Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 06-07-2022

Case Style:

Peter Kelly Long v. Jeremy Larson

Case Number: 20-cv-3054

Judge: Linda R. Reade

Court: United States District Court for the Northern District of Iowa (Lynn County)

Plaintiff's Attorney:




Click Here to Watch How To Find A Lawyer by Kent Morlan

Click Here For The Best Cedar Rapids Criminal Defense Lawyer Directory


Defendant's Attorney: Aaron James Rogers

Description: Cedar Rapids, Iowa pro se plaintiff sued defendant seeking a write of habeas corpus.


On December 1, 2011, following a jury trial, the Iowa District Court for Webster County (“the district court”) found Long guilty of third-degree sexual abuse in violation of Iowa Code §§ 709.1(3) and 709.4(2)(b). A bifurcated bench hearing was held on the same day to determine whether an enhanced sentence was applicable pursuant to Iowa Code § 902.14(1)(b), (c) due to Long's prior 1996 conviction. See docket no. 6-6 at 12. On December 2, 2011, the State moved that the record be reopened with regard to the sentence enhancement and on December 20, 2011, over Long's objection, the court accepted the testimony of the court reporter who took the record at Long's 1996 trial to establish the fact that Long's prior convictions constituted a violation which would make Long subject to sentence enhancement under Iowa Code § 902.14(1)(b), (c). See docket

1

no. 6-6 at 2. As a result, Long was sentenced to life in prison without parole on February 3, 2011. Id.

Long appealed, arguing that the district court erred in granting the state's motion to reopen the record. See docket no. 6-4 at 5.[1] The Iowa Court of Appeals reversed, and ruled:

Without considering whether Iowa Rule of Criminal Procedure 2.19(9) required Long to object before trial on the substantive offense, we find in this case that reopening the record and allowing the State to call a late-noticed witness to prove the enhancement unfairly undermined Long's strategy and constituted an abuse of the district court's discretion. Accordingly, we vacate the sentence and remand for the district court to determine whether the State's original evidence-offered before the reopening of the record-satisfied its burden to prove beyond a reasonable doubt that the defendant previously violated subsection (1) or (2) of Iowa Code section 709.8.

State v. Long, 810 N.W.2d 26 (Table), 2011 WL 6740164 (Iowa Ct. App. Dec. 21, 2011), vacated, 814 N.W.2d 572 (Iowa 2012). The Iowa Supreme Court granted further review and vacated the Iowa Court of Appeals decision on June 8, 2012. State v Long, 814 N.W. 2d 572 (Iowa 2012). The Iowa Supreme Court affirmed the decision of the Iowa District Court for Webster County which found Long guilty of third-degree sexual abuse in violation of Iowa Code §§ 709.1(3) and 709.4(2)(b) and also affirmed the life sentence imposed. Id. On July 11, 2012, the Iowa Supreme Court filed procedendo. See docket no. 6-7.

On October 26, 2012, Long filed his first petition for post-conviction relief (PCR) in the Iowa District Court for Webster County. See docket no. 6-9 at 9. Long was represented by counsel in that action. See docket no. 1 at 5. Long alleged that his lawyer

2

provided ineffective assistance by advising that Long waive a jury trial on the sentencing enhancement. He additionally argued that his enhanced sentence constitutes cruel and unusual punishment. See docket nos. 6-13, 6-14 at 1. The district court denied relief, and the Iowa Court of Appeals affirmed. Long v. State II, 898 N.W.2d 202 (Table), 2017 WL 514400, at *1 (Iowa Ct. App. Feb. 8, 2017). The Iowa Supreme Court both denied Long's application for further review and issued procedendo on March 29, 2017. See docket no. 6-10. On October 10, 2013, while his first PCR motion was pending, Long filed a motion to correct illegal sentence, alleging his prior convictions did not qualify as predicate felonies that trigger the enhanced penalties pursuant to Iowa Code § 902.14 because at the time that he pled guilty to them each was classified as a class “D” felony and not a class “C” felony as required to trigger the enhancement. See docket no. 6-1. The motion was denied. Id. at 5. Both the Iowa Court of Appeals and the Iowa Supreme Court dismissed the appeal as untimely and issued procedendo on October 31, 2014. See docket no. 14 at 9-10.

On April 26, 2107, Long filed a second PCR claim in the Iowa District Court for Webster County, again raising the argument that his prior convictions do not qualify as predicate felonies that trigger the enhanced penalties pursuant to Iowa Code § 902.14 because at the time that he pled guilty to them each was classified as a class “D” felony and not a class “C” felony as required to trigger the sentencing enhancement. Long also argued that the court erred in not instructing the jury regarding lesser included offenses. See docket no. 6-20 at 8-9. Long was represented by counsel for his second PCR claim. See docket no. 1 at 6. The district court dismissed the second PCR claim as untimely. See Long v. State III, 922 N.W.2d 104 (Table), 2018 WL 3302203, at *1 (Iowa Ct. App. July 5, 2018). On July 5, 2018, the Court of Appeals affirmed the trial court's determination that all but one of Long's claims were filed more than three years following procedendo following Long's direct appeal and were time barred. See id. The Iowa Court of Appeals, ruled, however:

3

On appeal, Long also alleges his sentence is illegal. Although this claim was not asserted below, a challenge to an illegal sentence may be asserted at any time. See State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009). Long argues his sentence is illegal because his prior convictions do not qualify as predicate felonies that trigger the enhanced penalties under Iowa Code section 902.14. (2009), citing State v. Oliver, 812 N.W.2d 636, 639 (Iowa 2012). This claim was raised and decided in Long's appeal of his first PCR action. See Long, 2017 WL 514400, at *5. Our prior ruling affirming his sentence on the same grounds is final and cannot be revisited. See Snyder v. State, 262 N.W.2d 574, 578 (Iowa 1978).

Id. On August 28, 2018, the Iowa Supreme Court denied further review and filed procedendo. See docket no. 6-16.

On February 28, 2018, while his second PCR claim was pending in state court, Long filed a habeas petition with this court. (Long v. Sperflogy, 18-CV-4018-LRR, docket no. 1). Long also filed a motion to stay the proceeding until the Iowa Supreme Court decided his second postconviction appeal. (18-CV-4018-LRR, docket no. 3). This court dismissed the petition without prejudice but in the order stated:

Assuming, without deciding, that [Long] timely filed the above captioned case to preserve issues raised [in] his first post-conviction action (15-1231), those issues will be considered timely filed if they are included in a subsequent § 2254 petition filed after the final state court resolution of case 17-1049. Put another way, the court will consider [Long's] claims from both postconviction cases tolled until the conclusion of the second postconviction case.

(18-CV-4018-LRR, docket no. 4 at 2 n.1).

On October 4, 2018, Long filed a pro se motion to reopen his habeas claim. (18-CV-4018-LRR, docket no. 6). On December 12, 2018, the court entered an Order (18-CV-4018-LRR, docket no. 7) stating that, “[t]o the extent that [Long] is requesting the court to reopen his prior case, that motion . . . is denied.” Further, the court directed the Clerk of Court to “file [Long's] motion (docket no. 6) as a new pro se petition pursuant to 28 U.S.C. § 2254 and open a new case as of the date he filed that document.”

4

Id. The court also gave Long “thirty days from the date of this order to file an amended petition using the provided form.” Id. The court admonished Long that if he failed “to file an amended petition within thirty days . . . the new case will be dismissed with no further order of the court.” Id. at 2. Accordingly, the Clerk of Court opened another case under Long's name on December 12, 2018. See Case No. 18-CV-3070-LRR, docket no. 1.

On December 3, 2018, Long filed a pro se third PCR claim in the Iowa District Court for Webster County, alleging that his PCR counsel who represented him in his second PCR claim was ineffective. See docket no. 6-23 at 3. Long also alleged that the time bar exception in Allison v. State, 914 N.W.2d 866 (Iowa 2018) applied in promptly filed third PCR actions and should excuse his untimeliness in challenging whether the judge who presided at his trial should have recused himself. See docket no. 6-29 at 3. See also docket no. 1 at 7.

Long did not file an amended petition in his habeas action within thirty days as directed by the court; but instead, on December 27, 2018, filed a pro se motion to stay. (18-CV-3070-LRR, docket no. 3). In that motion, Long requested that the court “[s]tay any further action . . . until such time when the [l]ast and 3rd [post-conviction relief (PCR)] in Webster County district [c]ourt is finished.” Id. However, the court opted to again dismiss the petition without prejudice pending Long exhausting his state court remedies. (18-CV-3070-LRR, docket no. 5).

Long's third PCR action was dismissed by the Iowa District Court for Webster County. Long appealed to the Iowa Court of Appeals and the decision was affirmed. Long v. State, 947 N.W.2d 777 (Table), 2020 WL 2061934 (Iowa Ct. App. Apr. 29, 2020). On April 29, 2020, the Iowa Court of Appeals ruled that Long's case did not fall into the narrow exception created by Allison v. State, 914 N.W. 866 and that there was no evidence that the district judge erred in refusing to recuse himself. Id. at *1-*3. Long sought further review, which was denied by the Iowa Supreme Court on July 16, 2020.

5

Procedendo issued the same day. Long mailed the present petition on October 21, 2020. See docket no. 1.

In his petition, Long raises eight distinct claims: (1) the enhancement proceedings would have been different if the enhancement phase was by jury trial rather than a bench trial; (2) Long's trial counsel who instructed Long to waive his right to a jury trial in the enhancement phase was ineffective; (3) the district judge should have recused himself in the enhancement phase because he had personal knowledge of Long's prior convictions; (4) the enhancement of Long's sentence was illegal pursuant to Iowa statutes because the issue of sentencing enhancement was raised prior to his conviction; (5) trial counsel provided ineffective assistance by failing to request a jury instruction regarding lesser-included offenses; and (6) the district judge should have recused himself in the PCR case because of a conflict of interest.

On February 22, 2021, the petitioner filed his first Motion for Appointment of Counsel. See docket no. 2. The court denied Long's first motion to appoint counsel. See docket no. 3 at 7. On August 25, 2021, respondent filed the state court documents. See docket nos. 6, 8.

On July 29, 2021, the court ordered (docket no. 4) the State to file a limited response or dispositive motion addressing whether Long' petition is timely and whether Long properly exhausted his claims. On October 26, 2021, respondent filed the Motion to Dismiss, arguing that Long's petition is not timely filed and that, with the exception of Ground Two, Long has failed to exhaust his claims before the Iowa state courts. See docket no. 11. On February 14, 2022, Long filed a resistance to the motion to dismiss. See docket no. 22.
Long v. Larson (N.D. Iowa 2022)

Outcome:
Appointment of counsel is based on multiple factors, including the complexity of the case, and, although the court does appoint attorneys in civil actions, it is not required to appoint an attorney. See Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996) (setting forth factors to be considered for appointment of counsel in a civil case); Abdullah v. Gunter, 949 F.2d 1032, 1035 (8 th Cir. 1991) (same); Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir. 1985) (stating an indigent litigant enjoys neither a statutory nor a constitutional right to have counsel appointed in a civil case). Given the record in this action, the court finds that, at this time, the assistance of counsel is not warranted because the petitioner's only exhausted claim must be dismissed as untimely. Accordingly, Long's motion to appoint counsel shall be denied as moot...
Long v. Larson (N.D. Iowa 2022)

Plaintiff's Experts:

Defendant's Experts:

Comments:



Find a Lawyer

Subject:
City:
State:
 

Find a Case

Subject:
County:
State: