Richard Michael O'Toole, Applicant–Appellant, v. State of Iowa, Respondent–Appellee. (2026)

Richard O'Toole appeals the summary dismissal of his second application for postconviction relief (PCR) challenging his 2004 conviction for sexual abuse. He contends the PCR court erred in finding his application was time-barred. We affirm.

In 2004, O'Toole was convicted of two counts of sexual abuse. This court affirmed the convictions, and procedendo issued on December 5, 2005. State v. O'Toole, No. 04-0910, 2005 WL 2756087, at *5 (Iowa Ct. App. Oct. 26, 2005). In 2007, O'Toole timely filed his first PCR application based on ineffective assistance of trial counsel. The PCR court denied relief, and this court affirmed. O'Toole v. State, No. 10-1269, 2012 WL 1612517, at *1 (Iowa Ct. App. May 9, 2012) . Procedendo issued on July 19, 2012.

O'Toole filed his second PCR application on December 2, 2015, more than three years after the conclusion of his first PCR. His counsel from the direct appeal and first PCR continued to represent O'Toole until June 21, 2019, when he withdrew upon O'Toole’s direction. On June 25, 2019, O'Toole filed a pro se supplement to his second PCR application alleging his PCR counsel performed ineffectively in failing to raise a jury instruction issue. The State moved for summary disposition, arguing the PCR application was untimely. The court granted summary disposition and overruled O'Toole’s motion to reconsider. O'Toole appeals.

When O'Toole filed his second PCR application, it was already time-barred by the three-year statute-of-limitation period of Iowa Code section 822.3 (2015).¹ Nevertheless, O'Toole argues his filing of the supplemental claim of ineffective assistance of counsel was “prompt” under the “short-lived reign” of Allison v. State, 914 N.W.2d 866 (2018). Allison was filed June 25, 2018, while O'Toole’s second PCR application was pending. Allison was legislatively repealed effective July 1, 2019, just days after O'Toole’s June 25, 2019 supplement.²

Allison holds that

where a PCR petition alleging ineffective assistance of trial counsel has been timely filed per section 822.3 and there is a successive PCR petition alleging postconviction counsel was ineffective in presenting the ineffective-assistance-of-trial-counsel claim, the timing of the filing of the second PCR petition relates back to the timing, of the filing of the original PCR petition for purposes of Iowa Code section 822.3 if the successive PCR petition is filed promptly after the conclusion of the first PCR action.

914 N.W.2d at 891. Assuming without deciding that Allison governs here, see Greenup v. State, 966 N.W.2d 292, 296 n.4 (Iowa Ct. App. 2021),³ to relate the filing of the second PCR application back to the first PCR application, O'Toole must show (1) a timely filed PCR application alleging ineffective assistance of trial counsel, (2) a successive PCR application alleging that PCR counsel was ineffective in presenting the ineffective-assistance-of-trial-counsel claim in the first PCR action, and (3) prompt filing of the successive PCR application following the conclusion of the first PCR action. See Allison, 914 N.W.2d at 891.

The third prong is in question here. Under this prong, the subsequent PCR application must be “promptly” filed after the conclusion of the first. Id. Procedendo issued in O'Toole’s first PCR action on July 19, 2012, and the supplement to his second application alleging ineffectiveness of PCR counsel was filed on June 25, 2019, almost seven years later. Although “promptly” is not defined in Allison, our cases demonstrate that a seven-year delay is not prompt in anyone's book. See Velazquez-Ramirez v. State, 973 N.W.2d 598, 600-01 (Iowa Ct. App. 2022) (holding a six-year delay was not prompt and further observing that our court has repeatedly concluded delays over one year are not prompt).

So, O'Toole proposes we focus on whether his June 25, 2019 supplement to his second PCR application was filed promptly after his appellate/PCR counsel revealed his possible ineffectiveness in an October 25, 2018 letter.⁴ Further, he claims that the eight-month delay was “prompt” considering his PCR counsel “did not see any urgency” for his withdrawal and that O'Toole’s search for a new attorney during that time was unsuccessful. Finally, he waited only days after his PCR counsel's withdrawal before filing his pro se supplemental filing.

However, O'Toole’s emphasis on the timing in relation to his counsel's revelation is misplaced. The language in Allison quite specifically explains that the successive petition must be filed promptly in relation to “the conclusion of the first PCR action,” not some other event, occurrence, or revelation. See id.

Allison says what it says. Nothing in Allison suggests that the clock for second PCRs runs from the filing of Allison. Rather, by its plain terms, Allison only applies to second PCRs “filed promptly after the conclusion of the first PCR action.” 914 N.W.2d at 891 (emphasis added). So, because [the applicant] did not file his second PCR “promptly after the conclusion of the first PCR action,” Allison cannot assist him.

Velazquez-Ramirez, 973 N.W.2d at 601. In any event, an eight-month delay is not prompt. We have previously concluded an applicant who “waited nearly six months to file his second PCR petition” did not “meet the ‘prompt’ filing mandate in Allison.” Polk v. State, No. 18-0309, 2019 WL 3945964, at *1 (Iowa Ct. App. Aug. 21, 2019). And in Maddox v. State, we concluded “the 121-day delay in Maddox's filing a second PCR application resulted in the application not being ‘filed promptly’ within the meaning of Allison.” No. 19-1916, 2020 WL 5230367, at *3 (Iowa Ct. App. Sep. 2, 2020); see also Harlston v. State, No. 19-0267, 2020 WL 4200859, at *1 (Iowa Ct. App. July 22, 2020) (finding delay of more than six months was not prompt and citing cases).

O'Toole’s supplement to his second PCR application was filed almost seven years after the conclusion of his first PCR action. No matter how you slice it, under our case law, O'Toole’s filing was not prompt. So, we conclude the district court properly dismissed the application for untimeliness.

AFFIRMED.

FOOTNOTES

1.   O'Toole’s second PCR application was filed December 2, 2015; thus, the code in effect was the 2015 Code.

2.   In response to the Allison decision, the legislature amended section 822.3, effective July 1, 2019: “An allegation of ineffective assistance of counsel in a prior case under this chapter shall not toll or extend the limitation periods in this section nor shall such claim relate back to a prior filing to avoid the application of the limitation periods.” 2019 Iowa Acts ch. 140, § 34.

3.   See also Wyldes v. State, 36 N.W.3d 72, 79, 90 (Iowa 2026) (caveating its Allison analysis, in a similar posture and without explanation, with “[e]ven if the 2019 amendments to § 822.3 do not apply”).

4.   The letter says, in part: “I regret to inform you that it appears you will need to hire other counsel. I cannot analyze whether or not the failure to raise the instructions is a separate claim on my ineffectiveness, which could still be brought at this time.”

Opinion by Doyle, S.J.