IN THE COURT OF APPEALS OF IOWA

No. 20-0209

Filed June 16, 2021

RONALD McKINNON,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, James S. 

Heckerman, Judge.

Ronald McKinnon appeals from the summary dismissal of his second 

application for postconviction relief. AFFIRMED.

Martha J. Lucey, State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee State.

Considered by Doyle, P.J., Ahlers, J., and Gamble, S.J.*

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

(2021).
2

GAMBLE, Senior Judge.

Ronald McKinnon appeals from the dismissal of his second application for 

postconviction relief (PCR). Because this action is time barred, we affirm the 

dismissal.

On January 7, 2015, McKinnon entered an Alford plea1to assault with intent 

to commit sexual abuse. He did not appeal.

On August 26, 2016, McKinnon brought his first PCR action in which he 

claimed “Conflict of interest with my lawyer” and “No good lawyer representation.” 

Additionally, he claimed “Lies on my conviction/As well the vict. Lied” and 

“Basic[al]ly all are lies from them people’s statements.” McKinnon was appointed 

an attorney. This first action was dismissed on November 28, 2017, for failure to 

timely amend the application. That same day, the clerk of court mailed a copy of 

the dismissal order to McKinnon. He did not appeal or request the case be 

reinstated.

On September 4, 2018, McKinnon commenced this second PCR action. 

McKinnon claims “Ineffective assistance of counsel and actual innocence under 

the Iowa and U.S. Constitution” and “Counsel failed to properly prepare, 

investigate, or properly put any adverse defense. The plea was involuntary and 

the Applicant is innocent.” McKinnon was appointed an attorney, and discovery 

proceeded. The State filed a motion for summary disposition arguing McKinnon’s 

 

1 An Alford plea “was designed to permit a defendant to make a voluntary and 

intelligent decision to plead guilty to a crime without admitting participation in the 

underlying facts which constitute the crime.” State v. Klawonn, 609 N.W.2d 515, 

520 (Iowa 2000) (citing North Carolina v. Alford, 400 U.S. 25, 37–38 (1970)). An 

Alford plea allows the defendant to make a “cost-benefit analysis of avoiding the 

risks associated with a trial on the more serious charge.” Id. at 521.
3

claims were time-barred even assuming the relation-back doctrine was applicable

because his second PCR claim was not “promptly” filed after the first was 

dismissed. Moreover, the State asserted McKinnon’s actual innocence claim was 

premised on facts known to him at the time of his plea and thus was also timebarred. McKinnon resisted but noted “Petitioner has had no opportunity to conduct 

discovery or depose his trial counsel.”

On January 27, 2020, the district court granted the State’s motion for 

summary disposition, concluding the second PCR action did not fall within the 

exception of Allison v. State, 914 N.W.2d 866, 890–91 (Iowa 2018). The court also

concluded McKinnon could not meet the “ground of fact” exception to the statute 

of limitations as noted in Schmidt v. State, 909 N.W.2d 778, 798–99 (Iowa 2018) 

(recognizing a free-standing actual innocence claim and noting such a claim 

brought under Iowa Code chapter 822 (2014) is subject to the three-year statute 

of limitations). McKinnon appeals.

We review the summary dismissal of a PCR application for errors at law. 

Dewberry v. State, 941 N.W.2d 1, 4 (Iowa 2019). 

Iowa Code section 822.3 (2018) addresses the time limit applicable to PCR 

claims:

[A]pplications 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. However, this limitation does 

not apply to a ground of fact or law that could not have been raised 

within the applicable time period.

The legislative purpose of the statute of limitations in section 822.3 is to reduce

stale claims and cause “a sense of repose in the criminal justice system.” Allison

914 N.W.2d at 872 (citation omitted). However, the Allison court overruled 
4

precedent “[i]n order to avoid the difficult constitutional position that would result in 

denying a remedy where defense counsel allegedly provided ineffective 

assistance at trial and postconviction counsel is ineffective in raising that claim.” 

Id. at 891. The court there held:

[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.

Id.

McKinnon maintains Allison more broadly recognizes an equitable tolling of 

the statutory limitations period. He asserts, under Allison, “The limitation period 

was tolled until November 28, 2017, when the first PCR was dismissed. Because 

the statute of limitation period was tolled from August 26, 2016, until November 28, 

2017, McKinnon had until April 12, 2019, to file his successive petition alleging 

ineffective assistance of counsel.” We are not persuaded.

The Allison holding “is a variant of the doctrine employed in Martinez.”2 Id. 

This court has previously rejected a similar assertion that Allison adopted equitable 

tolling. See Polk v. State, No. 18-0309, at *2 n.3 (Iowa Ct. App. Aug. 21, 2019) 

(“We agree Allison discusses, but does not adopt, equitable tolling ‘during an active 

 

2 Martinez v. Ryan, 566 U.S. 1, 14 (2012); see Hrbek v. State, 958 N.W.2d 779, 

787 (Iowa 2021) (discussing Martinez and noting the “limited issue in that case 

dealt with cause to excuse a procedural default for the purposes of federal habeas 

review” and “[t]he Martinez majority explicitly denied it was creating a constitutional 

rule and instead characterized the decision as an ‘equitable ruling’” (quoting 

Martinez, 566 U.S. at 16)).
5

PCR claim.’ The Allison majority would not have had to use the phrase ‘filed 

promptly’ when discussing the second PCR petition if timeliness was a purely 

mathematical formula of subtracting the number of days the first PCR was pending 

from three years.” (citations omitted)). As noted above, Allison allows a belated 

second PCR action “if the successive PCR petition is filed promptly after the 

conclusion of the first PCR action.” 914 N.W.2d at 891 (emphasis added); see 

also Goode v. State, 920 N.W.2d 520, 526 (Iowa 2018) (“Based on Allison, the 

statutory limitation period is not an impediment to pursuing a second PCR 

application relating to the claim in this case if promptly filed following the appeal.”).

McKinnon’s first PCR was dismissed on November 28, 2017. McKinnon’s 

statutory period for filing a PCR claim ran on January 7, 2018. McKinnon filed his 

second PCR petition on September 4, 2018. The PCR court concluded this

successive petition filed nine months after the dismissal of the first was not filed 

promptly. This ruling is consistent with prior rulings of this court. See Polk, 2019 

WL 3945964, at *1 (holding that waiting nearly six months to file does not meet 

“prompt” filing mandate); 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”).

McKinnon asserts his actual-innocence claim is not time barred because it

was not recognized until Schmidt was decided.3 Schmidt was decided in March 

 

3 The Schmidt court held: 

For an applicant to succeed on a freestanding actual-innocence 

claim, the applicant must show by clear and convincing evidence 

that, despite the evidence of guilt supporting the conviction, no 

reasonable fact finder could convict the applicant of the crimes for 
6

23, 2018. McKinnon filed his second PCR petition on September 4, 2018. 

McKinnon argues he could not have raised his actual innocence claim until 

Schmidt. See Nguyen v. State, 829 N.W.2d 183, 188 (Iowa 2013) (“In our view, a 

ground of law that had been clearly and repeatedly rejected by controlling 

precedent from the court with final decision-making is one that ‘could not have 

been raised’ as that phrase is used in section 822.3.”). McKinnon contends he 

had three years from the Schmidt decision to file his second petition, and thus his 

second PCR application was well within the statutory period.

4

There is some authority to support his contention. See Nguyen, 829 N.W.2d 

at 188 (implying that a PCR filed outside the statute of limitations but within three

years of a new ground of law was filed within a reasonable amount of time); Dixon 

v. State, No. 16-1978, 2018 WL 739259, at *2 (Iowa Ct. App. Feb. 7, 2018)

(discussing the implied three-year period from Nguyen); Burkett v. State, No. 14-

0998, 2015 WL 5278970, at *3 (Iowa Ct. App. Sept. 10, 2015) (“Nguyen suggests 

an applicant should have to raise a change in the law within a reasonable period 

after the change is announced and the opinion implies the reasonable period is 

three years.”).

 

which the sentencing court found the applicant guilty in light of all the 

evidence, including the newly discovered evidence.

909 N.W.2d at 797.

McKinnon’s statutory period for filing a PCR claim ran on January 7, 2018. 

Schmidt was decided in March 23, 2018. Allison was decided on June 29, 2018. 

McKinnon filed his second PCR petition on September 4, 2018.

4 McKinnon asserts his second PCR counsel provided constitutionally defective 

assistance in failing to make this claim below. We pass the error-preservation 

problem because “[w]e will not find counsel incompetent for failing to pursue a 

meritless issue.” State v. Brubaker, 805 N.W.2d 165, 171 (Iowa 2011).
7

However, this claim is of no help to McKinnon. Unlike Nyuyen, the change 

in law recognized by Schmidt is more limited. While we acknowledge Schmidt is 

a new ground of law, the Schmidt decision specifically includes a requirement the 

applicant could not have raised the new ground of fact within the three-year 

limitations period. Id. at 798; see also Bryant v. State, No. 18-1038, 2019 WL 

1300439, at *2 (Iowa Ct. App. Mar. 20, 2019) (“Bryant’s effort to circumvent the 

time-bar runs head on into Schmidt’s ground-of-fact analysis.”), further review 

denied (May 16, 2019). The facts alleged by Schmidt to support the claim of actual 

innocence were discovered after the limitations period had run. See 909 N.W.2d 

at 781 n.1 (“Our decision involves an actual-innocence claim under the Iowa 

Constitution based on newly discovered evidence.”). Here, as was the case in 

Bryant, McKinnon’s claim of actual innocence is based on facts known or knowable 

within the applicable limitation.

In Quinn v. State, this court stated:

We have found Schmidt does not apply to overcome the 

statute of limitations where the evidence put forward to support a 

claim of actual innocence was available to the applicant or could 

have been discovered with due diligence within the limitations period. 

The new-ground-of-fact analysis is a component of a claim of actual 

innocence based upon alleged newly discovered evidence found 

after the three-year limitations period, and the ground-of-fact 

exception only overcomes the statute of limitations if it could not have 

been raised within the limitations period.

954 N.W.2d 75, 76–77 (Iowa Ct. App. 2020) (internal citations omitted).

McKinnon’s claim could have been raised within the three-year limitations 

period of section 822.3. Soon after the PCR court granted McKinnon’s motion for 

depositions at State expense, the State filed a notice that it had served six 

interrogatories on McKinnon’s counsel. On September 22, 2019, McKinnon 
8

responded to those interrogatories. Every accusation of ineffective assistance 

McKinnon described related to acts or omissions by his trial counsel. He made no 

mention of prior PCR counsel. McKinnon’s response to the interrogatory “Provide 

a full, complete, and detailed explanation of each and every way you claim ‘actual 

innocence under the Iowa and U.S. Constitution’ and that ‘Applicant is innocent,’” 

is as follows:

(1) The victim in this case made a statement to Mr. McKinnon 

and witness Rebecca (LNU) that Janice, the victim’s grandmother, 

was making the victim claim abuse by Mr. McKinnon.

(2) Mr. McKinnon was staying in a halfway house at the time 

some or all allegations occurred.

As was the case in Quinn, McKinnon’s claim of actual innocence is not 

based on newly discovered facts that could not have been discovered during the 

three-year time frame. The district court sustained McKinnon’s application for 

depositions at state expense. He had the opportunity to develop other facts and 

failed to do so. As noted by the PCR court, “[A]ll particulars disclosed in 

[McKinnon’s] answers [to interrogatories] were known and available to McKinnon

before he pled guilty. Inasmuch as McKinnon has come forward with no facts that 

could not have been presented during the three-year limitations period, his reliance 

on Nguyen is unavailing.5 Finding no error, we affirm.

AFFIRMED.

 

5 McKinnon also makes his Nguyen argument regarding Allison. But the change 

in law in Allison was also limited in scope—to petitions promptly filed after the 

conclusion of the first PCR. The critical time is not the days after Allison but the 

time since the conclusion of the first PCR; in this case nine months.