IN THE COURT OF APPEALS OF IOWA

No. 13-2077

Filed March 11, 2015

ARCHIE ROBERT BEAR,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

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Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates, 

Judge.

Archie Bear appeals the district court’s summary dismissal of his third 

application for postconviction relief. AFFIRMED.

Archie Robert Bear, Anamosa, appellant pro se.

Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney 

General, and Rebecca Petig, County Attorney, for appellee State.

Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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VOGEL, P.J.

Archie Bear appeals the district court’s summary dismissal of his third 

application for postconviction relief. We conclude that Bear’s Heemstra

challenge is inapplicable to his conviction as well as being barred by claim 

preclusion; furthermore, the jury-instruction argument is barred by the statute of 

limitations, pursuant to Iowa Code section 822.3 (2013). Consequently, we 

affirm the dismissal of Bear’s application.

On February 28, 2000, Bear was convicted of second-degree murder 

following a jury trial. His conviction was affirmed on direct appeal in 2001, and 

the denial of his first application for postconviction relief was affirmed by our court 

in 2007. See Bear v. State, No. 06-1048, 2007 WL 1689434 (Iowa Ct. App. June 

13, 2007); State v. Bear, No. 00-0558, 2001 WL 293523 (Iowa Ct. App. Mar. 28, 

2001). Our court also affirmed the denial of his second application, which 

challenged the nature of his conviction pursuant to State v. Heemstra, 721 

N.W.2d 549 (Iowa 2006), claiming a due process violation. See Bear v. State,

No. 08–1717, 2010 WL 625004 (Iowa Ct. App. Feb. 24, 2010).

Bear filed his third application for postconviction relief on May 6, 2013, in 

which he alleged the Iowa courts erred in dismissing his second application for 

postconviction relief pursuant to Nguyen v. State, 829 N.W.2d 183 (Iowa 2013), 

as he was now raising an equal protection violation based on Heemstra. His 

second claim asserted that he was indicted for premeditated murder “under Iowa 

law 707.2(1)” but that the jury instructions erroneously instructed under Iowa 

Code section 707.2(2), and this in turn violated his due process rights and 
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constituted an illegal sentence. The district court summarily dismissed his claims 

on October 21, 2013, following a hearing. Bear appeals.

We review a district court’s summary dismissal for correction of errors at 

law. See Nguyen, 829 N.W.2d at 186.

Iowa Code section 822.3 requires that postconviction applications 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,” excepting “a 

ground of fact or law that could not have been raised within the applicable time 

period.” 

Upon review of the record, we conclude Bear’s jury-instruction claim is 

time-barred; nor has he shown that an exception applies such that we could 

address the merits of his argument. His third application was filed nearly twelve

years after his 2000 conviction became final. Moreover, no “ground of fact or law 

that could not have been raised within the applicable time period” exists, such

that it would exempt this claim from being time-barred. See Iowa Code § 822.3.

Claim preclusion also bars Bear’s Heemstra argument. Though he 

challenged his conviction in his second postconviction application through a due 

process claim, and he now challenges his conviction by asserting an equal 

protection claim based on Heemstra and Nguyen, he had the opportunity to fully 

and fairly litigate this constitutional challenge pursuant to the holding in Heemstra

in his second application. Therefore, he cannot now litigate his equal-protectionHeemstra challenge in this third application. See Pavone v. Kirke, 807 N.W.2d 

828, 835–36 (Iowa 2011) (noting claim preclusion bars a second suit when the 
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plaintiff had the opportunity to fully and fairly litigate the issue in the prior 

proceeding, even though the exact claim may not have been litigated).

We further agree with the State that, because Bear was convicted of 

murder in the second degree rather than first-degree murder, Heemstra and 

Nguyen are inapplicable. See Heemstra, 721 N.W.2d at 558 (holding if an act 

causing willful injury as a forcible felony 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 felony-murder purposes); see also Nguyen, 829 N.W.2d at 

188 (reiterating the conclusion reached in Heemstra but remanding so the district 

court could decide whether various constitutional challenges barred the nonretroactivity of Heemstra); State v. Goosman, 764 N.W.2d 539, 545 (Iowa 2009) 

(noting the Heemstra court stated its holding was only applicable to the present 

case and those defendants whose direct appeal was pending, and further holding 

the non-retroactive application of the Heemstra decision did not violate federal 

due process rights).

Given this reasoning, the district court properly dismissed Bear’s petition, 

and we affirm.

AFFIRMED.