Allison v. State

Decision Date29 June 2018
Docket NumberNo. 16-0764,16-0764
Parties Brian K. ALLISON, Appellant, v. STATE of Iowa, Appellee.
CourtIowa Supreme Court

Robert E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for appellant.

Thomas J. Miller, Attorney General, Kelli Huser and Doug Hammerand, Assistant Attorneys General, and John Schroeder, County Attorney, for appellee.

APPEL, Justice.

In this case, we consider whether the three-year statute of limitations in Iowa Code section 822.3 (2015) applies where a postconviction-relief (PCR) petitioner files an untimely second petition for PCR, alleging counsel for his timely filed first petition for PCR was ineffective. The district court held the second petition’s allegation that the first postconviction counsel was ineffective did not supply a ground of fact to avoid the three-year statutory bar. The court of appeals affirmed, relying upon our previous decision in Dible v. State , 557 N.W.2d 881, 883, 886 (Iowa 1996) (en banc), abrogated in part on other grounds by Harrington v. State , 659 N.W.2d 509, 521 (Iowa 2003).

A second question raised in the case is whether the district court properly dismissed allegations in the amended petition filed in the second PCR action. The amended petition alleged newly discovered evidence—namely, that the victim and other witnesses recanted their testimony. The amended petition further alleged that there had been a change in the law regarding admissibility of expert testimony on the credibility of child victims. The district court recognized the amended petition had been filed, observed that the amended petition did not affect the "core basis" of the claim in the case, and denied relief. On appeal, the State contended that the petitioner failed to preserve the issues in the amended petition because the district court never granted leave to amend.

The court of appeals affirmed on two grounds. The court held that the claims raised in the amended petition were not preserved. The court also found that the allegations in the petition were too vague to provide a basis for relief.

In order to answer the first question, we revisit the holding in Dible . For the reasons expressed below, we vacate the decision of the court of appeals and reverse the judgment of the district court. On the second question, we find that the claims raised in the amended petition were adequately preserved. Rather than rule on the adequacy of the amended petition on appeal, we remand the case to the district court for further proceedings on the amended petition.

I. Factual and Procedural Background.

A jury convicted Brian Allison of three counts of sexual abuse in the third degree in 2011. He appealed his conviction. In his direct appeal, Allison argued the district court erred in not granting him a new trial based upon the weight of the evidence under Iowa Rule of Criminal Procedure 2.24(2)(b )(6). Among other things, Allison noted the victim, his stepdaughter, initially denied the abuse, behaved normally during the time of the alleged abuse, returned to Allison’s home after the abuse ended, and gave inconsistent testimony about the abuse.

On July 11, 2012, the court of appeals affirmed Allison’s convictions. Although the court held the claim was not preserved, the court addressed Allison’s weight-of-the-evidence claim in the context of ineffective assistance of counsel. Noting Allison’s attack on the victim’s credibility, the court cited expert testimony that it was not unusual for children to delay reporting abuse, to return to their abuser after the alleged acts, and to forget the details of the abuse. In addition, the court remarked that several witnesses testified about inappropriate physical contact, specifically Allison and the victim holding hands, the victim sitting on Allison’s lap, Allison rubbing the victim’s back, and Allison and the victim being together in bed under a blanket with Allison wearing boxer shorts and the victim wearing "skimpy shorts and a low-cut shirt." The court concluded that under the circumstances, there was not a reasonable probability that the district court would have granted the motion for a new trial if the verdict-contrary-to-the-weight-of-the-evidence claim had been preserved. As a result, the court of appeals affirmed the convictions. Procedendo issued on September 6, 2012.

On March 6, 2013, Allison filed his first petition for PCR. Allison claimed that his trial counsel was ineffective for failing to investigate the bias of one of the jurors. At the hearing on the first PCR action, Allison and his son testified they observed a juror appear to wave and acknowledge Allison’s ex-wife Tina, the mother of the victim. The district court denied relief, noting, among other things, that no evidence was offered showing the relationship between the juror and the mother and that there was no evidence of prejudice.

Allison appealed. On appeal, Allison claimed his PCR counsel did not properly investigate the claim of juror bias and, like his trial counsel, provided him with ineffective assistance. He claimed that if his PCR counsel had adequately investigated, he could have established there was a reasonable probability the result of the trial would have been different if the potentially biased juror had been removed.

On September 10, 2015, the court of appeals affirmed the denial of relief. The court explained that in order to support a claim of ineffective assistance of counsel, Allison was required to show he suffered prejudice from the presence of a biased juror in deliberations. The court noted that the PCR record did not establish the identity of the juror; whether the juror actually waived at the victim’s mother; the relationship, if any, between the juror and the victim’s mother; and whether any juror was in fact biased. The court of appeals held that Allison was not entitled to relief based on ineffective assistance of counsel without developing the underlying claim of juror bias.

On November 5, Allison, proceeding pro se, filed a second petition for PCR. In his second petition, Allison alleged that his counsel in his first PCR action was ineffective for failing to develop adequately the record in connection with the juror-bias issue. According to Allison, "[a] brief investigation could have revealed the name of the juror and her familiarity with Tina Allison." Allison also noted that his counsel in the first PCR proceeding could have called Tina as a witness and developed the relationship between Tina and the juror.

The district court appointed counsel for Allison. The State filed a motion to dismiss. In its motion, the State noted procedendo in Allison’s direct appeal was issued on September 6, 2012, and Allison’s second petition was filed on November 5, 2015. The State asserted that because the second petition was filed more than three years after his convictions became final, it was barred by Iowa Code section 822.3. The State relied upon Dible , 557 N.W.2d at 886. In Dible , a 5–4 majority of this court held that ineffective assistance of counsel was not a "ground of fact" under Iowa Code section 822.3 that would allow a PCR petition to be filed more than three years after a conviction became final. Id.

Allison, now represented by counsel, resisted the motion to dismiss and filed an amended second petition for PCR. The amended petition reprised the claim of ineffective assistance for failure to investigate the allegation of juror bias, noting that the claim "extends beyond merely ineffective assistance." According to the motion, "[b]y utterly failing to do [his] job[ ]," Allison’s previous PCR counsel "effectively render[ed Allison] with no post-conviction relief."

The amended petition also raised new issues. It asserted there was "reason to believe that the victim and other witnesses have recanted their testimony thus taking away the factual basis for [Allison’s] conviction." The amended petition also claimed "[t]hat changes in the law and particularly the admissibility of expert testimony that tends to invade the [province] of the jury and attempting to bolster the credibility of child victims, would result in a change of verdict." An unreported hearing was held before the district court.

The district court granted the State’s motion to dismiss. In its order, the court recognized that Allison filed his amended petition. The court further acknowledged Allison’s claim that his amended petition cured the statute-of-limitations bar raised by the State. Yet the court concluded, "[T]he amended petition does not change the core basis for [Allison’s] claim for post-conviction relief, namely, ineffective assistance of counsel by post-conviction counsel and ineffective assistance of post-conviction appellate counsel." The court ruled that such ineffective assistance was not a basis for avoiding the three-year statute of limitations in Iowa Code section 822.3.

Allison appealed. We transferred the case to the court of appeals. The court held that it was not at liberty to overturn Dible and that Dible was controlling on the issue of ineffective assistance of counsel. The court dismissed the remaining claims in Allison’s amended petition on the ground that Allison failed to preserve error in the district court. The court also concluded that the additional allegations in the amended petition were insufficient to survive a motion to dismiss.

II. Standard of Review.

Generally, we review a grant of a motion to dismiss a PCR petition for correction of errors at law. Perez v. State , 816 N.W.2d 354, 356 (Iowa 2012). But when a PCR petitioner claims ineffective assistance of PCR counsel, our review is de novo. Lado v. State , 804 N.W.2d 248, 250 (Iowa 2011).

III. Discussion of Iowa Code Section 822.3 and the Right to Effective Assistance of Counsel.

A. Introduction. Iowa Code section 822.3 generally provides a three-year statute of limitations for PCR claims. Iowa Code § 822.3. Section 822.5 provides a right to assistance of PCR counsel, which we have held logically implies a...

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