Long v. Larson
| Decision Date | 07 June 2022 |
| Docket Number | 20-CV-3054-LRR |
| Parties | PETER KELLY LONG, Petitioner, v. JEREMY LARSON, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
The matters before the court are Respondent Jeremy Larson's Motion to Dismiss (docket no. 11), seeking dismissal of Petitioner Peter Kelly Long's 28 U.S.C § 2254 petition; and three separate motions filed by Long: the (second) pro se Motion to Appoint Counsel (docket no. 15) pro se Motion for the Court to Take Notice of Authorities (docket no. 23) and pro se Motion for Certificate of Appealability (docket no. 24).
On December 1, 2011, following a jury trial, the Iowa District Court for Webster County (“the district court”) found Long guilty of third-degree sexual abuse in violation of Iowa Code §§ 709.1(3) and 709.4(2)(b). A bifurcated bench hearing was held on the same day to determine whether an enhanced sentence was applicable pursuant to Iowa Code § 902.14(1)(b), (c) due to Long's prior 1996 conviction. See docket no. 6-6 at 12. On December 2, 2011, the State moved that the record be reopened with regard to the sentence enhancement and on December 20, 2011, over Long's objection, the court accepted the testimony of the court reporter who took the record at Long's 1996 trial to establish the fact that Long's prior convictions constituted a violation which would make Long subject to sentence enhancement under Iowa Code § 902.14(1)(b), (c). See docket no. 6-6 at 2. As a result, Long was sentenced to life in prison without parole on February 3, 2011. Id.
Long appealed, arguing that the district court erred in granting the state's motion to reopen the record. See docket no. 6-4 at 5.[1] The Iowa Court of Appeals reversed, and ruled:
Without considering whether Iowa Rule of Criminal Procedure 2.19(9) required Long to object before trial on the substantive offense, we find in this case that reopening the record and allowing the State to call a late-noticed witness to prove the enhancement unfairly undermined Long's strategy and constituted an abuse of the district court's discretion. Accordingly, we vacate the sentence and remand for the district court to determine whether the State's original evidence-offered before the reopening of the record-satisfied its burden to prove beyond a reasonable doubt that the defendant previously violated subsection (1) or (2) of Iowa Code section 709.8.
State v. Long, 810 N.W.2d 26 (Table), 2011 WL 6740164 (Iowa Ct. App. Dec. 21, 2011), vacated, 814 N.W.2d 572 (Iowa 2012). The Iowa Supreme Court granted further review and vacated the Iowa Court of Appeals decision on June 8, 2012. State v Long, 814 N.W. 2d 572 (Iowa 2012). The Iowa Supreme Court affirmed the decision of the Iowa District Court for Webster County which found Long guilty of third-degree sexual abuse in violation of Iowa Code §§ 709.1(3) and 709.4(2)(b) and also affirmed the life sentence imposed. Id. On July 11, 2012, the Iowa Supreme Court filed procedendo. See docket no. 6-7.
On October 26, 2012, Long filed his first petition for post-conviction relief (PCR) in the Iowa District Court for Webster County. See docket no. 6-9 at 9. Long was represented by counsel in that action. See docket no. 1 at 5. Long alleged that his lawyer provided ineffective assistance by advising that Long waive a jury trial on the sentencing enhancement. He additionally argued that his enhanced sentence constitutes cruel and unusual punishment. See docket nos. 6-13, 6-14 at 1. The district court denied relief, and the Iowa Court of Appeals affirmed. Long v. State II, 898 N.W.2d 202 (Table), 2017 WL 514400, at *1 (Iowa Ct. App. Feb. 8, 2017). The Iowa Supreme Court both denied Long's application for further review and issued procedendo on March 29, 2017. See docket no. 6-10. On October 10, 2013, while his first PCR motion was pending, Long filed a motion to correct illegal sentence, alleging his prior convictions did not qualify as predicate felonies that trigger the enhanced penalties pursuant to Iowa Code § 902.14 because at the time that he pled guilty to them each was classified as a class “D” felony and not a class “C” felony as required to trigger the enhancement. See docket no. 6-1. The motion was denied. Id. at 5. Both the Iowa Court of Appeals and the Iowa Supreme Court dismissed the appeal as untimely and issued procedendo on October 31, 2014. See docket no. 14 at 9-10.
On April 26, 2107, Long filed a second PCR claim in the Iowa District Court for Webster County, again raising the argument that his prior convictions do not qualify as predicate felonies that trigger the enhanced penalties pursuant to Iowa Code § 902.14 because at the time that he pled guilty to them each was classified as a class “D” felony and not a class “C” felony as required to trigger the sentencing enhancement. Long also argued that the court erred in not instructing the jury regarding lesser included offenses. See docket no. 6-20 at 8-9. Long was represented by counsel for his second PCR claim. See docket no. 1 at 6. The district court dismissed the second PCR claim as untimely. See Long v. State III, 922 N.W.2d 104 (Table), 2018 WL 3302203, at *1 (Iowa Ct. App. July 5, 2018). On July 5, 2018, the Court of Appeals affirmed the trial court's determination that all but one of Long's claims were filed more than three years following procedendo following Long's direct appeal and were time barred. See id. The Iowa Court of Appeals, ruled, however:
On appeal, Long also alleges his sentence is illegal. Although this claim was not asserted below, a challenge to an illegal sentence may be asserted at any time. See State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009). Long argues his sentence is illegal because his prior convictions do not qualify as predicate felonies that trigger the enhanced penalties under Iowa Code section 902.14. (2009), citing State v. Oliver, 812 N.W.2d 636, 639 (Iowa 2012). This claim was raised and decided in Long's appeal of his first PCR action. See Long, 2017 WL 514400, at *5. Our prior ruling affirming his sentence on the same grounds is final and cannot be revisited. See Snyder v. State, 262 N.W.2d 574, 578 (Iowa 1978).
Id. On August 28, 2018, the Iowa Supreme Court denied further review and filed procedendo. See docket no. 6-16.
On February 28, 2018, while his second PCR claim was pending in state court, Long filed a habeas petition with this court. (Long v. Sperflogy, 18-CV-4018-LRR, docket no. 1). Long also filed a motion to stay the proceeding until the Iowa Supreme Court decided his second postconviction appeal. (18-CV-4018-LRR, docket no. 3). This court dismissed the petition without prejudice but in the order stated:
Assuming, without deciding, that [Long] timely filed the above captioned case to preserve issues raised [in] his first post-conviction action (15-1231), those issues will be considered timely filed if they are included in a subsequent § 2254 petition filed after the final state court resolution of case 17-1049. Put another way, the court will consider [Long's] claims from both postconviction cases tolled until the conclusion of the second postconviction case.
(18-CV-4018-LRR, docket no. 4 at 2 n.1).
On October 4, 2018, Long filed a pro se motion to reopen his habeas claim. (18-CV-4018-LRR, docket no. 6). On December 12, 2018, the court entered an Order (18-CV-4018-LRR, docket no. 7) stating that, “[t]o the extent that [Long] is requesting the court to reopen his prior case, that motion . . . is denied.” Further, the court directed the Clerk of Court to “file [Long's] motion (docket no. 6) as a new pro se petition pursuant to 28 U.S.C. § 2254 and open a new case as of the date he filed that document.” Id. The court also gave Long “thirty days from the date of this order to file an amended petition using the provided form.” Id. The court admonished Long that if he failed “to file an amended petition within thirty days . . . the new case will be dismissed with no further order of the court.” Id. at 2. Accordingly, the Clerk of Court opened another case under Long's name on December 12, 2018. See Case No. 18-CV-3070-LRR, docket no. 1.
On December 3, 2018, Long filed a pro se third PCR claim in the Iowa District Court for Webster County, alleging that his PCR counsel who represented him in his second PCR claim was ineffective. See docket no. 6-23 at 3. Long also alleged that the time bar exception in Allison v. State, 914 N.W.2d 866 (Iowa 2018) applied in promptly filed third PCR actions and should excuse his untimeliness in challenging whether the judge who presided at his trial should have recused himself. See docket no. 6-29 at 3. See also docket no. 1 at 7.
Long did not file an amended petition in his habeas action within thirty days as directed by the court; but instead, on December 27, 2018, filed a pro se motion to stay. (18-CV-3070-LRR, docket no. 3). In that motion, Long requested that the court “[s]tay any further action . . . until such time when the [l]ast and 3rd [post-conviction relief (PCR)] in Webster County district [c]ourt is finished.” Id. However, the court opted to again dismiss the petition without prejudice pending Long exhausting his state court remedies. (18-CV-3070-LRR, docket no. 5).
Long's third PCR action was dismissed by the Iowa District Court for Webster County. Long appealed to the Iowa Court of Appeals and the decision was affirmed. Long v. State, 947 N.W.2d 777 (Table), 2020 WL 2061934 (Iowa Ct. App. Apr. 29 2020). On April 29, 2020, the Iowa Court of Appeals ruled that Long's case did not fall into the narrow exception created by Allison v. State, 914 N.W. 866 and that there was no evidence that the district judge erred in refusing to recuse...
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