IN THE SUPREME COURT OF IOWA MICHAEL NAVARRO JONES, ) ) Sup. Court No. 18-0745 Applicant/Appellant, ) ) VS. ) Black Hawk PCCV133701 ) STATE OF IOWA, ) ) Respondent/Appellee. ) ON APPEAL FROM THE IOWA DISTRICT COURT IN AND FOR BLACKHAWK COUNTY HONORABLE GEORGE L. STIGLER, JUDGE PRESIDING APPELLANT’S FINAL BRIEF Nate Nieman Attorney at Law 329 18th St. Rock Island, IL 61201 Telephone: (309) 623-4831 Fax: (309) 517-5843 Email: [email protected] AT0012958 ATTORNEY FOR APPELLANT ELECTRONICALLY FILED DEC 11, 2018 CLERK OF SUPREME COURT CERTIFICATE OF SERVICE AND FILING I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the Supreme Court of Iowa using the EDMS system on December 11, 2018. I further certify that I served this Final Brief through EDMS to the following counsel of record: Attorney General Criminal Appeals Division 1305 E. Walnut Hoover Building Des Moines, IA 50319 I further certify that I have served this Final Brief by mailing one copy to Applicant-Appellant Michael Jones to his last known address. ___/s/ Nate Nieman______ Nate Nieman ATTORNEY FOR APPELLANT 2 TABLE OF CONTENTS Certificate of Service and Filing………………………………………..2 Table of Contents…………………………………………………………2 Table of Authorities………………………………………………………4 Issues presented for review……………………………………………..6 Routing Statement……………………………………………………….6 Statement of the Case……………………………………………………6 Statement of Relevant Facts……………………………………………8 Argument………………………………………………………………...10 I. THE DISTRICT COURT ERRED BY DISMISSING JONES’ APPLICATION FOR POST-CONVICTION RELIEF ON GROUNDS THAT IT WAS BARRED BY THE STATUTE OF LIMITATIONS. (1) Preservation of Error…………………………………10 (2) Standard of Review……………………………………11 (3) Argument on the merits……………………………...12 II. STATE v. PLAIN SHOULD BE APPLIED RETROACTIVELY. (1) Preservation of Error…………………………………34 (2) Standard of Review……………………………………34 (3) Argument on the merits……………………………...35 3 Conclusion………………………………………………………………..45 Oral Argument…………………………………………………………..46 Attorney’s Cost Certificate…………………………………………….46 Certificate of Compliance………………………………………………46 TABLE OF AUTHORITIES CASES: United States Supreme Court Arizona v. Fulminante, 499 U.S. 279 (1991)………………………..41 Batson v. Kentucky, 476 U.S. 79 (1986)……………………………...42 Brecht v. Abrahamson, 507 U.S. 619 (1993)………………………...41 Cassell v. Texas, 339 U.S. 282 (1950)………………………………...42 Duren v. Missouri, 439 U.S. 357 (1979)……………………………...42 Gideon v. Wainwright, 372 U.S. 335 (1963)…………………………40 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)……………….42 Johnson v. United States, 520 U.S. 461 (1997)……………………..40 McKaskle v. Wiggins, 465 U.S. 168 (1984)…………………………..41 Neder v. United States, 527 U.S. 1 (1999)……………………….40,41 Rose v. Clark, 478 U.S. 570 (1986)……………………………………41 Sullivan v. Louisiana, 508 U.S. 275 (1993)…………………………41 Taylor v. Louisiana, 419 U.S. 522 (1975)………………………..42,43 Teague v. Lane, 489 U.S. 288 (1989)…………………………...Passim Tumey v. Ohio, 273 U.S. 510 (1927)………………………………41,43 Vasquez v. Hillery, 474 U.S. 254 (1986)………………………….41,42 Waller v. Georgia, 467 U.S. 39 (1984)………………………………..41 Iowa Supreme Court Cases Barnes v. State, 611 N.W.2d 290 (Iowa 2000)………………………12 Crall v. Davis, 714 N.W.2d 616 (Iowa 2006)…………………….15,18 Giles v. State, 511 N.W.2d 622 (Iowa 1994)…………………………35 4 Goosman v. State, 764 N.W.2d 539 (Iowa 2009)…………….20,35,36 Harrington v. State, 659 N.W.2d 509 (Iowa 2003)……………..12,35 Hawkeye Foodservice Distribution, Inc. v. Iowa Educators Corp., 812 N.W.2d 600 (Iowa 2012)…………………………………………..16 Herbst v. Treinen, 88 N.W.2d 820 (1958)……………………………16 Hines v. State, 288 N.W.2d 344 (Iowa 1980)…………………….26,30 Jensen v. Sattler ̧696 N.W.2d 582 (Iowa 2005)……………………..11 Lamasters v. State, 821 N.W.2d 856 (Iowa 2012)………………11,34 Manning v. State, 654 N.W.2d 555 (Iowa 2002)………...26,30,31,32 Morgan v. State, 469 N.W.2d 419 (Iowa 1991)……………………..36 Nguyen v. State, 829 N.W.2d 183 (Iowa 2013)………………..Passim Nguyen v. State, 878 N.W.2d 744 (Iowa 2016)……………………...36 Perez v. State, 816 N.W.2d 354 (Iowa 2012)…………………..Passim Rieff v. Evans, 630 N.W.2d 278 (Iowa 2001)………………...12,16,17 State v. Anderson, 517 N.W.2d 208 (Iowa 1994)……………………21 State v. Beeman, 315 N.W.2d 770 (Iowa 1982)……………………..21 State v. Heemstra, 721 N.W.2d 549 (2006)………………………….19 State v. Jones, 490 N.W.2d 787 (Iowa 1992)………………………..24 State v. Mayberry, 411 N.W.2d 677 (Iowa 1987)…………………...21 State v. McCright, 569 N.W.2d 605 (Iowa 1997)………………..11,34 State v. Ragland, 420 N.W.2d 791 (Iowa 1988)…………………21,36 State v. Rhomberg, 516 N.W.2d 803 (Iowa 1994)…………………..21 State v. Willard, 756 N.W.2d 207 (Iowa 2008)……………………..33 U.S. Bank v. Barbour, 770 N.W.2d 350 (Iowa 2009)……………...16 Wilson v. Ribbens, 678 N.W.2d 417 (Iowa 2004)…………………...15 STATUTES AND RULES: Iowa Code § 822.3…………………………………………………...14,20 Iowa Code § 822.6……………………………………………………….26 FOREIGN CASES: Gray v. State, 133 S.W.3d 281 (Tex. App. 2004)……………………42 5 ISSUES PRESENTED FOR REVIEW I. WHETHER THE DISTRICT COURT ERRED BY DISMISSING JONES’ APPLICATION FOR POST- CONVICTION RELIEF ON GROUNDS THAT IT WAS BARRED BY THE STATE OF LIMITATIONS. II. WHETHER STATE v. PLAIN SHOULD BE APPLIED RETROACTIVELY. ROUTING STATEMENT This appeal could be transferred to the Iowa Court of Appeals as it involves an issue of the application of existing legal principles. I.R.App.P. 6.1101(3)(a). However, this case could also be retained by the Iowa Supreme Court because it involves an issue of first impression (whether State v. Plain, 898 N.W.2d 801 (Iowa 2017) should be applied retroactively), the resolution of which involves a substantial question of enunciating or changing legal principles. I.R.App.P. 6.1101(2)(c) and (f). STATEMENT OF THE CASE Applicant Michael Jones (“Jones”) filed a pro se Application for Post-Conviction Relief Pursuant to Iowa Code Section 822 (“Pro se Application”) on December 11, 2017. (A. 5-9). Attorney Robert Stone (“Stone”) was appointed to represent Jones on 6 December 20, 2017. Order, December 20, 2017, p. 1. The State filed a Motion to Dismiss Application for Post-Conviction Relief (“State’s Motion to Dismiss”) on February 28, 2018. (A. 10-11). The court entered an order scheduling a hearing on the State’s Motion to Dismiss on March 6, 2018. Order, March 6, 2018, pg. 1. Jones, by counsel, filed a First Amended Application for Post-Conviction Relief Pursuant to Iowa Code Chapter 822 (“First Amended Application”) on March 16, 2018. (A. 27-30). Jones, by counsel, also filed a Resistance to Respondent’s Motion to Dismiss Application (“Resistance”) on March 9, 2018, (A. 19-21), supported by a “Brief in Support of his Resistance to Respondent’s Motion to Dismiss Application” (“Brief in Support of Resistance”) filed on the same date. (A. 22-26). On April 16, 2018, a hearing was held on the State’s Motion to Dismiss, (A. 31), which was granted following arguments of the parties. (See A. 36). A written order granting the State’s Motion to Dismiss was entered on the same date. (A. 38). Timely notice of appeal was filed on April 27, 2018. (A. 39-40). 7 STATEMENT OF RELEVANT FACTS The procedural history of this case is succinct, and for the purposes of this appeal, is appropriately detailed in the above Statement of the Case. However, the hearing on the State’s Motion to Dismiss warrants further discussion, as it relates to the issues raised here on appeal. A hearing was held on the State’s Motion to Dismiss on April 16, 2018. (A. 31). Jones was present and represented by his attorney, Ben Stone. (A. 32). After identifying the parties, and before any argument was made, the court stated, “Mr. Stone, what this comes down to is basically you want the Plain case to be made retroactive. What law is there that it should be made retroactive?” (A. 32). Stone replied that “…for the purpose of the hearing today… that the determination of whether or not it’s retroactive would be something that is determined later than today, the motion to dismiss.” (A. 32). Stone further argued that “the preference of Mr. Jones would be that the decision would be based upon whether or not there is a valid claim and that that would be based upon the 8 simple analysis that the Plain decision is clearly new law. The language in the decision is quite clear that this is overturning decades of prior law and that the determination of whether or not that is a retroactive application would be something for a later hearing.” (A. 32-33). The State argued that “the three-year time bar absolutely applies” and that “This is not a 22.11(d) new ground of law or fact case.” (A. 33). The State further argued that Plain was not retroactive and that the decision was not a new ground of law or fact. (A. 33). Stone responded that “It’s very clear that the decision of the Iowa Supreme Court in June of last year in the Plain decision represents a new law. It’s a new law. We do not know yet whether or not it will be applied retroactively, but again we believe that.” (A. 35). The court responded that “I disagree with you on that because if it were a factual matter, you would be entitled to hearing to dispute that. This is strictly a matter of legal interpretation. I don't see anything in the Plain decision that would treat it any different than Heemstra which is to say it's a declaration of a new standard of law to be applied prospectively 9 and not retrospectively because if we applied this that way, the flood gates would be unleashed like you could not believe.” (A.