IN THE COURT OF APPEALS OF IOWA No. 20

- 0510 F iled April 14, 2021

MICHAEL LANG , Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer , Judge.

Michael Lang appeals the district court’s summary dismissal of his eighth postconviction

- relief application and the denial of his motion for reconsideration of the ruling. AFFIRMED.

Judy Freking of Judy L. Freking, P.C. , Le Mars , for appellant. Thomas J. Miller, Attorney General, and Sheryl Soich , Assistant Attorney General, for appellee State.

Considered by Vaitheswaran, P.J. , Ahlers, J., and Mahan, S.J. * *Senior judge assigned by order pursuant to Iowa Code section 602 .9206 (2021 ).2

VAITHESWARAN , Presiding Judge
. Michael Lang was convicted o f first

- degree kidnapping in 198 8. He filed a direct appeal, which was resolved in 1990, with procedendo issuing the same year. Lang now appeals the district court’s summary dismissal of his eighth postconviction

- relief application and the denial of his motion for reconsideration of the ruling. 1 He raises four substantive challenges to his conviction. The State responds that (1) Lang “failed to present any claim that could o vercome the three

year time bar” ; (2) the issues he raises were neither raised nor decided in the
pos t conviction court, implicati ng error preservation concerns ; and (3) the claims were precluded by another statutory provision, Iowa Code section 822.8 (2019 )

. We find the State’s first responsive argument dispositive. In pertinent part, Iowa Code section 822.3 requires a postconviction

- relief application to be filed within three year s after procedendo issues in a direct appeal unless the applicant raises a ground of fact or law that could not have been raised within the applicable time period. See Iowa Code § 822.3

. The supreme court also has held that certain postconviction

- relief applications may relate back to the date of a timely

- filed petition. See Allison v. State , 914 N.W.2d 866, 891 (Iowa 2018). The postconviction court concluded the action was time

- barred. T he court reasoned that “[t] he current application for postconviction relief was filed . . . more than three years after procedendo issued ” and “[n] o valid reason [was] provided

1 Lang represented himself after the postconviction court raised his failure to file an application for court

- appointed counsel . The court discussed the issue with him and advised him that it might not “necessarily” be in his “best interest” to proceed wit hout counsel

.3

as to why the grounds in this current postconviction relief action could not have been raised within the statutory time period. ” Lang’s only effort to address the court’s reasoning appears in his reply brief, where he states: “ Allison and equitable tolling should apply to this case.” See id. (stating the relation

- back holding adopted by the court is “a vari ant of the equitable doctrine . . . to allow a petitioner in federal habeas to avoid a pr ocedural default in
state court ”)

. R ecent legislation raises doubts about his ability to invoke Allison as a means to avoid the time

- bar. See 2019 Iowa Acts ch. 140 , § 34 (codified at Iowa Code § 822

. 3 ( Supp. 2019)) ( e ffective July 1, 2019, amending Iowa Code section 822

. 3 to state, “[a]n 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 limitatio n periods” ); Johnson v. State, No. 19

- 1949, 2021 WL 210700, at *3 (Iowa Ct. App. Jan. 21, 2021) ( stat ing , “[t]his amendment appears to abrogate Allison ” ). Lang’s postconviction

- relief application was filed after the effective date of the amendment , arguably foreclosing his reliance on Allison to avoid the limitations period. But, even if the amendment does not apply to his case, his eighth postconviction

- relief application cannot relate back to his original application because it was not filed “prom ptly” within the meaning of Allison

. See Finch v. State , No. 19

- 1982, 2021 WL 810859 , at *1 (Iowa Ct. App. Mar

. 3, 2021) (quoting Allison , 914 N.W.2d at 891)

. It is also worth noting that, if Lang is referencing an equitable tolling doctrine other than the one authorized by Allison , this court has declin ed to apply the doctrine to section 822.3. See James v. State, 858 N.W.2d 32, 33 (Iowa Ct. App. 2014)

.4

T he postconviction court did not err in concludi ng Lang’s eighth postconviction

- relief application was time

- barred. We affirm the court’s summary dismissal of the application. AFFIRMED.