IN THE SUPREME COURT OF IOWA

No. 16–0764

Filed June 29, 2018

BRIAN K. ALLISON,

Appellant,

vs.

STATE OF IOWA,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Keokuk County, Myron 

Gookin, Judge.

Petitioner requests further review of a court of appeals’ decision 

affirming the dismissal of his petition for postconviction relief. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT REVERSED AND REMANDED.

Robert E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for 

appellant.

Thomas J. Miller, Attorney General, Kelli Huser and Doug 

Hammerand, Assistant Attorneys General, and John Schroeder, County 

Attorney, for appellee.
2

APPEL, Justice.

In this case, we consider whether the three-year statute of 

limitations in Iowa Code section 822.3 (2015) applies where a 

postconviction-relief (PCR) petitioner files an untimely second petition for 

PCR, alleging counsel for his timely filed first petition for PCR was 

ineffective. The district court held the second petition’s allegation that 

the first postconviction counsel was ineffective did not supply a ground of 

fact to avoid the three-year statutory bar. The court of appeals affirmed, 

relying upon our previous decision in Dible v. State, 557 N.W.2d 881, 

883, 886 (Iowa 1996) (en banc), abrogated in part on other grounds by 

Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003).

A second question raised in the case is whether the district court 

properly dismissed allegations in the amended petition filed in the 

second PCR action. The amended petition alleged newly discovered 

evidence—namely, that the victim and other witnesses recanted their 

testimony. The amended petition further alleged that there had been a 

change in the law regarding admissibility of expert testimony on the 

credibility of child victims. The district court recognized the amended 

petition had been filed, observed that the amended petition did not affect 

the “core basis” of the claim in the case, and denied relief. On appeal, 

the State contended that the petitioner failed to preserve the issues in 

the amended petition because the district court never granted leave to 

amend.

The court of appeals affirmed on two grounds. The court held that 

the claims raised in the amended petition were not preserved. The court 

also found that the allegations in the petition were too vague to provide a 

basis for relief.
3

In order to answer the first question, we revisit the holding in 

Dible. For the reasons expressed below, we vacate the decision of the 

court of appeals and reverse the judgment of the district court. On the 

second question, we find that the claims raised in the amended petition 

were adequately preserved. Rather than rule on the adequacy of the 

amended petition on appeal, we remand the case to the district court for 

further proceedings on the amended petition.

I. Factual and Procedural Background.

A jury convicted Brian Allison of three counts of sexual abuse in 

the third degree in 2011. He appealed his conviction. In his direct 

appeal, Allison argued the district court erred in not granting him a new 

trial based upon the weight of the evidence under Iowa Rule of Criminal

Procedure 2.24(2)(b)(6). Among other things, Allison noted the victim, his 

stepdaughter, initially denied the abuse, behaved normally during the 

time of the alleged abuse, returned to Allison’s home after the abuse 

ended, and gave inconsistent testimony about the abuse.

On July 11, 2012, the court of appeals affirmed Allison’s 

convictions. Although the court held the claim was not preserved, the 

court addressed Allison’s weight-of-the-evidence claim in the context of 

ineffective assistance of counsel. Noting Allison’s attack on the victim’s 

credibility, the court cited expert testimony that it was not unusual for 

children to delay reporting abuse, to return to their abuser after the 

alleged acts, and to forget the details of the abuse. In addition, the court 

remarked that several witnesses testified about inappropriate physical 

contact, specifically Allison and the victim holding hands, the victim 

sitting on Allison’s lap, Allison rubbing the victim’s back, and Allison and 

the victim being together in bed under a blanket with Allison wearing 

boxer shorts and the victim wearing “skimpy shorts and a low-cut shirt.”
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The court concluded that under the circumstances, there was not a 

reasonable probability that the district court would have granted the 

motion for a new trial if the verdict-contrary-to-the-weight-of-theevidence claim had been preserved. As a result, the court of appeals 

affirmed the convictions. Procedendo issued on September 6, 2012.

On March 6, 2013, Allison filed his first petition for PCR. Allison

claimed that his trial counsel was ineffective for failing to investigate the 

bias of one of the jurors. At the hearing on the first PCR action, Allison 

and his son testified they observed a juror appear to wave and 

acknowledge Allison’s ex-wife Tina, the mother of the victim. The district 

court denied relief, noting, among other things, that no evidence was 

offered showing the relationship between the juror and the mother and 

that there was no evidence of prejudice. 

Allison appealed. On appeal, Allison claimed his PCR counsel did 

not properly investigate the claim of juror bias and, like his trial counsel, 

provided him with ineffective assistance. He claimed that if his PCR

counsel had adequately investigated, he could have established there 

was a reasonable probability the result of the trial would have been 

different if the potentially biased juror had been removed. 

On September 10, 2015, the court of appeals affirmed the denial of 

relief. The court explained that in order to support a claim of ineffective 

assistance of counsel, Allison was required to show he suffered prejudice 

from the presence of a biased juror in deliberations. The court noted 

that the PCR record did not establish the identity of the juror; whether 

the juror actually waived at the victim’s mother; the relationship, if any,

between the juror and the victim’s mother; and whether any juror was in 

fact biased. The court of appeals held that Allison was not entitled to 
5

relief based on ineffective assistance of counsel without developing the 

underlying claim of juror bias. 

On November 5, Allison, proceeding pro se, filed a second petition 

for PCR. In his second petition, Allison alleged that his counsel in his 

first PCR action was ineffective for failing to develop adequately the 

record in connection with the juror-bias issue. According to Allison, “[a]

brief investigation could have revealed the name of the juror and her 

familiarity with Tina Allison.” Allison also noted that his counsel in the 

first PCR proceeding could have called Tina as a witness and developed 

the relationship between Tina and the juror.

The district court appointed counsel for Allison. The State filed a 

motion to dismiss. In its motion, the State noted procedendo in Allison’s

direct appeal was issued on September 6, 2012, and Allison’s second 

petition was filed on November 5, 2015. The State asserted that because 

the second petition was filed more than three years after his convictions

became final, it was barred by Iowa Code section 822.3. The State relied 

upon Dible, 557 N.W.2d at 886. In Dible, a 5–4 majority of this court 

held that ineffective assistance of counsel was not a “ground of fact” 

under Iowa Code section 822.3 that would allow a PCR petition to be 

filed more than three years after a conviction became final. Id.

Allison, now represented by counsel, resisted the motion to dismiss 

and filed an amended second petition for PCR. The amended petition 

reprised the claim of ineffective assistance for failure to investigate the 

allegation of juror bias, noting that the claim “extends beyond merely 

ineffective assistance.” According to the motion, “[b]y utterly failing to do

[his] job[],” Allison’s previous PCR counsel “effectively render[ed Allison]

with no post-conviction relief.”
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The amended petition also raised new issues. It asserted there was 

“reason to believe that the victim and other witnesses have recanted their 

testimony thus taking away the factual basis for [Allison’s] conviction.” 

The amended petition also claimed “[t]hat changes in the law and 

particularly the admissibility of expert testimony that tends to invade the 

[province] of the jury and attempting to bolster the credibility of child 

victims, would result in a change of verdict.” An unreported hearing was 

held before the district court.

The district court granted the State’s motion to dismiss. In its 

order, the court recognized that Allison filed his amended petition. The 

court further acknowledged Allison’s claim that his amended petition 

cured the statute-of-limitations bar raised by the State. Yet the court 

concluded, “[T]he amended petition does not change the core basis for 

[Allison’s] claim for post-conviction relief, namely, ineffective assistance 

of counsel by post-conviction counsel and ineffective assistance of postconviction appellate counsel.” The court ruled that such ineffective 

assistance was not a basis for avoiding the three-year statute of 

limitations in Iowa Code section 822.3.

Allison appealed. We transferred the case to the court of appeals. 

The court held that it was not at liberty to overturn Dible and that Dible

was controlling on the issue of ineffective assistance of counsel. The 

court dismissed the remaining claims in Allison’s amended petition on 

the ground that Allison failed to preserve error in the district court. The 

court also concluded that the additional allegations in the amended 

petition were insufficient to survive a motion to dismiss.

II. Standard of Review.

Generally, we review a grant of a motion to dismiss a PCR petition 

for correction of errors at law. Perez v. State, 816 N.W.2d 354, 356 (Iowa 
7

2012). But when a PCR petitioner claims ineffective assistance of PCR 

counsel, our review is de novo. Lado v. State, 804 N.W.2d 248, 250 (Iowa 

2011).

III. Discussion of Iowa Code Section 822.3 and the Right to 

Effective Assistance of Counsel.

A. Introduction. Iowa Code section 822.3 generally provides a 

three-year statute of limitations for PCR claims. Iowa Code § 822.3. 

Section 822.5 provides a right to assistance of PCR counsel, which we 

have held logically implies a right to effective assistance of PCR counsel. 

Lado, 804 N.W.2d at 250; Dunbar v. State, 515 N.W.2d 12, 14–15 (Iowa 

1994). This case raises a difficult question: What happens when a PCR 

petitioner alleges that his criminal trial attorney was ineffective, further 

alleges that his attorney in his first PCR proceeding was ineffective, and 

now seeks to have the underlying claim—which the first PCR attorney 

was allegedly ineffective in presenting—heard on the merits outside the 

three-year time frame of section 822.3?

The easy path would be to simply state a smooth-as-ice conclusion 

that there is no right to counsel in PCR. Yet close analysis reveals 

substantial constitutional and statutory issues. So the question is this: 

Is the smooth-as-ice approach strong enough to withstand weighty 

constitutional and statutory right-to-counsel challenges?

B. Statutory Framework. Chapter 822 generally provides the 

framework for obtaining PCR in Iowa. A PCR proceeding is commenced 

by filing an application with the appropriate district court. Iowa Code 

§ 822.3. If the applicant is unable to pay for the costs and expenses of 

legal representation, such expenses are to be made available to the 

applicant. Id. § 822.5. “All rules and statutes applicable in civil 
8

proceedings including pretrial and discovery procedures are available to 

the parties” in a PCR proceeding. Id. § 822.7.

“All grounds for relief available to an applicant . . . must be raised 

in the applicant’s original, supplemental or amended application.” Id.

§ 822.8. The provision further states,

Any ground finally adjudicated or not raised, or knowingly, 

voluntarily, and intelligently waived in the proceeding that 

resulted in the conviction or sentence . . . may not be the 

basis for a subsequent application, unless the court finds a 

ground for relief asserted which for sufficient reason was not 

asserted or was inadequately raised in the original, 

supplemental, or amended application.

Id.

The generally applicable statute of limitations is provided in Iowa 

Code section 822.3. This section provides, “All . . . applications 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.” Id. § 822.3.

C. Right to Counsel in PCR Proceedings. The United States 

Constitution provides that there is a right to counsel “[i]n all criminal 

prosecutions.” U.S. Const. amend. VI. The right-to-counsel provision of 

the Iowa Constitution has different language than the United States 

Constitution. Article I, section 10 of the Iowa Constitution provides, “In 

all criminal prosecutions, and in cases involving the life, or liberty of an 

individual the accused shall have a right . . . to have the assistance of 

counsel.” Iowa Const. art. I, § 10. Unlike the federal counterpart, the 

Iowa constitutional provision, on its face, extends beyond criminal 

prosecutions to other cases involving life or liberty. See id.

The United States Supreme Court has ruled that the right to 

counsel under the Federal Constitution does not extend to proceedings 
9

for PCR. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 

1993 (1987). In spite of the federal nature of Finley’s ruling and the 

presence of a vigorous dissent by Justice Brennan, PCR applicants in 

two reported cases have simply conceded that Finley means that a 

constitutional right to counsel is categorically not available in PCR

actions and that the same is true under the Iowa Constitution, a 

sweeping concession not challenged or examined by the Iowa court. See 

Wise v. State, 708 N.W.2d 66, 69 (Iowa 2006); Fuhrmann v. State, 433 

N.W.2d 720, 722 (Iowa 1988). Wise and Fuhrmann also do not consider 

the meaning of the “cases involving the life, or liberty” clause of article I, 

section 10 or its potential application to PCR proceedings.

In any event, Iowa Code section 822.5 has been held to amount to 

a statutory right to counsel in PCR proceedings. Patchette v. State, 374

N.W.2d 397, 398 (Iowa 1985) (discussing Iowa Code section 663A.5, now 

section 822.5). Further, we have held the statutory grant of a 

postconviction applicant’s right to counsel necessarily implies that 

counsel be effective. Id. Thus, where the only counsel provided to an 

applicant has been ineffective, a violation of the statute occurs.

D. Positions of the Parties. On appeal, Allison recognizes that 

he must confront the case of Dible. In Dible, a narrow majority of this 

court held that a successive PCR application filed outside the three-year 

statute of limitations in Iowa Code section 822.3 was untimely and that 

ineffective assistance of counsel was not a “ground of fact” sufficient to 

extend the running of the limitations period. 557 N.W.2d at 886.

Allison claims that Dible is a case “with questionable value” as 

precedent and that Dible “needs to be revisited and reexamined.” He 

notes that part of the holding in Dible was abrogated in Harrington, 659 

N.W.2d at 521. Allison further notes that the dissent in Dible questioned 
10

a bright-line approach that produced an unfair result. 557 N.W.2d at

886 (McGiverin, C.J., dissenting). Allison asserts that because his first 

PCR petition was “timely filed [but] was never given a proper opportunity 

to be heard because his counsel failed to perform essential duties,” his 

current PCR petition should not be dismissed.

On the question of dismissal of his additional claims in the second 

PCR proceeding, Allison points out that, generally, the rules of civil 

procedure apply to PCR actions. See Iowa Code § 822.7. Under the 

rules of civil procedure, Allison argues, he is entitled to a hearing to 

attempt to prove the allegations in his amended petition. Allison asserts 

the new grounds alleged in his amended petition are not time-barred 

under Iowa Code section 822.3.

The State responds that Dible is good law and controls the 

outcome of the ineffective-assistance-of-counsel claim in this case. 

According to the State, Dible remains good law on the point that 

ineffective assistance of postconviction counsel is not a “ground of fact” 

to avoid the three-year statue of limitations in section 822.3. See 557 

N.W.2d at 886 (majority opinion). The State stresses that the rationale 

underlying Dible remains strong. The purpose of the statute of 

limitations in section 822.3 is to reduce stale claims and cause “a sense 

of repose in the criminal justice system.” Id. The State asserts that 

Allison did, in fact, raise the juror-bias claim within the three-year 

limitations period and did not prevail. The fact that he alleges he lost the 

juror-bias challenge in his first PCR proceeding because of his PCR 

counsel’s ineffective assistance is of no moment to the State.

On the new issues raised in Allison’s amended second petition, the 

State argues that error was not preserved because the district court 

never issued an order allowing amendment. Even if error was preserved, 
11

the State asserts, the claims were vague allegations insufficient to avoid 

dismissal. The State indicates that with respect to the claim of newly 

discovered evidence, the petition does not identify which witnesses 

recanted or identify when the newly discovered evidence was uncovered. 

On the issue of new law, the State claims that Allison has not showed 

that any change in the law occurred in the past three years, as required 

for the exception to the statute of limitations. Allison did not identify any 

new statute or change in the caselaw or a particular witness or testimony 

that would be affected by the allegedly new law. The State emphasizes 

that because the postconviction hearing in this case was not recorded, 

the court should presume that no additional evidence beyond the 

pleadings was provided to the district court.

E. The Winding and Nuanced Road of United States Supreme 

Court Right-to-Counsel Cases Involving PCR.

1. Introduction. Allison does not expressly raise a federal or state 

constitutional challenge to the dismissal of his second application for 

PCR. Yet constitutional considerations must inform our approach to the 

proper interpretation of Iowa Code section 822.3. See, e.g., State v. Iowa 

Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014) (“The doctrine of constitutional 

avoidance suggests the proper course in the construction of a statute 

may be to steer clear of ‘constitutional shoals’ when possible.”); Simmons 

v. State Pub. Def., 791 N.W.2d 69, 74 (Iowa 2010) (“If fairly possible, a 

statute will be construed to avoid doubt as to constitutionality.”). The 

notion that a statute should be interpreted to avoid doubt as to its 

constitutionality is a principle that applies even when the parties do not 

explicitly claim a right to relief based on constitutional provisions. Roth 

v. Evangelical Lutheran Good Samaritan Soc’y, 886 N.W.2d 601, 611

(Iowa 2016) (interpreting statutory language guided by principle that
12

statutes should be construed to avoid constitutional questions in case 

involving only statutory claims); In re Guardianship of Kennedy, 845 

N.W.2d 707, 711–14 (Iowa 2014) (interpreting a statute to avoid doubts 

as to constitutionality when constitutional argument not raised).

In this statutory interpretation case, it is important to understand 

the constitutional context in which this case arises. For example, did 

Allison have a constitutional or statutory right to counsel in his first PCR

action? If so, is he constitutionally or statutorily entitled to a remedy for 

ineffective assistance of counsel, which is a constitutional deficiency 

ordinarily imputed to the state? If so, would application of the statute of 

limitations in Iowa Code section 822.3 to his second PCR action 

effectively prevent him from obtaining a remedy for the constitutional or 

statutorily established right-to-counsel violation? In order to understand 

the constitutional implications of our statutory interpretation of section 

822.3 in this case, we canvass equal protection, due process, and rightto-counsel cases. As will be seen below, the constitutional terrain has 

been fragmented and highly contested.

2. Navigating the constitutional shoals: early federal caselaw

related to right to counsel, equal protection, and due process in criminal 

cases. Decades ago, the United States Supreme Court developed the 

right of a criminal defendant to counsel in a series of landmark cases. 

The fountainhead case is, of course, Powell v. Alabama, 287 U.S. 45, 53 

S. Ct. 55 (1932). In Powell, seven black men charged with the rape of 

two white women were convicted and given death sentences when the 

state failed to provide counsel until the morning of trial. Id. at 49–51, 53 

S. Ct. at 57. The Supreme Court held that the defendants were entitled 

to the meaningful assistance of counsel in their defense in a state 

murder prosecution. Id. at 73, 53 S. Ct. at 65. The Supreme Court in 
13

Powell utilized many themes, including the notion that “[e]ven the 

intelligent and educated layman . . . requires the guiding hand of counsel 

at every step in the proceedings against him.” Id. at 69, 53 S. Ct. at 64.

Powell was only the beginning. Although limited to the facts of the 

case, its principles were potentially protean. Nonetheless, expansion of 

the right to counsel beyond Powell proved gradual. For instance, while in 

Johnson v. Zerbst, the Supreme Court extended the right to counsel to 

federal prosecutions for felonies generally, 304 U.S. 458, 463, 469, 58 

S. Ct. 1019, 1022–23, 1025 (1938), in Betts v. Brady, the Court declined 

to hold categorically that criminal defendants were entitled to counsel,

316 U.S. 455, 461–62, 62 S. Ct. 1252, 1256 (1942), overruled by Gideon 

v. Wainwright, 372 U.S. 335, 345, 83 S. Ct. 792, 797 (1963).

While the Supreme Court moved cautiously with respect to 

expansion of the Sixth Amendment right to counsel, other constitutional 

theories were available, in effect, to extend the right to counsel in 

criminal proceedings. In Griffin v. Illinois, the Supreme Court considered 

whether a criminal defendant could be required to pay for transcripts in 

order to appeal a criminal conviction. 351 U.S. 12, 13, 76 S. Ct. 585, 

588 (1956). The Griffin Court emphasized that the state is not required 

by the United States Constitution to “provide appellate courts or a right 

to appellate review at all.” Id. at 18, 76 S. Ct. at 590. But, the Court 

held, if the state in its discretion established a right of appeal, it could 

not administer its appellate process in a discriminatory manner and still 

be consistent with the Due Process and Equal Protection Clauses of the 

Fourteenth Amendment. Id. at 19, 76 S. Ct. at 591. Griffin introduced 

the notion that access to the courts cannot be provided on a 

discriminatory basis based on wealth, a notion which was soon applied 

in the context of the right of an indigent defendant to appointed counsel.
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In 1963, the Supreme Court decided two seminal right-to-counsel 

cases that built on and extended the reach of prior precedents. In 

Gideon, the Court, in applying the Sixth Amendment right to counsel to 

the states pursuant to the Due Process Clause of the Fourteenth 

Amendment, departed from the notion that right to counsel was afforded 

on a case-by-case basis. 372 U.S. at 343–44, 83 S. Ct. at 796. Instead, 

the Gideon Court established the categorical rule that a criminal 

defendant facing serious crimes was entitled to the assistance of counsel 

in all state court cases. Id. at 345, 83 S. Ct. at 797.

In a companion case, Douglas v. California, the Supreme Court 

considered a challenge to a California rule of criminal procedure wherein

a court would engage in an ex parte examination to determine whether 

an appeal merited the appointment of counsel. 372 U.S. 353, 354–55,

83 S. Ct. 814, 815 (1963). The Douglas Court held that denying an 

indigent defendant appointed counsel on a first appeal as a matter of 

right infringed upon the “equality demanded by the Fourteenth 

Amendment.” Id. at 357–58, 83 S. Ct. at 816–17. The Court reasoned 

the California scheme, which required an indigent defendant to run a 

procedural gauntlet in order to obtain appointed counsel, did not 

comport with fair procedure. Id. at 357, 83 S. Ct. at 816. According to 

the Douglas Court, a rich man could require the court to listen to a 

lawyer in making its decision on the merits while a poor person could not

do so. Id. at 357, 83 S. Ct. at 817. As noted in Douglas, where the 

record is unclear or errors are hidden, the right of appeal for an indigent 

defendant thus becomes “a meaningless ritual” while the rich defendant

has “a meaningful appeal.” Id. at 358, 83 S. Ct. at 817. Although 

utilizing the theories of due process and equal protection, the Douglas

Court, like in Powell and Gideon, emphasized the importance of the 
15

assistance of counsel and minimized the ability of indigent defendants to 

proceed effectively on a pro se basis. Id. at 355–57, 83 S. Ct. at 815–16.

Yet Gideon and Douglas’s emphases on the need for trained 

counsel and the limited abilities of pro se defendants did not carry the 

day nearly a decade later in Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437

(1974). In Ross, the Supreme Court considered whether there was a 

right to appointed counsel for discretionary state appeals or certiorari 

petitions to the Supreme Court. Id. at 602–03, 94 S. Ct. at 2440. By a 

6–3 majority, the Court concluded there was no right to appointed

counsel for discretionary appeals. Id. at 618–19, 94 S. Ct. at 2447–48. 

The Ross majority stated that an indigent defendant could file an 

application for discretionary review pro se by simply following the 

briefing prepared by counsel in the prior appeal of right. Id. at 615, 94 

S. Ct. at 2446. Nevertheless, the majority qualified its ruling by 

prohibiting the state from adopting procedures that leave indigent 

defendants “ ‘entirely cut off from any appeal at all’ by virtue of . . . 

indigency.” Id. at 612, 94 S. Ct. at 2445 (quoting Lane v. Brown, 372 

U.S. 477, 481, 83 S. Ct. 768, 771 (1963)). The question, according to the 

Ross majority, was “not one of absolutes but one of degrees.” Id.

The Ross dissenters, led by Justice Douglas, emphasized that an 

application for discretionary appeal, such as certiorari before the 

Supreme Court, has technical requirements that are hazards for the 

untrained. Id. at 620–21, 94 S. Ct. at 2448–49 (Douglas, J., dissenting). 

Further, the dissenters noted the factors that a court may deem relevant 

for discretionary review are not within the normal knowledge of an 

indigent appellant. Id. at 621, 94 S. Ct. at 2449. The Ross dissenters 

simply did not buy the notion that imprisoned indigent defendants are in 

a position to meaningfully develop applications for discretionary review 
16

by filing, without the assistance of counsel, a cut-and-paste job based on 

prior briefing. See id. at 620–21, 94 S. Ct. 2448–49.

Instead of extending the right to counsel to habeas proceedings 

generally, the Supreme Court held in Bounds v. Smith that in order to 

provide inmates without counsel with access to the courts, state 

authorities are required to provide inmates with adequate law libraries or 

adequate assistance from persons trained in law. 430 U.S. 817, 830–32, 

97 S. Ct. 1491, 1499–500 (1977). The constitutional right of access to 

the courts requires providing state prisoners with some form of 

assistance but not necessarily a lawyer. Id. at 831–32, 97 S. Ct. at 

1499–500.

3. Finley and Murray: developing the contours of right to counsel in 

PCR. The first recent United States Supreme Court case specifically 

considering the question of whether a defendant has a right to counsel in 

PCR proceedings is Finley. In Finley, an indigent petitioner, who lost her 

direct appeal, filed a petition for PCR raising “the same issues that the 

Supreme Court of Pennsylvania had rejected on the merits” on direct 

appeal. 481 U.S. at 553, 107 S. Ct. at 1992. The trial court had denied 

relief, but the Pennsylvania Supreme Court reversed, holding the 

petitioner was entitled to appointed counsel under state law. Id. at 553, 

107 S. Ct. at 1992. The trial court then appointed trial counsel, but trial 

counsel moved to withdraw from the case without complying with the 

procedures in Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 

1400 (1967). Finley, 481 U.S. at 553–54, 107 S. Ct. at 1992–93. The 

trial court approved appointed counsel’s motion to withdraw without 

application of Anders’s procedures and dismissed the petition for PCR. 

Id. at 553, 107 S. Ct. at 1992.
17

The petitioner obtained new counsel, who appealed the dismissal. 

Id. On appeal, the Pennsylvania Superior Court found counsel’s 

withdrawal without application of Anders’s procedures was 

unconstitutional. Id. at 553–54, 107 S. Ct. at 1992. The Pennsylvania 

Superior Court remanded the case to the trial court for further 

proceedings. Id. at 554, 107 S. Ct. at 1992.

By a 6–3 majority, the Finley Court stated, “We have never held 

that prisoners have a constitutional right to counsel when mounting 

collateral attacks upon their convictions, and we decline to so hold 

today.” Id. at 555, 107 S. Ct. at 1993 (citation omitted). The Court 

emphasized the procedural posture of the case, noting “[o]ur cases 

establish that the right to appointed counsel extends to the first appeal 

of right, and no further.” Id.

The Finley majority rejected claims that the Griffin–Douglas type of

equal protection and due process required the appointment of counsel in 

the case. Id. at 554–55, 107 S. Ct. at 1993. On the due process 

argument, the Finley Court emphasized that the prisoner had, in fact, 

been provided an opportunity to assert the presumption of innocence 

and attack the conviction on direct appeal. Id. at 555, 107 S. Ct. at 

1993. Accordingly, due process did not require appointment of counsel 

when used “as a sword to upset the prior determination of guilt.” Id. at 

555–56, 107 S. Ct. at 1993 (quoting Ross, 417 U.S. at 610–11, 107 S. Ct. 

at 2444 (majority opinion)).

With respect to equal protection, the Finley majority emphasized 

that PCR is “even further removed from the criminal trial than is 

discretionary direct review,” for which counsel is not required under 

federal law. Id. at 556–57, 107 S. Ct. at 1994. The Court stressed that 

PCR “is not part of the criminal proceeding itself, and it is in fact 
18

considered to be civil in nature.” Id. at 557, 107 S. Ct. at 1994; see Fay 

v. Noia, 372 U.S. 391, 423–24, 83 S. Ct. 822, 841 (1963), overruled in 

part on other grounds by Wainwright v. Sykes, 433 U.S. 72, 85, 97 S. Ct. 

2497, 2505 (1977). The Finley Court emphasized the ability of prisoners 

to proceed pro se in PCR, noting that defendants who have had the 

benefit of a trial and direct appeal had access to the trial record and 

appellate briefs and opinions. 481 U.S. at 557, 107 S. Ct. at 1994.

In a dissent, Justice Brennan emphasized that the applicant in the 

case had a mandatory, state-provided right to appointed counsel and, as 

a result, a right to effective assistance of counsel. Id. at 562–63, 107 

S. Ct. at 1997 (Brennan, J., dissenting). Justice Brennan argued the 

right to effective assistance, once granted, cannot be “withdrawn in a 

manner inconsistent with equal protection and due process.” Id. at 567, 

107 S. Ct. at 1999. According to Justice Brennan, it would be 

fundamentally unfair to deny indigents an adequate opportunity to 

present their claims fairly in PCR proceedings. Id. at 568, 107 S. Ct. at 

2000. Further, Justice Brennan asserted that equal protection requires 

appointed counsel to comply with Anders’s requirements. Id. at 567–68, 

107 S. Ct. at 2000.

Obviously, the Finley case produced controversy among the 

justices. There were, however, clear limitations in the Finley majority 

opinion. In the first paragraph of the opinion, the Finley majority 

emphasized that the prisoner “raised the same issues that the Supreme 

Court of Pennsylvania had rejected on the merits.” Id. at 553, 107 S. Ct. 

at 1992 (majority opinion). And the Finley majority later noted that “in 

this case,” the United States Constitution does not command a different 

result. Id. at 556, 107 S. Ct. at 1994.
19

These passages make clear that the Finley majority did not 

determine whether the Federal Constitution requires appointment of 

counsel in PCR proceedings where the issues presented were not decided 

on the merits on direct appeal. Indeed, the entire rationale of Finley is 

based on the notion that the indigent defendant had her claims heard on 

the merits in at least one appellate forum, thereby shifting the case from 

one involving an appeal of a conviction to one attacking a conviction 

already examined once and found valid.

The next United States Supreme Court case in the procession of 

right-to-counsel cases is Murray v. Giarratano, 492 U.S. 1, 109 S. Ct. 

2765 (1989). In Murray, Virginia death row inmates brought a 42 U.S.C. 

§ 1983 action against various state officials, alleging that the state’s 

failure to provide them with appointed counsel in PCR proceedings 

denied their constitutional right of access to the courts. Id. at 4, 109 

S. Ct. at 2767 (plurality opinion). The federal district court held the 

inmates were entitled to relief. Id. at 6, 109 S. Ct. at 2768. The district 

court cited three special considerations supporting this result, namely, 

the limited amount of time petitioners had to prepare petitions, the 

complexity of death penalty cases, and the impact that the shadow of 

impending death would have on their ability to do legal work. Id. at 4–5, 

109 S. Ct. at 2767.

The district court also rejected Virginia’s assertions that it had

provided assistance to death row inmates by other means. Id. at 5, 109 

S. Ct. at 2768. The district court found Virginia’s approach of providing 

“unit attorneys” in various penal institutions, who did not actually 

represent inmates, was “too limited.” Id. While Virginia courts had 

discretion to appoint counsel at a later stage of PCR proceedings for 
20

death row inmates, the process of discretionary appointment did not 

provide “continuous assistance of counsel.” Id. at 6, 109 S. Ct. at 2768.

The United States Court of Appeals for the Fourth Circuit, sitting 

en banc, affirmed the district court. Id. The Fourth Circuit held the 

district court’s special considerations amounted to findings of fact on the 

question of death-row inmates’ access to the courts, a question not 

considered in Finley. Id. at 6–7, 109 S. Ct. at 2768. The Fourth Circuit 

cited Bounds, 430 U.S. 817, 97 S. Ct. 1491, where the Supreme Court 

held a prisoner’s right of access to the courts requires the state to 

furnish a prison library in order to prepare petitions for judicial relief. 

Murray, 492 U.S. at 7, 109 S. Ct. at 2768.

The Supreme Court could not muster a majority opinion in Murray.

The plurality opinion, written by Chief Justice Rehnquist, generally 

found that the approach in Finley was dispositive. Id. at 10, 109 S. Ct. 

at 2770. It declined to hold that a different approach should apply to 

death-penalty cases. Id. The plurality rejected Bounds as authority for 

limiting Finley. Id. at 11, 109 S. Ct. at 2771.

Justice O’Connor filed a brief concurring opinion. Id. at 13, 109 

S. Ct. at 2772 (O’Connor, J., concurring). She emphasized that 

postconviction proceedings are “civil action[s] designed to overturn a 

presumptively valid criminal judgment.” Id. She also noted that the 

principles of the plurality were not inconsistent with Bounds because

states have broad discretion in providing inmates with access to the 

courts. Id.

Justice Kennedy filed an opinion concurring in the judgment. Id.

at 14, 109 S. Ct. at 2772 (Kennedy, J., concurring). He recognized that 

the complexity of death-penalty jurisprudence made it unlikely that 

defendants would “be able to file successful petitions for collateral relief 
21

without the assistance of persons learned in the law.” Id. He noted, 

however, that on the record before the court, no prisoner on death row

had been unable to obtain counsel in postconviction proceedings and 

that Virginia’s prison system provided institutional counsel to help 

inmates prepare petitions for PCR. Id. at 14–15, 109 S. Ct. at 2773. 

Under the facts presented, Kennedy found no constitutional violation. 

Id. at 15, 209 S. Ct. at 2773.

Justice Stevens, joined by Justices Brennan, Marshall, and 

Blackmun, dissented. Id. (Stevens, J., dissenting). The dissenters 

emphasized that the unique features of the death penalty require 

additional protections. Id. at 20–22, 109 S. Ct. at 2775–76. The 

dissenters noted that in federal habeas cases, capital petitioners were 

successful in seeking relief in sixty to seventy percent of cases. Id. at 23–

24, 109 S. Ct. at 2778. As a result, according to the dissenters, 

“meaningful appellate review” in capital cases “extends beyond the direct 

appellate process.” Id. at 24, 109 S. Ct. at 2778.

The Murray dissenters further emphasized that some claims, 

including ineffective-assistance-of-counsel claims, usually cannot be 

considered on direct appeal. Id. The dissenters noted that where trial 

counsel fails to raise a variety of potentially meritorious issues, such 

claims are precluded on direct review by Virginia law. Id. As a result of 

the inability to raise potentially meritorious claims on appeal, the PCR

proceedings are “key to meaningful appellate review of capital cases.” Id.

at 25–26, 109 S. Ct. at 2778–79.

Finally, the Murray dissenters noted that the plight of a deathpenalty inmate in Virginia makes it unlikely that the inmate could 

prepare his or her own pleadings. Id. at 27, 109 S. Ct. at 2779–80. In 

Virginia, an execution may be carried out at any time following thirty 
22

days after sentencing. Id. at 27 n.20, 109 S. Ct. at 2780 n.20. Further, 

capital litigation is complex, and the inmate must also be preparing him

or herself and his or her family for the impending execution. Id. at 28, 

109 S. Ct. at 2780. Under the circumstances, the dissenters believed 

meaningful access to the courts requires the assistance of counsel in 

PCR proceedings. Id. at 29, 109 S. Ct. at 2781.

4. Coleman and its progeny: further exploration. The United States 

Supreme Court returned to the question of whether a criminal defendant 

is entitled to counsel in PCR proceedings in another case that split the 

members of the Court, Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 

2546 (1991), superseded by statute on other grounds, 28 U.S.C. § 2254 

(2000). In Coleman, the defendant was convicted of murder and rape 

and sentenced to death. Id. at 726–27, 111 S. Ct. at 2552. His 

convictions were affirmed on direct appeal. Id. at 727, 111 S. Ct. at 

2552. Coleman then filed a petition for a writ of habeas corpus in state 

court, alleging “numerous federal constitutional claims that he had not 

raised on direct appeal.” Id. The state court ruled against him on all 

claims after a hearing. Id. Coleman’s lawyer, however, did not file a 

notice of appeal until thirty-three days after the entry of judgment. Id. at 

727, 111 S. Ct. at 2552–53. As a result, the appeal was untimely and 

dismissed by the Virginia Supreme Court. Id. at 727–28, 111 S. Ct. at 

2553. Coleman then filed a petition for habeas corpus in federal court. 

Id. at 728, 111 S. Ct. at 2553.

In the federal district court, Coleman raised eleven federal 

constitutional claims. Id. Four of the claims were the same as on direct 

appeal before the Virginia Supreme Court, and seven were presented for 

the first time in the state habeas proceeding. Id. The Fourth Circuit 

affirmed. Id. The Fourth Circuit found Coleman defaulted on his appeal 
23

of the seven claims raised in the state habeas proceeding and, as a result 

of his procedural default, federal habeas relief was not available. Id. at 

728–29, 111 S. Ct. at 2553.

The United States Supreme Court affirmed in a divided opinion. 

Id. at 757, 111 S. Ct. at 2568. Justice O’Connor’s majority opinion 

emphasized that a determination based upon independent and adequate 

state grounds generally bars federal habeas corpus review of the 

underlying federal constitutional issues. Id. at 729, 111 S. Ct. at 2553. 

The majority found it clear that the Virginia Supreme Court relied upon 

Coleman’s procedural default in rejecting his appeal. Id. at 744, 111 

S. Ct. at 2561. As a result, the majority concluded Coleman was not 

entitled to be heard on his defaulted claims in a federal habeas 

proceeding. See id. at 750, 111 S. Ct. at 2565.

The majority rejected Coleman’s effort to avoid the general rule by 

claiming that his counsel was ineffective in failing to file a timely appeal. 

Id. at 757, 111 S. Ct. at 2568. The majority noted that under Finley,

Coleman had no right to effective assistance of counsel in postconviction 

proceedings. Id. at 752, 111 S. Ct. at 2566. In the absence of a 

constitutional violation, according to the Coleman majority, the petitioner 

must “bear the risk of attorney error.” Id. at 752–53, 111 S. Ct. at 2566

(quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 

(1986)).

Importantly, the majority expressly reserved the question of 

whether an applicant is entitled to assistance of counsel under the Sixth 

Amendment in PCR proceedings where the applicant can raise the claim 

in the first instance only in PCR and, as a result, PCR functions as the 

first appeal of right. Id. at 755, 111 S. Ct. at 2567. The Coleman

majority recognized the problem emphasized by the dissenters in Murray, 
24

492 U.S. at 24, 109 S. Ct. at 2778. In Coleman’s case, however, the 

majority noted that there was no claim that Coleman’s counsel was 

ineffective before the trial court in the postconviction action. Coleman, 

501 U.S. at 755, 111 S. Ct. at 2567–68.

Justice Blackmun, along with Justices Marshall and Stevens, 

dissented. Id. at 758, 111 S. Ct. at 2569 (Blackmun, J., dissenting). The 

bulk of the dissent attacked the majority’s approach to independent state 

grounds. Id. at 759–71, 111 S. Ct. at 2569–76. But the dissent also 

attacked the conclusion that the petitioner was not entitled to relief 

based on ineffective assistance of counsel. Id. at 771–74, 111 S. Ct. at 

2576–78. The dissent asserted that no federal court rule “can deter 

gross incompetence.” Id. at 773, 111 S. Ct. at 2577. According to the 

dissent, 

if a State desires to remove from the process of direct 

appellate review a claim or category of claims, the 

Fourteenth Amendment binds the State to ensure that the 

defendant has effective assistance of counsel for the entirety 

of the procedure where the removed claims may be raised. 

Id. at 773–74, 111 S. Ct. at 2577.

The express reservation of the Coleman majority with respect to 

claims presented for the first time in PCR and where counsel is allegedly 

ineffective before the PCR trial court has not always been recognized. 

Indeed, it has mostly been ignored. For instance, in Mackall v. Angelone, 

the Fourth Circuit cited Coleman for the broad and unqualified 

proposition that the Sixth Amendment does not require counsel in PCR

proceedings. 131 F.3d 442, 448 (4th Cir. 1997) (en banc).

The dissent in Mackall, however, recognized the question reserved 

in Coleman and stressed that a person charged with a serious crime has

the right to counsel at trial, Gideon, 372 U.S. at 336–45, 83 S. Ct. at 
25

792–97, that right extends to a first appeal, Douglas, 372 U.S. at 355–58, 

83 S. Ct. at 815–17, and constitutionally required counsel must be 

competent, Strickland v. Washington, 466 U.S. 668, 684–87, 104 S. Ct. 

2052, 2062–64 (1984). Mackall, 131 F.3d at 451 (Butzner, J., 

dissenting). The Mackall dissent asserted that while the Supreme Court, 

generally, has ruled there is no right to counsel in PCR, there must be an 

exception to the general rule where PCR proceedings are “in reality a 

direct attack on the competency of [the petitioner’s] trial and appellate 

counsel in the only forum available to him—a habeas corpus 

proceeding.” Id. at 452. According to the Mackall dissent, “for this 

limited purpose,” a criminal defendant is “entitled to the assistance of 

competent counsel” in PCR proceedings. Id. See generally Emily Garcia 

Uhrig, A Case for a Constitutional Right to Counsel in Habeas Corpus, 60 

Hastings L.J. 541, 588–89 (2009) [hereinafter Uhrig, Constitutional Right 

to Counsel].

Similarly, a federal appeals court considered the question of 

whether a defendant is entitled to counsel in PCR in Jeffers v. Lewis, 68 

F.3d 295 (9th Cir.), vacated, 68 F.3d 299 (9th Cir. 1995) (en banc). The

three-judge panel that first considered the issue emphasized that

granting relief to Jeffers would not start an endless chain of 

permissible habeas relief . . . . There is a right to one, 

conflict-free set of counsel to pursue the claim that prior

counsel were ineffective at trial, sentencing and on direct 

appeal.

Id. at 297. The Ninth Circuit, sitting en banc, however, reversed the 

panel over the dissent of four judges. Jeffers, 68 F.3d at 300–01. See

generally Uhrig, Constitutional Right to Counsel, 60 Hastings L.J. at 591–

94.
26

The United States Supreme Court returned to the question of 

whether an indigent petitioner is entitled to counsel in PCR proceedings 

in Martinez v. Ryan, 566 U.S. 1, 5, 132 S. Ct. 1309, 1313 (2012). In 

Martinez, the petitioner was convicted of two counts of sexual conduct 

with a minor. Id. Arizona law prohibited raising ineffective-assistanceof-trial-counsel claims on direct appeal, and no such claims were made. 

Id. at 6, 132 S. Ct. at 1314. Oddly, while Martinez’s direct appeal was 

pending, his lawyer filed a “Notice of Post-Conviction Relief” with the trial 

court and later filed a statement that she was unable to identify any 

colorable claim for PCR. Id. The trial court dismissed the PCR action,

and the Arizona Court of Appeals affirmed. Id.

Martinez’s new counsel filed a second PCR petition on his behalf in 

the state trial court. Id. at 6–7, 132 S. Ct. at 1314. In his second PCR

petition, Martinez alleged that his trial counsel was ineffective for failing 

to challenge expert testimony explaining the victim’s recantation and to 

present a rebuttal expert. Id. at 7, 132 S. Ct. at 1314. Martinez further 

alleged that counsel was ineffective for failing to provide an exculpatory 

explanation for the presence of his DNA on the victim’s nightgown. Id. 

The trial court dismissed the petition as procedurally barred under state 

law because of the failure to raise the issues in the first PCR petition. Id.

The Arizona Court of Appeals again affirmed. Id.

Martinez then filed a federal habeas corpus action, again raising 

his claims of ineffective assistance of trial counsel. Id. The district 

court, citing Coleman, 501 U.S. at 753–54, 111 S. Ct. at 2567 (majority 

opinion), denied the petition, concluding the procedural default 

amounted to an independent state ground to deny relief. Martinez, 566 

U.S. at 7–8, 132 S. Ct at 1315. The Ninth Circuit affirmed. Id. at 8, 132 

S. Ct. at 1315.
27

In an opinion by Justice Kennedy, the Supreme Court reversed the 

Ninth Circuit. Id. at 18, 132 S. Ct. at 1321. The Martinez Court

recognized that Coleman left open whether there is a right to counsel in 

“collateral proceedings which provide the first opportunity to raise a 

claim of ineffective assistance at trial.” Id. at 8, 132 S. Ct. at 1315. It

described such collateral proceedings as “initial-review collateral 

proceedings.” Id. The Court recognized there was a constitutional 

question regarding the right to counsel in such proceedings but stated 

that the case could be decided on a narrower ground, namely, whether 

the attorney’s ignorance or inadvertence in a PCR proceeding might 

excuse a procedural default. Id. at 9, 132 S. Ct. at 1315.

In considering this issue, the Court, seizing on the reasoning of the 

dissenters in Finley, Murray, and Coleman, noted that when an attorney 

errs in an initial-review collateral proceeding, it is unlikely that the state 

court will hear the petitioner’s claim at any level. Id. at 11, 132 S. Ct. at 

1317. The Court explained that the initial-review collateral proceeding 

“is in many ways the equivalent of a prisoner’s direct appeal as to the 

ineffective-assistance claim.” Id.

The Martinez Court emphasized the importance of effective 

assistance of counsel in an initial-review collateral proceeding. Id. at 11–

12, 132 S. Ct. at 1317. It cited Gideon for the “obvious truth” that an 

indigent person “cannot be assured of a fair trial unless counsel is 

provided.” Id. at 12, 132 S. Ct. at 1317 (quoting Gideon, 372 U.S. at 344, 

83 S. Ct. at 796). But rather than declaring a constitutional right to 

effective assistance of counsel in an initial-review collateral proceeding, 

the Court simply held the procedural default that resulted from the 

ineffective assistance could be waived “as an equitable matter,” thus 
28

allowing Martinez’s substantive claim to be heard in federal court. Id. at 

14, 132 S. Ct. at 1318.

The Martinez Court declined to hold there is a right to counsel in 

initial-review habeas proceedings on federalism grounds. Id. at 16, 132 

S. Ct. at 1319. The Court was concerned that a constitutional approach 

would impose the same system of appointing counsel in every state and 

would not permit states to experiment with a variety of systems for 

appointment of counsel. Id. at 16, 132 S. Ct. at 1319–20. Once again, 

federalism concerns generated a reluctance on the part of the United 

States Supreme Court to impose federal constitutional norms on the 

states. See id.

Justice Scalia, joined by Justice Thomas, dissented. Id. at 18, 132 

S. Ct. at 1321 (Scalia, J., dissenting). He declared that while the 

majority was seeking to advance the values of federalism by avoiding a 

constitutional holding, it achieved the same result it sought to avoid, 

namely, a rule requiring federal courts to review claims from state courts 

where the otherwise independent and adequate ground for dismissal of 

the claim—a state procedural default—was caused by ineffective 

assistance of counsel. Id. at 19, 132 S. Ct. at 1321.1

All of these cases demonstrate a number of propositions. They

establish multiple theories for the right to counsel that indigent 

petitioners may use to obtain counsel to challenge criminal convictions. 

Nonetheless, the United States Supreme Court has been fragmented and 

 1In Trevino v. Thaler, the Supreme Court held that the approach in Martinez

applies not only when the state does not necessarily bar all ineffective-assistance-ofcounsel claims from being heard on direct appeal, but also where it is highly likely that, 

in a typical case, such a claim cannot be heard on direct appeal. 569 U.S. 413, 429, 

133 S. Ct. 1911, 1921 (2013).
29

sharply divided regarding the constitutional questions surrounding the 

provision of counsel to indigent petitioners in postconviction proceedings.

Recent United States Supreme Court majorities are less than 

enthusiastic about a general expansion of the right to counsel in PCR

contexts. See, e.g., id. at 9, 16, 132 S. Ct. at 1315, 1319–20 (majority 

opinion). Some of the reasoning of these recent, more restrictive cases 

emphasizes the difference between a direct appeal in a criminal case and 

a PCR action, which is civil in nature. See, e.g., id. at 14, 132 S. Ct. at 

1318. These restrictive cases tend to emphasize the ability of indigent 

defendants to file their own legal papers. See, e.g., Ross, 417 U.S. at 

615, 94 S. Ct. at 446 (majority opinion). And the restrictive holdings of 

the United States Supreme Court are motivated, at least in part, by 

concepts of federalism and the resulting reluctance of the United States 

Supreme Court to declare national rules under the aegis of the United 

States Constitution. See, e.g., Martinez, 566 U.S. at 16, 132 S. Ct. at 

1319–20.

Yet the Supreme Court has struggled with the very situation 

presented in this case—an indigent defendant claims that trial counsel 

provided ineffective assistance, his claim is not capable of being 

addressed on direct appeal, and in the first forum to hear the ineffectiveassistance claim, his counsel was, once again, ineffective. Where a 

habeas proceeding is the first forum to hear a challenge to a criminal 

conviction, the defendant is functionally in the same situation as in 

Douglas, where the Supreme Court held that appointed counsel must be 

provided as a matter of due process and equal protection. 372 U.S. at 

357–58, 83 S. Ct. at 817.

In Martinez, although the Court stopped short of announcing a 

constitutional rule, the Court invoked equitable principles to excuse the 
30

procedural defaults that occurred in the state court proceedings and 

ordinarily would have barred the defendant from a federal habeas action. 

566 U.S. at 16, 132 S. Ct. at 1319. Martinez has generated energetic 

debate, with commentators discussing whether the holding will be 

limited to its facts or will lead to a more general recognition of the right to 

counsel in PCR. See, e.g., Ty Alper, Toward a Right to Litigate Ineffective 

Assistance of Counsel, 70 Wash. & Lee L. Rev. 839, 868–80 (2013); Allen 

L. Bohnert, Wrestling with Equity: Identifiable Trends as the Federal 

Courts Grapple with the Practical Significance of Martinez v. Ryan & 

Trevino v. Thaler, 43 Hofstra L. Rev. 945, 975 (2015); Emily Garcia 

Uhrig, Why Only Gideon?: Martinez v. Ryan and the “Equitable” Right to 

Counsel in Habeas Corpus, 80 Mo. L. Rev. 771, 808 (2015).

In particular, one commentator has noted the potential interaction 

between Martinez and the federal statute of limitations for habeas 

proceedings. Justin F. Marceau, Is Guilt Dispositive? Federal Habeas 

After Martinez, 55 Wm. & Mary L. Rev. 2071, 2167–68 (2014). It has 

been suggested that “[i]f Martinez opens the door to vindicating otherwise 

unavailable constitutional claims, the same equitable concerns that 

undergird the rule ought to prevent the federal statute of limitations from 

closing off such relief.” Id.; see McQuiggin v. Perkins, 569 U.S. 383, 391, 

133 S. Ct. 1924, 1931 (2013) (discussing equitable tolling); Holland v.

Florida, 560 U.S. 631, 650, 130 S. Ct. 2549, 2563 (2010) (same).

F. State Cases Dealing with the Right to Counsel in PCR.

There are two state court cases of interest dealing with the right to 

counsel in PCR proceedings.

The first case is the pre-Coleman case of Honore v. Washington 

State Board of Prison Terms & Paroles, 466 P.2d 485 (Wash. 1970) (en 

banc). In Honore, the Washington Supreme Court considered whether an 
31

indigent is entitled to the assistance of appointed counsel when 

appealing the dismissal of his action for PCR. Id. at 487–88.

The Washington court began its discussion by emphasizing the 

important role of habeas corpus proceedings, starting with the Magna 

Carta and extending into present day state and federal constitutional 

provisions prohibiting suspension of the writ except in extreme 

circumstances. Id. The Honore court noted habeas proceedings have 

been frequently characterized as civil in nature but that label is inexact 

in the context of postconviction proceedings. Id. at 488. The court also 

noted that while the United States Supreme Court had not addressed the 

question, the majority of courts had declined to extend the right to 

counsel to habeas proceedings because they are characterized as civil 

proceedings. Id. at 488–49.

In considering whether there was a right to counsel in PCR

proceedings, the Honore court addressed the state’s argument that many 

PCR claims are “frivolous and can be submitted over and over again.” Id.

at 492. With respect to the question of frivolous petitions, the court 

concluded the proper approach is not to discriminate against the poor in 

the appointment of counsel but to discriminate against the frivolous 

petitions. Id. On the issue of successive petitions, the court noted the 

proper response is to reject summarily claims that have already been 

decided without the appointment of counsel. Id. Citing Griffin and 

Douglas, the court concluded that the Equal Protection Clause of the 

United States Constitution requires that counsel be furnished on appeal 

in a PCR proceeding. Id. at 493. In short, the Honore court extended the 

principle of Douglas to an initial-review PCR claim. See id. Cases in a 

number of other states have taken a similar approach. See, e.g., Nichols 

v. State, 425 P.2d 247, 254 (Alaska 1967) (finding right to counsel for
32

ineffectiveness claim on first habeas petition); Duncan v. Robbins, 193 

A.2d 362, 367 (Me. 1963) (observing the postconviction and collateral 

nature of case had little meaning when issues bear on constitutional 

liberty); Jackson v. State, 732 So. 2d 187, 190 (Miss. 1999) (“Certain 

issues must often be deferred until the post-conviction stage, such as the 

claim of ineffective assistance of counsel.”).

Other state court cases, however, reject the notion of a 

constitutionally based right to counsel in postconviction proceedings, 

often by broadly declaring that PCR proceedings are civil in nature. See,

e.g., Barnes v. State, 744 S.E.2d 795, 797 n.1 (Ga. 2013) (“[A] habeas 

corpus proceeding is a collateral, civil proceeding to which there is no 

right to appointed counsel.”); State ex rel. Hall v. Meadows, 389 S.W.2d 

256, 260 (Tenn. 1965) (declaring “[i]t has been repeatedly held that a 

habeas corpus proceeding is a civil proceeding” and, thus, the state and 

federal constitutional right to counsel “has no application”); Ex Parte 

Mines, 26 S.W.3d 910, 912–13 & nn.12 & 16 (Tex. Crim. App. 2000) (en 

banc) (emphasizing language in right-to-counsel provisions of United 

States and Texas Constitutions limiting right to counsel to “all criminal 

prosecutions”). Whether the labeling of PCR actions as civil is dispositive

has, however, been contested. See Ex Parte Sandoval, 508 S.W.3d 284, 

288–91 (Tex. Crim. App. 2016) (Alcala, J., dissenting) (noting the first 

opportunity to make most ineffective-assistance claims is via collateral 

attack and pro se litigants lack the skill to prosecute the claims).

G. Iowa Constitutional Precedent Related to the Right to 

Counsel in PCR. There are several older cases where we considered 

whether a right to counsel exists in postconviction proceedings. In 

Waldon v. District Court, we declared, in conclusory language, that the

Due Process and Equal Protection Clauses of the United States 
33

Constitution did not require appointment of counsel in PCR proceedings. 

256 Iowa 1311, 1315, 130 N.W.2d 728, 731 (1964). The Waldon court, 

however, did not consider the specific question posed in this case, 

namely, whether a petitioner is entitled to the assistance of counsel when

the PCR action is the initial forum for challenging ineffective assistance 

of counsel at trial. See id.; see also Hawkins v. Bennett, 160 N.W.2d 

487, 492 (Iowa 1968) (“There is no constitutional right to appointment of 

counsel in all habeas corpus proceedings.”); Larson v. Bennett, 160 

N.W.2d 303, 305 (Iowa 1968) (“It is well settled there is no constitutional 

right to representation by counsel in habeas corpus proceedings in the 

federal courts.”).

These older Iowa precedents are flawed for several reasons. First, 

the broad statements in these cases do not confront the problem 

identified in Coleman and Martinez, namely, that PCR in some cases 

amounts to an initial review of a substantive claim. There is a 

substantial question, as a matter of federal constitutional law, whether a 

criminal defendant is entitled to at least one effective counsel, and that 

might well require the appointment of effective counsel in a PCR

proceeding. Indeed, in cases involving initial-review collateral 

proceedings, the petitioner stands in the same position as in Douglas, 

where the Supreme Court held that equal protection required the 

appointment of counsel for the first appeal as of right. See Martinez, 566 

U.S. at 5, 11, 132 S. Ct. at 1313, 1317.

Second, there appears to have been no distinct challenge in these 

older Iowa cases under article I, section 10 of the Iowa Constitution. As 

recently observed in State v. Young, the right to counsel in the Iowa 

Constitution differs linguistically from that in the United States 

Constitution and arose in a different historical context. 863 N.W.2d 249, 
34

278–79 (Iowa 2015). The Sixth Amendment provides, “In all criminal 

prosecutions, the accused shall enjoy the right . . . to have the 

Assistance of Counsel.” U.S. Const. amend. VI. Under the Sixth 

Amendment, it is arguable, from a linguistic point of view, that the 

phrase “all criminal prosecutions” implies the exclusion of cases 

characterized as civil in nature.

But article I, section 10 of the Iowa Constitution provides, “In all 

criminal prosecutions, and in cases involving the life, or liberty of an 

individual the accused shall have a right . . . to have the assistance of 

counsel.” Iowa Const. art. I, § 10 (emphasis added). Plainly and 

indisputably, the language of article I, section 10 is more expansive than 

the “all criminal prosecutions” language of the Sixth Amendment. In 

addition to all criminal cases, the Iowa Constitution extends the right to 

counsel in all cases involving life and liberty. Id. Lawyers and judges 

who believe constitutional text matters must give the additional Iowa 

constitutional language its full meaning.

Further, the expansive language in article I, section 10 arose in the 

historical context of a fierce battle over enforcement of the Fugitive Slave 

Act in Iowa and across the nation. See 2 The Debates of the 

Constitutional Convention of the State of Iowa 737 (W. Blair Lord rep., 

1857), publications.iowa.gov/7313/2/The_Debates_of_the_Constitutional_

Convention_Vol%232.pdf (recording that delegate Clark defended the “all 

cases involving the life, or liberty” language as necessary to allow an 

alleged fugitive slave to have the right to counsel). See generally State v. 

Senn, 882 N.W.2d 1, 36–46 (Iowa 2016) (Wiggins, J., dissenting). 

Proceedings to enforce the Fugitive Slave Act against alleged fugitive

slaves were, of course, civil and not criminal in nature. Young, 863 

N.W.2d at 278–79. Thus, the law-by-label conclusion that the right to 
35

counsel does not extend to PCR actions because they are civil in nature

may apply under the Sixth Amendment, but it has no application at all 

under article I, section 10 of the Iowa Constitution, which was expressly

designed to cover civil proceedings where “life, or liberty” is involved.

In addition to the linguistic and historical differences, there is also 

an important structural difference. As is evident in Martinez, the United 

States Supreme Court has been reluctant to establish robust civil 

liberties protections under the United States Constitution because of 

concerns about federalism. 566 U.S. at 16, 132 S. Ct. at 1319–20; 

accord Coleman, 501 U.S. at 731, 111 S. Ct. at 2554–55 (justifying the 

doctrine of rejecting federal habeas petitions when there was a 

procedural default in state court because of federalism concerns); Francis 

v. Henderson, 425 U.S. 536, 541, 96 S. Ct. 1708, 1711 (1976) (stressing 

“considerations of comity and federalism” require concern for legitimate 

interests of the state when the Court is asked to overturn a criminal 

conviction and rejecting a habeas petition because of no showing of 

actual prejudice when state excluded African-Americans from grand jury

and defendant did not object before trial). As Justice Harlan pointed out 

years ago and has been repeatedly and powerfully demonstrated ever 

since, one of the disadvantages of incorporation of the provisions of the 

Bill of Rights against the states is the pressure to dilute the scope of 

those rights out of concern about adopting a nationwide approach to 

constitutional questions. See Malloy v. Hogan, 378 U.S. 1, 16–17, 84 

S. Ct. 1489, 1498 (1964) (Harlan, J., dissenting) (arguing against the

incorporation doctrine because “compelled uniformity . . . is achieved 

either by encroachment on the States’ sovereign powers or by dilution in 

federal law enforcement of the specific protections found in the Bill of 

Rights”). The diluting pressure of federalism that the United States 
36

Supreme Court has repeatedly cited in refusing to enforce constitutional 

guarantees has no bearing when we consider constitutional questions 

under the Iowa Constitution.

Further, the early Iowa cases do not recognize the history behind 

article I, section 10. In Young, we emphasized that the Iowa founders did 

not want the Bill of Rights to be read in a “cramped, stingy, or fearful

fashion.” 863 N.W.2d at 278. As a matter of historical context, we noted 

that the “cases” clause was, in part, designed “to provide protections to 

persons subject to return to slavery under the Federal Fugitive Slave 

Act,” a distinctly civil context. Id. The linguistic, historical, and 

functional features of article I, section 10 led us to conclude the right to 

counsel under the Iowa Constitution should be interpreted more 

expansively than the United States Supreme Court has construed the 

right to counsel under the Sixth Amendment. Id. at 279. Young, of 

course, does not directly provide a rule of decision for this case, but it 

does stand for the proposition that the scope of the right to counsel 

under the Iowa Constitution is not limited by narrow federal 

constitutional precedent.

H. Iowa Cases Applying Iowa Code Section 822.3 to a Claim of 

Ineffective Assistance of Counsel in a PCR Proceeding.

1. Iowa authority related to statute of limitations in PCR actions. In 

1984, the Iowa legislature amended the PCR statute. 1984 Iowa Acts ch. 

1193, § 1 (codified at Iowa Code § 663A.3 (1985)). Prior to 1984, the 

statute provided that an applicant could file a petition for PCR at any 

time. Iowa Code § 663A.3 (1983). The legislature amended the statute to 

require that applicants file their petitions within three years of the date of 

conviction or issuance of procedendo following appeal, whichever is later. 

Iowa Code § 822.3 (2015). The amended statute provided an exception, 
37

however, with respect to claims based upon “a ground of fact or law that 

could not have been raised within the applicable time period.” Id.;

Brewer v. Iowa Dist. Ct., 395 N.W.2d 841, 844 n.1 (Iowa 1986) (quoting 

Iowa Code § 663A.3 (1985)). 

We first considered the meaning of the “ground of fact or law” 

exception in Hogan v. State, 454 N.W.2d 360 (Iowa 1990), overruled in 

part by Harrington, 659 N.W.2d at 521. In Hogan, the applicant plead 

guilty to manslaughter in 1971, served his sentence, and was discharged 

in 1974. Id. at 360. Subsequently, in 1985, the applicant was convicted 

of murder in Nevada and sentenced to death. Id. In upholding the death 

penalty, the Nevada Supreme Court recognized the 1971 manslaughter 

conviction as a factor against leniency. Id.

In Hogan, the applicant sought to challenge his 1971 conviction 

more than a decade later. Id. He claimed that his conviction was invalid 

because the plea proceedings did not comport with constitutional 

requirements establishing the voluntariness of the charge. Id. at 361. 

The applicant alleged the “ground of fact or law” was that at the time he 

entered his plea, he was unaware that his conviction could be used to 

“severely enhance the penalty for a subsequent crime.” Id.

We rejected the claim. Id. The Hogan court stated that “no nexus 

exists between the ground of fact Hogan asserts and the conviction he 

seeks to set aside.” Id. The Hogan court further emphasized that the 

exonerating ground of fact must be “relevant and . . . likely [to] change 

the result of the case.” Id. (alterations in original) (quoting State v. 

Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989)). The Hogan court 

noted that the applicant’s “newfound insight” fell well outside this 

category. Id. While in Brewer we provided parties with a one-year 

extension to file claims until June 30, 1987, 395 N.W.2d at 844, the 
38

Hogan court noted that the applicant failed to meet the Brewer deadline 

even though he was aware of the use of his prior conviction in the 

Nevada proceedings in May of 1985 when the Nevada Supreme Court 

decided his case. 454 N.W.2d at 361.

We returned to the new statute in Wilkins v. State, 522 N.W.2d 822 

(Iowa 1994) (per curiam). In Wilkins, the applicant filed his second PCR

application nine years after “procedendo was issued on his appeal 

affirming his conviction for first-degree murder.” Id. at 823. Wilkins 

claimed that his trial counsel provided ineffective assistance by failing to 

preserve the victim’s shirt and have it tested for powder burns. Id. 

Wilkins asserted that had the shirt been preserved and tested, it would 

have shown the shots were delivered at close range, thereby tending to 

support his claim of self-defense. Id. Wilkins further claimed that the 

absence of the shirt gave rise to an improper presumption and inference 

that the victim was shot at a distance. Id. According to Wilkins, his 

counsel on direct appeal and his counsel in his first PCR proceeding were 

ineffective for failing to raise the ineffectiveness of trial counsel in his 

trial. Id.

The Wilkins court decided the case in a per curiam opinion. Id.

The Wilkins court noted that Iowa Code section 822.8 claims are barred 

“unless the court finds a ground for relief asserted which for sufficient 

reason was not asserted or was inadequately raised in the original, 

supplemental, or amended application.” Id. (emphasis omitted) (quoting 

Iowa Code § 822.8 (1993)). The Wilkins court contrasted this broad 

language with the narrow language in Iowa Code section 822.3, which 

provided that only “claims that ‘could not’ have been previously raised 

because they were not available” may be heard after the three-year 

limitations period. Id. at 824.
39

The Wilkins court noted that the applicant had three opportunities 

to raise the issue—namely, at trial, in his first PCR proceedings, and his 

second PCR proceeding. Id. The court noted that the applicant could 

not claim ignorance of his claim because he either knew or should have 

known of counsel’s failure to raise the shirt issue. Id. The court 

declared that the interpretation furthered the legislature’s goal “to limit 

postconviction litigation in order to conserve judicial resources, promote 

substantive goals of the criminal law, foster rehabilitation, and restore a 

sense of repose in our system of justice.” Id. (quoting Edman, 444 

N.W.2d at 106). The Wilkins court, however, gave no consideration to the 

constitutional implications of the ruling.

The next case involving the amended PCR statute is Dible, 557 

N.W.2d at 882. Dible plead guilty to suborning perjury and third-degree 

criminal mischief in March of 1989. Id. He filed a timely application for 

PCR in 1990, alleging “ineffective assistance of trial counsel and newlydiscovered evidence as grounds for relief.” Id. The PCR action, however, 

was not timely brought to trial and was dismissed under Iowa Rule of 

Civil Procedure 215.1. Id. The applicant unsuccessfully attempted to 

determine the status of his case from his attorney. Id. at 882–83. Dible 

finally contacted the clerk of court in May 1994 and learned of the 

dismissal. Id. at 883. He then filed a pro se motion to reinstate his 

application, but his motion was denied because it fell outside the sixmonth reinstatement period established by rule 215.1. Id.

In November 1994, Dible filed a second petition for PCR. Id. He 

repeated the allegations in his first petition and further alleged that his 

first PCR attorney provided ineffective assistance “in allowing the first 

postconviction action to be dismissed.” Id. The state filed a motion to 

dismiss Dible’s second petition as untimely. Id. Dible claimed the first 
40

PCR counsel’s ineffectiveness “excused the untimeliness of his second 

postconviction action.” Id.

In Dible, a 5–4 majority held the claim was time barred. Id. at 886. 

The Dible majority first reviewed prior caselaw. Id. at 883–84. With 

respect to Wilkins, the Dible majority noted that he “had three 

opportunities to claim ineffective assistance of trial counsel before the 

time bar became enforceable against him.” Id. at 884. The majority 

further noted that in Hogan, the “ground of fact” limitation was reserved 

for grounds that “would likely have changed the result of the criminal 

case.” Id. Thus, the Dible majority concluded that while ineffectiveness 

of trial counsel might be a “ground of fact,” ineffectiveness of appellate or 

PCR counsel is not. Id. The Dible majority emphasized that the proper 

focus is on whether Dible knew or should have known of the errors made 

by counsel at trial. Id.

The Dible court next turned to the statutory language. Id. at 885. 

As in Wilkins, the Dible court contrasted the language of Iowa Code 

section 822.8 with the provisions of section 822.3. Id. It concluded that 

while the language in Iowa Code section 822.8 allows a second 

application where a claim was not raised or was inadequately raised in 

the first application, no similar exception was provided in 822.3. Id. 

Thus, while section 822.8 allows successive petitions in cases involving 

ineffective assistance of counsel in the original PCR proceeding, any 

successive petition generally must be filed within the three-year window 

established in section 822.3. Id.

The Dible majority finally turned to the question of legislative 

intent. Id. Citing prior caselaw, it concluded that any other holding

“would result in an endless procession of postconviction actions, and the 
41

legislature’s hope to avoid stale claims and to achieve a sense of repose 

in the criminal justice system would not be realized.” Id. at 886. 

Four justices dissented. Id. (McGiverin, C.J., dissenting). In an 

opinion by Chief Justice McGiverin, the dissenters pointed out that 

under the majority’s narrow approach to section 822.3, Dible was 

“effectively denie[d] . . . any opportunity to have his postconviction claims 

heard.” Id. The dissenters noted that Dible’s application for PCR was 

dismissed because of the failure of his counsel to prosecute the claim 

and that counsel failed to communicate the dismissal to Dible. Id. Thus, 

although Dible had a right to the effective assistance of counsel in his 

PCR proceeding, Dible never got a hearing on his issues and had “no 

opportunity to test the validity of the conviction in relation to the ground 

of fact or law” alleged in his first postconviction action. Id. (quoting 

Wilkins, 522 N.W.2d at 824). The dissenters argued that the legislature

did not intend for PCR applicants to be precluded from bringing claims,

“unless any untimeliness was due to their own inaction.” Id.

The dissenters also challenged the majority’s assertion that there 

is a distinction between ineffective assistance of counsel at trial and 

ineffective assistance of appellate or PCR counsel. Id. According to the 

dissent, ineffective assistance of appellate or postconviction counsel 

could change the result in the underlying trial and, as a result, an 

applicant could not be precluded from bringing a claim based upon their 

ineffectiveness. Id. at 887.

The next case dealing with the exception to the three-year statute 

of limitations in section 822.3 is Harrington. 659 N.W.2d at 512.

Harrington was convicted of first-degree murder in 1978. Id. at 514. He 

filed his PCR action more than twenty years after his conviction. Id. at 

515. His claim for PCR was based upon undisclosed police reports and 
42

recantation evidence that could not have been discovered earlier in the 

exercise of due diligence. Id. at 515–16. The Harrington court concluded 

that the undisclosed police reports and recantation evidence had “the 

potential to qualify as material evidence that probably would have 

changed the outcome of Harrington’s trial.” Id. at 521 (emphasis 

omitted). The court held that under the circumstances, “Harrington 

asserted a relevant ground of fact or law ‘that could not have been raised 

within the applicable time period.’ ” Id.

From these cases, the following principles may be gleaned. First, 

while Iowa Code section 822.8 generally requires that all claims for relief 

must be raised in the original, supplemental, or amended petition, this 

limitation may be avoided if counsel ineffectively fails to comply. Iowa 

Code § 822.8 (2015). However, there is no comparable avenue for relief 

from Iowa Code section 822.3, which generally states that claims for PCR

must be filed within three years of the date the conviction is final or, if 

appealed, within three years of procedendo. Id. § 822.3. An application 

based on new evidence that could not have been discovered through 

reasonable diligence, however, is not subject to the three-year limitation. 

See id. An applicant need only allege that the newly discovered evidence 

or other error is relevant to the case and has the potential to provide a 

basis for reversal. See Harrington, 659 N.W.2d at 521.

Although there is language in Dible suggesting that ineffective 

assistance of appellate and postconviction counsel did not affect the 

underlying conviction and thus did not form a basis for PCR, our later 

caselaw eschews any such broad conclusion. Yet the notion that 

ineffective assistance of appellate or postconviction counsel may provide 

a substantive basis for PCR does not answer the question in this case, 

namely, whether such a claim may be brought, under the facts and 
43

circumstances, beyond the three-year limitations period in Iowa Code 

section 822.3.

2. Postconviction cases from other jurisdictions. We now turn to 

cases from other jurisdictions, understanding that the statutes may 

employ different language than Iowa Code chapter 822 and that their 

approach is only as persuasive as the reasoning employed. In Silva v. 

People, the Supreme Court of Colorado permitted a PCR proceeding to 

proceed outside the generally applicable three-year limitations period. 

156 P.3d 1164, 1165 (Colo. 2007) (en banc). Notably, however, the 

Colorado statue, unlike Iowa Code section 822.3, allows the applicant to 

establish that “justifiable excuse or neglect” prevented presentation of 

the claim. Id. at 1166.

The Supreme Court of Nevada recently considered a case involving 

successive petitions alleging ineffective assistance of counsel. Rippo v.

State, 368 P.3d 729, 733 (Nev. 2016) (per curiam), vacated sub nom. 

Rippo v. Baker, 580 U.S. ___, 137 S. Ct. 905 (2017). Under Nevada law, 

the statute of limitations for filing a postconviction action was one year 

but delay could be excused subject to a showing of “good cause” for the 

delay. Id. at 738. The Nevada Supreme Court, however, punted on the 

good-cause issue by finding that the ineffective-assistance claim failed on 

the merits. Id. at 756. The United States Supreme Court vacated the 

Nevada Supreme Court’s judgment because the Nevada court used an 

incorrect standard in evaluating the petitioner’s claim of judicial bias 

under the Due Process Clause and remanded the case for further 

proceedings. Rippo, 580 U.S. at ___, 137 S. Ct. at 907. In Silva and 

Rippo, the statutory language differs from that in Iowa Code chapter 822, 

making their discussions of statutory interpretation of limited value in 

this case.
44

I. Discussion. There are both statutory and constitutional 

considerations that must be brought to bear in this case. As the Dible

court noted, there is a difference in the exception language of the 

antisuccessive petition provision of Iowa Code section 822.8 and the 

exception language of the generally applicable three-year statute of 

limitations in Iowa Code section 822.3. 557 N.W.2d at 885 (majority 

opinion). The use of different language in sections of a statute covering 

the same subject matter gives rise to the inference that the legislature 

intended the sections to have a different meaning. Freedom Fin. Bank v. 

Estate of Boesen, 805 N.W.2d 802, 811 (Iowa 2011).

The phrase “ground of fact or law that could not have been raised”

in the proceeding could be interpreted differently. See Iowa Code 

§ 822.3. Because of the ineffective assistance of Allison’s first 

postconviction attorney, the ground of fact or law—his criminal trial 

counsel’s ineffective assistance—could not have been raised in the first 

PCR proceeding.

Further, the Dible interpretation, as applied in this and other 

cases, is potentially problematic in light of the constitutional backdrop. 

A defendant could have an ineffective lawyer at trial and then an 

ineffective lawyer in a timely PCR proceeding. The end result is that a 

potentially meritorious claim may not be raised within the three-year 

statute of limitations because of bungling lawyers.

Such a possible result is troubling. There is no question that an 

accused is constitutionally entitled to assistance of counsel at trial under 

both the Iowa and United States Constitutions. McMann v. Richardson, 

397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14 (1970); State v. 

Boggs, 741 N.W.2d 492, 506 (Iowa 2007); Collins v. State, 588 N.W.2d 

399, 401 (Iowa 1998). A corollary to the right to counsel, of course, is 
45

the right to effective assistance of counsel. Strickland, 466 U.S. at 686, 

104 S. Ct. at 2063; State v. Dahl, 874 N.W.2d 348, 352 (Iowa 2016). The 

constitutional right to effective assistance of counsel at a criminal trial is 

the bedrock of our system of justice. Strickland, 466 U.S. at 685, 104 

S. Ct. at 2063; Gideon, 372 U.S. at 343, 83 S. Ct. at 796.

Where counsel has been ineffective at trial, however, an action for 

PCR is, in most cases, an essential prerequisite to enforce the 

constitutional guarantee. As noted in Coleman and Martinez, this is so 

because, on most appeals, the trial record will be inadequate to 

determine if the requirement of prejudice has been met under Strickland. 

In these cases, if postconviction counsel is also ineffective in presenting 

the underlying claim of ineffective assistance at trial, the underlying 

constitutional entitlement to effective assistance of counsel at trial will be 

a nullity and lie unenforced. In short, the unquestionable constitutional 

right to effective counsel at trial may be rendered meaningless for 

defendants who suffer from successive ineffective assistance.

We bristle at the notion that a criminal defendant has no 

constitutionally protected right to at least one competent attorney. While 

the Dible majority suggests that the right to counsel is only statutory and 

that it can be truncated by application of a statute of limitations, this 

reasoning does not wash if one believes in the right to counsel in the first

instance.

This awkward result is mitigated in at least two ways. First, under 

Iowa Code section 822.8, successive petitions for PCR may be filed if 

counsel is ineffective in the first petition. Thus, when counsel files a first 

petition and ineffectively fails to raise a ground for reversal, a successive 

petition may be filed.
46

According to Dible, however, the second petition must be filed 

within the three-year limitations period of section 822.3. Meeting the 

three-year requirement may be difficult because a nonlawyer applicant 

may not recognize that PCR counsel has been ineffective until after the 

expiration of the statute of limitations. Thus, under Dible, there is a 

distinct possibility that a defendant may be convicted of serious crimes 

even though he never had an effective lawyer at trial or in PCR and, thus,

was deprived of the opportunity to have potentially meritorious issues 

determined by a court. No one can find much comfort in such an 

outcome.

A second mitigating feature is the availability of an actualinnocence claim. A person convicted of a crime seeking relief through 

asserting actual innocence carries a heavy burden, and such a claim is 

available to correct only the most egregious miscarriages of justice. An 

accused who may not be able to establish actual innocence may have 

nonetheless been deprived of an opportunity for a fair trial because of 

ineffective assistance of counsel.

We have several options. Although Dible has been overturned on 

other grounds, we can affirm the district court on the ground that, as in 

Dible, a second application alleging ineffective assistance of counsel at 

trial must be filed within the three-year time period of section 822.3,

even in cases involving initial-review collateral proceedings.

A second option is to depart from Dible and declare that when a 

timely PCR petition alleging trial counsel was ineffective is filed under 

section 822.3, the ineffectiveness of postconviction counsel in presenting 

the claim is a ground of fact sufficient to avoid the statute of limitations. 

This result is arguably more consistent with the constitutional 
47

requirement of effective assistance of counsel and the notion that an 

unenforceable constitutional right is a nullity.

We think the best approach is to qualify Dible. While Dible

engaged in textual and functional analysis of section 822.3, it gave no 

consideration to the fundamental constitutional interests at stake when 

an accused alleges ineffective assistance of trial counsel and the PCR

proceeding is the first opportunity to raise the issue. In that setting, the 

posture is precisely the same as in Douglas, namely, the first appeal as a 

matter of right. Where the defendant essentially invokes a first appeal as 

a matter of right in an initial-review PCR proceeding, application of the 

equal protection principles in Douglas would require appointment of 

counsel even under the Federal Constitution. Further, the rationales for 

not providing counsel under the Sixth Amendment—the distinction 

between criminal and civil proceedings and the diluting influences of 

federalism—have less application under article I, section 10 of the Iowa 

Constitution.

Decided in 1996, Dible did not have the benefit of the subsequent 

development in cases of the United States Supreme Court which focused 

on the peculiar problem of initial-review collateral proceedings. Further, 

Dible made no effort to consider the expansive right-to-counsel provisions 

of the Iowa Constitution in which the distinction between civil and 

criminal cases has no linguistic or historical support.

In order to avoid the difficult constitutional position that would 

result in denying a remedy where defense counsel allegedly provided

ineffective assistance at trial and postconviction counsel is ineffective in 

raising that claim, we think the best approach is to hold that 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 
48

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.

The doctrine of relation back is used “to preserve rights as of the earlier 

date, or otherwise to avoid injustice.” Windey v. N. Star Farmers Mut. 

Ins., 43 N.W.2d 99, 102 (Minn. 1950). Here, the application of the 

relation-back doctrine ensures that the right to effective assistance of 

counsel in PCR is not cut off by the running of the statute of limitations 

in situations like the one in this case. 

This is a variant of the equitable doctrine employed in Martinez to 

allow a petitioner in federal habeas to avoid a procedural default in state 

court. Under this equitable doctrine, the three-year statute of limitations

is tolled from the time of the filing of the first petition for PCR until the 

first PCR proceeding’s conclusion. Upon the conclusion of the first

action, the three-year statute of limitations commences to run again. 

While there may be more claims under this approach, we do not 

fear the deluge. Lawyers must have a good-faith basis for filing a 

pleading, and this principle applies in postconviction proceedings. 

Further, our court system is fully capable of quickly disposing of claims 

that have no basis in law or fact.

Nothing in the above discussion, however, suggests that Allison is 

entitled to relief. Indeed, it may well be that prior counsel, despite 

diligent efforts, could not develop the claim that Allison seeks to present. 

Or, it may be that the facts do not support the underlying claim of juror 

bias at all. Nonetheless, the proper manner to deal with the question is 
49

not to grant a motion to dismiss but to permit Allison to develop the 

ineffectiveness issue.

IV. Discussion of Dismissal of Additional Claims in Amended 

Petition for PCR. 

We now turn to whether the district court properly dismissed the 

additional claims Allison presented in his amended second petition for 

PCR.

A. Preservation of Error. We first consider whether Allison 

preserved the additional issues in the district court. In this case, the 

district court order recognized that additional claims were presented in 

the amended petition, noted that the amended petition did not alter the 

“core basis” presented, and entered an order of dismissal. The district 

court did not enter separate rulings on the claims in the amended 

petition from those raised in the original petition.

We have held that issues were preserved in other cases where the 

district court acknowledged the existence of other claims but did not 

explicitly or separately address them in a ruling. For instance, in 

Lamasters v. State, the district court described the applicant’s claims 

and then denied the application in general terms without individually 

ruling on the claims presented. 821 N.W.2d 856, 862 (Iowa 2012). We 

held that the described claims were preserved without the filing of a rule 

1.904 motion to obtain a more specific ruling. Id. at 864–65. Similarly, 

in Meier v. Senecaut, we noted that a claim raised need not actually be 

used as the basis for the decision to be preserved if the record reveals the 

court was aware of the claim or issue and decided the issue. 641 N.W.2d 

532, 540 (Iowa 2002). We think that under Lamasters and Meier, the 

claims raised in the amended petition are sufficiently preserved for our 

review.
50

B. Dismissal as “Vague.” We next turn to the State’s contention 

that the additional claims in the amended petition were properly 

dismissed. The State does not defend the district court’s order on the 

ground that the new allegations did not change “the core basis” in the 

case. Instead, the State suggests that the allegations in the petition were 

“too vague” and that the district court did not err in dismissing the 

claims.

At the outset, we note that Iowa Code section 822.7 provides that 

in a PCR proceeding, “[a]ll rules and statutes applicable in civil 

proceedings including pretrial and discovery procedures are available to 

the parties.” See also Nuzum v. State, 300 N.W.2d 131, 132–33 (Iowa 

1981) (“Rules and statutes governing the conduct of civil proceedings are 

applicable to postconviction proceedings.”). Applying the ordinary rules 

and procedures that apply in civil cases, for example, we have held that 

when the state seeks to avoid a full trial of relevant facts through a 

motion for summary judgment, the state, as the moving party, has the 

burden of showing the absence of triable issues. Arnold v. State, 540 

N.W.2d 243, 246 (Iowa 1995).

In this case, the State filed a motion to dismiss the claims in the 

amended petition. As in the case of summary judgment, the rules and 

procedures that apply to a motion to dismiss a PCR action are the same 

as those that apply in civil cases.

In civil cases, we approach motions to dismiss with great caution. 

“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). Ordinarily, cases 

are not resolved on the pleadings. U.S. Bank v. Barbour, 770 N.W.2d 

350, 353 (Iowa 2009). A motion to dismiss should be granted only when 
51

there is no conceivable state of facts that might support the claim for 

relief. Kingsway Cathedral v. Iowa Dep’t of Transp., 711 N.W.2d 6, 7 

(Iowa 2006); Golden v. O’Neill, 366 N.W.2d 178, 179 (Iowa 1985); Lakota 

Consol. Indep. Sch. v. Buffalo Ctr./Rake Cmty. Schs., 334 N.W.2d 704, 

708 (Iowa 1983). We construe the “allegations in the light most favorable 

to the pleader” and resolve doubts in the pleader’s favor. Meyn v. State, 

594 N.W.2d 31, 33 (Iowa 1999); Curtis v. Bd. of Supervisors, 270 N.W.2d 

447, 448 (Iowa 1978).

The State has not shown that there is no conceivable state of facts 

to support the additional claims. If the State believes the allegations in a 

PCR petition are not sufficiently precise to allow it to file an answer, the 

State may file a motion for a more specific statement. Iowa R. Civ. P. 

1.433 (“A party may move for a more specific statement of any matter not 

pleaded with sufficient definiteness to enable the party to plead to it and 

for no other purpose. It shall point out the insufficiency claimed and 

particulars desired.”).

We cannot say based upon the pleading in this case, that there is 

no conceivable state of facts that might support the claim for relief. See 

Kingsway Cathedral, 711 N.W.2d at 7; Golden, 366 N.W.2d at 179;

Lakota Consol. Indep. Schs., 334 N.W.2d at 708. As a result, the 

additional claims in the amended second petition for PCR should not 

have been dismissed. See Watson v. State, 294 N.W.2d 555, 557 (Iowa 

1980) (holding that claims in a PCR application should not have been 

dismissed even though they did not “justify relief as a matter of law” and 

that even if assertions are “deemed improbable,” applicant is entitled “to 

present to the court whatever proof he may have to support” the claim or 

to amend the application to be more clear about grounds for relief); Hines 

v. State, 288 N.W.2d 344, 346 (Iowa 1980) (holding a motion to dismiss 
52

in a PCR proceeding is properly granted when “there is no genuine issue 

of material fact and the moving party is entitled to judgment as a matter 

of law”); Chartier v. State, 223 N.W.2d 255, 257–58 (Iowa 1974) (holding,

in a case where pro se petitioner inartfully pled that his conditional

release was unlawfully revoked, when petition for PCR sufficiently raised

grounds under the statute for granting relief, the matter required a 

hearing to develop the record). Of course, we take no view on the merits 

of Allison’s claims.

V. Conclusion.

For the above reasons we vacate the decision of the court of 

appeals, reverse the judgment of the district court, and remand the case 

for further proceedings.

DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND REMANDED.

All justices concur except Waterman, Mansfield, and Zager, JJ., 

who dissent.
53

#16–0764, Allison v. State

WATERMAN, Justice (dissenting).

I respectfully dissent and would affirm the decision of the court of 

appeals and judgment of the district court that correctly dismissed Brian 

Allison’s untimely second petition for postconviction relief (PCR) 

challenging his convictions for sexually abusing his young stepdaughter. 

This case presents a question of statutory interpretation of Iowa Code 

section 822.3 (2015)—whether ineffective assistance of PCR counsel falls 

within an exception to the three-year statute of limitations. We correctly 

answered “no” to that question over two decades ago in Dible v. State, 

557 N.W.2d 881, 886 (Iowa 1996) (en banc) (holding “ineffective 

assistance of postconviction relief counsel is not a ‘ground of fact’ within 

the meaning of section 822.3”), abrogated in part on other grounds by 

Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003). The legislature 

never amended section 822.3 in response to Dible. Neither Allison nor 

the majority explain how intervening events since 1996 show Dible was 

wrongly decided. I would affirm based on the text of the PCR statute, the 

venerable doctrine of stare decisis, legislative acquiescence, and sound 

policy considerations. 

I. The Text of the PCR Statute Is Clear. 

Iowa Code chapter 822 governs PCR actions. Section 822.3 sets 

forth the three-year time-bar and states in part, 

All other applications [i.e., those not filed under section 

822.2(1)(f)] 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. However, 

this limitation does not apply to a ground of fact or law that 

could not have been raised within the applicable time period. 

Iowa Code § 822.3. Section 822.3 must be read together with section 

822.8, which covers ineffective assistance of PCR counsel and states, 
54

All grounds for relief available to an applicant under this 

chapter must be raised in the applicant’s original, 

supplemental or amended application. Any ground finally 

adjudicated or not raised, or knowingly, voluntarily, and 

intelligently waived in the proceeding that resulted in the 

conviction or sentence, or in any other proceeding the 

applicant has taken to secure relief, may not be the basis for 

a subsequent application, unless the court finds a ground 

for relief asserted which for sufficient reason was not 

asserted or was inadequately raised in the original, 

supplemental, or amended application. 

Id. § 822.8. 

Section 822.3 and section 822.8 are separate limits on the filing of 

PCR applications. Thus, all grounds for relief must be presented in the 

first application, unless “for sufficient reason [the ground] was not 

asserted or was inadequately raised” in the first application. See id. 

But, in any event, all applications must be filed within three years, 

including second, third, and further applications, unless the ground is 

one that could not have been raised earlier. See id. § 822.3. 

In other words, the excuse of “inadequately raised” allows the 

defendant to file a second or subsequent application, see id. § 822.8, but 

it is not a basis for relief from the three-year bar. Id. § 822.3. This is the 

only plausible way to read the two sections. The legislature has 

specifically provided that defendants whose prior PCR counsel 

inadequately raised an issue may have another bite at the apple, but that 

bite is subject to the three-year time-bar. 

This statutory text controls the outcome here—Allison claims his 

first PCR counsel inadequately raised his challenge to a possibly biased 

juror, so he should get another chance to raise the issue. But he did so 

too late because his second PCR action was filed more than three years 

after his conviction became final. The majority fails to confront this 

insurmountable textual bar to its result. 
55

Allison never argued that he avoids the statute of limitations 

because his claims in this action “relate back” to his previously 

adjudicated and dismissed PCR action. The majority errs by relying on 

the relation-back doctrine. We have never held that an amendment 

related back to a pleading in a prior action. An amendment to a pleading 

can only relate back to the original pleading in the same action. See Iowa 

R. Civ. P. 1.402(5); Jacobson v. Union Story Tr. & Sav. Bank, 338 N.W.2d 

161, 164 (Iowa 1983) (“Rule 89 [now rule 1.402] does provide authority 

for an amendment to a suit to relate back in time to the filing of the 

original suit.”); Butler v. Woodbury County, 547 N.W.2d 17, 19 (Iowa Ct. 

App. 1996) (permitting relation back in “a pending lawsuit”). 

Federal courts interpreting the almost identically worded relationback language in Federal Rule of Civil Procedure 15(c) uniformly reject 

the argument that an amendment relates back to a pleading in a prior 

action. See Rowell v. Stecker, 698 F. App’x 693, 697 (3d Cir. 2017) (“The 

plaintiffs cite no legal authority and we have found none for their claim 

that their complaint can or should be construed to relate back to 

pleadings filed against different parties in a different lawsuit. 

Accordingly, the relation back doctrine cannot circumvent the time limit 

on the plaintiffs’ claims.” (Citation omitted.)); Barnes v. United States, 

776 F.3d 1134, 1143 (10th Cir. 2015) (noting the relation-back doctrine 

“applies to an amendment to a pleading in the same action” and 

therefore rejecting plaintiffs’ claim that the second lawsuit was not timebarred because it related back to plaintiffs’ first lawsuit); Velez-Diaz v. 

United States, 507 F.3d 717, 719 (1st Cir. 2007) (“Rule 15(c), by its 

terms, applies to amended pleadings in the same action as an original, 

timely pleading: the pleading sought to be amended may not be a 

pleading filed in a different case.”); Bailey v. N. Ind. Pub. Serv. Co., 910 
56

F.2d 406, 413 (7th Cir. 1990) (“Rule 15(c), by its terms, only applies to

amended pleadings in the same action as the original, timely pleading.”), 

superseded by statute as recognized by Rush v. McDonald’s Corp., 966 

F.2d 1104, 1119–20, 1119 n.55 (7th Cir. 1992). It makes a mockery of 

the statute of limitations to allow an untimely pleading in a new action to 

relate back to a prior action. Again, the text of the governing statutes 

establish that Allison’s action is time-barred. 

II. The Majority’s Constitutional Concerns Are Overblown. 

Disregarding the statutory language, the majority instead travels 

on what it aptly describes as a “winding” road. Page after page, the 

majority introduces us to the ins and outs of various United States 

Supreme Court opinions, although they are primarily dissenting 

opinions. None of these are on point because we have squarely, and 

repeatedly, held there is no constitutional right, only a statutory right, to 

counsel in PCR actions. See Lado v. State, 804 N.W.2d 248, 250 (Iowa 

2011) (“Lado, however, has a statutory, not constitutional right to 

effective assistance of counsel on postconviction relief.”). “[N]o state or 

federal constitutional grounds for counsel exist in such proceedings.” 

Wise v. State, 708 N.W.2d 66, 69 (Iowa 2006); see also Fuhrmann v. 

State, 433 N.W.2d 720, 722 (Iowa 1988) (“[W]e detect no state or federal 

constitutional grounds for counsel in such a proceeding.”). 

Rather than take the majority’s winding road, I would follow the 

direct path that leads me to the foregoing Iowa cases. The majority 

ignores our own precedent and fails to mention our unanimous decisions 

upholding the constitutionality of the three-year time-bar. See Perez v. 

State, 816 N.W.2d 354, 360 (Iowa 2012) (reiterating that “[w]e have 

upheld the constitutionality of [section 822.3]”); Davis v. State, 

443 N.W.2d 707, 710 (Iowa 1989) (addressing purposes of time-bars for 
57

PCRs and stating “due process requires that the interest of the state and 

the defendant be balanced in determining the reasonableness” of the 

limitations period). 

Additionally, there are several reasons why article I, section 10 of 

the Iowa Constitution does not apply to PCR actions just based on the 

text of the provision. When filing a PCR, an applicant is not an 

“accused.” Rather, he or she is already convicted and is affirmatively 

asking the court for relief. Also, if article I, section 10 applied to PCR 

actions, there would have to be a right to a jury trial. There would have 

to be a right to confrontation, and PCR applicants would have to be 

present in person for all critical stages of the PCR proceeding. Section 10 

is not a cafeteria where you can pick and choose which rights a person 

gets but a complete package. An “accused” in a criminal case or a case 

involving life or liberty gets all the rights enumerated therein. 

In the end, the winding road leads nowhere because the majority 

acknowledges the result that it reaches is not constitutionally compelled. 

Nor is today’s reinterpretation of section 822.3 justified to avoid a 

constitutional question. There is no serious constitutional question, nor 

is there any ambiguity when section 822.3 and section 822.8 are 

considered together. We have made clear the constitutional-avoidance 

doctrine cannot be used to alter unambiguous statutory language. In re 

Prop. Seized for Forfeiture from Young, 780 N.W.2d 726, 729 (Iowa 2010) 

(“[W]e cannot avoid the constitutional issue posed by the [statute’s] plain 

language . . . .”). 

III. There Is No Reason to Overrule Dible. 

Dible was correctly decided in 1996, and nothing has changed to 

warrant overruling it. We unanimously reaffirmed Dible in Walker v. 
58

State, 572 N.W.2d 589, 590 (Iowa 1997) (per curiam). Dible provides a 

clear, bright-line rule that has worked well in practice for decades. 

Dible has been applied in numerous unpublished court of appeals 

decisions. For example, there were four opinions in 2016 alone. See 

Whiteside v. State, No. 15–0534, 2016 WL 4051578, at *3 (Iowa Ct. App. 

July 27, 2016); Bergantzel v. State, No. 15–1273, 2016 WL 2745065, at 

*2 (Iowa Ct. App. May 11, 2016); Griggs v. State, No. 15–0510, 2016 WL 

2746051, at *1 (Iowa Ct. App. May 11, 2016); Woodberry v. State, 

No. 14–1434, 2016 WL 889727, at *1 (Iowa Ct. App. Mar. 9, 2016). 

Opinions in this area go unpublished because the law is so obvious and 

clear. Notably, every one of these unpublished cases is now a case that 

will be reheard under today’s decision. 

Under Dible, merely alleging ineffective assistance of PCR counsel 

presents no basis for relief from the underlying convictions. Rather, the 

ground of fact must be one that trial counsel could not have reasonably 

discovered and that could have avoided the conviction. A breach of duty 

by PCR counsel is not a new ground of fact. See Dible, 557 N.W.2d at 

886. Dible properly distinguished between ineffective assistance of trial 

counsel and PCR counsel: 

It is important not to confuse the effect of ineffective 

assistance of trial counsel with the ineffective assistance of 

appellate or postconviction counsel. The errors of trial 

counsel have a direct impact on the validity of a criminal 

conviction. In contrast, the incompetency of appellate 

counsel or postconviction counsel cannot have this type of 

impact because their involvement postdates the defendant’s 

conviction. 

Id. at 884. Dible provided a sound interpretation of the statutory 

language. See id. at 885. And Dible “carries out th[e] legislative intent by 

giving effect to the statute of limitations as it was drafted by the general 

assembly.” Id. at 886. We noted, “Any other decision would result in an 
59

endless procession of postconviction actions” and would thwart “the 

legislature’s hope to avoid stale claims and to achieve a sense of repose 

in the criminal justice system.” Id. 

We too should follow our precedent because Allison cannot show 

that our long-established interpretation of section 822.3 is wrong or 

harmful. See McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005) (“From 

the very beginnings of this court, we have guarded the venerable doctrine 

of stare decisis and required the highest possible showing that a 

precedent should be overruled before taking such a step.” (quoting 

Kiesau v. Bantz, 686 N.W.2d 164, 180 n.1 (Iowa 2004) (Cady, J., 

dissenting))). This is especially true given the decades of legislative 

acquiescence in Dible’s interpretation of section 822.3. See Ackelson v. 

Manley Toy Direct, L.L.C., 832 N.W.2d 678, 688 (Iowa 2013) (“[W]e 

presume the legislature is aware of our cases that interpret its statutes. 

When many years pass following such a case without a legislative 

response, we assume the legislature has acquiesced in our 

interpretation.” (Citation omitted.)). 

IV. Other Courts Hold Ineffective Assistance of PCR Counsel 

Does Not Avoid the Statute of Limitations. 

Even if caselaw from other jurisdictions mattered more than Iowa 

caselaw (and it does not), the majority cites no helpful or persuasive 

out-of-state authority. 

Midway through its opinion, the majority references a 1970 

Washington Supreme Court case as being “of interest.” Yet the majority 

disregards a 2015 Washington Supreme Court case that is directly on 

point—and directly opposed to the majority’s view of the case. 

Notably, the Washington Supreme Court recently and unanimously 

rejected “a new exception to the time bar” for ineffective assistance of 
60

PCR counsel. In re Pers. Restraint of Yates, 353 P.3d 1283, 1285 (Wash. 

2015) (en banc). The Yates court noted the state’s one-year “time bar 

and its exceptions are creatures of statute and thus adding additional 

exceptions to the statute is a matter for the legislature, not this court.” 

Id. This is likewise true of Iowa’s more generous three-year time-bar in 

Iowa Code section 822.3. The Yates court also rejected the argument 

that ineffective assistance of PCR counsel constituted newly discovered 

evidence. Id. (“The only thing ‘new’ here is that Yates’s new attorney has 

a new idea for a claim.”). Here, Allison’s claim that a juror was biased 

has already been rejected in his first PCR action, and his second PCR 

lawyer offers no new information supporting that claim. The Yates court 

honored stare decisis, declining to overturn its precedent without “a clear 

showing that [the] established rule is incorrect and harmful.” Id.

(quoting W.G. Clark Constr. Co. v. Pac. Nw. Reg’l Council of Carpenters, 

322 P.3d 1207, 1212 (Wash. 2014) (en banc)). 

The Pennsylvania Superior Court held that a second PCR petition 

filed after the one-year deadline was time-barred notwithstanding alleged 

ineffective assistance of counsel in the direct appeal and first PCR action. 

Commonwealth v. Saunders, 60 A.3d 162, 163, 165 (Pa. Super. Ct. 

2013); see also Commonwealth v. Pursell, 749 A.2d 911, 915 (Pa. 2000) 

(“[W]hile layered claims of counsel’s ineffectiveness may avoid the waiver 

restrictions in the [Postconviction Relief Act], we have repeatedly held 

that claims of ineffective assistance of counsel do not automatically 

qualify pursuant to the exceptions to the one-year limitation provided” by 

statute.). And the majority today ignores still other decisions holding 

that allegations of ineffective assistance of counsel do not avoid the 

statute of limitations for PCR claims. See, e.g., Baker v. State, 667 

So. 2d 50, 51 (Ala. 1995) (holding petitioner’s PCR claim based upon 
61

ineffective assistance of counsel was procedurally barred by two-year 

statute of limitations); Bevill v. State, 669 So. 2d 14, 17 (Miss. 1996) 

(“[T]his Court has never held that merely raising a claim of ineffective 

assistance of counsel is sufficient to surmount the procedural bar. 

Therefore, Bevill’s ineffective assistance of counsel claim is insufficient to 

surmount the procedural bar” on his PCR claim.); Winward v. State, 293 

P.3d 259, 265 (Utah 2012) (concluding “the mere allegation that counsel 

was ineffective is not a reasonable justification for missing the [PostConviction Remedies Act]’s time limitations”). 

Missing from the majority opinion is any persuasive caselaw 

supporting its decision. That silence speaks volumes. The majority fails 

to even mention our unanimous decisions in Davis and Perez upholding 

the constitutionality of the three-year time-bar of section 822.3. The 

majority instead relies on dissenting opinions of other courts. Dissents 

are not the law. The majority’s analysis is irrelevant to the interpretation 

of Iowa Code section 822.3. 

V. The Bad Policy Effects of Today’s Decision Will Be 

Far-Reaching. 

The majority provides no limiting principle for today’s decision. 

Going forward, any allegation of ineffective assistance by PCR counsel 

will avoid the three-year statute of limitations. This opens the floodgates 

to stale PCR actions. In effect, there is no longer a statute of limitations 

in PCR actions. The majority’s exception to the three-year time-bar will 

swallow that time-bar. 

One bad consequence of today’s decision is that our courts are 

going to be overwhelmed with PCR filings. Until today, the three-year bar 

had been a way to summarily dispose of meritless and repetitive PCR 

applications. No more. Each one of these will have a hearing. 
62

Like it or not (and I do not happen to like it), the criminal justice 

resources in this state are limited by budgetary pressures. If a large 

portion of the public defender budget has to be devoted to stale, 

repetitive PCR applications, that means less of that budget will be 

available for trials, initial appeals, and initial PCRs. 

Also, it is unfair for victims—years after the fact—to be forced to 

relive traumatic experiences. For many victims, learning that the 

perpetrator will get a new “hearing” is painful enough. Today’s decision 

will also result in unfairness to the state, as cases thought to be finally 

resolved years earlier are relitigated long after memories have faded or 

key witnesses and evidence have become unavailable. See Davis, 443 

N.W.2d at 710 (addressing purposes of time-bars for PCRs and stating 

“due process requires that the interest of the state and the defendant be 

balanced in determining the reasonableness” of the limitations period). 

I dissented in Schmidt v. State, but I would note that decision 

already establishes an escape valve for actually innocent defendants. 

909 N.W.2d 778, 790, 797–98 (Iowa 2018). Today’s case goes further 

and creates an escape valve for all defendants—so long as the defendant 

filed an initial PCR application of some kind within the initial three-year 

period after the conviction became final. 

VI. The Facts of This Case Do Not Warrant a Change in Our 

Established Law. 

Also missing from the majority decision is any discussion of the 

facts of the crimes of conviction and the absence of any evidentiary basis 

for relief in Allison’s serial PCR actions. The Iowa jury convicted Allison 

on all three counts of sexually abusing his early teen stepdaughter. The 

sexual abuse began when his stepdaughter was in seventh grade and 

continued into her sophomore year of high school at home in the 
63

bathroom and Allison’s bedroom while his wife worked the night shift. 

State v. Allison, No. 11–0774, 2012 WL 2819324, at *1, *5 (Iowa Ct. App. 

July 11, 2012) (direct appeal). Several witnesses corroborated the 

victim’s account by testifying to unusual activity such as Allison and his 

stepdaughter frequently sleeping in the same bed; Allison and his 

stepdaughter lying on the bed together underneath a blanket, dressed 

only in underwear; and Allison commenting on his stepdaughter’s 

breasts. Id. at *6. 

Allison even now makes no showing he was wrongfully convicted or 

is entitled to a new trial. The district court and court of appeals 

previously rejected Allison’s claim that a juror was biased because the 

juror waved at his ex-wife during a recess in his trial. Allison v. State, 

No. 14–0925, 2015 WL 5278968, at *1–2 (Iowa Ct. App. Sept. 10, 2015) 

(first PCR appeal; holding no breach of duty by trial counsel). Allison 

offers no evidence now that an investigation by trial counsel then would 

have led to the juror’s disqualification or a new trial. See State v. 

Webster, 865 N.W.2d 223, 239 (Iowa 2015) (noting that “[i]f we 

disqualified jurors because they empathized with the family of crime 

victims, we would have no jurors” and rejecting challenge to juror who 

“liked” comment by victim’s stepmother on Facebook during trial). This 

is not a compelling test case to blow up the statute of limitations. 

VII. This Is a Matter for the Legislature. 

I would defer to the legislature to make the policy decision whether 

to extend the deadlines for PCR actions to allow multiple bites at the 

apple and unlimited time to challenge a criminal conviction. See Davis,

443 N.W.2d at 710–11 (upholding constitutionality of three-year time-bar 

for PCR actions and stating that “the legislature, within its sound 

discretion, may determine the proper limitation period”). 
64

Unlike Schmidt, which was decided under the Iowa Constitution, 

today’s decision is based on statutory interpretation. See 909 N.W.2d at 

993–95. The legislature can have the last word and should amend the 

statute to abrogate today’s decision. 

VIII. The Other Grounds Raised by Allison Are Also 

Nonmeritorious. 

The court of appeals in Allison’s latest PCR appeal correctly held 

that he failed to preserve error on his claim that his proposed amended 

petition avoided section 822.3’s time-bar through a cryptic, conclusory 

allegation that he “has reason to believe that the victim and other 

witnesses have recanted their testimony.” He provided no affidavit of the 

victim or any witness purporting to recant trial testimony. The district 

court did not decide that claim, and Allison failed to file a motion to 

enlarge or amend under Iowa Rule of Civil Procedure 1.904(2) as required 

for appellate review. Even if we overlook error preservation, I agree with 

the court of appeals that those “vague and unsupported statements” in 

his proposed amended petition “are insufficient to avoid a motion to 

dismiss [because he] does not even assert the new facts and law ‘could 

not have been raised within the applicable time period.’ ” 

For these reasons, I respectfully dissent. 

Mansfield and Zager, JJ., join this dissent.