IN THE COURT OF APPEALS OF IOWA

No. 3-1149 / 13-0109

Filed February 5, 2014

PABLO BENAVIDEZ,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, 

Judge.

Pablo Benavidez appeals from the dismissal of his second application for 

postconviction relief. AFFIRMED.

Susan R. Stockdale, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney 

General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant 

County Attorney, for appellee State.

Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.
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POTTERFIELD, J.

Pablo Benavidez appeals from the dismissal of his second application for 

postconviction relief. He argues the district court improperly found his application 

was barred by the statute of limitations and his trial counsel was ineffective in 

failing to object to jury instructions (and therefore his appellate and 

postconviction counsel were also ineffective by failing to raise the issue). We 

affirm, finding his application for postconviction relief is barred by our three-year 

statutory limitations period. We therefore do not address his second point of 

error.

I. Facts and Proceedings.

We have twice previously considered Benavidez’s case; once on direct 

appeal (State v. Benavidez, No. 04-1782, 2005 WL 3478094 (Iowa Ct. App. Dec. 

21, 2005)) and again on his first application for postconviction relief (Benavidez v. 

State, No. 08-2039, 2010 WL 1875710 (Iowa Ct. App. May 12, 2010)). 

Benavidez was found guilty of first-degree murder after a jury trial in 2004; 

he appealed his conviction and our court affirmed on December 21, 2005. He 

sought further review, which was denied. Procedendo issued in 2006, and 

Benavidez filed an application for postconviction relief the following November. 

This application was denied, and he appealed. We affirmed the denial of that 

first postconviction application on May 12, 2010. 

On December 9, 2010, Benavidez filed another application for 

postconviction relief, this time arguing his trial counsel was ineffective in failing to 

challenge the instructions given to the jury. A hearing on this application was 

held November 20, 2012. At the hearing, the State moved to dismiss, citing our 
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three-year statutory time bar on applications for postconviction relief. See Iowa 

Code § 822.3 (2011). The court granted the motion, but also heard the merits of 

Benadivez’s claim, finding his counsel was not ineffective. Benavidez appeals.

II. Analysis.

Our review is for the correction of errors at law. Wilkins v. State, 522 

N.W.2d 822, 823 (Iowa 1994). Iowa Code section 822.3 reads that an 

application for postconviction relief “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.” This time bar 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.

Procedendo after Benavidez’s first appeal issued in 2006; therefore, the

latest time at which Benavidez could have filed an application for postconviction 

relief would be 2009, unless the application is based on a ground of fact or law 

he could not have raised during that time period. See id.

Benavidez first argues the State’s motion to dismiss at trial under this 

section was untimely and should have been raised earlier in a responsive 

pleading. Our supreme court has rejected this argument. Davis v. State, 443 

N.W.2d 707, 708 (Iowa 1989); see also Furgison v. State, 217 N.W.2d 613, 618

(Iowa 1974) (concluding our default-response rules of procedure “are 

inconsistent with and would serve no useful purpose in our postconviction review 

process”).

He also argues his prior failure to raise his ineffective-assistance-of-trialcounsel claim is really tantamount to ineffective assistance of postconviction 
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counsel—therefore, he reasons, applying the three-year statute of limitations to 

this argument “relieves postconviction attorneys of the burden to identify viable 

issues and places the burden on the applicant.” This argument has long been 

summarily rejected by our courts:

[Claimant] labels his claim ineffective-assistance-ofpostconviction-counsel in the hope that the court will reach the 

merits of his contention that his trial counsel was ineffective. 

However, his claims neither involve new evidence nor are they new 

legal claims. [Claimant] had three opportunities to claim 

ineffectiveness of trial counsel before the time bar became 

enforceable against him. He could have raised it on appeal, in his 

postconviction action, and on appeal from denial of postconviction 

relief.

Wilkins, 522 N.W.2d at 824. We affirm the district court’s dismissal of 

Benavidez’s second application for postconviction relief.

AFFIRMED.