. The State moved for summary disposition 

based on the three-year statute of limitations, arguing Allison v. State1 did not save 

the application, and claimed the issues were already litigated. In his response, 

Stone argued reports dictated by a detective based on interviews with Derek 

Thompson were not disclosed to him for several years after his first PCR 

proceeding commenced and said reports “are the basis of the claims of ineffective 

assistance of [PCR] counsel and Brady violations.” He also argued the claim was 

not considered in the first PCR proceeding or in the ensuing appeal. At the ensuing 

hearing, the State repeated its statute-of-limitations argument and added Stone’s 

claim of ineffective assistance of prior PCR counsel cannot serve to toll the statute 

of limitations because Allison was abrogated by statute in 2019 and is no longer 

good law. See Iowa Code § 822.3 (2020).2 The State also pointed out the alleged 

 

1 See 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a timely application is 

filed within the statute of limitations alleging ineffective assistance of trial counsel, 

the filing of a successive application that alleges ineffective assistance of 

postconviction-relief counsel in presenting the ineffective-assistance-of-trialcounsel claim, the filing of the second application relates back to the time of the 

filing of the original application so long as the successive application is filed 

promptly after the conclusion of the original action); see also Iowa Code § 822.3 

(2020) (noting “applications must 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”). 

2 Effective July 1, 2019, the following language was added to section 822.3, 

presumably in response to the Allison decision: “An allegation of ineffective 

assistance of counsel in a prior case under this chapter shall not toll or extend the 
4

newly discovered evidence, the Thompson reports, were available to Stone no 

later than 2015, so they do not serve as new grounds of fact as to his 2020 

application to except Stone from the statute of limitations. After noting his review 

of the record in the first PCR proceeding, second PCR counsel conceded he was 

“not aware of any additional reports or other potentially exculpatory evidence that 

was not provided to a previous court,” as the record showed the Thompson reports 

were included in the record of the first proceeding. Counsel advised he had no 

grounds to argue “that would qualify as an exception to the statute of limitations.” 

Speaking on his own behalf, Stone himself agreed the reports were provided to 

him during his first PCR proceeding. He stated his first PCR counsel did not raise 

any arguments about the reports, but the issue was raised on appeal.

In its ruling, the court concluded the application was barred by the statute 

of limitations and this court considered the issue regarding the Thompson reports 

on appeal following denial of Stone’s first PCR application. The court granted 

summary disposition, and this appeal followed.

Appellate review of PCR proceedings is typically for correction of errors at 

law, but where claims of ineffective assistance of counsel are forwarded, our 

review is de novo. See Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017).

First, Stone argues his application was timely under Allison “and paragraph 

one of Iowa Code [section] 822.3.” He claims he “promptly” filed his second 

application after the conclusion of the first proceeding within the meaning of 

Allison. But three years is not prompt. See, e.g., Polk v. State, No. 18-0309, 2019 

 

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. 149, § 8.
5

WL 3945964, at *2 (Iowa Ct. App. Aug. 21, 2019) (noting a gap in the neighborhood 

of six months does not meet the definition of prompt); see also Johnson v. State, 

No. 19-1949, 2021 WL 210700, at *2 (Iowa Ct. App. Jan. 21, 2021) (collecting 

cases on the meaning of “filed promptly”). And, as the State points out, the version 

of Iowa Code section 822.3 in effect when Stone’s application was filed and 

decided, provides “An allegation of ineffective assistance of counsel in a prior case 

under [chapter 822] 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.” Stone responds in his reply brief that the State’s argument concerning 

the amendment was not raised below and is therefore waived. We disagree. At 

the hearing on the motion for summary disposition, the State pointedly argued, 

“this case was also filed after Allison was abrogated by statute on July 1st of 2019. 

Allison is no longer good law as it relates to this case.” No contrary argument or 

challenge to the statutory amendment was made by Stone below or on appeal. 

While the district court did not specifically hang its hat on the amendment, we may 

since the State raised it. See DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002) 

(“We have in a number of cases upheld a district court ruling on a ground other 

than the one upon which the district court relied provided the ground was urged in 

that court.”). Statutory amendment aside, Stone’s application still does not fall 

within the parameters of the Allison decision, because it was not promptly filed at 

the conclusion of the original proceeding. 

We affirm the dismissal of Stone’s PCR application.

AFFIRMED.