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IN THE COURT OF APPEALS OF IOWA No. 6-872 / 06-0072 Filed December 13, 2006

GARY R. TITUS, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

Applicant

appeals

following

denial

of

his

third

application

for

postconviction relief. AFFIRMED.

John Billingsley of Walker & Billingsley, Newton, for appellant. Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee State.

Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.

2 ZIMMER, J. Gary Titus appeals following the district court's denial of his application for postconviction relief, which asserted that trial counsel was ineffective for failing to object to prosecutorial misconduct. Upon our de novo review, Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999), we affirm the district court. In 1988 Titus was convicted of murder in the first degree. His conviction was upheld on direct appeal. State v. Titus, No. 88-1070 (Iowa Ct. App. Dec. 27, 1989). Titus unsuccessfully sought postconviction relief in 1990 and 1992. 1 He filed the present application for postconviction relief on July 14, 2004. The application alleged trial counsel had been ineffective for failing to object to questions posed by the prosecutor during cross-examination of Titus, which had inquired into the veracity of State witnesses. It asserted the

questioning was objectionable because it amounted to prosecutorial misconduct under the rule announced in State v. Graves, 668 N.W.2d 860 (Iowa 2003). 2 It further asserted the application was timely, even though it was filed nearly fifteen years after procedendo issued in the direct appeal, because Graves had announced a new rule of law. See Iowa Code

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