Opinion
No. 1-844 / 01-0251.
Filed January 9, 2002.
Appeal from the Iowa District Court for Polk County, RICHARD G. BLANE II (order of dismissal) and LARRY J. EISENHAUER (motion to reconsider), Judges.
Larry Carroll, Jr. appeals from the district court ruling dismissing his application for postconviction relief. AFFIRMED.
Tiffany J. Koenig and Christopher Kragnes, Sr., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and Mark J. Sandon, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ. EISENHAUER, J., takes no part.
Larry Carroll, Jr., appeals from the district court ruling dismissing his application for postconviction relief. We affirm.
Background Facts and Proceedings. In December 1996 Carroll was convicted of second-degree kidnapping, first-degree burglary, and carrying weapons. This court affirmed his conviction in January 1998. See State v. Carroll, No. 96-2268 (Iowa Ct.App. Jan. 28, 1998). Carroll filed a postconviction relief application in December 1998 alleging ineffective assistance of counsel, which was dismissed. On March 17, 2000, Carroll filed his second and present application for postconviction relief alleging that (1) the trial court abused its discretion by admitting a tape recording into evidence; (2) he was not competent to stand trial and the district court erred by failing to order a competency hearing; and (3) trial counsel was ineffective by failing to request a competency hearing.
On October 19, 2000, Carroll's attorney, Christopher Coppola, moved to withdraw as counsel stating that after a "conscientious investigation of the entire record, the Application For Post-Conviction Relief is frivolous and that he cannot, in good conscience, proceed with the application." On October 24 the district court gave Carroll notice of its intent to dismiss the postconviction relief application based on counsel's motion to withdraw and gave Carroll until November 27, 2000, to reply to the proposed dismissal. The order specifically stated that such "reply shall contain specific basis why the Application for Post-Conviction Relief has merit and should not be dismissed." On the same day the State moved to dismiss Carroll's application for postconviction relief for failure to state a claim upon which relief could be granted. Carroll responded to his counsel's motion to withdraw on October 26, 2000, by requesting his counsel's motion be denied or in the alternative the court rule on the issues raised in his application.
On December 14, 2000, the district court ordered the dismissal of Carroll's application for postconviction relief pursuant to the second paragraph of Iowa Code section 822.6 (1999) and granted counsel's application to withdraw. The court found dismissal was justified given Carroll did not file a reply to the proposed dismissal by November 27. Carroll filed a motion to reconsider the court's ruling to dismiss his application claiming his response to counsel's motion to withdraw filed on October 26 was a timely response to the court's initial order. On January 23, 2001, the district court overruled Carroll's motion to reconsider by finding that Carroll's motion to oppose attorney's motion to withdraw did not satisfy the court's directive to specify the basis why his application for postconviction relief has merit and should not be dismissed. Carroll appeals.
Standard of Review. Our review of postconviction relief proceedings can be for errors at law or de novo. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999). When the action implicates constitutional issues, our review is de novo. Id. We review dismissal of an application for postconviction relief for errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998).
Iowa Code Section 822.6. Carroll claims the postconviction court erred by dismissing his application for postconviction relief and by overruling his motion to reconsider the dismissal. We disagree.
Section 822.6 provides two statutory methods for summary disposition of postconviction relief applications: (1) by the court's own initiative after giving notice of intent to dismiss the application and opportunity for the applicant to respond prior to final disposition or (2) by the court's grant of summary disposition motion raised by either party. See Iowa Code § 822.6; Brown, 589 N.W.2d at 274. In the present case, the district court employed the first statutory method pursuant to paragraph two of section 822.6. Paragraph two of section 822.6 states as follows:
When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for dismissal. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if a material issue of fact exists.
Iowa Code § 822.6 (emphasis added). We reject Carroll's claim that his motion to oppose attorney's motion to withdraw was a timely response to the court's initial order expressing its intent to dismiss his application. He failed to specifically explain why his claims have merit and should not be dismissed in light of counsel's review of the issues. This failure renders his claims too general to grant relief. Consequently, Carroll's motion was not responsive to the court's order.
In addition, "any claim not properly raised on direct appeal may not be litigated in a postconviction relief action unless sufficient reason or cause is shown for not previously raising the claim, and actual prejudice resulted from the claim of error." Berryhill, 603 N.W.2d at 245. Carroll raises issues in his postconviction action that were not litigated on direct appeal or in his first postconviction relief application. Consequently, Carroll cannot properly raise these issues now unless he demonstrates sufficient cause for not raising them earlier.
After a careful review of the record, we conclude it reveals no basis for finding that Carroll had sufficient cause for not raising his claims on direct appeal or in his first postconviction relief application. Accordingly, we affirm the district court's dismissal of Carroll's application for postconviction relief on both grounds stated above. AFFIRMED.
We may affirm the decision for any reason appearing in the record. State v. O'Malley, 593 N.W.2d 517, 519 (Iowa 1999).