-

71 " No.

IN THE OF THE

DUANE YATES,

PETITIONER, FILED

VS. NOV 162018

cCE OF THE CLERK

STATE OF ,

RESPONDENT(S),

ON PETITION FOR A WRIT OF CERTIORARI TO AN ADVERSE RULING OF LAW FROM THE IOWA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI QUESTION(S) PRESENTED

Whether the Iowa Supreme Court has failed to properly apply the Iowa Rules of Civil Procedure through the Fourteenth Amendment on Due Process of Law as it applies to state citizens when it denied Duane Yates to have his postconviction action heard after an unlawful dismissal was done by the district court in violation of Iowa Rule of Civil Procedure 1.944 and it's subsection which applies the Rule 1.442?

Whether the Iowa District Court erred in dismissing a civil postconviction action when the clerk of court used a computer generated dismissal notice with no service upon the parties of record as required by Iowa Rule of Civil Procedure 1.442(2) and the United States Supreme Court precedent in Mullane v. Central Hanover Bank & Trust 339 U.S. 306, 70 S.Ct. 652 (1950)to dismiss the case when the computer generated notice and the entire docket schedule for the case does not show any service upon the parties?

Whether the Woodbury County Clerk of Court failed to perfect service when the clerk failed to follow Iowa Rule of Civil Procedure 1.442(7) by not affixing a certificate of service and then allowing the case to be dismissed as there was no notice of service had upon the parties of record? LIST OF PARTIES

[XXX] All parties appear in the caption of the case on the cover page. All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subject of this petition is as follows: TABLE OF CONTENTS

OPINIONSBELOW...... 1 . JURISDICTION...... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...... 2 STATEMENTOF THE CASE...... 3 REASONS FOR GRANTING THE WRIT...... 4 CONCLUSION...... 12

INDEX TO APPENDICES

APPENDIX A

Iowa Supreme Court Dismissal Order ...... 1

APPENDIX B

Computer Generated Notice ...... 1

Yates' Letter to the Clerk of Court with the Clerk's Hand Written Reply ...... 2

APPENDIX C

Docket Schedule for case of Yates v. State PCCV129697 ...... 1 TABLE OF AUTHORITIES CITED

CASES PAGE NUMBER

Adams v. State 791 N.W.2d 430 (Iowa App. 2010) 9

Armstrong v. Monzo 380 U.S. 545, 85 S.Ct. 1187 (1965) 6 (gth Brockmeyer v. May 383 F.3d. 798 Cir. 2004) 6

Costello v. McFadden 553 N.W.2d 607 (Iowa 1996) 7

Grannis v. Ordean 234 U.S. 385, 294, 34 S.Ct. 779 (1914) 6

Hrbek v. State 872 N.W.2d 198 (Iowa App. 2015) 3,4,8,11

Jones v. State 731 N.W.2d 388 (Iowa 2007) 9,10

Mackey v. United States 401 U.S. 667, 91 S.Ct. 1160 (1971) 10

Midland Funding, L.L.C. v. Buhr 820 N.W.2d 160 (Iowa App. 2012) 9

Milliken v. Meyer 311 U.S. 457, 61 S.Ct. 339 (1941) 6

Mullane v. Central Hanover Bank & Trust 339 U.S. 306, 70 S.Ct. 652 (1950) i,5

Negrete-Pule v. James Harmeyer Inc. 810 N.W.2d (Iowa App. 2014) 9

Priest v. Las Vegas 232 U.S. 604, 34 S.Ct. 443 (1914) 6

Rohovit v. Mecta Corp. 506 N.W.2d 449 (Iowa 1993) 7,10

Roller v. Holly 176 U.S. 398, 20 S.Ct. 410 (1900) 6

Schmidt v. Abbott 156 N.W.2d 649 (Iowa 1968) 7,8,10

Schwarz v. Meyer 500 N.W.2d 87 (Iowa App. 1993) 8

State v. Swartz 541 N.W.2d 553 (Iowa 1995) 11

State v. Wiese 201 N.W.2d 734, 737, (Iowa 1972) 11

State v. Yates 852 N.W.2d 522 (Iowa App. 2014) 11

Water Splash, Inc. v. Menon 581 U.S. , 137 S.Ct. , 197 L.Ed.2d 826, 831, 836 (2017) 6

Yates v. State Docket No; 16-1328 9

Yates v. State PCCV129697 3

Yates v. State PCCV144681 11

Yates v. State PCCV163350 8

STATUTES AND RULES

28 U.S.C. § 1257(a) 1,2

iv IOWA CODES

Iowa Codes 611-624A 2,4

Iowa Code 822.7 2,9,10

IOWA RULES OF COURT

Iowa Rules of Civil Procedure 1.442 (Iowa 2005) 6,9

Iowa Rules of Civil Procedure 1.442(1) (Iowa 2005) 7,9,10

Iowa Rules of Civil Procedure 1.442(2) (Iowa 2005) 4,6,7,9,10.11

Iowa Rules of Civil Procedure 1.442(7) (Iowa 2005) 4,5,7,9,11

Iowa Rules of Civil Procedure 1.944 (Iowa 2005) 4,5,7,10

Iowa Rules of Civil Procedure 1.944(2) (Iowa 2005) 4,9

OTHER

Fourteenth Amendment i,2,4,11

v IN THE SUPREME COURT OF THE UNITED STATES PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

For case from federal courts: The opinion of the United States court of appeals appears at Appendix to the petition and is [ ] reported at ; or, has been designated for publication but is not yet reported; or, is unpublished.

The opinion of the United States district court appears at Appendix _____to the petition and is reported at ; or, has been designated for publication but is not yet reported; or, is unpublished.

[XXX] For cases from state courts:

The opinion of the highest state court to review the merits appears at Appendix A to the petition and is [ ] reported at ; or, has been designated for publication but is not yet reported; or, [XXX] is unpublished.

JURISDICTION

I For cases from federal courts: The date on which the United States Court of Appeals decided my case was I No petition for rehearing was timely filed in my case. A timely petition for rehearing was denied by the United States Court of Appeals on the following date: , and a copy of the order denying rehearing appears at Appendix______I An extension of time to file the petition for a writ of certiorari was granted to and including

(date) on (date) in Application No. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

[XXX] For cases from state courts:

The date on which the highest state court decided my case was September 28, 2018. A copy of that decision appears at Appendix A, pg. 1 [XXX] A timely petition for rehearing was thereafter denied on the following date: September 28, 2018 and a copy of the order denying rehearing appears at AppendixA An extension of time to file the petition for a writ of certiorari was granted to and including

(date) on (date) in Application No.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The United States Constitution's Fourteenth Amendment as it applies the Due Process of Law to a state's Jaws.

Iowa Codes 611-624A which governs the Iowa Rules of Court for civil actions forcing the State Courts to follow the due process of Jaw.

28 U.S.C. § 1257(a) which invokes the jurisdiction of this Court.

Iowa Code 822.7 which states that a postconviction applicant in the Iowa courts shall have the right to be heard before dismissing the case and by dismissing a postconviction case without a hearing is a Due

Process violation.

2 STATEMENT OF THE CASE

On February 24, 2016, Yates filed to reopen a postconviction action in Yates v. State PCCV129697 under the new Iowa Supreme Court rule in Hrbek v. State 872 N.W.2d 198 (Iowa App. 2015).

The district court appointed Counsel Priscilla Forsyth on March 18, 2016.

A hearing to reopen the case was done on July 25, 2016.

The District Court for Woodbury County denied reopening the postconviction on August 3, 2016.

A timely appeal was filed on August 5, 2016.

Jacob Mason was appointed as appellate counsel on August 25, 2016.

Upon review of the case counsel found missing documents in the file and filed for a remand to correct the record as important items were omitted by the clerk of court that should have been part of the record on January 12, 2018.

The appeal was remanded and sent back to the district court on March 30, 2017 for correction of the record.

The district on the day of the hearing allowed for all the missing documents to be entered into the record and on June 27, 2017 entered an order into the record allowing all of Yates' missing items to be added to the court file.

The Iowa Supreme Court denied relief on September 28, 2018.

3 REASONS FOR GRANTING THE PETITION

The District court for Woodbury County, Iowa has not followed the Iowa laws and Iowa Rules of Court for Civil Actions when it improperly dismissed a civil action filed by an inmate during a postconviction proceeding as the clerk of court did not have service perfected or can show any actual service upon any of the parties of the pending action.

The issue of the dismissal of this civil postconviction action begins with the clerk of court not perfecting service by the Iowa Rules of Civil Procedure 1.442(2) and dismissing the case without the fair notice and the person's right to be heard as any service of a notice to dismiss by the clerk's office has to follow

Iowa Rule of Civil Procedure, (herein after Iowa R. Civ. P.) 1.944 (Iowa 2005) states and that the dismissal notice has to have service of that rule done by Iowa R. Civ. P. 1.442(2) (Iowa 2005). The clerk of court for Woodbury County's computer generated dismissal notice (App. B. 1) has no certificate of service that Iowa R. Civ. P. 1.442(7) (Iowa 2005)says it must have to ascertain how service was had and who. was served. The issue of service upon the parties was found in Hrbek v. State 872 N.W.2d 198 (Iowa

App. 2015). The Iowa Rules of Civil Procedure are governed by Iowa Codes 611-624A which makes them all applicable to the Fourteenth Amendment of Due Process of law to the states. Not one of the parties of record received any dismissal notice under the Iowa law.

The Iowa Rules of Civil Procedure are cited in the rules of court and copied to this brief here and state as follows;

Iowa R. Civ. P. 1.944(2) (Iowa 2005) states; 1.944(2) All cases at law or in equity where the petition has been filed more than one year prior to July 15 of any year shall be for trial at any time prior to January 1 of the next succeeding year. The clerk shall prior to August 15 of each year give notice to counsel of record as provided in rule 1.442 of the docket number, the names of parties, counsel appearing, and date of filing petition. The notice shall state that such case will be for trial and subject to dismissal if not tried 'Prior to January 1 of the next succeeding year pursuant to this rule. All such cases shall be assigned and tried or dismissed without prejudice at plaintiffs costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not ex parte.

Iowa R. Civ. P. 1.442(2) (Iowa 2005) states;

1.442(2) How service is made. Service upon a party represented by an attorney shall be made upon the attorney unless service upon the party is ordered by the court. Service shall be made by delivering, mailing, or transmitting by fax (facsimile) a copy to the attorney or to the party at the attorney's or party's last known address or, if no address is known, by leaving it with the clerk of court. Delivery within this rule means: handing it to the attorney or to the party; or leaving it at the attorney's or party's office; or, if the office is closed or the person to be served has no office, leaving it at the attorney's or party's dwelling house or usual place of abode with some person of

4 suitable age and discretion residing therein. Service by mail is complete upon mailing. Service may also be made upon a party or attorney by electronic mail (e-mail) if the person consents in writing in that case to be served in that manner. The written consent shall specify the e-mail address for such service. The written consent may be withdrawn by written notice served on all other parties or attorneys. Service by electronic means is complete upon transmission, unless the party making service learns that the attempted service did not reach the person to be served.

Iowa R. Civ. P. 1.442(7) (Iowa 2005) states;

1.442(7) Certificate of service. All papers required or permitted to be served or filed shall include a certificate of service. Action shall not be taken on any paper until a certificate of service is filed in the clerk's office. The certificate shall identify the document served and include the date, manner of service, names and addresses of the persons served. The certificate shall be signed by the person making service. Unless ordered by the court, no other proof of service shall be filed.

Iowa R. Civ. P. 1.944 shows that the dismissal notice must have service to perfect the notice. This notice

of dismissal or any other court filing needs to have a certificate of service under Iowa R. Civ. P. 1.442(7).

The notice that was sent to Yates on the bottom of his letter to the clerk of court dated June 6, 2008.

The clerk's office on the bottom of Yates' letter said that the case was closed and was returning his

documents and a copy of dismissal notice to him and dated their reply as June 10, 2008 (App. B 2).

Special attention has to be given to the fact that this dismissal notice has no certificate of service per

Iowa R. Civ. P. 1.442(7). The notice of record as it now appears in the court file after counsel Jacob

Mason on appeal filed to have the case remanded back to the court for correction of the record as Yates as a Pro Se litigant at the time had filed documentation and exhibits showing that the clerk's computer generated notice was not part of the court file. The clerk has apparently omitted this document from the file. Yates filed a copy of the computer generated dismissal sent to him by the clerk in response to a letter Yates wrote to the clerk when filing other items on June 10, 2008. The clerk of court said they are sending him a copy of the computer generated dismissal that was supposedly of record done on June

July 1, 2006. This dismissal was almost 2 years prior to Yates' letter to the court (App. B. 2), instructing them to file some documents for him and was Yates' first time knowing that his state postconviction was had been dismissed. Yates makes issue with the fact that this is his first time of having any notice that his case was dismissed and the clerk's office cannot produce any type of notice of service upon any party as the Iowa Rules of Court dictate. Yates' attorney of record did not know of this dismissal until Yates called him from prison and told him of this mailing from the clerk of court stating the case was closed.

It is of common knowledge to everyone, especially the courts and their employees that service must be perfected and must be more that perfunctory, Mullane v. Central Hanover Bank & Trust 339 U.S. 306,

5 70 S.Ct. 652 (1950).The issue of this case being dismissed by an e-mail notice to counsel is without merit

as the Iowa R. Civ. P. 1944 (Iowa 2005) has a service provision in it that applies the service rule of Iowa

R. Civ. P. 1.442 (Iowa 2005) as the lawful method of service. In Water Splash, Inc. v. Menon 581 U.S.

137 S.Ct. , 197 L.Ed.2d 826, 831, 836 (2017) at Id. 831, says that when a central authority

receives an appropriate request, it must serve the documents or arrange for their service, Art. 5, and

then provide a certificate of service, Art. 6 and at Id. 836, says that service by mail is permissible if two

conditions are met, first, the receiving state has not objected to service by mail, and second, service by

mail is authorized under otherwise-applicable law, citing Brockmeyer v. May 383 F.3d. 798, 803-804 (9th

Cir. 2004). The clerk of court in this action is the central authority that needed to do the service by mail

as no other type of service was allowed as no one had authorized the court to use any other type of

service other than first class mail. Iowa law authorizes service by mail unless a party stipulates to using

another method such as computer e-mail. No stipulations appeal in the docket schedule, (App. C).

Yates points out that the clerk made a special note of this in his filing in the docket at (App. C-4) Yates

and his then appointed court lawyer has not made any stipulations under Iowa R. Civ. P. 1.442(2) to use

any other method of service other than first class mail. Making note to the fact that the clerk's office

does not even attach a certificate of service to show whom was actually served with the notice. In

Armstrong v. Monzo 380 U.S. 545, 550, 85 S.Ct. 1187, 1191 (1965), this Court says "In disposing of the

first issue, there is no occasion to linger long. It is clear that failure to give the petitioner notice of the

pending adoption proceedings violated the most rudimentary demands of due process of law. . . . Due

Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty

or property by adjudication be preceded by notice and opportunity for hearing appropriate to the

nature of the case. The Court went on to say; "an elementary and fundamental requirement of due

process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections, citing Milliken v. Meyer 311 U.S. 457, 61 S.Ct. 339, (1941)

Grannis v. Ordean 234 U.S. 385, 294, 34 S.Ct. 779, (1914) Priest v. Las Vegas 232 U.S. 604, 34 S.Ct. 443,

(1914) and Roller v. Holly 176 U.S. 398, 20 S.Ct. 410, (1900).

The method the Woodbury County clerk of court is claiming to have service upon Yates' attorney is perfunctory and not in compliance with Iowa law. There is no reasonably calculated aspect that Yates or his attorney got this dismissal notice as there is no service on any party that can be shown by the clerk of court. The state prosecutor tried to claim at the hearing that the notice would have been electronically filed upon the attorney. This is a false statement as in 2008 when the notice was sent to Yates there was no electronic service available to the courts in Iowa. If there was no electronic service in

2008 then there definitely was no electronic service available in 2006 when the clerk first generated this

notice on the clerk of court's computers. The Iowa legislature passed a law enacting the Electronic

Document Management System or (EDMS) as it is referred too, in 2009 and all Iowa Counties had to

have it active by the year 2015. Woodbury County did not have this system activated until 2011. The

clerk could not have service by EDMS as there was no EDMS available in 2008. This is three years before

Woodbury County got the EDMS service available to the county clerk's office.

There is no waiver of any service in the court file by Yates the person as stated in paragraph two (2) of

Rule 1.442(2) (Iowa 2005) that the clerk can show that he or his attorney will accept service by e-mail

allowing the clerk of court to make service by e-mail from the clerk's office computer to anyone of the

parties of record. Copy of the docket schedule appears at (App. C. 1). In review of the docket schedule

and paying close attention to (App. C-4) the clerk makes a note on one of Yates' Pro Se motions that

there is no service on his motion so they will not be any action until it is properly served. If this is the

case for a Pro Se litigant then it should be a mandatory requirement for the clerk to have service on its

own documents.

The dismissal is done outside the due process of law and violates the fair notice requirement of a

pending action. The district and appellate courts do not take judicial notice of this major factor and has

not properly followed the Iowa law when dismissing Yates' Pro Se motion to reopen the case of which

by Iowa law was never dismissed under 1.944. The "clerk of court failed to perfect service by Iowa R. Civ.

P. 1.442(2) and 1.442(7) upon the counsel of record at that time or anyone else who is a party to this

action as the law under Rule 1.442(2) clearly states is applicable before dismissal can be had," Schmidt

v. Abbott 156 N.W.2d 649, 651 (Iowa 1968) on a try or dismiss notice. The plaintiff in Schmidt v. Abbott

156 N.W.2d at 651 was entitled to have a dismissal of his action under Rule 215.1 R.C.P. which is now

1.944 vacated and his case reinstated because the clerk's office failed to mail a try or dismiss order

notice prior to August 15 violated the mandatory provision of service of this rule. The rules of court

imposes a mandatory duty upon clerks of trial courts to give notice by mail or delivery as Rule 82 which

is now 1.442(1) provides prior to 8/15, a notice shall be had. In Schmidt 156 N.W.2d at 650 the try or

dismiss order was not mailed and the court also defines the word "shall" and how it applies to Rule

215.1. The court in Costello v. McFadden said that the irregularity consisted of clerk's failure to notify

defendant on an order of default in a civil action, citing Rohovit v. Mecta Corp. 506 N.W.2d 449, 451

(Iowa 1993), Costello v. McFadden 553 N.W.2d 607, 611 (Iowa 1996) and reversed the dismissal of the

case and remanded it back for further hearings. The notice from the clerk of court does not have a

7 certificate of service to show how it perfected service and who how it was served or who even served

the notice of dismissal. The district court cannot rule that summary judgment is available to the State in

this hearing as the case by law was not properly dismissed and the unlawful dismissal of the case needs

to be vacated, Schmidt v. Abbott 156 N.W.2d at 651.

It was attorney Tad Deck who after a hearing in another postconviction action of Yates v. State

PCCV163350 that followed Yates' resentencing of an illegal conviction in another matter did in fact

discover that there was no service being had on the dismissal of Yates' first postconviction. Upon this

discovery by an attorney Deck, he instructed Yates to file as a Pro Se litigant in this case to have the

court reopen the first postconviction under the newly announced rule of Hrbek v. State 872 N.W.2d 198

(Iowa App. 2015). Since Iowa has made the determination in Hrbek that all the parties in a

postconviction action now need to be notified of the pending dismissal makes this a new substantive

rule of law that is retroactively applied to all cases including Yates' case. This court has said that a

substantive rule of law applies retroactively in Montgomery v. Louisiana 577 U.S. , 136 S.Ct. 718,

L.Ed.2d (2016) holds that a new substantive rule of constitutional law controls the outcome

of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule

which was citing Teague v. Lane 489 U.S. 288, 109 S.Ct. 1060 (1989). This Court in league v. Lane 489

U.S. 288, 289-90, 109 S.Ct. 1060 (1989) has said on the retroactive activity rule that;

(a) Retroactivity is properly treated as a threshold question, for, once a new constitutional rule of criminal procedure is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. Thus, before deciding whether the fair cross section requirement should be extended to the petit jury, it should be determined whether such a rule would be applied retroactively to the case at issue.

Attorney Deck said that this issue of no service of record was found in Hrbek to be reason to have Yates' case reopened which was at the time a closed case due to the court's error and abuse of discretion and the clerk of court's failure to follow clearly established procedures in perfecting service upon the parties of record at the time the case and Hrbek's case was reopened. The Hrbek ruling is a new constitutional rule of law in Iowa cases which allows for the retroactive application of the notice of all the parties in a postconviction action be given fair notice and the opportunity to be heard.

The Iowa Courts have said that "an abuse of discretion by the court is found when the court's actions that are taking place show that the court's actions are exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable," Schwarz v. Meyer 500 N.W.2d 87, 88 (Iowa App. 1993).

.H The court's failure to allow this case to be heard is a clear abuse of discretion as the following case law

supports Yates and that his case was never dismissed as the notice was not served upon any of the

parties of record.

The clerk's computer generated notice with no certificate of service attached appears at (App. B. 1). In

current case law the same application of the dismissal notice being properly served was addressed in

Midland Funding, L.L.C. v. Buhr 820 N.W.2d 160 (Iowa App. 2012) says; "Assuming that Midland's

dismissal filing could be taken as a motion to dismiss Buhr's counterclaim, it failed to follow the Iowa

Rules of Civil Procedure. Motions "shall be served upon each of the parties." Iowa R. Civ. P. 1.442(1) no

certificate of service is affixed to the filing, or does it contain any indication that it had been served upon

Buhr, and indeed, Buhr asserts he was not served the document. See Iowa R. Civ. P. 1.442(7) ("All papers

required or permitted to be served or filed shall include a certificate of service.") Moreover, rule

1.442(7) specifically provides "[a]ction shall not be taken on ay paper until a certificate of service is filed

with the clerk's office." (Emphasis added.) No such certificate appears in the record before us." Yates

emphasizes the fact that the Iowa in Midland said that pursuant to Iowa R. Civ. P.

1.442(7) "no action shall be taken" was taken by the court and the Midland case was remanded for

further proceedings as it was not properly dismissed. Reiterating that the clerk's notice (App. B. 1) has

no certificate of service like that found in Midland Funding, L.L.C. v. Buhr 820 N.W.2d 160.

This same issue of proper and lawful service giving the parties fair notice by law was also upheld in

Adams v. State 791 N.W.2d 430 (Iowa App. 2010) which cites the provisions of Iowa R. Civ. P. 1.944(2) and the service provision of rule 1.442 and again in Negrete-Pule v. James Harmeyer Inc. 810 N.W.2d

(Iowa App. 2014) at ft. n. 2, was reversed and remanded for the failure to provide service by mail pursuant to Iowa R. Civ. P. 1.442 as service by mail is complete upon mailing, rule 1.442(2) but the notice has to have a certificate of service pursuant to Iowa R. Civ. P. 1.442(7). Neither the clerk of court nor the State of Iowa can show that there was a certificate of service to say who they actually served the dismissal notice on. Therefore no service is had on this notice to dismiss.

The district court continued to interrupt Yates in his arguments claiming he was outside the parameters of the issues and was not arguing his case. This was raised in his appellant counsel's appeal brief, as the matter of the entire case rested on the fact that the clerk and now the court did not follow the Iowa R.

Civ. P. 1.442(2) when dismissing this case and Yates' filings into the record supports his arguments that the court was denying him. See appellate attorney Jacob Mason's brief in Yates v. State Docket No; 16-

1328. The Iowa Supreme Court in Jones v. State 731 N.W.2d 388, 391 (Iowa 2007), has determined that the district court must give the applicant as pro se an opportunity to heard on his claims, Id. at 392. The district court is now helping the clerk of court in keeping this case from being heard as it was never

lawfully dismissed or lawfully serviced notice by the Iowa Rules of Court.

Yates again was never heard on his issues of this dismissal prior to the dismissal of this case from an

invalid and unlawful notice under Iowa R. Civ. P. 1.944 (Iowa 2005). Iowa Code 822.7 is clear on this

issue as the state postconviction as filed needs to be heard and the pro se claims need addressed by the

court, and the court failed to do so when it shut Yates down in his arguments on this service matter.

Yates' arguments were that the Iowa Supreme Court had found and determined that an auto dismissal is

not appropriate under Rule 215.1, now 1.944 when the clerk failed to give counsel a try and dismiss

notice required by law, Rohovit v. Mecta Corp. 506 N.W.2d 449, 451 (Iowa 1993), as a try or dismiss

notice, a plaintiff was entitled to have a dismissal of his action under Rule 215.1 R.C.P. which is now

Iowa R. Civ. P. 1.944, vacated because the clerk's office failure to mail a try or dismiss order violated the

mandatory provision of R. 215.1. The State argued that electronic filing gave counsel notice. This is not a

true and correct statement by the prosecutor's office as in Iowa, the new Electronic Document

Management System or (EDMS) was not made law until 2009. Of which time all counties in Iowa had to

have it in place by 2015. Woodbury County did not even activate this electronic filing service until 2011.

Therefore no service by electronic filing could be had upon Yates' attorney and Yates made mention of this fact atthe hearing. The district court said that Yates was out of line and to let his attorney do the talking. This was not the proper procedure under Jones 731 N.W.2d at 391.

Yates' computer generated notice is an auto dismissal with no service on any of the parties and needs to be rescinded and remanded back to the court for proper review and further proceedings. The rules of court imposes a mandatory duty upon clerks of trial courts to give notice by mail or delivery as Rule 82 which is now 1.442(1)(Iowa 2005) provides a try or dismiss order was not mailed, Schmidt v. Abbott 156

N.W.2d 649, 651 (Iowa 1968), and Schmidt v. Abbott 156 N.W.2d at 650, defines the word "shall" and how it applies to Rule 215. The State cannot survive summary judgment at this time as the court has not followed Iowa Code 822.7 prior to the dismissal and has not properly reviewed and ruled on the dismissal as the law provides under 1.944 as the dismissal notice was not properly served per Rule

1.442(2)(lowa 2005). The Iowa district and appellate courts have failed to follow the due process of law in complying with the proper service requirement of fair notice of law and in not following the clearly established laws of Iowa when the reviewing courts were given the issue for review.

As an injustice is not mitigated by the passing of time Mackey v. United States 401 U.S. 667, 91 S.Ct.

1160 (1971), this court has a responsibility not only to Yates but to the courts as well to uphold the constitutional guarantee of proper notice of a pending action of the dismissal on Yates and remand this

10 case back to the courts for further proceedings. The constitutional right of due process of law under the

Fourteenth Amendment is guaranteed which covers the fair notice of law requirement screams for this

Court to intercede and compel the State of Iowa and its courts to comply with its own laws. The State of

Iowa cannot enjoy any dismissal of this action as the State itself did not follow the clearly established

Iowa laws.

In further proceedings Yates won an illegal sentence in another postconviction action titled Yates v.

State PCCV144681 and on appeal to the Iowa Appellate Court he won additional relief in State v. Yates

852 N.W.2d 522 (Iowa App. 2014). Iowa has declared that you cannot have finality in a judgment when

an illegal sentence is found, as Iowa's 3-year time toll does not begin to run until a lawful entry of

judgment is entered and the district court does not loose jurisdiction until such time a lawful judgment

is had, State v. Swartz 541 N.W.2d 553 (Iowa 1995). The Iowa Supreme Court said; "when error is found,

the matter is returned to the original trial court and the proceedings commence with the stage at which

the vitiating defect occurred," State v. Wiese 201 N.W.2d 734, 737, (Iowa 1972). Time does not start to

toll until a lawful entry of judgment is had. Since the State of Iowa cannot have an finality of judgment due to the illegal sentence that Yates corrected by his own Pro Se motions and arguments, it stand to

reason that the State cannot have any finality in the dismissal of this postconviction on July 1, 2006 as they do not have any notice of service on any of the parties of record, citing, Hrbek v. State, supra.

The service on this action as provided in 2006 by the Woodbury Clerk of Court is so defunct that in

February 2007, the appointed counsel, Tim Scherle who was the attorney of record at that time came to the prison to visit with Yates and said that the postconviction action was timely and on track for a hearing. He repeatedly stated that everything was fine with the time line as Yates asked more than once as the case had been going on for a long time. Yates did not get any type of notice that said it was pending dismissal and attorney Scherle had said the same thing to Yates reiterating that everything was fine when he was at the prison mirroring the court's decision in Hrbek v. State. You have to take notice of the years here as the dismissal was done in July 2006 and the attorney of record came to the prison in

February of 2007. the attorney did not even know that the case was dismissed which is a matter that counsel should have been aware of by the court. The clerk's response to Yates' letter to the clerk of court (App. B. 2) has a date of dismissal on it with an attached copy of the computer generated dismissal notice on it claiming the case was dismissed on July 1, 2006. This type of notice shows the clerk itself failed to properly follow the Iowa R. Civ. P. 1.442(2) and 1.442(7) as it mailed a copy of the clerk's office dismissal to Yates without any service attached to it per Rule 1.442(7). The clerk of court has proven this

11 issue of no service in that the clerk's office itself did not follow the Iowa Rules of Civil Procedure when sending this copy to Yates in the docket schedule at page 4, (App. C-4).

CONCLUSION

As Yates or his attorney of record did not get any proper notice of service on a pending action this case needs remanded to the district court for further proceedings as if the case was never dismissed at all.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

uuane rates

Date: November ---, 2018

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