Phuoc Nguyen v. State of Iowa ( 2016 )

IN THE SUPREME COURT OF IOWA
No. 14–0401
Filed March 11, 2016
PHUOC NGUYEN,
Appellant,
vs.
STATE OF IOWA,
Appellee.
Appeal from the Iowa District Court for Polk County,
Rebecca Goodgame Ebinger, Judge.
In this second application for postconviction relief, a defendant
challenges his murder conviction under the state and federal
constitutions and on state common law retroactivity grounds. DISTRICT
COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant
Attorney General, John P. Sarcone, County Attorney, and Celene
Gogerty, Assistant County Attorney, for appellee.
2
ZAGER, Justice.
In 1999, Phuoc Thanh Nguyen was convicted of first-degree
murder. The jury was instructed on both the premeditation and felony-
murder alternatives of first-degree murder. The underlying predicate
felony was terrorism. 1 The use of an assaultive predicate felony was
supported by a line of cases starting with State v. Beeman, which found
willful injury to be a proper predicate felony for a felony-murder
instruction. 315 N.W.2d 770, 776 (Iowa 1982). In 2006, we overturned
Beeman in State v. Heemstra. 721 N.W.2d 549, 558 (Iowa 2006). In
Heemstra, we held that when a willful injury is the same act that causes
a victim’s death, the two crimes merge and the act causing willful injury
cannot be used as a predicate felony under the felony-murder rule. Id. If
Heemstra had been controlling at the time of Nguyen’s conviction,
terrorism could not have been used as the predicate felony, and the
felony-murder instruction could not have been given as a theory to
convict Nguyen. In contemplation of our prerogative under the common
law, we specifically held that the decision was not retroactive and would
only be applicable to the present case and those cases not finally
resolved on direct appeal. Id. In 2009, this court decided Goosman v.
State. 764 N.W.2d 539, 545 (Iowa 2009). In Goosman, we held that the
nonretroactive application of Heemstra does not violate the Federal Due
Process Clause. Id.1The crime of terrorism, which was the predicate felony in this case, is now
referred to as intimidation with a dangerous weapon. Compare Iowa Code § 708.6(2015) with Iowa Code § 708.6 (1997). In a later case, this court applied the
independent felony rule to the use of intimidation with a dangerous weapon (formerly
terrorism) as the predicate felony in felony murder. State v. Millbrook, 788 N.W.2d 647,
652–53 (Iowa 2010).
3
Within three years of our decision in Heemstra, Nguyen filed this
second application for postconviction relief. In this application, Nguyen
argues that his conviction should be vacated and a new trial ordered,
contending that the nonretroactive application of Heemstra violates the
due process, separation of powers, and equal protection clauses of the
Iowa Constitution. Nguyen also argues it violates the Equal Protection
Clause of the United States Constitution. For the first time, Nguyen
further argues on appeal his postconviction counsel were ineffective for
failing to raise and argue for the retroactive application of Heemstra
under the common law.
For the reasons set forth below, we conclude that Nguyen’s
postconviction counsel were not ineffective. We also conclude that the
nonretroactivity of the rule expressed in Heemstra does not violate the
due process, separation of powers, or equal protection clauses of the
Iowa Constitution, or the Equal Protection Clause of the United States
Constitution.
I. Background Facts and Proceedings.
In 1999, Phuoc Thanh Nguyen was convicted of first-degree
murder based on alternative theories that included a felony-murder
theory. On direct appeal, the court of appeals recounted the evidence
presented at trial and established a number of facts that a jury could
have found based on the record:
On the afternoon of July 15, 1998, Nguyen and Dao
approached “The Cloud,” a Des Moines bar. Dao exited the
car and expressed his interest in purchasing an ounce of
cocaine. While Nguyen stayed near the car, several
individuals accompanied Dao into an alley where he was
beaten and robbed. After the robbery, Dao left the area on
foot and Nguyen departed in the vehicle.
Later the same day, a car approached The Cloud and
one or more of its occupants fired several gunshots into a
4
crowd of people standing outside the bar. Monty Thomas
was fatally shot. Two witnesses recorded the license plate of
the vehicle in which the gun-toting assailants rode. When
law enforcement officers stopped the vehicle later that
evening, Nguyen was driving with Dao as his passenger. Dao
and Nguyen were charged with first-degree murder. The
defendants were tried separately.
....
. . . Witness testimony linked Nguyen to the incident
before, during, and after the shooting. The testimony of
Rodney Martin placed Dao and a man who looked like
Nguyen at The Cloud shortly before the shooting. While the
man resembling Nguyen remained in the driver’s seat of the
car parked near the bar, Dao and a third individual solicited
drugs from Martin. Martin testified Dao was beaten and
robbed following the unsuccessful cocaine purchase, and
Nguyen and the third person drove away from the bar.
Confirming this testimony, Owen Smith described a
conversation he had with Nguyen while Dao was in the alley
attempting to purchase drugs. Smith testified he spoke to
Nguyen for ten to fifteen minutes before Nguyen left the
scene.
Nguyen was also recognized as the driver of the car
that arrived at The Cloud transporting the armed
participants in the shooting. Elgin Byron, a teller at the
local bank where Nguyen was a regular customer, identified
Nguyen as the driver of the car involved in the shooting. He
recalled the black Mitsubishi Nguyen drove to the bar on the
day in question as the same car Nguyen had brought to the
bank on prior occasions. Shawn Duncan, who also observed
the black automobile, identified Dao as an occupant of the
car who fired a gun in his direction. Similarly, David Gray
witnessed Dao shooting from the black car. Gray noted the
car’s license plate number, which matched that of the car
Nguyen and Dao were arrested in later that evening.
After the shooting, law enforcement officers observed a
black Mitsubishi matching the description of the vehicle and
license plate number given by eyewitnesses to the crime.
Upon stopping the car, they arrested its driver, Nguyen, and
the vehicle’s backseat passenger, Dao. Two bullet holes in
the vehicle’s trunk were of a size consistent with the .45
caliber casings found outside The Cloud. The man who
loaned the black Mitsubishi to Nguyen testified the first time
he noticed the trunk bullet holes was upon recovering his
car from police after Nguyen’s arrest. Lastly, Nguyen made
an incriminating statement regarding his involvement in the
shooting. An officer testified upon telling Nguyen he was
5
being arrested for his role in The Cloud homicide, Nguyen
replied “all he did was drive the car.”
State v. Nguyen, No. 99–1444, 2002 WL 575746, at *1–2 (Iowa Ct. App.
Mar. 13, 2002). Nguyen raised several issues before the court of appeals
on direct appeal including insufficiency of the evidence, the
Confrontation Clause, and ineffective assistance of counsel. The court of
appeals affirmed his conviction on March 13, 2002, and procedendo
issued on May 30.
In August 2002, Nguyen filed his first application for
postconviction relief in the district court. He asserted new claims of
ineffective assistance of counsel primarily related to trial counsel’s failure
to raise certain evidentiary objections. The district court found that his
counsel was ineffective and ordered a new trial. The State appealed the
decision, and we transferred the case to the court of appeals. The court
of appeals reversed the district court. Nguyen applied for, and we
granted, further review. On December 23, 2005, we concluded that
Nguyen did not establish the requisite prejudice to support his claims of
ineffective assistance of counsel. We vacated the decision of the court of
appeals and reversed the judgment of the district court. Procedendo
issued on January 19, 2006.
In August 2006, we issued our opinion in Heemstra. This opinion
overruled a long line of cases, starting with Beeman. 2 Heemstra, 721
N.W.2d at 558. Heemstra held that if an act causing willful injury is the
same act that causes a victim’s death, the two crimes merge and the act
causing willful injury cannot be used as the predicate felony under the
2Beeman’s progeny, all of which we overruled in Heemstra, include State v.
Anderson, 517 N.W.2d 208, 214 (Iowa 1994); State v. Rhomberg, 516 N.W.2d 803, 805
(Iowa 1994); State v. Ragland, 420 N.W.2d at 791, 793; and State v. Mayberry, 411
N.W.2d 677, 682–83 (Iowa 1987).
6
felony-murder rule. Id. Our opinion in Heemstra stated that the
decision would be applicable only to the present case and to cases not
finally resolved on direct appeal. Id. As previously stated, if Heesmtra
had been controlling authority at the time of Nguyen’s conviction rather
than Beeman, it would have eliminated the felony-murder theory of first-
degree murder as a viable theory on which Nguyen could be convicted.
On April 2, 2009, Nguyen filed pro se this second application for
postconviction relief. On the same day, he filed a pro se brief in support
of his application. On April 17, we decided Goosman, which held that
Heemstra’s nonretroactivity does not violate the Federal Due Process
Clause. 764 N.W.2d at 545. On March 19, 2010, court-appointed
counsel filed a motion to withdraw on the basis that she found no legal
grounds to proceed after the Goosman decision. The district court
granted the motion to withdraw and appointed substitute counsel to
represent Nguyen in his postconviction relief action. Nguyen’s substitute
counsel also moved to withdraw on the same grounds, but the district
court denied the motion.
On October 6, the State moved for summary disposition. The State
noted that procedendo in the first postconviction relief action issued
more than three years before Nguyen filed his second postconviction
relief action. Therefore, the State argued, the action was barred by the
statute of limitations. Nguyen filed a resistance, arguing that the action
was not barred by the statute of limitations because it was based on the
Heemstra decision and therefore fell within the exception for “a ground of
fact or law that could not have been raised within the applicable time
period.” Iowa Code § 822.3 (2009). Nguyen acknowledged that Goosman
foreclosed an argument under the Federal Due Process Clause. However,
Nguyen argued that retroactivity was required under the federal Equal
7
Protection Clause and under the due process, separation of powers, and
equal protection clauses of the Iowa Constitution. None of these
arguments were raised or decided in Goosman. See 764 N.W.2d at 545.
The district court granted the State’s motion and Nguyen appealed.
We retained Nguyen’s appeal and reversed the district court’s dismissal
of Nguyen’s postconviction relief application on statute of limitation
grounds. Nguyen v. State, 829 N.W.2d 183, 189 (Iowa 2013). We
determined that Nguyen’s postconviction relief application fell within the
exception contained in Iowa Code section 822.3 because Nguyen could
not have argued for the retroactive application of Heemstra until after
Heemstra had been decided. Id. at 188. Since Nguyen had filed his
application for postconviction relief within three years, his claims as to
retroactivity were not time-barred. Id. We remanded the case to the
district court to hear the merits of Nguyen’s arguments that Heemstra
must be applied retroactively under the due process, separation of
powers, and equal protection clauses of the Iowa Constitution or the
Equal Protection Clause of the United States Constitution. Id. at 189.
Procedendo issued on April 18.
The district court appointed new counsel to represent Nguyen and
ordered Nguyen’s postconviction relief case be consolidated with two
other applicants who were also pursuing the retroactive application of
Heemstra. Nguyen, along with Tony Sihavong and Thanh Dao, filed a
consolidated trial brief. They argued that if the rule in Heemstra applied,
each applicant would be entitled to a new trial. Further, they argued
retroactive application of Heemstra was required under the constitutional
theories we identified in Nguyen’s appeal. See id. The district court held
a joint postconviction relief trial for Nguyen, Dao, and Sihavong. The
district court denied all three claims for postconviction relief. It ruled
8
that the claims of Dao and Shihavong were procedurally barred. It also
considered all of the constitutional claims raised by Nguyen and held the
nonretroactivity of Heemstra was not unconstitutional under any of the
theories raised.
Nguyen filed a notice of appeal. He appealed each ruling of the
district court on the constitutional challenges and for the first time
raised an ineffective-assistance-of-counsel claim for the failure of
postconviction counsel to argue for the retroactive application of
Heemstra on nonconstitutional, common law grounds. Nguyen
requested that the merits of his nonconstitutional, common law claim be
considered under the ineffective-assistance-of-postconviction-counsel
framework.
II. Standard of Review.
“Generally, an appeal from a denial of an application for
postconviction relief is reviewed for correction of errors at law.” Perez v.
State, 816 N.W.2d 354, 356 (Iowa 2012) (quoting Goosman, 764 N.W.2d
at 541). However, “[u]nder both the State and Federal Constitutions,
ineffective-assistance-of-counsel claims are reviewed de novo.” Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). We review these claims de
novo because they are based on the constitutional guarantees of the
effective assistance of counsel found in the Sixth Amendment of the U.S.
Constitution and article I, section 10 of the Iowa Constitution. See State
v. McNeal, 867 N.W.2d 91, 99 & n.1 (Iowa 2015).
Ineffective-assistance-of-counsel claims are not bound by
traditional rules of error preservation. State v. Ondayog, 722 N.W.2d
778, 784 (Iowa 2006). “To the extent error is not preserved on an issue,
any objections must be raised within an ineffective-assistance-of-counsel
framework.” State v. Ambrose, 861 N.W.2d 550, 555 (Iowa 2015).
9
III. Analysis.
In pertinent part, the Iowa Code in force at the time of Nguyen’s
crime defined first-degree murder as a murder that occurs when a
person “willfully, deliberately, and with premeditation kills another
person” or when a person “kills another person while participating in a
forcible felony.” Iowa Code § 707.2 (1997).
When Nguyen was convicted, Beeman and its progeny were
controlling law. In Beeman, the court held that Iowa’s first-degree
murder statute made willful injury a proper predicate felony for a felony-
murder instruction. 315 N.W.2d at 776. We concluded the legislature
neither intended for the felonies to merge nor required an independent
felony for the felony-murder rule to apply. Id. at 777. Under the Beeman
line of cases, it was proper for a jury to be instructed on felony murder
even when the act that constituted the underlying felony was also the
same act that caused the victim’s death. See id.We overruled Beeman in Heemstra. 721 N.W.2d at 558. We
adopted the merger doctrine for felony murder and held “if the act
causing willful injury is the same act that causes the victim’s death, the
former is merged into the murder and therefore cannot serve as the
predicate felony for felony-murder purposes.” Id. In Heemstra, we also
stated that the rule announced in the case would only be applicable to
“those cases not finally resolved on direct appeal in which the issue has
been raised in the district court.” Id. Three years later, we held in
Goosman that the nonretroactivity of Heemstra did not violate federal due
process. 764 N.W.2d at 545. Nguyen now challenges the
nonretroactivity of Heemstra under the due process, separation of
powers, and equal protection clauses of the Iowa Constitution and the
Equal Protection Clause of the United States Constitution. Alternatively,
10
Nguyen argues that postconviction counsel were ineffective for failing to
additionally urge the retroactive application of Heemstra on
nonconstitutional, common law grounds.
Our doctrine of constitutional avoidance instructs us that we
should “steer clear of ‘constitutional shoals’ when possible.” State v.
Iowa Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014). Therefore, we will analyze
whether postconviction counsel were ineffective before determining
whether we need to address the constitutional arguments.
A. Ineffective Assistance of Postconviction Counsel. Nguyen
claims his postconviction counsel were ineffective for failing to pursue
Heemstra retroactivity on nonconstitutional, common law grounds.
1. Statute of limitations. The State argues that Nguyen’s
ineffective-assistance-of-counsel claim is time-barred by Iowa Code
section 822.3, which covers the statute of limitations for postconviction
relief actions. In relevant part, this section states:
[A]pplications must be filed within three years from the date the
conviction or decision is final or, in the event of an appeal, from
the date the writ of procedendo is issued. However, this limitation
does not apply to a ground of fact or law that could not have been
raised within the applicable time period.
Iowa Code § 822.3 (2009). Nguyen’s current application for
postconviction relief was filed on April 2, 2009. It is not clear at what
point the State alleges the statute of limitations began running on
Nguyen’s ineffective-assistance-of-counsel claim. However, it appears
the State argues that the limitation period began to run at the time
counsel was allegedly ineffective—when counsel failed to raise the issue
of common law retroactivity.
We find that the claim is not time-barred. In his April 2009 pro se
brief filed in support of his second application for postconviction relief,
11
Nguyen clearly asserted that Heemstra should be applied retroactively to
his case, thereby entitling him to a new trial. While not specifically
referring to it as such, Nguyen also discusses the
Teague/Bousley/Schriro—i.e., common law—framework for evaluating
the retroactive application of state decisions. See Schriro v. Summerlin,
542 U.S. 348, 351–52, 124 S. Ct. 2519, 2522–23, 159 L. Ed. 2d 442, 448
(2004); Bousley v. United States, 523 U.S. 614, 620–21, 118 S. Ct. 1604,
1610, 140 L. Ed. 2d 828, 838–39 (1998); Teague v. Lane, 489 U.S. 288,
310, 109 S. Ct. 1060, 1075 103 L. Ed. 2d 334, 356 (1989). This brief put
the issue of common law retroactivity into play.
After counsel was appointed, the district court granted summary
judgment to the State on all of the grounds alleged in the postconviction
relief application. Following an appeal, on March 22, 2013, this court
reversed the decision of the district court and remanded the case to
consider only the state and federal constitutional claims raised in
Nguyen’s 2009 postconviction relief application. This is the point in the
proceedings when the common law claim was lost to Nguyen because the
scope of the district court’s consideration of the postconviction relief
application on remand was limited by this court’s pronouncement. See
In re Marriage of Davis, 608 N.W.2d 766, 769 (Iowa 2000). Therefore, if
postconviction counsel intended to raise the common law retroactivity
argument, it would have been their duty to file a rule 6.1205 petition for
rehearing with this court asking for a modified disposition to permit
Nguyen to present his common law argument to the district court on
remand. Iowa R. App. P. 6.1205. The first time counsel could have been
ineffective was April 5, 2013, the day the deadline passed for a rule
6.1205 petition. Nguyen raised his ineffective-assistance-of-counsel
claim on April 13, 2015, comfortably within the three-year statute of
12
limitations. Therefore, Nguyen’s allegation of ineffective assistance of
counsel is timely.
2. Merits of ineffective-assistance-of-counsel claim. “The right to
assistance of counsel under the Sixth Amendment to the United States
Constitution and article I, section 10 of the Iowa Constitution is the right
to ‘effective’ assistance of counsel.” Ambrose, 861 N.W.2d at 556
(quoting State v. Fountain, 786 N.W.2d 260, 265 (Iowa 2010)). When we
evaluate ineffective-assistance-of-counsel claims, we apply a two-pronged
test. State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015). We ask if trial
counsel breached an essential duty. Id. We also ask whether prejudice
resulted from said breach. Id. The defendant has the burden of proving
both elements by a preponderance of the evidence. See State v.
Halverson, 857 N.W.2d 632, 635 (Iowa 2015).
Under the first prong, when we decide whether counsel’s
performance was deficient, “we measure counsel’s performance against
the standard of a reasonably competent practitioner.” Dempsey v. State,
860 N.W.2d 860, 868 (Iowa 2015) (quoting State v. Clay, 824 N.W.2d
488, 495 (Iowa 2012)). “We assess counsel’s performance ‘objectively by
determining whether [it] was reasonable, under prevailing professional
norms, considering all the circumstances.’ ” Id. (alteration in original)
(quoting State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)). It is
presumed that counsel acted competently, and therefore, the defendant
must overcome that presumption. See Strickland v. Washington, 466
U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694–95 (1984).
Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances,
13
the challenged action “might be considered sound trial
strategy.”
Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164,
100 L. Ed. 83, 93 (1955)). In this case, we must determine whether
Nguyen’s postconviction counsel failed to perform an essential duty by
not pursuing the nonconstitutional, common law retroactivity claim.
We note that in his pro se brief, Nguyen raised both constitutional
and common law claims in support of his argument for the retroactive
application of Heemstra. We also note that we have not yet adopted the
federal per se framework Nguyen advances in his brief for evaluating the
retroactive effect of our own state cases.
In 1965, the United States Supreme Court decided Linkletter v.
Walker, which adopted a practical balancing test that considered a
number of factors in determining whether a United States Supreme
Court case should be applied retroactively. 381 U.S. 618, 629, 85 S. Ct.
1731, 1738, 14 L. Ed. 2d 601, 608 (1965), abrogated by Griffith v.
Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). Soon
thereafter, we began using the same Linkletter balancing framework to
determine the retroactivity of our own state supreme court decisions.
See, e.g., Everett v. Brewer, 215 N.W.2d 244, 247–48 (Iowa 1974).
Since our decision in Everett, the United States Supreme Court has
developed a different framework in analyzing retroactivity. The Court
eventually stopped using the Linkletter balancing approach because of
difficulties in its application. See Teague, 489 U.S. at 302–05, 109 S. Ct.
at 1071–73, 103 L. Ed. 2d at 350–52. In a trilogy of cases, the Supreme
Court adopted a new, per se framework for evaluating the retroactivity of
14
its own decisions to already-final cases. 3 See Schriro, 542 U.S. at 351–
52, 124 S. Ct. 2522–23, 159 L. Ed. 2d at 448; Bousley, 523 U.S. 620–21,
118 S. Ct. 1610, 140 L. Ed. 2d at 838–39; Teague, 489 U.S. at 310, 109
S. Ct. at 1075, 103 L. Ed. 2d at 356. As in Linkletter, this per se
approach was adopted to determine the retroactivity of already-final
United States Supreme Court cases. See, e.g., Teague, 489 U.S. at 310,
109 S. Ct. at 1075, 103 L. Ed. 2d at 355–56. This is the approach
Nguyen urges us to adopt and apply in determining the retroactive
application of our own state supreme court cases. 4
Without expressly adopting the federal per se framework, we have
applied a similar per se framework to evaluate the retroactive effect of
United States Supreme Court cases. See, e.g., State v. Ragland, 836
N.W.2d 107, 114 (Iowa 2013); Perez, 816 N.W.2d at 358–59; Goosman,
3As discussed in detail below, the United States Supreme Court has summarized
its per se approach since its decision in Schriro:
[A]n old rule applies both on direct and collateral review, but a new rule
is generally applicable only to cases that are still on direct review. A new
rule applies retroactively in a collateral proceeding only if (1) the rule is
substantive or (2) the rule is a “ ‘watershed rul[e] of criminal procedure’
implicating the fundamental fairness and accuracy of the criminal
proceeding.”
Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1180–81, 167 L. Ed. 2d 1, 10–
11 (2007) (second alteration in original) (citation omitted) (quoting Saffle v. Parks, 494
U.S. 484, 495, 110 S. Ct. 1257, 1264, 108 L. Ed. 2d 415, 429 (1990)).
4Nguyen has submitted additional authority on the federal approach to
retroactivity. See Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, ___ L. Ed. 2d
___ (2016). However, Montgomery does not assist us in deciding this case. In
Montgomery, the United States Supreme Court stated,
The Court now holds that when a new substantive rule of constitutional
law controls the outcome of a case, the Constitution requires state
collateral review courts to give retroactive effect to that rule. Teague’s
conclusion establishing the retroactivity of new substantive rules is best
understood as resting upon constitutional premises.
Id. at ___, 136 S. Ct. at 729, ___ L. Ed. 2d at ___. Heemstra did not create a new
substantive rule of constitutional dimension.
15
764 N.W.2d at 540, 544–45; Morgan v. State, 469 N.W.2d 419, 422 (Iowa
1991).
We likewise fully considered common law retroactivity in deciding
Heemstra. Following our initial opinion in Heemstra, there were
concerns about the retroactive or prospective application of our ruling.
The State applied for rehearing and asked for guidance on the issue of
retroactivity. In the application for rehearing, the State argued that we
should only apply Heemstra prospectively. The application, however,
noted that we had four options in determining the issue of retroactivity.
We could apply full retroactivity, limited retroactivity, limited
prospectivity, or full prospectivity. This is because in nonconstitutional
cases, we have the ability to give a new rule only prospective application
when we overrule one of our own prior decisions. See State v. Robinson,
618 N.W.2d 306, 312 (Iowa 2000).
At the time we determined that Heemstra would only apply
prospectively, we were aware of the possibility of the common law remedy
now advanced by Nguyen; however, we declined to adopt the per se
approach to our decision. We relied on and considered the authority
presented within the petition for rehearing and decided under the
common law that Heemstra would have prospective application only. We
adhere to our decision in Heemstra and see no legitimate reason to
change it. Bierman v. Weier, 826 N.W.2d 436, 459 (Iowa 2013) (noting
that precedent should not be set aside lightly because of the importance
of stare decisis for stability under the law). Since the common law
application of retroactivity was fully contemplated in Heemstra,
postconviction counsel had no duty to pursue a meritless claim.
Halverson, 857 N.W.2d at 635.
16
Additionally, in 2013, we remanded Nguyen’s case to specifically
address the question of “whether retroactive application of Heemstra is
required by the equal protection, due process, and separation of powers
clauses of the Iowa Constitution, or the Equal Protection Clause of the
United States Constitution.” Nguyen, 829 N.W.2d at 189. When a case
is remanded for a special purpose, “the district court upon such remand
is limited to do the special thing authorized by the appellate court in its
opinion and nothing else.” Davis, 608 N.W.2d at 769. Because the
district court was limited to hear only the constitutional claims on
remand, counsel cannot be ineffective for failing to raise common law
grounds for relief. A reasonable attorney faced with such a remand order
would not be expected to raise alternate arguments.
Because the test for ineffective assistance of counsel is a two-
pronged test, a defendant must show both prongs have been met.
Dempsey, 860 N.W.2d at 868. If the defendant fails “to establish either
of these elements, we need not address the remaining element.” Id.
Since we conclude that counsel did not fail to perform an essential duty,
we need not address the prejudice prong of the ineffective-assistance-of-
counsel analysis. Because we conclude that postconviction counsel were
not ineffective, we proceed to review Nguyen’s constitutional claims.
B. Constitutional Claims. Nguyen alleges that the
nonretroactivity of Heemstra violates the due process, separation of
powers, and equal protection clauses of the Iowa Constitution and the
Equal Protection Clause of the United States Constitution. We address
each in turn.
1. Due process clause of the Iowa Constitution. In Goosman, we
held that the Due Process Clause of the United States Constitution does
not require the retroactive application of Heemstra to individuals whose
17
direct appeals were final prior to the decision. 764 N.W.2d at 545. We
found that the decision in Heemstra was substantive rather than
procedural and considered two United States Supreme Court decisions
that addressed the retroactive application of state supreme court
decisions affecting substantive criminal law. Id. at 542–43; see Bunkley
v. Florida, 538 U.S. 835, 840 123 S. Ct. 2020, 2023, 155 L. Ed. 2d 1046,
1051 (2003); Fiore v. White, 531 U.S. 225, 227–28, 121 S. Ct. 712, 714
148 L. Ed. 2d 629, 633 (2001). Based on those two cases, we noted that
federal due process only requires retroactive application of clarifications
to existing substantive law, not changes to substantive law:
Taken together, Fiore and Bunkley stand for two
propositions. First, where a court announces a new rule of
substantive law that simply “clarifies” ambiguities in existing
law, federal due process requires that the decision be
retroactively applied to all cases, including collateral attacks
where all avenues of direct appeal have been exhausted.
Second, where a court announces a “change” in substantive
law which does not clarify existing law but overrules prior
authoritative precedent on the same substantive issue,
federal due process does not require retroactive application
of the decision.
Goosman, 764 N.W. 2d at 544.
Because we determined that the ruling in Heemstra constituted a
change in the law rather than a clarification, we held that federal due
process does not require retroactive application of Heemstra to already-
final direct appeals. Id. at 545. Our analysis in Goosman focused solely
on the application of federal due process to retroactivity but never
reached an independent analysis of the state due process clause. We
now turn our analysis to the Iowa Constitution.
The Iowa Constitution provides that “no person shall be deprived of
life, liberty, or property, without due process of law.” Iowa Const. art. I,
§ 9. This court has generally considered the federal and state due
18
process clauses to be “identical in scope, import[,] and purpose.” War
Eagle Vill. Apartments v. Plummer, 775 N.W.2d 714, 719 (Iowa 2009)
(quoting State v. Bower, 725 N.W.2d 435, 441 (Iowa 2006)). However, we
note that we “jealously guard our right and duty to differ in appropriate
cases.” State v. Short, 851 N.W.2d 474, 513 (Iowa 2014) (quoting State v.
Cline, 617 N.W.2d 277, 285 (Iowa 2000)). “Even in these cases in which
no substantive distinction had been made between state and federal
constitutional provisions, we reserve the right to apply the principles
differently under the state constitution compared to its federal
counterpart.” Gaskins, 866 N.W.2d at 6 (quoting King v. State, 797
N.W.2d 565, 571 (Iowa 2011)). We are free to interpret our constitution
more stringently than its federal counterpart, providing greater
protection for our citizens’ constitutional rights. See, e.g., id. at 13–14;
Iowa Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 4–5, 16
(Iowa 2004). However, “our independent authority to construe the Iowa
Constitution does not mean that we generally refuse to follow the United
States Supreme Court decisions.” Short, 851 N.W.2d at 490.
Nguyen argues that we should exercise our discretion to interpret
our state due process clause differently than the Federal Due Process
Clause and urges us to provide greater protections for citizens under the
Iowa Constitution. The State responds that this court should utilize the
same analysis under our state due process clause as we did for the
Federal Due Process Clause in Goosman. In support of its argument for
analyzing the state due process clause in an identical manner, the State
argues there is a presumption in favor of upholding lawfully-obtained
convictions, citing State v. Thompson. 856 N.W.2d 915, 920 (Iowa 2014)
(noting that the principle of stare decisis respects prior precedent and
does not require the court to overturn a case because it may have
19
reached a different outcome). The State also raises public policy
considerations if the court were to depart from the federal analysis. The
State cautions that there are practical concerns with ordering a new trial
for a murder that occurred seventeen years ago—fading memories,
unavailable witnesses, and renewed trauma for the victim’s family.
However, because Nguyen’s case falls squarely within the class of
cases for which the federal courts have decided retroactivity is not
required under due process, we do not find a compelling reason to depart
from the federal analysis we used in Goosman. Nor has Nguyen offered
an alternative framework that we find sufficiently compelling to justify a
departure from the federal analysis. See Hensler v. City of Davenport,
790 N.W.2d 569, 579 & n.1 (Iowa 2010) (noting that even when a party
does advance a standard for interpreting the Iowa Constitution
differently, we may still interpret it using the federal analysis if we find
that analysis more compelling). We therefore hold that under Iowa’s due
process clause, the Iowa Constitution does not require the retroactive
application of Heemstra to individuals whose direct appeals were final
prior to the Heemstra decision.
2. Iowa separation of powers clause. The Iowa Constitution
provides,
The powers of the government of Iowa shall be divided into
three separate departments—the legislative, the executive,
and the judicial: and no person charged with the exercise of
powers properly belonging to one of these departments shall
exercise any function appertaining to either of the others,
except in cases hereinafter expressly directed or permitted.
Iowa Const. art. III, § 1.
Nguyen argues that the Beeman decision that allowed defendants
in Nguyen’s situation to be convicted of first-degree murder violated the
separation of powers doctrine of the Iowa Constitution. Under Beeman
20
and its progeny, Nguyen and others like him were convicted of first-
degree murder under the felony-murder doctrine when the act causing
willful injury was the same act causing the victim’s death. See Beeman,
315 N.W.2d at 776. In Heemstra, we overruled the Beeman line of cases
and adopted the merger doctrine. Heemstra, 721 N.W.2d at 558.
Nguyen correctly asserts that defining crimes is a legislative
function. He argues that the Beeman decision allowed defendants like
himself to be convicted of first-degree murder for conduct the legislature
did not intend to constitute that offense—namely, willful injury that was
the same act that caused the victim’s death. He further contends that
due to our decision in Heemstra, the Beeman decision was a judicial
abrogation of the legislature’s definition of first-degree murder, which
violated the separation of powers doctrine.
The State responds that this is a “chicken and egg” argument and
that it could be argued that either Heemstra or Beeman amounted to a
violation of the separation of powers doctrine. However, the State asserts
that rather than a violation of the separation of powers, Beeman was an
attempt to interpret the law. Although we later changed our
interpretation of the law in Heemstra, the State responds that
interpretational evolution happens often in the law.
Further, we addressed this argument in our Heemstra opinion.
First, we noted that
nothing in any of the statutes . . . suggests that the
legislature had any intent to abolish the principle of merger
under the circumstances of this case. Furthermore, we
should not defer to the legislature for a signal for us to adopt
a legal principle that is the responsibility of the court and
within the power of the court to apply, based on legal
precedent, common sense, and fairness.
Id.21
We also stated that “[t]he legislature has never considered the
issue of whether, when the act causing willful injury is the same as that
causing death, the two acts should be deemed merged.” Id. at 557.
Because of this, we determined that we “should not attribute to the
legislature an intent to ‘create[] an ever-expanding felony murder rule’ by
characterizing every willful injury as a forcible felony for felony-murder
purposes.” Id. at 558 (alteration in original) (quoting 4 Robert R. Rigg,
Iowa Practice Series: Criminal Law § 3:16 (2006)).
In Heemstra, we did not see our decision as encroaching on the
legislative function in violation of the separation of powers. Because we
effectively rejected this same argument in Heemstra, we now also reject
the argument as applied to Beeman. In neither Heemstra nor Beeman
did we encroach on the legislative branch. Rather, we properly
performed our function in interpreting the law by considering the
legislative intent behind the first-degree murder statute and the felony-
murder doctrine.
3. Equal protection claims. Both the Fourteenth Amendment to
the United States Constitution and article I, section 6 of the Iowa
Constitution provide all citizens equal protection under the law. U.S.
Const. amend. XIV; Iowa Const. art. I, § 6. This requires that “similarly
situated persons be treated alike under the law.” Jud. Branch v. Iowa
Dist. Ct., 800 N.W.2d 569, 578–79 (Iowa 2011) (quoting In re Det. of
Williams, 628 N.W.2d 447, 452 (Iowa 2001)); see also City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed.
2d 313, 320 (1985). More precisely, “the equal protection guarantee
requires that laws treat all those who are similarly situated with respect
to the purposes of the law alike.” Varnum v. Brien, 763 N.W.2d 862, 883
(Iowa 2009). Although we have “generally applied the same analysis to
22
federal and state equal protection claims, this court has not foreclosed
the possibility that there may be situations where differences in the
scope, import, or purpose of the two provisions warrant divergent
analyses.” In re Det. of Hennings, 744 N.W.2d 333, 338 (Iowa 2008)
(quoting Racing Ass’n of Cent. Iowa, 675 N.W.2d at 5). Generally, when
the parties have not argued that our analysis under the Iowa
Constitution should differ from our analysis under the Federal
Constitution, we decline to apply divergent analyses. See, e.g., State v.
Wade, 757 N.W.2d 618, 624 (Iowa 2008). However, Nguyen requests
that based on the distinction between direct review and collateral review
applications, we should provide greater protection under the Iowa
Constitution.
The Supreme Court has clearly stated that in situations such as
these, it does not violate the federal constitution for states to choose to
apply the holding of a case prospectively rather than retroactively. See
Wainwright v. Stone, 414 U.S. 21, 23–24, 94 S. Ct. 190, 193, 38
L. Ed. 2d 179, 182 (1973); see also Hill v. Roberts, 793 F. Supp. 1044,
1045 (D. Kan. 1992) (“The decision of a state court to make a ruling
retroactive or prospective raises no constitutional issue.”); Northrop v.
Alexander, 642 F. Supp. 324, 327 (N.D. Cal. 1986) (“The retroactivity of a
state change of law is a state question and ‘the federal constitution has
no voice upon the subject.’ ”) (quoting Great N. Ry. Co. v. Sunburst Oil &
Ref. Co., 287 U.S. 358, 364, 53 S. Ct. 145, 148, 77 L. Ed. 360, 366
(1932)).
A state in defining the limits of adherence to precedent may
make a choice for itself between the principle of forward
operation and that of relation backward. It may say that
decisions of its highest court, though later overruled, are law
none the less for intermediate transactions.
23
Wainwright, 414 U.S. at 23–24, 94 S. Ct. at 193, 38 L. Ed. 2d at 182(quoting Great N. Ry., 287 U.S. at 364, 53 S. Ct. at 148, 77 L. Ed. at 366.
Thus, we reject Nguyen’s assertion that our prospective-only application
of Heemstra violates the federal Equal Protection Clause.
The first step in our equal protection analysis under the Iowa
Constitution is to determine whether there is a distinction made between
similarly situated individuals. See Varnum, 763 N.W.2d at 882.
This requirement of equal protection—that the law must
treat all similarly situated people the same—has generated a
narrow threshold test. Under this threshold test, if plaintiffs
cannot show as a preliminary matter that they are similarly
situated, courts do not further consider whether their
different treatment under a statute is permitted under the
equal protection clause.
Id. In Varnum, we noted that it is sometimes difficult to apply this
threshold test and that we sometimes have “directly or indirectly infused
[our] analysis with principles traditionally applied in the complete equal
protection analysis.” Id. at 884 n.9. We have attributed the difficulty in
applying the threshold test to the “inescapable relationship between the
threshold test and the ultimate scrutiny of the . . . basis for the
classification.” State v. Dudley, 766 N.W.2d 606, 616 (Iowa 2009).
The State argues that Heemstra created two different classes of
defendants: defendants whose convictions were final before the decision
and defendants whose convictions became final after the decision. The
State asserts that a person who was convicted before Heemstra is not
similarly situated to a person charged with the same crimes after
Heemstra changed the law.
In Everett, this court heard a similar—though not identical—
argument by a defendant. 215 N.W.2d at 245–46. In that case, the
defendant was convicted of larceny of a motor vehicle. Id. at 245. After
24
his conviction became final, the court heard two cases that changed the
law. Id. at 246. Had the defendant challenged his conviction after these
cases rather than before, his conviction would have been reversed. Id.Among other claims, the defendant challenged the difference between
those whose convictions were final and those whose convictions were not
yet final under the equal protection clause of the Iowa Constitution. Id.We held that the defendant was not denied equal protection of the laws
under the Iowa Constitution because we found “there is a rational basis
for classifying appellants in accordance with whether their claim
previously has been fully considered and adjudicated.” Id. at 247.
Because it is consistent with our previous cases to find that the
distinction between direct review and collateral review applications does
not violate the equal protection clause of the Iowa Constitution, we
decline to adopt a more restrictive standard than that of the clause’s
federal counterpart.
We agree with the State that defendants whose convictions became
final before the law changed in Heemstra are not similarly situated to
defendants charged after Heemstra. Nguyen was not denied equal
protection of the laws under the Iowa Constitution.
IV. Conclusion.
For the reasons set forth above, we conclude that Nguyen’s
postconviction counsel were not ineffective for failing to pursue a
nonconstitutional, common law retroactivity argument. We also
conclude that the nonretroactive application of Heemstra does not violate
the due process, separation of powers, or equal protection clauses of the
Iowa Constitution or the Equal Protection Clause of the United States
Constitution.
DISTRICT COURT JUDGMENT AFFIRMED.