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IN THE COURT OF APPEALS OF IOWA No. 8-658 / 07-1516 Filed October 1, 2008

BRIAN A. MCGEE, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.

The applicant appeals from the denial of his postconviction relief application. AFFIRMED.

Brian Farrell, Cedar Rapids, for appellant. Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Michael J. Walton, County Attorney, and Amy Devine, Assistant County Attorney, for appellee State.

Considered by Sackett, C.J., and Miller and Potterfield, JJ.

2 POTTERFIELD, J. Applicant Brian A. McGee appeals from the denial of his postconviction relief application. We conclude the postconviction court properly dismissed on summary disposition, and therefore affirm. Background Facts and Proceedings. On September 16, 1994, a court found McGee guilty of attempted murder, first-degree burglary, and willful injury. The court later sentenced him to serve consecutive twenty-five year indeterminate terms for the attempted murder and burglary charges. It also sentenced him to serve ten years on the willful injury conviction to be served concurrently with the first two convictions. These

convictions were affirmed on direct appeal. McGee later filed applications for postconviction relief in 1996 and 1998, both of which were dismissed. On January 16, 2007, McGee filed a third postconviction application, claiming that he was improperly denied a parole eligibility interview and that the denial of his opportunity for a parole release interview amounted to an illegal ex post facto law. On May 29, 2007, the State filed an answer and motion for summary dismissal. Following a hearing, the court granted the State 's motion and dismissed McGee's application. It held the application was filed beyond the statute of limitations, no genuine issue of material fact existed, and that Iowa Code section 906.5 (2007) did not entitle him to an in-person interview with the parole board. McGee appeals from this ruling. He claims (1) the court abused its

discretion in considering the State's untimely motion for summary dismissal, (2) the court erred in finding his postconviction relief application barred by the statute

3 of limitations, (3) the denial of parole interviews under the 1993 amendment to Iowa Code section 906.5 and the 1999 amendment to Iowa Administrative Code rule 205-8.6 violated the Ex Post Facto Clause, and (4) the amended Iowa Administrative Code section conflicts with his right to an interview under section 904A.4. Scope and Standards of Review. Postconviction relief proceedings are reviewed for correction of errors at law. De Voss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, McGee's claim that the application of the changed parole review procedures to his case violates ex post facto principles is constitutional in nature. Our review of this claim is de novo. State v. Corwin, 616 N.W.2d 600, 601 (Iowa 2000). Under this review, we must make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997). Summary disposition of a postconviction application is authorized "when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Iowa Code

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