Opinion
No. 6-135 / 05-0858
Filed April 12, 2006
Appeal from the Iowa District Court for Woodbury County, Dewie J. Gaul, Judge.
A post-conviction relief applicant appeals from the district court's order dismissing the application. AFFIRMED.
Matthew Metzgar of Rhinehart Law, P.C., Sioux City, for appellant.
Simon Tunstall, Fort Madison, pro se.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Mark S. Campbell, Assistant County Attorney, for appellee-State.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Simon Tunstall appeals from the district court's order sustaining the State's motion to dismiss his second application for post-conviction relief filed in March 2005. Tunstall was convicted in 1987 of first-degree murder (Iowa Code section 707.2(2) (1985)) and first-degree burglary (Iowa Code sections 713.1, 713.3), from which he appealed and procedendo issued in April 1989. He raised several claims of ineffective assistance of trial, appellate, and first post-conviction counsel in this application, which the district court concluded were barred by the three-year statute of limitations under Iowa Code section 822.3 (2003). Tunstall appeals only from the ground in this application that his previous attorneys were ineffective for failing to raise a constitutional "due process" objection to certain hearsay testimony by Officer Kevin Smith.
We find no error of law in the district court's ruling, as we concur with the district court's conclusions and dismissal of Tunstall's 2005 application as time-barred and not meeting any exception under section 822.3. See Harrington v. State, 659 N.W.2d 509, 519-520 (Iowa 2003); Dible v. State, 557 N.W.2d 881, 883 (Iowa 1996) ( abrogated on other grounds by Harrington); Whitsel v. State, 525 N.W.2d 860, 864 (Iowa 1994).