IN THE COURT OF APPEALS OF IOWA

No. 20-1179

Filed March 30, 2022

MICHELLE LYNNE KEHOE,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Buchanan County, David P. Odekirk, 

Judge.

Michelle Kehoe appeals from the order granting summary disposition and 

dismissing her application for postconviction relief. AFFIRMED.

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

appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins and 

Andrew Prosser, Assistant Attorneys General, for appellee State.

Considered by May, P.J., Ahlers, J., and Mullins, S.J.*

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

(2022).
2

AHLERS, Judge.

Michelle Kehoe appeals from the district court order granting the State’s 

motion for summary disposition and dismissing her application for postconviction 

relief (PCR). Kehoe was convicted of first-degree murder, attempted murder, and 

child endangerment resulting in serious injury in 2009 for slitting the throats of her 

two children, resulting in the death of her two-year-old and serious injury to her 

seven-year-old. State v. Kehoe, 804 N.W.2d 302, 304 (Iowa Ct. App. 2011). We 

affirmed her convictions on direct appeal. Id. at 305–13. Procedendo on direct 

appeal issued September 23, 2011.

Kehoe filed her first PCR application on September 18, 2014. After a PCR 

trial, the district court denied Kehoe’s application. We affirmed the denial on 

appeal. Kehoe v. State, No 18-0222, 2019 WL 6893771, at *5–10 (Iowa Ct. App. 

Dec. 18, 2019). Procedendo on her first PCR action issued January 18, 2020.

Kehoe filed her second PCR application—at issue here—on May 5, 2020. 

Kehoe alleged her trial and first PCR counsel were ineffective for failing to properly 

present several arguments. The State moved for summary disposition, which the 

district court granted. Kehoe appeals. “We normally review postconviction 

proceedings for errors at law.” Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). 

The district court granted summary disposition on multiple grounds, and 

Kehoe raises all of those grounds on appeal. We find it necessary to only address 

the statute of limitations. With exceptions not present here, a PCR application 

“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.” Iowa 

Code § 822.3 (2020). Kehoe appealed her conviction and filed her current PCR 
3

application more than eight years after procedendo issued on her appeal, well 

outside the three-year statute of limitations. 

Nevertheless, Kehoe maintains her current PCR application is timely under 

Allison v. State, which held:

where 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.

914 N.W.2d 866, 891 (Iowa 2018). Kehoe asserts that because her successive 

PCR application alleges ineffective assistance of her first PCR counsel and was 

filed promptly after the conclusion of her timely first PCR action, her current 

application is also timely. Kehoe acknowledges the legislature enacted Senate 

File 589 while her first PCR action was pending and before she filed her successive 

PCR application. See 2019 Iowa Acts ch. 140, § 34 (codified at Iowa Code 

§ 822.3). Senate File 589 prohibits a claim that prior counsel was ineffective from 

relating back to a prior PCR application to satisfy the statute of limitations. See 

2019 Iowa Acts ch. 140, § 34; Greenup v. State, 966 N.W.2d 292, 296 (Iowa Ct. 

App. 2021). Senate File 589 took effect July 1, 2019. See Greenup, 966 N.W.2d 

at 296 n.4. However, Kehoe advances statutory and constitutional arguments for 

why Senate File 589 does not apply to her and she may use the Allison framework 

to relate her current PCR application back to her timely first PCR application.

We need not decide whether the 2019 amendment applies to this action. 

Instead, we will assume without deciding that it does not and thus also assume 
4

that Allison’s relation-back framework applies to this case. Even with that 

assumption, under Allison, Kehoe’s current PCR application must be “filed 

promptly after the conclusion of the first PCR action” in order to overcome the 

statute of limitations. Allison, 914 N.W.2d at 891. “As we have previously noted, 

‘promptly’ means ‘in a prompt manner; at once; immediately, quickly.’” Maddox v. 

State, No. 19-1916, 2020 WL 5230367, at *3 (Iowa Ct. App. Sep. 2, 2020) (quoting 

Cook v. State, No. 17-1245, 2019 WL 719163, at *4 n.6 (Iowa Ct. App. Feb. 20, 

2019)). We evaluate promptness under Allison by examining the time between the 

issuance of procedendo on the first PCR action and the filing of the successive 

PCR action. Id. Procedendo issued on Kehoe’s first PCR action on January 18, 

2020, and Kehoe filed the current PCR application on May 5, a delay of 108 days.

We previously found a successive PCR application filed 121 days after 

procedendo issued on the first PCR action was not filed promptly. Id.; see also id. 

at *2 (collecting cases). In doing so, we noted that the supreme court found 

Allison’s successive PCR application was filed promptly on November 5, 2015, 

fifty-six days after this court issued the opinion affirming the denial of Allison’s first 

PCR action on September 10. Id. at *2 (citing Allison, 914 N.W.2d at 869); see 

also Allison v. State, No. 14-0925, 2015 WL 5278968, at *2 (Iowa Ct. App. 

Sept. 10, 2015) (affirming the denial of Allison’s first PCR action).1 We also noted:

 

1 The conclusion in Maddox that Allison involved a fifty-six day delay is actually 

generous, as it measured from the filing of our court’s opinion affirming the denial 

of Allison’s first PCR action rather than the date of procedendo. See 2020 WL 

5230367 at *2–3. A review of our court’s filing system shows that procedendo on 

Allison’s first PCR action issued October 21, 2015. See Iowa R. Evid. 5.201(b)(2) 

(permitting judicial notice of facts that “[c]an be accurately and readily determined 

from sources whose accuracy cannot reasonably be questioned”); see also State 

v. Washington, 832 N.W.2d 650, 655 (Iowa 2013) (holding that judicial notice 
5

many common filing deadlines are substantially shorter than 121 

days, including those related to appeals from final orders in Iowa 

district courts, see Iowa R. App. P. 6.101(1)(b) (thirty days), and 

petitions to the United States Supreme Court for a writ of certiorari, 

see U.S. Sup. Ct. R. 13(1) (ninety days).

Maddox, 2020 WL 5230367, at *3.

While Kehoe’s 108-day gap between conclusion of her first PCR action and 

filing of her successive PCR application is shorter than the 121-day gap in Maddox, 

the same principles apply. One hundred eight days is still longer than many 

common filing deadlines, and Kehoe’s 108-day delay is significantly longer than 

the fifteen-day delay2in Allison’s “filed promptly” successive PCR application. See 

Allison, 914 N.W.2d at 891. Kehoe advances no compelling argument for why her 

successive PCR application was filed promptly, asserting only “[t]here is no real 

question” her successive PCR application was filed promptly “a few months” after 

conclusion of her first PCR action.3 But “a few months” is not “prompt,” and Kehoe 

 

permitted by rule 5.201 may be taken on appeal); Luman v. Luman, No. 17-0223, 

2018 WL 1099198, at *1 n.1 (Iowa Ct. App. Feb. 21, 2018) (acknowledging our

court’s authority to take judicial notice of filing information contained in our court 

filing systems, as such information constitutes adjudicative facts whose accuracy 

cannot be reasonably questioned). As Allison filed his second PCR application on 

November 5, 2015, see Allison, 914 N.W.2d at 869, Allison involved only a fifteenday delay between procedendo issuing on the first PCR action and the filing of the 

second PCR application.

2 See footnote 1.

3

In her reply brief, Kehoe asserts the State did not seek summary disposition on 

the basis that her successive PCR application was not filed promptly, so the State’s 

argument is not preserved for our review. However, the amended statute of 

limitations was a topic during the PCR hearing, and the district court—acting before 

our decision in Maddox—found Kehoe’s successive PCR application would have 

been filed promptly under Allison. Because the district court considered and ruled 

on the filed-promptly issue, it is preserved for our review. See 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))).
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is not permitted to wait “a few months” before filing her successive PCR application

under Allison. 

Even if we apply the relation-back framework under Allison to Kehoe’s 

successive PCR application, Kehoe’s PCR application was not filed promptly after 

the conclusion of her first PCR action. Therefore, we affirm summary disposition

of the application.

AFFIRMED.