IN THE COURT OF APPEALS OF IOWA No. 16
- 1978 Filed February 7, 2018 LANCE RUSSELL DIXON, Applicant
- Appellant,
vs. STATE OF IOWA, Respondent
- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

Lance Dixon appeals the district court ’ s summary dismissal of his fourth application for postconviction rel ief following his 2001 conviction for first
- degree murder. AFFIRMED.

Christine E. Branstad of Branstad Law, P.L.L.C., Des Moines, for appellant. Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee State.
Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.2

VAITHESWARAN, Judge. In Heemstra v

. State , 721 N.W.2d 549, 558 (Iowa 2006), the Iowa Supreme Court reversed a first
- degree murder conviction that was partially based on the statutory alternati ve of killing “ another person while participating in a forcible felony. ” See Iowa Code § 707.2(1)(b) (2001)

. The court held “ if the act causing willful injury is the same act that causes the victim ’ s death, the former is merged into the murder and therefore cannot serve as the predicate felony for felony
murder purposes. ” Heemstra , 721 N.W.2d at 558. The court declined to apply the holding retroactively, stating , “ The rule of law announced in this case regarding the use of willful injury as a pred icate felony for felony
- murder purposes shall be applicable only to the present case and those cases not finally resolved on direct appeal in which the issue has been raised in the district court. ” Id

. A postconviction relief applicant whose conviction b ecame final four years before Heemstra was decided appeals the summary disposition of his fourth postconviction relief application. He argues a recent United States Supreme Court opinion require s retroactive application of Heemstra

. I. Background Proceedi ngs A jury found Lance Dixon guilty of first
- degree murder in connection with a 1999 shooting. This court affirmed his judgment and sentence in 2001 , and procedendo issued shortly thereafter

. See State v

. Dixon , No. 00
- 829, 2001 WL 1450991, at *6 (Iowa Ct. App. Nov. 16, 2001). Dixon filed three postconviction relief applications, all unsuccessful. See Dixon v

. State , No. 12
- 0499, 2013 WL 3291837, at *1 (Iowa Ct. App. June 26, 2013). In 2014, Dixon filed a fourth application alleging , “ Heemstra v

. State , 7213

N.W.2d at 558 and State v

. Nguyen No. 10
- 2037 demand when a jury relied on a willful injury instruction to find a defendant guilty the conviction cannot stand. ” The State moved for summary judgment an d dismissal on the ground the application was “ neither within three years of the Heemstra decision nor within three years of the procedendo of his direct appeal ” and, accordingly, was “ time
barred. ” Meanwhile, Dixon amended his petition to allege a new “ g round of fact and or law that require Heemstra to be applied retroactively

. ” He cited “ Welch v

. United States , No. 15
- 6418 April 2016 and Montgomery v

. Louisiana , No. 14
- 280 January 2016. ” Following a non
- evidentiary hearing, the postconviction court granted the State ’ s motion for summary disposition. Dixon appealed. II. Ground

- of - Law - Exception to Section 822
. 3 Time Bar Iowa Code section 822.3 (2013) states postconviction relief 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 , ” but “ this limitation does not apply to a ground of fact or law that could not have been raised within the applicable time period. ” Dixon ’ s four th postconviction relief application was filed well outside the three
- year limitations period

. Dixon ’ s application, then, had to fall within the “ ground of fact or law ” exception to the time bar to allow consideration of the merits. In his argument to t he district court, Dixon paid lip service to the exception but did not address how his case fell within it . Instead, he pivoted to the merits of his claim, asserting Heemstra should be retroactively applied to his case. He does the same thing on appeal, arguing Welch v

. United States , 136 S. Ct. 1257 (2016) , require s the district court to apply the holding of Heemstra retroactively.4 Dixon conflates two inquiries: (1) is Heemstra an opinion that implicates the

“ ground of law ” exception to the time bar ? and (2) should Heemstra be applied retroactively to Dixon ’ s case ? As the I owa Supreme Court made clear in Nguyen
v
. State ( Nguyen I

) , 829 N.W.2d 183 (Iowa 2013), these are distinct issues

. In Nguyen I , a postconvicton relief applicant who received the same felony
murder jury instruction that was invalidated in Heemstra argued Heemstra should be applied retroactively. 829 N.W.2d at 186

. The district court granted the State ’ s motion for summary dispositi on. Id

. The court concluded the “ ground of law ” exception to the time bar did not apply because “ the line of cases ” leading up to Heemstra “ would have alerted trial counsel ” to the argument made in Heemstra and, accordingly, the question “ was a ground that could have been urged ” during the three
- year limitations period. Id

. The Iowa Supreme Court disagreed with this reasoning. T he court stated

“ a ground of law that had been clearly and repeatedly rejected by controlling precedent from the court with final decision
- making authority is one that ‘ could not have been raised ’ as that phrase is used in section 822.3. ” Id

. at 188. The court implied the ground
- of
- law exception could be raised within three years of the law
changing decision rather than thre e years from when procedendo issued in the direct appeal, as set forth in section 822.3. Id

. Because Nguyen filed his posconviction relief application within three years of Heemstra , the court allowed him to invoke the “ ground of law ” exception to the three
- year limitations period

. Id

. The court reversed the district court ’ s summary disposition of the postconviction relief application and “ remand [ed] for further proceedings on whether retroactive application of Heemstra is required b y the equal protection, due process, and5

separation of powers clauses of the Iowa Constitution, or the Equal Protection Clause of the United States Constitution. ” Id

. at 189. In short, the court (1) implied a postconviction relief applicant could rely on the “ ground of law ” exception to the time bar for three years after a law changing decision , (2) held Heemstra was a law changing decision implicating the “ ground of law ” exception to the statute of limitations, ( 3 ) found Nguyen filed his application with in three years of Heemstra , and (4) held the district court needed to consider the merits of Nguyen ’ s claim that retroactive application of Heemstra was constitutionally mandated. See id

. at 186, 188, 189. Nguyen II essentially reaffirm ed Nguyen I ’ s statute - of
- limitations analysis. Nguyen v

. State ( Nguyen II) , 878 N.W.2d 744, 751 (Iowa 2016)

. The court concluded an ineffective
- assistance claim premised on Heemstra was “ not time
barred ” where the postconviction relief application was filed within three years of Heemstra and a pro se brief articulated the common
- law “ framework for evaluating the retroactive application of state decisions. ” Id. As in Nguyen I , the court addressed the statute - of
- limitations hurdle before addressing the questi on of retroactivity. See id. at 751
- 52. Only after finding the postconviction relief application was timely filed because it fell within the “ ground of law ” exception to the time bar did the court proceed to the “ merits of the ineffective
- assistance
- of
c ounsel claim , ” which sought retroactive application of Heemstra

. Id

. at 753
- 54. Welch , 136 S. Ct. at 1265 , cited by Dixon, implicates the merits of his claim

. The Court there held a prior opinion finding a statutory provision void for vagueness was “ a substantive decision and so has retroactive effect under Teague6

[ v. Lane , 489 U.S. 288 (1989)] in cases on collateral review. ” Welch , 136 S. Ct. at 1265

. The opinion has no bearing on our statute
- of
- limitations analysis. That analysis turns on whether Dixon filed his fourth postconviction application within the implied limitations period of three years from the Heemstra decision. He did not. Because he did not, his application was time
- barred , and the postconviction cour t could not reach the retroactivity claim. We affirm the postconviction court ’ s summary disposition of Dixon ’ s fourth postconviction relief application. AFFIRMED.