IN THE COURT OF APPEALS OF IOWA

No. 18-0078

Filed February 6, 2019

AMBUS RAY DAVIS, III,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mary E. Howes, 

Judge.

Appeal from the summary dismissal of a second application for 

postconviction relief as time-barred. AFFIRMED.

Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

Thomas J. Miller, Attorney General, and Aaron Rogers, Assistant Attorney 

General, for appellee State.

Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.

In 2005, following a bench trial, Ambus Davis was convicted “of first-degree 

murder, in violation of Iowa Code sections 707.1, 707.2(1), and 707.2(2) (2005); 

willful injury, in violation of section 708.4(1); and going armed with intent, in 

violation of section 708.8 in the shooting death of Jalon Thomas.” State v. Davis, 

No. 06-0148, 2007 WL 601829, at *1 (Iowa Ct. App. Feb. 28, 2007). This court 

affirmed his conviction on direct appeal. Id. The supreme court denied Davis’s 

application for further review, and procedendo issued April 20, 2007. Davis filed 

an application for postconviction relief in which he contended, among other things, 

his trial counsel was ineffective for failing to argue that willful injury could not be 

used as the predicate felony for the felony-murder rule. The district court denied 

Davis’s application for postconviction relief, and this court affirmed the denial on 

appeal. See Davis v. State, No. 13-1630, 2015 WL 4642053, at *1 (Iowa Ct. App. 

Aug. 5, 2015). In June 2016, Davis filed a second application for postconviction 

relief, which the district court summarily dismissed as barred by the statute of 

limitations. Davis timely filed this appeal. 

“Our review of the court’s ruling on the State’s statute-of-limitations defense 

is for correction of errors of law.” Harrington v. State, 659 N.W.2d 509, 519 (Iowa 

2003). To the extent Davis raises constitutional claims, our review is de novo. See 

id. A statutory claim of ineffective assistance of postconviction counsel is also 

reviewed de novo. See Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).

There is no constitutional right to postconviction relief. See Williams v. 

Pennsylvania, 136 S. Ct. 1899, 1921 (2016) (Thomas, J., dissenting); Montgomery 

v. Louisiana, 136 S. Ct. 718, 746 (2016) (Thomas, J., dissenting). As such, the 
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availability of postconviction relief and the terms and conditions of the same are 

wholly creatures of statute subject to legislative control. The statute at issue here 

is Iowa Code section 822.3 (2016). It provides an application for postconviction 

relief

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.

Davis concedes his second application for postconviction relief was filed 

more than three years after procedendo issued in his direct appeal. He contends, 

however, that Welch v. United States, 136 S. Ct. 1257 (2016), is a new ground of 

law that could not have been asserted within the relevant time period. Like the 

district court, we disagree. The “narrow question” presented in Welch was whether 

the court of appeals erred in denying Welch’s application for a certificate of 

appealability under the Antiterrorism and Effective Death Penalty Act of 1996. 136 

U.S. at 1263-64. In answering that question, the Supreme Court discussed and 

applied Teague v. Lane, 489 U.S. 288 (1989), to determine whether a new rule of 

constitutional dimension would be applicable to “those cases which have become 

final before the new rule[ ] [is] announced.” Id. at 1264 (quoting Teague, 489 U.S. 

at 310)). Welch simply has no application to this case. The district court did not 

err in concluding the same.

Even if not time-barred, Davis’s claims fare no better on the merits. The 

gravamen of Davis’s application for postconviction relief is that the rule announced 

in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), should be applied 
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retroactively to his case. He has stuffed this substantive claim into several different 

envelopes—ineffective assistance of counsel, equal protection, and illegal 

sentence. The different envelopes all arrive at the same destination: the claims 

fail on the merits. See Iowa Code § 822.3; Nguyen v. State, 878 N.W.2d 744, 758 

(Iowa 2016) (“We agree with the State that defendants whose convictions became 

final before the law changed in Heemstra are not similarly situated to defendants 

charged after Heemstra. Nguyen was not denied equal protection of the laws 

under the Iowa Constitution.”); Goosman v. State, 764 N.W.2d 539, 545 (Iowa 

2009) (holding the “limitation of retroactivity announced in Heemstra to cases on 

direct appeal where the issue has been preserved did not violate federal due 

process”); Tindell v. State, 629 N.W.2d 357, 360 (Iowa 2001) (“His claim of 

procedural error is not a claim of illegal sentence, and therefore, it is precluded by 

our normal error-preservation rules.”); Wright v. State, No. 16-0275, 2017 WL 

1401475, at *4 (Iowa Ct. App. Apr. 19, 2017) (“Our supreme court had the authority 

to limit the retroactive application of Heemstra. It has done so, distinguishing those 

cases on appeal where error was preserved and a potentially meritorious legal 

claim was presented and those cases where error was not preserved and no legal 

claim or no meritorious legal claim was presented. The equal protection clause 

does not require that these dissimilar cases be treated the same.”); Pickett v. State, 

No. 14-2053, 2015 WL 5970034, at *2 (Iowa Ct. App. Oct. 14, 2015) (“Pickett’s 

motion for correction of an illegal sentence was, at its core, yet another attempt to 

have Heemstra applied retroactively to his case—a claim that was rejected by the 

Iowa Supreme Court in his appeal from the dismissal of his second postconvictionrelief application.”); Hillman v. State, No. 14-0158, 2015 WL 5278929, at *2-3 (Iowa 
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Ct. App. Sept. 10, 2015) (rejecting a claim that Heemstra should be applied 

retroactively based on due process and separation of powers under the Iowa 

Constitution and equal protection under the Iowa and federal constitutions); Davis, 

2015 WL 4642053, at *2 (rejecting the claim counsel was ineffective in failing to 

raise the felony-murder issue subsequently decided in Heemstra); Memmer v. 

State, No. 11-0513, 2012 WL 2406129, at *2 (Iowa Ct. App. June 27, 2012) 

(rejecting Heemstra-illegal-sentence claim as “simply his prior ineffectiveassistance-of-counsel claim recast”).

We have considered each of Davis’s arguments whether or not set forth in 

full herein, and we find no error. We affirm the district court’s dismissal of Davis’s 

second application for postconviction relief.

AFFIRMED.