
    John Leslie Nicholas GRAVES, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.
    No. 17-0350
    Court of Appeals of Iowa.
    Filed April 18, 2018
    Daniel M. Northfield, Urbandale, for appellant.
    Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.
    Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
   DANILSON, Chief Judge.

John Graves appeals from the dismissal of his third application for postconviction relief (PCR), arguing the district court improperly granted summary judgment to the State. Finding no error in the dismissal of the application, we affirm.

In an appeal from the denial of Graves's first PCR application, this court rejected Graves's argument that "his trial, appellate, and postconviction counsel rendered ineffective assistance for failing to object to the felony murder and willful injury jury instructions." Graves v. State , No. 06-0369, 2007 WL 1484512, at *3 (Iowa Ct. App. May 23, 2007). We observed,

Graves's argument is based on the application of State v. Heemstra , 721 N.W.2d 549, 558 (Iowa 2006), to his case. That case, however, was decided after Graves's trial and direct appeal. Until Heemstra , the instructions given at Graves's trial were commensurate with the law. See Heemstra , 721 N.W.2d at 557-58. His counsel had no duty to anticipate the change. See State v. Liddell , 672 N.W.2d 805, 814 (Iowa 2003).
Furthermore, according to Heemstra , The rule of law announced in this case regarding the use of willful injury as a predicate felony for felony-murder purposes shall be applicable only to the present case and those cases not finally resolved on direct appeal in which the issue has been raised in the district court.
Id.
Graves relies on Teague v. Lane , 489 U.S. 288, 299-300 (1989), for the proposition that "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." Graves's argument is inapposite. We need not reach the question of retroactivity Graves urges because Heemstra did not announce a new constitutional rule of criminal procedure. Instead, the case interpreted a state statute. The Supreme Court cannot construe a state statute, whether it is procedural or substantive in nature, differently from the construction rendered by the state's highest court. Johnson v. Fankell , 520 U.S. 911, 916 (1997). Therefore, the new law established in Heemstra is not applicable to Graves.

Graves , 2007 WL 1484512, at *3.

Graves filed a second PCR application challenging the felony-murder instruction. The application was denied on January 28, 2013, and no appeal was filed.

Graves filed this third PCR application on May 12, 2016. The State responded with a motion for summary judgment and dismissal. Graves resisted, contending the application was grounded on new law, that is, "after multiple United States Supreme Court cases came down from January to April of 2016 that directly call into question whether or not Iowa Courts are required to apply Heemstra retroactively." Graves argued these cases started the three-year-limitation period again. The court heard arguments on the parties' positions and ruled:

[Graves] argues that Montgomery v. Louisiana , 136 S. Ct. [at] 728, demands the retroactive application of Heemstra . In Montgomery , the United State Supreme Court held that new substantive rules of constitutional law must be applied retroactively. Id. The court does not need to consider whether Montgomery applies to the current case, as the Iowa Supreme Court has already decided that Montgomery does not require the retroactive application of Heemstra . In Nguyen [v. State , 878 N.W.2d 744, 754 (Iowa 2016) (Nguyen II) ], the applicant submitted Montgomery as additional authority on the federal approach to retroactivity. Nguyen II , 878 N.W.2d at 753, n.4. The court noted that Montgomery did not assist them in deciding the case, as Montgomery dealt with changes in constitutional law, and "Heemstra did not create a new substantive rule of constitutional dimension." Id. In accordance with the ruling of the Iowa Supreme Court, this court must also rule that Montgomery does not require the retroactive application of Heemstra.
[Graves] also argues that Welch v. United States requires the retroactive application of Heemstra .... The Court in Welch did not announce a new framework for the determination of retroactivity; it simply applied existing frameworks to the issue before the Court. [ 136 S. Ct. at 1266-67.] As there was no new law announced in Welch , it cannot serve as a ground of new law to provide an exception to the statute of limitations in Iowa Code section 822.3. Further, the case examined in Welch was decided on constitutional grounds, therefore the analysis of retroactive application in Welch was of a new substantive rule of constitutional law. As stated above and in Nguyen II , such analysis does not assist the court in the determining the outcome of this case, as "Heemstra did not create a new substantive rule of constitutional dimension." Nguyen II , 878 N.W.2d at 753, n.4. [Graves] has not provided any new ground of law that would create an exception to Iowa Code section 822.3. As the writ of procedendo in [Graves's] underlying conviction was issued more than three years ago, [Graves's] application for postconviction relief is untimely under Iowa Code section 822.3 and is hereby dismissed.

Graves appeals. Finding no error of law in the court's analysis, we affirm. See Iowa Ct. R. 21.26(1)(c), (d), (e).

AFFIRMED. 
      
      Specifically, Graves cites Montgomery v. Louisiana , 136 S. Ct. 718, 723 (2016), Welch v. United States , 136 S. Ct. 1257 (2016), and Johnson v. United States , 135 S. Ct. 2551 (2015), as having "clarified when a law was required to be applied retroactively."
     