IN THE COURT OF APPEALS OF IOWA No. 13

- 0960 Filed July 30, 2014 CHAD KAMMERUDE, Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.

Applicant appeals the decision of the district court granting summary judgment to the State on his application for postconviction relief. AFFIRMED.

Samuel M. Degree of Drake Law Firm, P.C., Dubuque, for appella nt. Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Ralph Potter, County Attorney, and Brigit Barnes, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., Doyle, J., and Sackett, S.J.*

* Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).2

SACKETT, S.J. The applicant appeals the decision of the district court granting summary judgment to the State on his application for postconviction relief. The application for postconviction relie f is untimely because it was filed more than three years after the applicant was sentenced and does not raise a ground of law or fact that could not have been raised within the applicable time period. We affirm the decision of the district court granting summary judgment to the State on the ground the application is barred as untimely.
I. Background Facts & Proceedings On May 24, 2007, a Dubuque police officer arrested Chad Kammerude for driving while barred. Subsequent to the arrest, the officer searche d Kammerude’s vehicle and found a plastic bag containing 470.8 grams of marijuana. Kammerude pled guilty to possession of marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d) (2007), and driving while revoked, in violation of section 321J.21(1). On October 25, 2007, Kammerude was sentenced to five years in prison. Th e sentence was suspended , and he was placed on probation. 1 Kammerude did not appeal. On May 14, 2012, Kammerude filed an application for postconviction relief. He recognized that his application was outside the three

- year statute of limitations found in section 822.3 (2011), but argued the United States Supreme Court case of Arizona v. Gant , 556 U.S. 332 (2009), created a new ground of law which extended the lim itations period. Kammerude argued that under Gant , 556

1 Kammerude ’ s probation was later revoked for probation violations, and he was ordered to serve his sentence of five years in prison.3

U.S. at 351, the search of his vehicle violated his Fourth Amendment rights and his conviction for possession of marijuana with intent to deliver should be reversed. The State filed a motion for summ ary judgment, claiming Kammerude’s application for postconviction relief was untimely under section 822.3. After a hearing, the district court determined the application was untimely and dismissed the application for postconviction relief. Kammerude now appeals.
II. Standard of Review We review a district court’s grant of summary judgment in a postconviction relief action for the correction of errors of law. Castro v. State , 795 N.W.2d 789, 792 (Iowa 2011). To the extent, however, an application raises a constitutional claim, such as ineffective assistance of counsel, our review is de novo. Id.
III. Merits Section 822.3 provides , in part : All other applications must be filed within three years from the date the conviction or decision is final or, in t he 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. Kammerude was sentenced on October 25, 2007, and his criminal case was final at that time because he did not appeal. His application for postconviction relief was filed on May 14, 2012, more than four years later. His application is therefore untimely under section 822.3 unless his application

comes w ithin the exception for a ground of fact or law “that could not have been raised within the applicable time period.”4

Kammerude claims that the mandate for Gant was issued on May 27, 2009. He asserts Gant represented a new ground of law and a new three

- year time period commenced from that date . He claims his application, filed on May 14, 2012, was file d within this three

- year period and thus is timely. Kammerude’s theory is not supported by legal precedent and does not comport with the language o f the statute. The exception in section 822.3 applies to “a ground of fact or law that could not have been raised within the applicable time period .” (Emphasis
added

. ) “ A reasonable interpretation of the statute compels the conclusion that exceptions to the time bar would be, for example, newly

- discovered evidence or a ground that the applicant was at least not alerted to in some way.” Perez v. State , 816 N.W.2d 354, 360 (Iowa 2012). The exception does not apply to issues that were in existence during the three

- year period and were available to be addressed. Lopez

- Penaloza v. State , 804 N.W.2d 537, 542 (Iowa Ct. App. 2011). As noted above, Kammerude was sentenced on October 25, 2007. He thus had until October 25, 2010, to file an application for post conviction relief concerning all issues that were in existence during that three

- year time period. See id. The decision in Gant was filed on April 21, 2009, well within the applicable time limitation. 2 Setting aside the issue of whether Gant , 556 U.S. a t 351, expressed a new rule of law, it does not represent a ground of law “that

2 We do not accept Kammerude’s arguments concerning using the date the mandate was issued, rather than the filing date. See State v. Harris , 741 N.W.2d 1, 9 (Iowa 2007) (noting opinions are binding on the day they are filed) . Even if the date the mandate was issued, May 27, 2009, was used, however, this is still within the three

- year time period after Kammerude was sentenced.5

could not have been raised within the applicable time period.” See Iowa Code § 822.3. Kammerude’s claims based on Gant could have been raised within the three

- year limitation s period. His claims do not come within the exception to the limitations period found in section 822.3, and we conclude his application for postconviction relief was untimely. Likewise, Kammerude’s claim he received ineffective assistance because defense counsel did not file a motion to suppress evidence collected in the search of his vehicle is barred by the three

- year statute of limitations. His claims of ineffective assistance of counsel could have been raised within the applicable time period. See F

uhrmann v. State , 433 N.W.2d 720, 723 (Iowa 1988); Lopez

Penaloza , 804 N.W.2d at 542. We affirm the decision of the district court granting summary judgment to the State on Kammerude’s application for postconviction relief on the ground the application is barred as untimely.
AFFIRMED.