IN THE COURT OF APPEALS OF IOWA

No. 17-0795

Filed May 2, 2018

ROGER PEGRAM,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, 

Judge.

Roger Pegram appeals from the dismissal of his second application for 

postconviction relief. AFFIRMED.

Jeffrey M. Lipman and Arielle M. Lipman of Lipman Law Firm, P.C., West 

Des Moines, for appellant.

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

General, for appellee State.

Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

Roger Pegram appeals from the dismissal of his second application for 

postconviction relief after the district court granted the State’s motion for summary 

disposition. We affirm.

I. Background Facts and Proceedings.

In May 1991, Roger Pegram was convicted of first-degree murder, and this 

court affirmed his conviction on direct appeal. See Pegram v. State, No. 99-1093, 

2001 WL 913817, at *1 (Iowa Ct. App. Aug. 15, 2001). Pegram subsequently filed 

an application for postconviction relief (PCR), which was denied and dismissed by 

the district court. See id. We affirmed the denial and dismissal on appeal. See 

id.

In March 2016, Pegram filed a second PCR application, based upon the 

Iowa Supreme Court’s ruling in Nguyen v. State, 829 N.W.2d 183, 188 (Iowa 

2013). In Nguyen,

the court determined its ruling in State v. Heemstra, 721 N.W.2d 549, 

558 (Iowa 2006), was a new ground of law so as to excuse the threeyear statute-of-limitations bar for PCR cases. See Iowa Code 

§ 822.3 (2013) (noting all actions for [PCR] must be filed within three 

years from the date the conviction becomes final or the procedendo 

is issued in the case of a direct appeal). Because Nguyen had filed 

his PCR application within three years of the Heemstra decision, 

Nguyen’s case was remanded for the district court to consider the 

merits of Nguyen’s constitutional claims that Heemstra should be 

retroactiv[ely] applied. Nguyen, 829 N.W.2d at 189.

Smith v. State, 882 N.W.2d 126, 127 (Iowa Ct. App. 2016). In his PCR application, 

Pegram basically argued he is in a similar position as Nguyen because he was 

convicted of first-degree murder and the three-year PCR statute of limitations ran 

before Heemstra was decided. However, unlike Nguyen, Pegram did not file his 
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PCR application within three years of the Heemstra decision. Instead Pegram 

waited until Nguyen’s challenge to the three-year PCR statute of limitations was 

successful before filing his own PCR challenge.

The State subsequently filed a motion for summary judgment and dismissal. 

See Iowa Code § 822.6 (2016). The State argued Nguyen did not provide an 

exception to the three-year statute of limitations set out in section 822.3, and 

Pegram’s PCR application was time-barred by more than twenty years. Following 

a hearing on the State’s motion, the district court granted the State’s motion for 

summary disposition and dismissed Pegram’s PCR application.

Pegram appeals.

II. Standard of Review.

We review PCR proceedings, including the summary disposition of a PCR 

application, for correction of errors at law. See Moon v. State, ___ N.W.2d ___, 

___ (Iowa 2018). Summary disposition is appropriate when, viewing the facts in 

the light most favorable to the nonmoving party, “it appears from the pleadings, 

depositions, answers to interrogatories, and admissions and agreements of fact, 

together with any affidavits submitted, that there is no genuine issue of material 

fact and the moving party is entitled to judgment as a matter of law.” See Iowa 

Code § 822.6; see also Moon, ___ N.W.2d at ___ (“We apply our summary 

judgment standards to summary disposition of [PCR] applications. Therefore, on 

further review we will apply our summary judgment/disposition standards.”); 

Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002) (noting “the principles 

underlying summary judgment procedure apply to motions of either party for 

disposition of an application for [PCR] without a trial on the merits”). These same 
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summary-dismissal standards apply “to the statute-of-limitations issue.” Moon, 

___ N.W.2d at ___.

III. Discussion.

“[T]o conserve judicial resources, promote substantive goals of the criminal 

law, foster rehabilitation, and restore a sense of repose in our system of justice,” 

our legislature limited the time to bring PCR actions. Wilkins v. State, 522 N.W.2d 

822, 824 (Iowa 1994). To that end, section 822.3 expressly provides that 

“[a]ll . . . 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 or 

procedendo is issued.” The legislature did include an exception: “[T]his 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. Consequently, “to avoid the threeyear statute of limitations contained in section 822.3, an applicant must show he 

or she could not have raised the ground of fact within the applicable time period.” 

Schmidt v. State, ___ N.W.2d ___, ___ (Iowa 2018). Additionally, the applicant 

“must show the ground of fact is relevant to the challenged conviction.” Id. “It 

would be absurd to toll the statute of limitations pending the discovery of a trivial 

fact that could not possibly affect the challenged conviction.” Harrington v. State, 

659 N.W.2d 509, 520 (Iowa 2003). “Every limitation statute sets up an arbitrary 

date after which certain actions cannot be brought or certain rights cannot be 

enforced. One cannot escape the effect of such statutes by showing they were 

only violated a little bit.” In re Detention of Fowler, 784 N.W.2d 184, 190-91 (Iowa 

2010). At the summary-disposition stage, to overcome a challenge based upon 

the running of the statute of limitations, an applicant does not have to prove the 
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“fact would likely or probably have changed the outcome of the underlying criminal 

case.” Schmidt, ___ N.W.2d at ___. Rather, the applicant must show the ground 

of fact is “of the type that has the potential to qualify as material evidence for 

purposes of a substantive claim under section 822.2.” Id.

Here, Pegram’s arguments are two-fold. First, he argues the court “abused 

its discretion in dismissing the [PCR application] without first allowing counsel the 

opportunity to review the criminal file.” He also asserts his PCR counsel was 

ineffective in failing to amend his PCR application to “raise and cite to recent 

dispositive case law.”

A. Discovery.

There is no question that the three-year limitation period has run. Thus, 

summary disposition and dismissal of his application is proper unless Pegram 

establishes a genuine issue of material fact exists as to whether he could have 

raised the ground of fact or law within the applicable time period. See Moon, ___

N.W.2d at ___. Pegram insists his most recent PCR counsel should have been 

allowed time to review his criminal file to see if there were any violations of Brady 

v. Maryland, 373 U.S. 83, 87 (1963), which held “failure of prosecution to disclose 

evidence that may be favorable to the accused is a violation of the Due Process 

Clause of the Fourteenth Amendment.” Harrington, 659 N.W.2d at 516. But there 

is neither evidence nor a factual allegation specific to a Brady violation here, nor 

is there any explanation as to why such violation could not have been brought 

within the applicable time period. See Iowa Code § 822.3; see also id. § 822.8 

(“All grounds for relief available to an applicant under this chapter must be raised 

in the applicant’s original . . . application . . . unless the court finds a ground for 
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relief asserted which for sufficient reason was not asserted or was inadequately 

raised in the original . . . application.”). When Pegram was given an opportunity to 

explain his current PCR claims at the latest hearing, he stated:

Here’s where I’m at on this. I believe that the felony murder 

rule was found unconstitutional through Heemstra. I think we all 

understand that. Maybe I’m wrong. However, I think the highest 

courts have found that not applying Heemstra retroactively 

concerning that felony murder rule would be unconstitutional 

considering Nguyen in other cases since Nguyen.

Now, all this other extraneous stuff that we’re talking about 

right now in this summary judgment claim by the State in wanting to 

dismiss the case and all that, you know, I’m—I’m resisting that, of 

course.

But I think that we all understand what’s going on here and it’s 

all unconstitutional. That felony murder rule thing is unconstitutional. 

I think this summary judgment thing should be denied.

There was no allegation of any Brady violation by Pegram. Pegram’s PCR counsel 

even admitted that the likelihood of finding evidence of a Brady violation would be 

low, even with a full review of the record.

It is true that, under section 822.7, “[a]ll rules and statutes applicable in civil 

proceedings including pretrial and discovery procedures are available to the 

parties.” Nevertheless, Pegram had his opportunity to litigate his PCR claims, 

including any Brady violation, within the statutory-time period in his first PCR 

application. The second time around, Pegram had to provide specific facts rather 

than mere legal conclusions to satisfy the requirements of chapter 822. See Arnold 

v. State, 540 N.W.2d 243, 246 (Iowa 1995). The mere filing of a subsequent PCR 

application does not entitle the applicant access to the discovery process, and to 

allow Pegram to do so would undermine the legislative intent behind the statutorytime limitation. That is not to say there are not circumstances where discovery 

may be appropriate, even outside the three-year time period. See Moon, ___
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N.W.2d at ___ (holding PCR court’s grant of summary disposition not appropriate

because a genuine issue of material fact existed as to whether applicant could 

have raised the ground of fact earlier); Schmidt, ___ N.W.2d at ___ (holding PCR 

court’s grant of summary disposition not appropriate where victim’s “recantation 

was not available to Schmidt within the three-year period following the date of his 

conviction and Schmidt could not have discovered the recantation earlier than he 

did in the exercise of due diligence”); Harrington, 659 N.W.2d at 516, 521-25 

(holding PCR court incorrectly found application was time barred where police 

reports were allegedly not disclosed in violation of Brady at the time of trial and 

were not discovered until well after PCR statute of limitations had run). But insofar 

as Pegram’s second PCR application claimed a Brady violation, specific factual 

allegations were required to establish a genuine issue of material fact to survive 

summary disposition. See, e.g., Moon, ___ N.W.2d at ___ (stating applicant’s

claim was “based on an alleged Brady violation arising from the State’s failure to 

turn over exculpatory evidence, such as notes, statements, and interview reports 

of [a State’s witness]”). Consequently, the PCR court did not err in dismissing the 

PCR application without allowing further time for review of the underlying criminal 

file.

B. Ineffective Assistance.

As to his felony-murder constitutionality claims, Pegram maintains on 

appeal that his trial counsel was ineffective because he did not assert any 

arguments related to the Supreme Court’s opinion in Welch v. United States, 136 

S. Ct. 1257 (2016). In Welch, the Court held a prior opinion finding a statutory 

provision void for vagueness was “a substantive decision and so has retroactive 
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effect under Teague [v. Lane, 489 U.S. 288 (1989)] in cases on collateral review.” 

Welch, 136 S. Ct. at 1265. Pegram claims that Welch constitutes a change in law 

and allows Heemstra to be applied retroactively. Even assuming that assessment 

is accurate, Welch has no bearing on our statute-of-limitations analysis. See 

Nguyen v. State, 878 N.W.2d 744, 754 (Iowa 2016).

Heemstra was filed in 2006. Pegram’s current PCR application was filed in 

2016, more than three years after Heemstra. Pegram’s application was therefore 

time barred. Even if PCR counsel had advanced an argument invoking Welch, 

Pegram’s PCR application would still be time barred and the PCR court could not 

have reached his retroactivity claim. See also Nguyen, 878 N.W.2d at 754 (noting 

PCR counsel has “no duty to pursue a meritless claim”). Consequently, the PCR 

court did not err in granting the State’s motion for summary disposition and 

dismissing Pegram’s PCR application because it was time barred.

IV. Conclusion.

Because Pegram’s second PCR application was time barred, the court did 

not err in granting the State’s motion for summary disposition and in dismissing the 

PCR application. Accordingly, we affirm the ruling of the district court.

AFFIRMED.