IN THE COURT OF APPEALS OF IOWA

No. 20-0739

Filed May 26, 2021

MICHAEL TRAVIS FERGUSON,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Tama County, Sean McPartland, 

Judge.

Michael Ferguson appeals the denial of his application for postconviction 

relief. AFFIRMED.

Shawn C. McCullough of Powell and McCullough, PLC, Coralville, for 

appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Vaitheswaran, P.J., Ahlers, J., and Scott, S.J.*

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

(2021).
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SCOTT, Senior Judge.

Michael Ferguson appeals the denial of his application for postconviction 

relief (PCR). He argues the court erred in denying his freestanding claim of actual 

innocence under Schmidt v. State, 909 N.W.2d 778 (Iowa 2018). 

Ferguson’s conviction of assault with intent to commit sexual abuse became 

final, following his guilty plea, in 2009. He filed the PCR application precipitating 

this appeal, his second, in 2019.1 His application claimed: “Actual innocence . . . 

victim recanted statement.” He claimed his victim, K.K., recanted his allegations 

to Ferguson and others. His amended application specifically alleged K.K. 

recanted his allegations to Ferguson’s wife as well. 

The matter proceeded to trial in December 2019. Ferguson testified that, 

while conducting depositions in the criminal case, his counsel advised him to take 

a plea deal to plead guilty to a lesser offense of the originally charged offense of 

third-degree sexual abuse or he would be found guilty and spend ten years in 

prison. He agreed because he was afraid of going to prison and he could obtain 

a suspended sentence and be released from jail. Ferguson testified that, in 2011,

he was in the Linn County Jail playing cards with another inmate, Brock Smith, 

when he noticed K.K. being escorted into their same jail unit. Ferguson testified 

 

1 On appeal, the State repeats its claim below, which the district court rejected, 

that the application is time-barred by the three-year statute of limitations contained 

in Iowa Code section 822.3 (2019). “We have stated that ‘Schmidt is a new ground 

of law’ sufficient to avoid the time bar of 822.3.” Quinn v. State, 954 N.W.2d 75, 

76 (Iowa Ct. App. 2020) (citation omitted). On the other hand, “Schmidt does not 

apply to overcome the statute of limitations where the evidence put forward to 

support the claim of actual innocence was available to the applicant or could have 

been discovered with due diligence within the limitations period.” Id. at 77. While 

we have doubts the alleged recantation could not have been discovered within the 

limitations period, we proceed to the merits in an abundance of caution. 
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the trio remained in the same unit for two to four weeks. According to Ferguson, 

he coincidently ran into K.K. in the community in 2016 and they exchanged 

numbers. Ferguson and his then wife, Libby, ran into K.K. a couple weeks later. 

K.K. also had subsequent contact “a couple times on Facebook and over text 

messaging.” Libby testified she recalled running into K.K. when she was with 

Ferguson on a couple of occasions, but she did not recall anything being discussed 

about the prior sex-abuse case. On each occasion, according to Libby, Ferguson 

“said he didn’t want to be around” K.K. because he got him in trouble, and 

Ferguson specifically explained to her “him and [K.K.] had sexual interactions” 

resulting in the criminal charges.

According to Smith’s deposition testimony,2 he met Ferguson while both 

were incarcerated in the Linn County Jail for a few months in 2011. Smith and 

Ferguson eventually became friends. The pair began discussing their criminal 

cases, with Ferguson explaining he was accused of doing “sexual things with a 

kid.” Eventually, Ferguson’s victim, K.K., landed himself in the Linn County Jail as 

well. When K.K. entered the same jail unit as Smith and Ferguson, Ferguson 

pointed to K.K. and advised Smith, “That’s my victim.” According to Smith, he 

eventually asked K.K. about the allegations between him and Ferguson, and K.K. 

responded, “What are you talking about?” and “No, nothing happened between 

us.” Smith stated he was simply curious because he thought it odd that Ferguson 

and his victim would be placed in the same housing unit. Smith never relayed said 

 

2 Following the PCR trial, the record was left open for submission of deposition 

testimony from Smith and K.K.
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information to Ferguson. Smith asserted he had never discussed the information 

with anyone until his December 2019 deposition. 

In his deposition, K.K. stated Ferguson began living with him and his mother 

when K.K. was fifteen or sixteen, and he confirmed he was the victim as to 

Ferguson’s sexual-abuse offense. Allegations made their way to law enforcement, 

and Ferguson was criminally charged. K.K. recalled encountering Ferguson in the 

Linn County Jail, but he did not recall meeting Smith or telling him or anyone else 

that Ferguson did not sexually abuse him. According to K.K., he was only in the 

same unit as Ferguson for “a half a night,” because he advised his mother he was 

in the same unit as Ferguson, she complained to jail staff, and K.K. was moved 

immediately. K.K. testified he did not speak to anyone about Ferguson while he 

was in jail or have contact with Ferguson. He also testified the allegations against 

Ferguson were true, stating Ferguson “touched [his] penis and just violated [him].” 

K.K. confirmed he never “told anyone that Mr. Ferguson did not do those things 

that [he] accused him of.” He denied ever having contact with Ferguson or 

Ferguson’s wife or recanting his allegations to them. 

The actual-innocence question before the court was whether Ferguson 

showed “by clear and convincing evidence that, despite the evidence of guilt 

supporting the conviction, no reasonable fact finder could convict [him] of the 

crimes for which the sentencing court found [him] guilty in light of all the evidence, 

including the newly discovered evidence.” Schmidt, 909 N.W.2d at 797. 

Reviewing all the evidence, the district court answered that question in the 

negative and denied and dismissed Ferguson’s PCR application. Reviewing for 

legal error on appeal, see Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018), we 
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agree and affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1) 

(d) and (e).

AFFIRMED.