IN THE COURT OF APPEALS OF IOWA

No. 21-0770

Filed June 15, 2022

TOMMY GINES JR.,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.

Tommy Gines, Jr. appeals the dismissal of his third application for 

postconviction relief. AFFIRMED.

Gary Dickey of Dickey, Campbell, & Sahag Law Firm, PLC, Des Moines, for 

appellant.

Thomas J. Miller, Attorney General, and Richard Bennett, Special Counsel, 

for appellee State.

Heard by Vaitheswaran, P.J., and Tabor and Badding, JJ.
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VAITHESWARAN, Presiding Judge.

This is an appeal from the district court’s dismissal of Tommy Gines Jr.’s 

third application for postconviction relief, filed in 2020, following his 2014 guilty 

pleas to two counts of intimidation with a dangerous weapon with intent by threats 

and one count of felon in possession of a firearm, all as an habitual offender. The 

facts and a partial procedural history are set forth in State v. Gines, 844 N.W.2d 

437, 441–42 (Iowa 2014). Those details are largely irrelevant to the district court’s 

disposition of the third postconviction-relief application.

Turning to that disposition, the court preliminarily concluded the application 

fell “outside the three-year limitations period” prescribed by Iowa Code 

section 822.3 (2020) and Gines failed to point “to any ground of fact or law that 

could not have been raised within the limitations period.” See Iowa Code § 822.3. 

The court next considered a supreme court opinion authorizing a limited 

exception to the time bar. The opinion, Allison v. State, 914 N.W.2d 866, 891 (Iowa 

2018), holds:

[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.

The district court rejected Gines’ request to fit his application within the Allison

exception, reasoning that a 2019 amendment to section 822.3 “legislatively 

abrogated” Allison. 
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The court finally addressed Gines’ constitutional challenges to the 2019 

amendment. The amendment states: “An allegation of ineffective assistance of 

counsel in a prior case under this chapter 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.” Iowa Code § 822.3. Gines’ equal protection 

challenge to the amendment failed, the court said, because, “even if the 2019 

amendment prohibiting reliance on ineffective assistance of PCR counsel is not 

applied, Gines PCR matter would be time-barred, and there could be no equal 

protection argument.” As for Gines’ due process challenge based on a claimed 

denial of his right to be heard, the court explained that Gines “had the right to be 

heard within the statute of limitations and [was] now outside that time limitation” 

and the 2019 amendment did “not affect the availability of PCR review for Gines, 

as even Allison would not have provided relief.” 

On appeal, Gines asserts (1) his “successive PCR application falls within 

the Allison rule’s exception to the three-year statute of limitations”; (2) “application 

of the post-Allison amendment to Iowa Code section 822.3 violates [his] Equal 

Protection rights” and his “Due Process rights”; and (3) this court “should address 

the substantive merits of [his] claims so they are not procedurally defaulted for 

federal habeas review.”

As to the first point, the district court correctly concluded that the 2019 

amendment to section 822.3 legislatively abrogated Allison. See Brooks v. State, 

No. 20-1652, 2022 WL 951080, at *2 (Iowa Ct. App. Mar. 30, 2022); Johnson v. 

State, No. 19-1949, 2021 WL 210700, at *3 (Iowa Ct. App. Jan. 21, 2021). But,

even if the legislature had not abrogated Allison, the holding, by its terms, was 
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inapplicable. Allison specified that the first postconviction-relief application had to 

raise an ineffective-assistance-of-counsel claim. See 914 N.W.2d at 891 (applying 

exception to “a PCR petition alleging ineffective assistance of trial counsel [that] 

has been timely filed per section 822.3” (emphasis added)). Gines’ first 

postconviction-relief application, filed in July 2015, did not raise an ineffectiveassistance-of-counsel claim. And, Allison granted a limited exception to the time 

bar for a second postconviction-relief application. See id. (holding “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” (emphasis added)).

This was Gines’ third application, not his second. See Velazquez-Ramirez v. 

State, 973 N.W.2d 598, 601 (Iowa Ct. App. 2022) (clarifying Allison only applies to 

second PCR actions); Hering v. State, No. 21-0688, 2022 WL 1487111, at *3 (Iowa 

Ct. App. May 11, 2022) (concluding Allison did not apply to third postconvictionrelief application); Thompson v. State, No. 20-1002, 2022 WL 1232625, at *2 (Iowa 

Ct. App. Apr. 27, 2022) (“As we have repeatedly recognized, the Allison exception 

applies to only a second PCR application—not a third or beyond.”); Goode v. State, 

No. 20-0282, 2021 WL 4889249, at *3 (Iowa Ct. App. Oct. 20, 2021) (citing cases). 

Finally, Allison required the successive application to be filed “promptly.” See 914 

N.W.2d at 891. Assuming Gines could overcome the previous two hurdles, his 

third application was filed approximately two years after the conclusion of the 

previous postconviction-relief action. Lesser delays have not satisfied this 

standard. See Velazquez-Ramirez, 973 N.W.2d at 601 (“[W]e have repeatedly 

concluded that ‘delays [of] one year or more’ are not sufficiently ‘prompt.’” (second 

alteration in original) (citation omitted)); Herron v. State, No. 19-1909, 2022 WL 
5

1236762, at *1 (Iowa Ct. App. Apr. 27, 2022) (finding application filed nearly ten 

months after the conclusion of the first proceeding was not prompt and citing 

cases). In short, Gines could not avail himself of the limited exception to the 

statutory time bar set forth in Allison.

It follows that, if Allison was unavailing, the 2019 statutory amendment 

abrogating Allison had no effect on Gines’ third postconviction-relief application

and we need not reach Gines’ equal protection and due process challenges to the 

amendment. As the State asserts, “[y]ou cannot lose what you never had.” 

That said, similar constitutional challenges have been rejected. See Davis 

v. State, 443 N.W.2d 707, 711 (Iowa 1989) (“We conclude that the legislature, in 

providing the time limit in [section 822.3], afforded defendant a reasonable 

opportunity to be heard, thus ensuring his federal and state due process rights.”); 

Garcia v. State, No. 20-0883, 2022 WL 108561, at *4 (Iowa Ct. App. Jan. 12, 2022)

(rejecting an equal protection challenge to the amendment on the ground that the 

applicant was “not similarly situated to those who can effectively utilize Allison’s 

relation-back doctrine” and rejecting a due process challenge on the ground that 

the applicant did “not have a due process right to advance stale claims”). 

In light of our conclusion that Gines’ third postconviction-relief application 

was untimely, we decline to reach the merits of his application. 

AFFIRMED.