IN THE COURT OF APPEALS OF IOWA

No. 17-0489

Filed December 20, 2017

FLOYD EUGENE CROSS,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

An applicant appeals the district court’s summary dismissal of his 

application for postconviction relief. AFFIRMED.

Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney 

General, for appellee State.

Considered by Vogel, P.J., Bower, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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SCOTT, Senior Judge.

Floyd Cross was convicted of first-degree robbery and willful injury causing 

serious injury in 2007. He appealed, and this court affirmed his conviction. See 

State v. Cross, No. 07-0599, 2008 WL 3916703, at *3 (Iowa Ct. App. Aug. 27, 

2008). Following the appeal, procedendo was entered October 24, 2008. Cross 

then filed a postconviction relief (PCR) application, raising a number of ineffectiveassistance-of-counsel claims. His application was denied, and we affirmed in part 

and reversed in part that denial on appeal. See Cross v. State, No. 10-0968, 2012 

WL 5356167, at *2-5 (Iowa Ct. App. Oct. 31, 2012) (finding Cross failed to prove 

his trial counsel was ineffective but his two convictions should be merged).

Cross then filed a second application for PCR September 24, 2015. The 

State filed a motion for summary judgement, asserting Cross’s application was 

time-barred under Iowa Code section 822.3 (2015). The motion came on for a 

hearing before the district court, and in a written ruling, the district court granted 

the State’s motion for summary judgment and dismissed Cross’s application. The 

court concluded Cross’s application was time-barred and he failed to prove he was 

raising a new ground of fact or law, which would have satisfied the exception to 

the three-year statute of limitations. See Iowa Code § 822.3 (providing all PCR

applications “must be filed within three years from the date . . . the writ of 

procedendo is issued” but the “limitation does not apply to a ground of fact or law 

that could not have been raised within the applicable time period”). 

On appeal, Cross claims his application is excused from the statute of 

limitations because of a ground of law that could not have been raised within the 

applicable three-year period. Specifically, he claims the case of State v. Smith, 
3

739 N.W.2d 289 (Iowa 2007), changed the substantive law regarding how juries 

are to be instructed on joint criminal conduct, Smith should be applied retroactively 

to his case, and he could not have raised this argument earlier until the case of 

State v. Shorter, No. 14-1239, 2016 WL 3272291, at *3-4 (Iowa Ct. App. June 15, 

2016), was decided. 

We begin by noting our decision in Shorter has been vacated by the 

supreme court and is no longer good law for Cross to rely on in his attempt to 

excuse the late filing of his PCR claim. See State v. Shorter, 893 N.W.2d 65, 68 

(Iowa 2017). Secondly, Cross never asserted in the district court that our decision 

in Shorter in any way affected his argument that the ground-of-law exception to 

three-year statute of limitations should apply to his PCR application. Thus, his 

argument that Shorter is a new ground of law that could not have been raised 

within the statute of limitations has not been preserved. Lamasters v. State, 821 

N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that 

issues must ordinarily be both raised and decided by the district court before we 

will decide them on appeal.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 537 

(Iowa 2002)). Finally, even if our decision in Shorter were still good law and 

assuming such claim had been preserved, our decision in Shorter did not “change”

the law with respect to the jury instruction for joint criminal conduct; it merely 

attempted to apply the then-existing law as articulated by State v. Tyler, 873 

N.W.2d 741, 752–54 (Iowa 2016), and Smith, 739 N.W.2d at 295. See State v. 

Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989) (holding the ground-of-law 

exception is meant “to allow for a review of a conviction if there has been a change

in the law that would [a]ffect the validity of the conviction” (emphasis added)). 
4

Thus, our opinion in Shorter does not excuse Cross’s late filing of his second PCR 

application. 

Cross did assert in the district court that Smith, 739 N.W.2d at 295, changed 

the law with respect to the joint-criminal-conduct jury instruction and this change 

should be retroactively applied to his case.1 However, as noted by the district 

court, Smith was decided in 2007, and thus, this claim could have been raised in 

Cross’s first PCR application,

2 which was filed within the applicable three-year

statute of limitations. The decision in Smith does not satisfy the ground-of-law 

exception to the three-year statute of limitations in order to save Cross’s second 

PCR application. 

Finally, Cross cites the case of Tyler, 873 N.W.2d at 752–54, in his brief in 

support of his appeal. While the Tyler decision was filed after the expiration of the 

three-year statute of limitations, it cannot satisfy the exception to the three-year 

bar because, again, the case merely applied the Smith decision. Tyler, 873 

 

1 We also note that even if Cross could get beyond the three-year statute of limitations for 

his claim, the Smith case provided that its holding would be applicable to future cases. 

See 739 N.W.2d at 295 (“In the future, if a court is going to instruct the jury on the theory 

of joint criminal conduct, it should incorporate the elements of joint criminal conduct as set 

forth in this opinion, rather than instructing the jury with the general language of section 

703.2.” (emphasis added)). 

2 We also note Cross did challenge the joint-criminal-conduct jury instruction in his first 

PCR application. See Cross, 2012 WL 5356167, at *4. In the appeal from the first PCR 

application, this court rejected Cross’s assertion he received ineffective assistance 

because his counsel did not object to the jury instruction on aiding and abetting and joint 

criminal conduct. Id. We concluded: 

[T]he marshaling instruction directed the jury to consider Cross’s conduct 

alone. Therefore, he would have been found guilty based on his own 

conduct. See State v. Jackson, 587 N.W.2d 764, 766 (Iowa 1998) (finding 

there was no error in giving an instruction on joint criminal conduct where 

there was no opportunity for the defendant to have been found guilty based 

on anything other than his own conduct).

Id. 
5

N.W.2d at 752–54. As stated earlier, the ground-of-law exception allows “for a 

review of a conviction if there has been a change in the law that would [a]ffect the 

validity of the conviction.” Edman, 444 N.W.2d at 106 (emphasis added). Tyler

did not change the law, and thus, it does not satisfy the ground-of-law exception.

The procedendo following Cross’s direct appeal was entered October 24, 

2008, and Cross did not file this current PCR application until September 24, 2015, 

more than three years later. None of the cases cited by Cross satisfy the groundof-law exception to the statute of limitations. Therefore, we agree with the district 

court’s conclusion that Cross’s second PCR application is time-barred, and we 

affirm the dismissal. 

AFFIRMED.