IN THE COURT OF APPEALS OF IOWA

No. 15-0383

Filed March 22, 2017

STEPHEN SHAWN KEYES,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Marsha M. 

Beckelman (first motion to amend), Mary E. Chicchelly (second motion to 

amend), and Lars G. Anderson (trial), Judges.

Stephen Keyes appeals the denial of his application for postconviction 

relief (PCR), asserting that his trial counsel provided ineffective assistance and 

that the PCR court erred in denying his motions to amend his application. 

AFFIRMED.

Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney 

General, for appellee State.

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

DOYLE, Judge.

A jury found Stephen Keyes guilty of two counts of first-degree murder,

and he was sentenced to life in prison. We affirmed Keyes’s convictions on 

direct appeal, but we preserved his ineffective-assistance-of-counsel claims for 

possible postconviction-relief (PCR) proceedings. See State v. Keyes, No. 97-

1997, slip op. at 1-5 (Iowa Ct. App. May 26, 1999). Keyes timely filed a PCR 

application in 1999, but trial did not take place until 2014. The PCR court denied 

the application in early 2015. Keyes appeals, raising two claims: (1) trial counsel 

was ineffective regarding the cross-examination of Keyes’s eight-year-old son, 

and (2) the PCR court abused its discretion in denying his motions to amend the 

PCR application. We conclude that Keyes did not meet his burden to prove his 

trial counsel was ineffective and that the PCR court did not abuse its discretion in 

denying his motions to amend his PCR application. We therefore affirm.

I. Background Facts and Proceedings.

In the early morning hours of December 26, 1996, Keyes’s wife, Sandra,

and two-year-old son, Joshua, died in a house fire. The State accused Keyes of 

setting the fire to collect insurance proceeds and charged him with two counts of 

murder. Keyes was tried to a jury in September 1997.

Special Agent Michael Hiles was the State’s chief fire investigator on the 

case. He testified concerning accelerant detection at the fire scene by a dog 

trained for this purpose. See id. at 2. Hiles was also allowed to demonstrate the 

dog’s ability to detect a drop of gasoline concealed in the courtroom. See id. 

“Other inculpatory evidence included Keyes’s failing marriage to Sandra, threat to 

kill her, and recent purchase of substantial life and renter’s insurance.” Id. 
3

Keyes was found guilty of two counts of first-degree murder and sentenced to life 

in prison. See id.

On direct appeal, this court concluded the State’s foundation for admission 

of Hiles’s expert testimony concerning the reaction of a dog trained in accelerant 

detection was sufficient. See id. at 3-4. We also found no error in the dog’s incourt demonstration. See id. at 5. We affirmed Keyes’s convictions and 

sentence and preserved for postconviction proceedings Keyes’s ineffectiveassistance-of-counsel claims that “his trial counsel was ineffective in (1) failing to 

object to evidence of [Keyes’s] ‘check kiting’ offenses; and (2) failing to crossexamine [Keyes’s] son Michael about his recall of the events surrounding the 

morning of the fire.” Id.

Keyes timely filed his pro se PCR application on November 1, 1999, 

setting forth three claims of ineffective assistance of counsel. He contended his 

trial counsel was ineffective in (1) failing to object to evidence of other crimes, 

i.e., Keyes’s check kiting offenses, (2) failing to cross-examine his eight-year-old 

son Michael concerning the boy’s recall of events at the time of the fire, and (3) 

failing to object to the warrantless search and seizure of Keyes’s clothing. Keyes 

was appointed PCR counsel. As the PCR court so aptly noted: “From there, this 

case . . . had a sad history of progression.” Keyes’s eighth PCR counsel was 

appointed in April 2007.

In September 2008, PCR counsel moved for a continuance. Counsel 

advised the court that “in spite of the multiple attorneys that [had] been 

appointed, very little was done” in the case and that he had to “essentially begin 

from scratch.” Due to the size and complexity of the case, counsel requested an 
4

extension of one year to develop the PCR record. Counsel also requested 

depositions and preparation of transcripts at the State’s expense, stating Keyes’s 

expert had “now completed his preliminary analysis,” and the case was “finally 

ready for depositions.” The court granted Keyes’s requests.

In an April 2009 motion, PCR counsel advised that Keyes had “obtained 

the services of a Dr. Gerald Hurst in Austin, Texas,” who had worked for Keyes 

pro bono and “prepared a 57 page report finding significant infirmities in the 

arson investigation,” and counsel requested funds for the expert to travel to give 

testimony, as well as funds for other experts. Dr. Hurst’s September 3, 2008 

report was attached to the motion. The report was very critical of Hiles, 

stating: “The origin and cause investigation in the Keyes case was an exercise 

based on concepts which had been long relegated to the category of old wives 

tales.” The State resisted, but the PCR court granted funding for two of three 

requested experts.

At the end of 2010, PCR counsel requested another continuance and a 

trial-scheduling conference. Following the conference, the court entered a 

scheduling order setting deadlines of February 15, 2011, for amendments to 

pleadings and March 15, 2011, for Keyes’s designation of experts. Trial was set 

for January 9, 2012.

On March 15, along with a designation of experts, PCR counsel filed a 

motion to amend the PCR application. The motion stated counsel “inadvertently 

tickled this deadline for March 15” and learned of the error when talking to the 

State’s counsel. PCR counsel took full responsibility for missing the deadline by 

twenty-eight days and requested the fault not be placed on Keyes. PCR counsel 
5

also stated he “had no tactical advantage for missing the deadline, and the 

contents of his Amended Application merely restate many of the core 

conclusions” of Dr. Hurst’s report, which the State had had since April 2009. 

With the trial some ten months away, counsel believed the State had adequate 

time to prepare, but Keyes did not object to a continuance, including the resetting 

of deadlines, if the State needed additional time. The proposed amended 

application asserted fourteen grounds, including the original three claims of 

ineffective assistance of counsel. The State resisted, and the PCR court denied 

the motion, concluding it substantially changed the issues, prejudiced the State, 

and would likely require a continuance.

A status hearing was held in December 2011, and Keyes and his counsel 

requested the trial date be reset. The State did not resist a continuance, but it 

“reserved the right to object in the future to any further request by [Keyes] to 

amend the [application].” The court granted the motion to reset the trial date.

Another status hearing was held in June 2013, and trial was again reset—

for September 2014. In July 2014, PCR counsel filed a second motion seeking 

to amend the PCR application. The proposed amended application raised ten 

grounds, including two of the original ineffective-assistance-of-counsel claims. 

Among other things, the motion advised that since the first motion to amend, the 

Iowa Fire Marshal had officially adopted National Fire Protection Association 

(NFPA) 921, a Guide for Fire and Explosion Investigations.

1

 The State again 

 

1 NFPA 921 was in existence at the time of the Keyes’s fire. When cross-examined at 

the murder trial, the State’s fire investigator Hiles testified he did not rely upon the 

guidelines of NFPA 921 because NFPA was controlled by “special interest people,” and 

“[n]ot one of the 50 State Fire Marshals [was] on the board or committee.” On July 5, 
6

resisted, and the PCR court denied the motion in August 2014 for the same 

reasons it stated in its prior order.

Trial commenced in September 2014 on the three ineffective-assistanceof-counsel claims asserted by Keyes in his original 1999 PCR application. The 

PCR court declined to reconsider the rulings previously made on the earlier 

motions to amend. Though the court did not consider Keyes’s experts’ testimony 

at trial, the court did permit Keyes to elicit their testimony by way of an offer of 

proof for appellate review. On January 30, 2015, the PCR court entered its ruling 

denying Keyes’s ineffective-assistance-of-counsel claims.

Keyes appealed. In June 2015, the Iowa Supreme Court entered an order 

for limited remand to allow the PCR court to rule on Keyes’s motions for a new 

trial and to amend or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2).2 

The PCR court denied the motions on August 24, 2015. The matter then 

bounced back to the supreme court and was transferred to this court in 

December 2016.

On appeal, Keyes argues a single ground of ineffective-assistance-ofcounsel: that his trial counsel was ineffective for failing to impeach or more 

effectively cross-examine his then eight-year-old son about the inconsistencies in 

his trial testimony compared to the child’s statements given to a detective the day 

of the fire. Keyes also argues the PCR court erred or abused its discretion when 

 

2011, the Iowa State Fire Marshal adopted NFPA 921 as a guide, “except when such 

guidance is inapplicable or when additional or alternative investigative methods are 

warranted based upon the nature of the fire or explosion.”

2 Keyes’s posttrial motions had not been ruled on before Keyes filed his notice of appeal. 
7

it denied his motions to amend the PCR application. We begin with Keyes’s 

ineffective-assistance-of-counsel claim.

II. Ineffective Assistance of Counsel.

A. Standard of Review and Boilerplate Law.

Though we normally review the PCR court’s ruling on the application for 

corrections of errors at law, constitutional claims, such as those alleging 

ineffective assistance of counsel, are reviewed de novo. See More v. State, 880 

N.W.2d 487, 498 (Iowa 2016); Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 

2016). To succeed on a claim of ineffective assistance of counsel, a PCR 

applicant “must prove by a preponderance of evidence ‘(1) his trial counsel failed 

to perform an essential duty, and (2) this failure resulted in prejudice.’” Rhoades 

v. State, 848 N.W.2d 22, 28 (Iowa 2014) (citation omitted). If Keyes cannot 

establish both elements, his claim fails; thus, if we find one element lacking, we 

need not address the other element. See State v. Schlitter, 881 N.W.2d 380, 388 

(Iowa 2016). But if Keyes does establish both elements, meaning his counsel 

was ineffective, he is entitled to a new trial. See id. at 391. “[I]t is the applicant’s 

burden to present facts establishing inadequate representation.” King v. State, 

797 N.W.2d 565, 571 (Iowa 2011).

“An attorney breaches an essential duty when ‘counsel’s representation 

[falls] below an objective standard of reasonableness.’” Lado v. State, 804 

N.W.2d 248, 251 (Iowa 2011) (citation omitted). “We assess counsel’s 

performance ‘objectively by determining whether [it] was reasonable, under 

prevailing professional norms, considering all the circumstances.’” Nguyen, 878 

N.W.2d at 752 (citation omitted). But, in assessing counsel’s performance, “we 
8

start with the presumption that the attorney performed his duties in a competent 

manner.” State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008). “Miscalculated 

trial strategies and mere mistakes in judgment normally do not rise to the level of 

ineffective assistance of counsel,” King, 797 N.W.2d at 571, and “we avoid 

second-guessing and hindsight,” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 

2001). We are less likely to find counsel ineffective if counsel’s alleged actions 

or inactions stem from counsel’s use of judgment rather than counsel’s lack of 

diligence. See Lado, 804 N.W.2d at 251. “[W]e look to the facts of the case to 

determine whether there was a lack of diligence.” King, 797 N.W.2d at 571 

(citation omitted). “Clearly, there is a greater tendency for courts to find 

ineffective assistance when there has been ‘an abdication—not exercise—

of . . . professional [responsibility].’” Lado, 804 N.W.2d at 251 (citation omitted). 

“In the end, the inquiry is transformed into an individualized fact-based analysis.” 

Ledezma, 626 N.W.2d at 142. “Counsel’s unprofessional errors resulting in the 

mere impairment of presenting the defense is not sufficiently prejudicial.” State 

v. Clay, 824 N.W.2d 488, 496 (Iowa 2012).

B. Analysis.

Keyes asserts one ineffective-assistance-of-counsel claim on appeal. The 

PCR court succinctly set forth that claim as follows:

In his [application], Keyes claims that “[t]rial counsel erred 

when failing to cross-examine [his] son, Michael, concerning his 

recall of events at the time of the fire . . . . Essentially, trial counsel 

could have impeached [Keyes’s son] but instead decided not to 

engage in cross-examination . . . . Michael’s testimony could have 

been impeached, especially where it suggested [Keyes] did not 

attempt to remove his wife and another child from the flames of the

burning house.” At trial and in posttrial briefs, Keyes expands on 

this and takes issue with three separate statements made by 
9

Michael at trial, all of which were allegedly contradicted by 

statements made by Michael to [a detective] shortly after the fire.

First, at trial Michael was asked: “While you were walking 

down the stairs, Mike, and going towards the door, did you ever 

hear your dad yell for your mom?” Michael replied, “No.” [The 

report of the detective that] interviewed Michael on December 26, 

1996, shortly after the fire . . . indicate[d] “Michael said he heard his

father calling to his mother, but ‘Mommy didn’t answer.’ [Michael] 

thought that his mother was still sleeping because he never saw 

her.”

Second, Michael was asked at trial: “When did you first 

realize the house was on fire?” He replied, “When we got into the 

van.” He told [the detective] that “they went to the back door but 

there was fire so they went to the front door.”

Lastly, at trial Michael was asked: “When he woke you up by 

pulling on your shirt, did he say anything?” Michael replied, “No.” 

The [detective’s] report indicates that Michael said “[h]is daddy 

shook me and yelled to get up.”

Keyes asserts that Michael’s testimony was very important 

at trial. [The prosecutor] who prosecuted the case against Keyes, 

testified in the [PCR] proceedings that he thought Michael’s 

testimony was one of the more important pieces of evidence in the 

case. He highlighted Michael’s testimony at trial and contrasted it 

with statements made by Keyes as part of his closing argument.

At the PCR hearing, though trial counsel testified that he did not know of a 

tactical reason he would not have impeached Michael’s testimony, his testimony 

at the hearing was given more than a decade after the trial. Trial counsel 

testified he was an experienced attorney, and “it didn’t sound like [him] to miss 

something like that.” We agree with the PCR court’s assessment:

The court does not construe [trial counsel’s] admission to be nearly 

as broad as argued by Keyes. [Trial counsel] testified that as he 

sat there almost eighteen years later, he could not recall any 

strategic or tactical justification, and that with hindsight being 20\20, 

he perhaps should have impeached Michael at the time. This is a 

far cry from admitting that at the time he had no strategic or tactical 

justification.

. . . .

When it comes to cross-examination of children, courts have 

noted the difficulties faced by defense counsel and the fine line that 

defense counsel walks—an overly aggressive cross-examination 

runs the risk of alienating the jury and generating hostility toward 
10

the defendant. See State v. DeLeon, 337 N.W.2d 635, 641 (Wis. 

Ct. App. 1985) (“This failure to impeach can be justified as a 

legitimate trial tactic. Impeaching a child witness with a prior 

inconsistent statement is a double-edged sword—it may cast doubt 

upon the child’s credibility; on the other hand, it may cast both the 

defendant and defense counsel in a negative light.”) . . . .

In this case, not surprisingly, [trial counsel] had no 

independent recollection of Michael’s testimony at the criminal trial 

or his strategy. [Trial counsel] testified that in his experience with 

children witnesses, a case-by-case determination had to be made 

regarding how aggressively to cross-examine them and whether or 

not to try and impeached their testimony. He did, in fact, conduct a 

cross-examination of Michael. Looking at it in full, it is clear that 

[trial counsel] was delicate in his cross-examination, but he was 

also trying and able to make certain points helpful to Keyes, 

including that Michael was a hard sleeper and often groggy when 

he woke up. [Trial counsel] referenced this in his closing 

statement. It is clear that [trial counsel] had a strategy and purpose 

with his cross-examination of Michael.

Looking at the case eighteen years later, it may be easy to 

say that a different strategy would have worked better, but that is 

not the applicable standard. Under these facts and circumstances, 

the court cannot say that trial counsel’s cross-examination of then 

eight-year-old Michael Keyes was outside of the range of 

competent legal assistance.

Keyes’s ineffective-assistance-of-counsel claim fails as a matter of law. We 

therefore proceed to the second point—whether the PCR court erred in denying 

his motions to amend.

III. Motions to Amend.

Keyes also argues the PCR court erred or abused its discretion when it 

denied his motions to amend his PCR application. On appeal, Keyes asserts the 

first motion to amend was largely based on Dr. Hurst’s 2008 report.3 The second 

motion to amend “raised largely the same issues as the first,” but it also included 

 

3 Keyes makes no argument on appeal concerning any of the other new grounds raised 

in his first amended application.
11

the Iowa State Fire Marshal’s adoption of NFPA 921 as “newly discovered 

evidence.”

A. Standard of Review.

We review the denial of a request to amend a pleading for an abuse of 

discretion. See Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 108 (Iowa 

1995). “An abuse of discretion occurs when the trial court ‘exercises its 

discretion on grounds clearly untenable or to an extent clearly unreasonable.’” 

State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999) (quoting State v. Smith, 522 

N.W.2d 591, 593 (Iowa 1994)). “A postconviction action based on newly 

discovered evidence is reviewed for correction of errors at law.” More, 880 

N.W.2d at 498.

B. Analysis.

1. PCR Procedures.

PCR proceedings are civil actions triable at law, and the rules of civil 

procedure apply. See Jones v. State, 545 N.W.2d 313, 314 (Iowa 1996); see 

also Jack v. P & A Farms, Ltd., 822 N.W.2d 511, 517-18 (Iowa 2012) (citing Iowa 

Code § 822.7). To commence PCR proceedings, the PCR applicant must file a 

verified application “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” 

unless the applicant is asserting “a ground of fact or law that could not have been 

raised within the applicable time period.” Iowa Code § 822.3 (1999); see also id. 

§ 822.4; Nguyen v. State, 829 N.W.2d 183, 187 (Iowa 2013). But:

All grounds for relief available to an applicant under [chapter 

822] must be raised in the applicant’s original, supplemental or 

amended application. Any ground finally adjudicated or not raised, 
12

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.

Iowa Code § 822.8. “Within thirty days after the docketing of the [PCR] 

application, or within any further time the court may fix, the [S]tate shall respond

by answer or by motion.” Id. § 822.6 (emphasis added). A PCR court can “make 

appropriate orders for amendment of the application or any pleading or motion, 

for pleading over, for filing further pleadings or motions, or for extending the time 

of the filing of any pleading.” Id.

2. Rules of Civil Procedure and Case Law.

In addition to the procedures contemplated in chapter 822, Iowa Rule of 

Civil Procedure 1.402(4) expressly permits a party to

amend a pleading as a matter of course at any time before a 

responsive pleading is served or, if the pleading is one to which no 

responsive pleading is required and the action has not been placed 

upon the trial calendar, the party may so amend it at any time within 

[twenty] days after it is served. Otherwise, a party may amend a 

pleading only by leave of court or by written consent of the adverse 

party. Leave to amend, including leave to amend to conform to the 

proof, shall be freely given when justice so requires.

(Emphasis added.) Our supreme court has long found that “amendments should 

be the rule and denial should be the exception.” Baker v. City of Iowa City, 867 

N.W.2d 44, 51 (Iowa 2015); see also Ackerman v. Lauver, 242 N.W.2d 342, 345 

(Iowa 1976). Amendments should be granted “so long as the amendment does 

not substantially change the issues in the case” or “if the opposing party is not 

prejudiced or unfairly surprised” by the substantial change. Baker, 867 N.W.2d 
13

at 51. Moreover, amendments can be made at any stage of the litigation, even at 

trial in certain circumstances. See id.; see also Rife v. D.T. Corner, Inc., 641 

N.W.2d 761, 767 (Iowa 2002). Nevertheless, “[d]istrict courts have considerable 

discretion to allow amendments at any point in the litigation,” and appellate 

courts should “only reverse the district court’s decision if it has abused that 

discretion.” Baker, 867 N.W.2d at 51; see also Daniels v. Holtz, 794 N.W.2d 813, 

824 (Iowa 2010). An “[a]buse of discretion may be shown where there is no 

record to support the court’s factual conclusions, or where the decision is 

grounded on reasons that are clearly untenable or unreasonable.” Office of 

Citizens’ Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa 2012). If the 

court’s reasoning is based on an erroneous application of the law, it is untenable. 

See Sioux Pharm, Inc. v. Eagle Labs., Inc., 865 N.W.2d 528, 535 (Iowa 2015).

a. First Motion to Amend.

The underlying PCR proceedings in Keyes’s case languished for many, 

many years. Although it had plenty of opportunity to do so, the State never filed 

an answer to the original PCR application as required by section 822.6. So, at 

least up to the deadline set by the January 2011 scheduling order, Keyes was 

free to amend his application “at any time” as a matter of course. See Iowa R. 

Civ. P. 1.402(4). And, his amendment would relate back to the original pleading 

if the claims set forth therein “arose out of the conduct, transaction, or occurrence 

set forth . . . in the original pleading.” Iowa R. Civ. P. 1.402(5). Additionally, in 

the PCR court’s January 2011 scheduling order, the court noted that after an 

“extensive discussion between counsel and the court . . . there was a consensus 

related to the deadlines which are set in this order.” Clearly, the State agreed 
14

Keyes could amend his petition up to at least February 15, 2011. But once the 

scheduling order deadline to file amendments passed, as it did, Keyes no longer 

had free reign to file an amendment to his PCR application. See Iowa R. Civ. P. 

1.602(2)(4) (allowing the court to set time limits for amending pleadings).

Due to a calendaring error, Keyes’s counsel missed the deadline to file the 

amended application by twenty-eight days. There can be no question that the 

amended application substantially changed the issues in the case. The crux of 

Keyes’s amended application is Dr. Hurst’s opinion that Special Agent Hiles’s fire 

investigation was flawed in numerous respects.4 Dr. Hurst’s September 3, 2008 

fifty-seven page report was provided to the State as early as April 2009. The 

State certainly had no problem with Keyes amending his application by February 

15, 2011—some eleven months before the scheduled January 9, 2012 trial—and 

in fact it agreed he could do so. It strains credulity to believe the State was 

suddenly prejudiced when the motion to amend was filed just twenty-eight days 

late—still some ten months before trial. Additionally, Keyes and his counsel even 

agreed to continue the trial if the State believed it needed additional time. The 

 

4 Keyes also claimed there was new scientific evidence surrounding cause and origin 

investigations of suspected arson cases. Keyes claimed that since his conviction, the 

U.S. Department of Justice (DOJ) issued a report in June 2000 stating NFPA 921 had 

“become the benchmark for the training and expertise of everyone who purports to be an 

expert in the origin and cause determination of fires.” He also noted the National 

Academy of Sciences (NAS) published a 2009 report revealing significant deficiencies in 

forensic science as a whole—and fire science specifically—and he noted the NAS report 

confirmed the NFPA as foundational on fire science. The recommendations of the 

NFPA 921 are the minimal standards for performing fire investigations, which included

disapproval of the use of canine detection of accelerants. Keyes contended the State 

had not adopted such standards at the time of his trial, and in fact discredited the NFPA 

standards. Keyes noted Special Agent Hiles used a canine trained to detect accelerants 

during his investigation. Keyes asserted that, since some of Hiles’s investigative 

techniques have since been replaced with new scientific techniques, the arson 

investigation which resulted in his conviction was flawed.
15

State made no showing of prejudice or unfair surprise in the PCR proceeding. 

Under Baker, it would appear the amendment could have been granted. See

867 N.W.2d at 51 (stating an amendment is not prohibited “if the opposing party 

is not prejudiced or unfairly surprised” by the substantial change). But prejudice 

is not the only factor we consider in our analysis.

The proposed amended application would have substantially changed the 

issues to be tried. Keyes or his PCR counsel knew of the potential for asserting 

the claims related to Dr. Hurst’s report as early as 2008 and yet failed to assert 

them until more than two-and-one-half years later. The PCR court concluded 

that neither Keyes nor his PCR counsel presented any valid reason

to have waited until this stage of litigation to present the proposed 

amended claims. [The State] asserted that [Keyes] would have 

been aware of the conclusions of Dr. Hurst since at least April 23, 

2009;[5][Keyes] does not dispute this assertion. [Keyes] did not 

meet even the generous deadline included in the January 25, 2011 

Scheduling Order.

Our supreme court has held that a district court did not abuse its discretion in 

denying a proposed amendment where a party knew of the potential for asserting

a claim but did not do so until more than a year later. See Glenn v. Carlstrom, 

556 N.W.2d 800, 804 (Iowa 1996). Keyes had known of Dr. Hurst’s report for 

years before filing his motion to amend. The same is true for the reports 

concerning NFPA 921 by the DOJ—released in 2000—and the NAS—reported in 

2009.

6

 For the reasons expressed in Glenn, we conclude the PCR court did not 

abuse its discretion in denying Keyes’s first motion to amend.

 

5 Dr. Hurst’s report is dated September 3, 2008. A copy was provided to the State with 

Keyes’s April 2009 motion for expenses.

6 See footnote 4.
16

b. Second Motion to Amend.

In July 2014, just two months before trial, Keyes’s counsel filed a second 

motion seeking to amend Keyes’s PCR application. Among other things, the 

motion asserted newly discovered evidence, namely, the adoption of NFPA 921 

by the Iowa Fire Marshal on July 5, 2011. The State again resisted and 

requested the motion be denied for the reasons set forth in the court’s prior ruling 

denying Keyes’s first motion to amend. The PCR court denied the motion in 

August 2014. It found the proposed amendment substantially changed the 

issues and prejudiced the State. The court concluded “Keyes has not set forth 

any valid reason for either counsel or Keyes to have waited until this stage of 

litigation, just before trial, to raise these issues.” Specifically, the court noted that 

although Iowa adopted NFPA 921 on July 5, 2011, and that Keyes had personal 

knowledge of this fact by January 2012, Keyes provided no reason as to why he 

waited until July 5, 2014, to file the motion to amend. For the reasons expressed 

in Glenn, we conclude the PCR court did not abuse its discretion in denying 

Keyes’s second motion to amend. See id.

c. NFPA 921 as Newly Discovered Evidence.

Even had Keyes timely filed a motion to amend, would the NFPA 921 

issue be considered “newly discovered evidence?” We think not.

In order for Keyes to prevail in his PCR action because of newly 

discovered evidence, he must show:

(1) that the evidence was discovered after the verdict; (2) that it 

could not have been discovered earlier in the exercise of due 

diligence; (3) that the evidence is material to the issues in the case 

and not merely cumulative or impeaching; and (4) that the evidence 
17

probably would have changed the result of the trial.

More, 880 N.W.2d at 499 (citations omitted). The standard for whether the 

evidence probably would have changed the result is a high one. See id.

NFPA 921 was considered controversial at the time of Keyes’s 1997 trial. 

It is certainly true that the 2000 DOJ report, which stated NFPA 921 had “become 

the benchmark for the training and expertise of everyone who purports to be an 

expert in the origin and cause determination of fires,” is evidence that could not 

have been discovered at the time of Keyes’s 1997 criminal trial. The same is 

true for the 2009 NAS report revealing significant deficiencies in forensic science 

as a whole—and fire science specifically—as well as confirming NFPA as 

foundational on fire science. Likewise for Iowa’s adoption of NFPA 921 in 2011. 

“While each marginal advance in science cannot form the basis of a new trial, 

watershed developments are a different story.” Id. at 509. We do not view the 

general acceptance of NFPA 921 over the years to be a “watershed 

development.” We conclude this evidence is cumulative or impeaching—not 

newly discovered evidence. Nevertheless, we proceed to examine whether 

Keyes has shown a reasonable probability that the result of his criminal trial 

would have been different with this evidence. This inquiry is whether, based 

upon all the evidence, the verdict probably would have been different in the case 

before us. See id. at 510.

Based upon our review of the entire record, we conclude Keyes has not 

met the high standard of showing that the verdict would have been different 

based on the claimed newly discovered evidence concerning NFPA 921. It was 

undisputed the origin of the fire was the garage. However, causation of the fire—
18

accident or arson—was the issue before the jury, and NFPA 921 was discussed 

at length there. To recount all the trial testimony and evidence here would 

unduly lengthen this opinion. In this case, the State’s witness Special Agent 

Hiles opined the fire was intentionally set with the use of an accelerant.

In Keyes’s defense, an expert testified about changes that had been made 

in how arson is investigated and the conclusions that could be drawn from certain 

fire evidence under NFPA 921. The expert was critical of the State’s 

investigation of the fire, opining that “reliable procedures were not used” in 

investigating the fire. He believed arson with use of an accelerant was 

predetermined from the start of the investigation and only the things that might 

support that opinion were looked at in the investigation. He believed there was 

no objective evidence presented that showed that an accelerant was present. 

He said none of the samples showed an accelerant as being there, and in his 

opinion, that was the only thing that could be used “as to say whether an 

accelerant was there or not.” He believed the wiring, the fluorescent light, and 

the freezer as possible ignition sources were not fully investigated to rule them 

out as the cause of the fire. He opined that “at this stage of the investigation” the 

cause of the fire was “undetermined.” This conclusion is no different than Dr. 

Hurst’s conclusion.

Other evidence—both direct and circumstantial—contradicted Keyes’s 

story. This evidence included Keyes’s own inconsistent statements, 

observations of the fire and of Keyes by eyewitnesses, medical evidence 

indicating minimal smoke inhalation, location of smoke detectors found in the 

home, and Keyes’s postfire behavior and demeanor. Other evidence pointed to 
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motive, including Keyes’s poor treatment of his wife, his relationship with another 

woman, his financial woes, and his recent purchase of renter’s insurance. There 

was also testimony by a jailhouse informant who said Keyes told him how he set 

the fire.

Keyes had the motive and means; he was at the right place at the right 

time, and his behavior generally points in the direction of guilt. We recognize that 

the fire investigation may have been flawed and that any singular piece of 

evidence in isolation may not have been convincing, but it was the combination 

of facts and circumstances that strongly point toward Keyes’s guilt.

Based upon all the above, we conclude the PCR court did not abuse its 

discretion in denying Keyes’s motions to amend his application for postconviction 

relief.

IV. Conclusion.

Because Keyes cannot establish his trial counsel breach a duty in his 

representation of him, Keyes’s ineffective-assistance-of-counsel claim fails as a 

matter of law. Additionally, the PCR did not abuse its discretion when it denied 

Keyes’s motions to amend. Accordingly, we affirm the ruling of the PCR court 

denying and dismissing Keyes’s PCR application.

AFFIRMED.