Remeliik v. State

• Decision Date: 29 June 2022
• Docket Number: 21-0655
• Parties: SHIRO EDWARD REMELIIK, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee.
• Court: Iowa Court of Appeals

SHIRO EDWARD REMELIIK, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

No. 21-0655

Court of Appeals of Iowa

June 29, 2022

Appeal from the Iowa District Court for Marshall County, Amy M. Moore, Judge.

An applicant appeals from the dismissal of his application for postconviction relief. AFFIRMED.

Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Ankeny, for appellant.

Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

Considered by May, P.J., Chicchelly, J., and Gamble, S.J. ^[*]

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CHICCHELLY, JUDGE

Shiro Edward Remeliik appeals from the dismissal of his application for postconviction relief (PCR). He alleges the untimeliness of his application is overcome by a new ground of law and that his PCR counsel provided ineffective assistance. Upon our review, we affirm.

I. Background Facts and Proceedings.

In September 2011, Remeliik pleaded guilty to three counts of assault, each an aggravated misdemeanor. The court sentenced him to a term of probation, which was revoked in January 2013 after Remeliik pleaded guilty to vehicular homicide. The court imposed a term of incarceration not to exceed twenty-five years. Remeliik did not appeal.

In July 2018, Remeliik filed a pro se PCR application. The application only indicated relation to the vehicular homicide conviction, though it did not cite any specific case number, and alleged ineffective assistance of trial counsel on a variety of grounds. The court promptly appointed counsel to Remeliik.

After a series of continuances, the State filed its answer and motion to dismiss in April 2021. The motion argued Remeliik's petition must be dismissed because it was filed more than three years after his conviction-therefore, in violation of the time limit set by Iowa Code section 822.3 (2018)-and Remeliik failed to provide any information to overcome the tardiness. On May 5, the day before trial, Remeliik's counsel filed an amended PCR petition, as well as a resistance to the State's motion to dismiss. The amended petition alleged that Remeliik's trial counsel was ineffective based upon wholly different grounds than those originally raised by Remeliik-largely related to appropriate immigration

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advice in both the assault and vehicular homicide matters. The resistance to dismissal argued that the Iowa Supreme Court's decision in Morales Diaz v. State, 896 N.W.2d 723 (Iowa 2017), satisfied the new-ground-of-law exception to the time bar in Iowa Code section 822.3. This contention was aimed squarely at saving the immigration issues raised in the amended petition, as the Morales Diaz decision would not affect the other arguments laid out in either the pro se or amended PCR application.

At trial, Remeliik's counsel explained that while he had drafted the amended petition more than a year prior to trial, he erroneously failed to ensure its timely filing. Remeliik's counsel furthermore requested a continuance in order to allow the State additional time to address the issues raised in the amended petition. The district court denied a continuance and declined to permit the amended petition, finding that it substantially changed the issues and presented an entirely new case. The court also found that even if it were to allow the amended petition, the issues would be time-barred because the Morales Diaz decision does not qualify as a new-ground-of-law exception. No other evidence was presented in support of an exception to the statutory time bar. Therefore, the district court dismissed Remeliik's PCR application. Remeliik filed a timely notice of appeal.

II. Review.

We review PCR proceedings for correction of errors at law. Linn v. State, 929 N.W.2d 717, 729 (Iowa 2019). "However, when an applicant claims ineffective assistance of postconviction counsel, our review is de novo." Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018).

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III. Discussion.

A. Exception to Three-Year Bar.

Remeliik argues the district court erred when it determined that the Morales Diaz decision does not qualify as a new-ground-of-law exception to the statutory time bar. Iowa Code section 822.3 provides, in relevant part, that an application for postconviction relief must be filed within three years from the date of conviction except when a ground of fact or law could not have been raised within the applicable time period. "In other words, the exception applies to situations in which there 'would be no opportunity to test the validity of the conviction in relation to [the ground of fact or law that...