IN THE COURT OF APPEALS OF IOWA

No. 12-1396

Filed May 14, 2014

DANIEL M. CLAYBON,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Andrea J. 

Dryer, Judge.

Daniel Claybon appeals from the dismissal of his third application for postconviction relief. AFFIRMED. 

John J. Wolfe of Wolfe Law Office, Clinton, for appellant.

Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney 

General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant 

County Attorney, for appellee State.

Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
2

DANILSON, C.J.

Daniel Claybon appeals from the dismissal of his third application for 

postconviction relief (PCR) as being time-barred. Because the issues raised on 

appeal were not first presented to the district court, they are not properly before 

us. We affirm.

I. Standard of Review. Generally, we review the district court’s dismissal 

of a postconviction action on the grounds it was time-barred for the correction of 

errors at law. State v. Harrington, 659 N.W.2d 509, 519 (Iowa 2003). We 

consider whether the district court’s findings of fact are supported by substantial 

evidence, and whether the law was correctly applied. Id. at 520. However, for 

applications that raise a constitutional challenge, we review de novo. Id.

II. Facts and Issues Raised in Application for Postconviction Relief. In 

1990 Daniel Claybon was charged with first-degree murder on alternative bases: 

premeditated murder and felony murder. His trial counsel moved to dismiss the 

felony-murder alternative insofar as it alleged the death occurred as a result of 

willful injury, asserting that “[t]o allow an enhanced charge of Murder in the First 

Degree without requiring the State to prove either an independent felony or 

premeditation and willful and deliberate killing denies the Defendant due process 

of law and allows cruel and unusual punishment in violation of the U.S. and Iowa 

Constitutions.” Based on then precedent, the district court denied the motion to 

dismiss. 

The jury was instructed in “Alternative A” on premeditated murder and in 

“Alternative B” on felony murder with the felony being “willful injury and/or 
3

robbery.”

1

 The jury specifically found Claybon guilty of first-degree murder under 

Alternative B. 

Claybon’s conviction was affirmed on direct appeal. State v. Claybon, 

No. 90-1605 (Iowa Ct. App. Feb. 25, 1992). The appeal did not raise the 

argument that willful injury could not be the predicate offense for first-degree 

murder; rather, defendant asserted the trial court erred in denying his motion for 

change of venue and in admitting evidence of other criminal acts. Id. slip op.

at 2. 

Claybon filed his first application for PCR alleging ineffective assistance 

based on counsel’s failure to challenge the jury selection process and trial court 

errors, including denial of Claybon’s motion for a change of venue and admission 

of prior bad acts evidence. See Claybon v. State, No. 96-2252, slip op. at 2 

(Iowa Ct. App. Apr. 24, 1998). The denial of his PCR application was affirmed. 

See id. 

On August 25, 2006, the Iowa Supreme Court issued its decision in State 

v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), in which it held that “if the act 

causing willful injury is the same act that causes the victim’s death, the former is 

merged into the murder and therefore cannot serve as the predicate felony for 

 

1 The instruction under Alternative B provided:

The State must prove all of the elements of Murder in the First 

Degree in either:

. . . .

1. On or about the 11th day of March, 1990, the defendant

participated in the offense of Willful Injury and/or Robbery.

2. That while so participating, the defendant shot Jeffrey Dean 

Wood with malice aforethought.

3. That Jeffrey Dean Wood died as a result of said injury.

If the State has proved all of the elements, in either Alternative “A”

or “B”, the defendant is guilty of Murder in the First Degree.
4

felony-murder purposes.” The Heemstra opinion states, “The rule of law 

announced in this case regarding the use of willful injury as a predicate felony for 

felony-murder purposes shall be applicable only to the present case and those 

cases not finally resolved on direct appeal in which the issue has been raised in 

the district court.” 721 N.W.2d at 558. 

On September 26, 2006, Claybon filed his second PCR application 

asserting the trial court erred in instructing the jury on felony murder with willful 

injury as the predicate offense and prior counsel were ineffective in failing to 

preserve the issue. On June 6, 2007, the district court dismissed this second 

PCR application, reasoning, “Heemstra by its very wording does not apply to 

petitioner. Petitioner’s case was not on direct appeal when Heemstra was 

decided. Indeed, petitioner’s appeal was decided 14 to 15 years prior to the 

Heemstra decision.” The Iowa Supreme Court upheld that dismissal, concluding 

“the appeal is frivolous.” Claybon v. State, No. 07-1089 (Iowa June 2, 2010). 

Procedendo issued on June 25, 2010.

On July 5, 2011, Claybon filed his third PCR application, alleging his 

sentence was illegal and challenging the adequacy of the trial information and 

the jury instructions regarding the theories of joint criminal conduct and aiding 

and abetting. The district court ruled his sentence was not illegal,

2

and these 

“challenges to the jury instructions and the sufficiency of the trial information”

should have been raised within three years of the conviction. See Iowa Code 

 

2 An illegal sentence can be raised at any time and is not subject to the limitations period 

of Iowa Code section 822.3. Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010) (“Consistent 

with the State’s concession, we conclude that the time restrictions that apply in ordinary 

postconviction relief actions do not apply in illegal sentence challenges.”).
5

§ 822.3 (2011) (requiring most PCR applications to be filed within three years 

from the date the writ of procedendo is issued, but stating “this limitation does not 

apply to a ground of fact or law that could not have been raised within the 

applicable time period”).

III. Issues Raised on Appeal. On appeal Claybon argues, “This case 

should be remanded to the Black Hawk County District Court for a determination 

as to whether retroactive applications of Heemstra is required by the equal 

protection, due process and separation of powers clauses of the Iowa 

Constitution, or the equal protection clause of the United States Constitution.”

3

 

Claybon thus raises an issue not presented to the district court. 

We decline to reach the issues now raised, which were not raised below.4 

See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (“[W]e will not consider a 

substantive or procedural issue for the first time on appeal.”); accord Phuoc 

Thanh Nguyen v. State, 829 N.W.2d 183, 187 (Iowa 2013).

AFFIRMED.

 

3 He first asserts, “Heemstra resulted in a change in the law regarding the felony murder 

offense and therefore a new limitation period began to run on that issue with the court’s 

ruling in Heemstra.” He also contends, “Claybon’s failure to have effective counsel as 

guaranteed by section 10, article one of the Iowa Constitution and the Sixth Amendment 

to the United States Constitution is adequate reason why his post-conviction proceeding 

should not be dismissed under the authority of § 822.3, Iowa Code.”

4

In any event, in Nguyen v. State, 829 N.W.2d 183, 187 (Iowa 2013), the supreme court 

ruled an April 2, 2009 PCR application—in which Nguyen had argued that denying 

retroactive application of Heemstra violated equal protection, due process, and 

separation of powers clauses of the Iowa Constitution, or the Equal Protections Clause 

of the United States Constitution—was not time-barred under section 822.3 despite his 

2002 conviction because the claim could not have been made until Heemstra was 

decided—in August 2006. Thus, Nguyen’s PCR was filed within three years of when his 

claim arose. Claybon already raised a Heemstra claim in his 2006 PCR application and 

did not then contend that the denial of retroactive application violated his constitutional 

rights. Nor did he make that claim in his third PCR application filed July 2011. Even if 

he had made the claim in this third application, it would have been time-barred as it was 

filed more than three years after Heemstra was decided.