IN THE COURT OF APPEALS OF IOWA

No. 20-1118

Filed November 23, 2021

DONALD ANTONIO VAUGHN,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.

Donald Antonio Vaughn appeals the summary dismissal of his fourth 

application for postconviction relief. AFFIRMED.

R.E. Breckenridge of Breckenridge Law P.C., Ottumwa, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney 

General, for appellee State.

Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
2

BOWER, Chief Judge.

Donald Antonio Vaughn appeals the summary dismissal of his fourth 

application for postconviction relief (PCR). Finding no error, we affirm.

In 2006, Vaughn was convicted of murdering Matthew Glover. Vaughn v. 

State, No. 11-0147, 2013 WL 5743668, at *1–2 (Iowa Ct. App. Oct. 23, 2013). 

Over Vaughn’s pro se objections, his direct appeal was dismissed by our supreme 

court as frivolous. Id. at *2. Procedendo issued on December 24, 2008.

In 2009, Vaughn filed his first PCR application, raising eight claims of 

ineffective assistance of trial and appellate counsel and four other claims. See id. 

The district court rejected all claims and dismissed his PCR application; we 

affirmed. Id. at *5–9. Procedendo issued on November 21, 2013.

Vaughn filed a second PCR application on May 26, 2015, which he later 

voluntarily dismissed.

Vaughn filed his third PCR application on May 6, 2019, asserting trial, 

appellate, and PCR counsel were ineffective. The State moved for summary 

judgment, asserting the application was barred by the three-year limitation period

in Iowa Code section 822.3 (2019). On April 3, 2020, the district court dismissed 

the application, noting Vaughn was not asserting a ground of law or fact that could 

not have been discovered within the limitation period and could not avoid the 

statutory bar under the exception announced in Allison v. State.

1

 We affirmed the 

 

1 The Allison court determined that in order to relate back to an earlier PCR 

application to avoid the time limitation of section 822.3, a PCR applicant must 

(1) file the initial PCR application within three years of final conviction, (2) file a 

second PCR application that alleges first PCR counsel was ineffective in 

presenting ineffective-assistance-of-trial-counsel claims, and (3) file the second 
3

court’s determination the application did not avoid the three-year bar. See Vaughn

v. State, No. 20-0713, 2021 WL 5106455, at *2 (Iowa Ct. App. Nov. 3, 2021).

On April 17, 2020, Vaughn filed this fourth PCR application, alleging 

“(1) Freestanding claim of actual innocence, (2) New evidence, (3) New expert 

testimony, (4) Ineffective assistance of postconviction relief counsel.” He attached 

a March 14, 2020 report of Wayne N. Hill Sr. of Firearms/Self Defense Consultants. 

Hill’s report concluded:

Having given careful and extensive study and consideration 

of the physical evidence and State’s experts observations and 

findings it is this Examiner’s professional opinion that the totality of 

evidence is NOT CONSISTENT with a theory that the deceased was

seated inside a motor vehicle and was therein shot to death by 

another individual who was also seated with that same vehicle.

IT IS this Examiner’s professional opinion that the totality of 

Evidence is CONSISTENT with a theory that the deceased was 

standing in the location/spot where his deceased body was found; 

that the deceased was standing in this spot facing the Shooter who 

was also standing in this corn field, when the shooter commenced 

shooting the Deceased, who reflexively flinched, bending at the waist 

and rotating his torso defensively, until two bullets penetrated the 

deceased head/brain, instantly stopping all voluntary motor muscle

movement and killing the deceased. Since the deceased was turning 

at the moment of loss of muscle control, his ankles crossed each 

other as he collapsed to the ground.

The State moved to dismiss, recognizing actual-innocence claims may be 

made through a PCR application but are subject to the statute of limitations.

2

 The 

State asserted because Vaughn could not show a ground of fact he could not have 

raised within the applicable three-year period, his application was time-barred. 

Vaughn resisted, asserting his “newly discovered evidence” was Hill’s opinion, 

 

PCR action “promptly” after the conclusion of the first. 914 N.W.2d 866, 891 (Iowa 

2018).

2 See Dewberry v. State, 941 N.W.2d 1, 5 (Iowa 2019) (setting out the hurdles to 

and requirements for a PCR applicant to bring an actual innocence claim).
4

which “shows that [the State’s primary witness] Martinez’s testimony is not 

consistent with the physical evidence.”3 The district court concluded:

Although Mr. Hill’s report itself was created recently, it is 

based on the evidence used at or at least available for at the original 

trial in 2006. In short, the report is a new analysis of old evidence. 

If such a report were considered new evidence for the purpose of 

Iowa Code [section] 822.3, the three-year statute of limitations would 

be without meaning. Additionally, the standard is not simply whether 

new evidence is discovered. It is whether there is new evidence that 

could not have been previously raised.

Mr. Vaughn expressed at the hearing that Iowa Code [section]

822.3 should be repealed. Any such act must be done by the Iowa 

Legislature rather than this court. Based on the law as it stands, the 

court must dismiss the application.

Vaughn appeals, contending the district court employed a hyper-technical 

definition of newly discovered evidence. 

We generally review a grant of a motion to dismiss a PCR application for 

correction of errors at law. Allison, 914 N.W.2d at 870. “A motion to dismiss should 

only be granted if the allegations in the petition, taken as true, could not entitle the 

plaintiff to any relief.” Sanchez v. State, 692 N.W.2d 812, 816 (Iowa 2005).

Vaughn concedes the facts upon which Hill’s report are based were

available long ago. But, he argues: 

[B]ecause the facts were available at trial does not mean that a reexamination of those facts cannot constitute newly discovered 

evidence. For example, Iowa Code section 81.10 provides that a 

request for postconviction relief for DNA testing is permitted and 

there is no[ ] time limitation for such a request. Clearly this kind of 

evidence was available at the time of trial. Iowa Code section 822.3 

 

3 We note this report was available and referenced by Vaughn’s counsel during 

the hearing to dismiss his third PCR application, noting “the availability of the 

expert to rebut the State’s forensic examiner.” Counsel stated, “While I understand 

that this does not fall in the category of newly discovered evidence, which would 

fall into the exception of the time bar, I believe that this fact with the policy claim of 

Allison should allow Mr. Vaughn to proceed to present that evidence to the court.”
5

specifically recognizes such testing as a “ground in fact” that would 

meet the exception to the [three] year filing limitations.

The district court did not err in dismissing Vaughn’s petition. Unlike DNA 

evidence that might conclusively show a defendant was not the perpetrator of a 

sexual assault—and has been specifically addressed by the statute—Hill’s report 

reanalyzes information available at trial and concludes the murder did not occur in 

the truck. It does not exonerate Vaughn as the perpetrator.

“A reasonable interpretation of [section 822.3] compels the conclusion that 

exceptions to the time bar would be, for example, newly-discovered evidence or a 

ground that the applicant was at least not alerted to in some way.” Perez v. State, 

816 N.W.2d 354, 360 (Iowa 2012) (citation omitted). The evidence reviewed by 

Hill was available during the three-year limitation period and could have been 

addressed. See State v. Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989)

(stating the exception only applies where “there would be no opportunity to test the 

validity of the conviction” within the three-year time period); see also Griffin v. 

State, No. 20-1264, 2021 WL 4304239, at *1 (Iowa Ct. App. Sep. 22, 2021) 

(concluding applicant failed to show a “new ground of fact” where DNA evidence 

existed at time of trial and the testing method was available in 2006, when he 

received a notice of destruction and long before the PCR application was filed). 

Finding no error, we affirm.

AFFIRMED.