Phuoc Thanh Nguyen v. State of Iowa , 2013 Iowa Sup. LEXIS 28 ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 10–2037
Filed March 22, 2013
PHUOC THANH NGUYEN,
Appellant,
vs.
STATE OF IOWA,
Appellee.
Appeal from the Iowa District Court for Polk County, Michael D.
Huppert, Judge.
An applicant for postconviction relief appeals from the dismissal of
his application on statute of limitations grounds. DISTRICT COURT
ORDER REVERSED AND CASE REMANDED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant
Attorney General, John P. Sarcone, County Attorney, and George N.
Karnas, Assistant County Attorney, for appellee.
2
MANSFIELD, Justice.
An individual convicted of first-degree murder sought
postconviction relief after the three-year statute of limitations set forth in
Iowa Code section 822.3 (2009) had expired, but within three years of
our decision in State v. Heemstra, 721 N.W.2d 549 (2006). The gist of his
argument is that it would be unconstitutional not to apply Heemstra
retroactively to his case.
The State moved for summary disposition based on the three-year
statute of limitations. The district court granted the motion. We now
reverse because the applicant has raised “a ground of fact or law that
could not have been raised within the applicable time period.” See Iowa
Code § 822.3.
I. Facts and Procedural Background.
In 1999, Phuoc Thanh Nguyen was convicted of first-degree
murder and sentenced to life in prison without parole. On direct appeal,
the court of appeals set out the following facts underlying his conviction:
The jury could have found the following facts from the
trial record in this case. 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
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.
....
3
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
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).
The court instructed the jury that they could find Nguyen guilty of
first-degree murder under either of two alternatives: first, if he or
4
someone he aided and abetted acted willfully, deliberately,
premeditatedly, and with a specific intent to kill Monty Thomas; second,
if he was participating in the forcible felony of terrorism. 1 The jury found
Nguyen guilty of first-degree murder.
On direct appeal, Nguyen raised insufficiency of the evidence, a
number of evidentiary and confrontation clause issues, and ineffective
assistance of counsel. The court of appeals affirmed his conviction, and
procedendo issued on May 30, 2002.
On August 22, 2002, Nguyen filed his first application for
postconviction relief. He argued principally that his trial counsel had
been ineffective in failing to object to certain prosecutor questions. The
district court granted his application and ordered a new trial. The State
appealed, and both the court of appeals, and on further review our court,
reversed the district court. Nguyen v. State, 707 N.W.2d 317, 322, 326–
28 (Iowa 2005). We concluded that Nguyen had not established the
required prejudice to support his ineffective assistance claim. Id. at 326–
28. Procedendo issued on January 19, 2006.
1See Iowa Code § 708.6 (1997). The offense of “Terrorism” was renamed
“Intimidation with a dangerous weapon” in 2002. 2002 Iowa Acts ch. 1075, § 8. The
relevant instruction given to the jury at Nguyen’s trial read as follows:
The State must prove all of the following elements of Murder In The First
Degree:
1. On or about the 15th day of July, 1998, the Defendant or a
person he aided and abetted shot Monty Thomas.
2. Monty Thomas died as a result of being shot.
3. The Defendant acted with malice aforethought.
4a. The Defendant or someone he aided and abetted acted willfully,
deliberately, premeditatedly, and with a specific intent to kill Monty
Thomas; or
4b. The Defendant was participating in the forcible felony of Terrorism.
5
On August 25, 2006, we issued our decision in Heemstra. There
we overruled a series of cases which had held that an act causing willful
injury and also causing the victim’s death could serve as the predicate
felony for felony-murder. Heemstra, 721 N.W.2d at 558. That is, we held
that “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.
Because the jury in Heemstra (as in the present case) had been
instructed both on a felony-murder theory and on a premeditation theory
of first-degree murder while rendering a general verdict of guilty, we had
“no indication as to which basis of guilt the jury accepted,” and therefore
had to reverse and remand. Id. at 559, 552. We added, however, that
our newly announced merger rule “shall be applicable only to the present
case and those cases not finally resolved on direct appeal.” Id. at 558.
In other words, our decision would not apply retroactively to cases where
the defendant’s conviction and sentence had previously become final.
Nguyen applied again for postconviction relief on April 2, 2009,
more than three years after procedendo had issued on his original direct
appeal, but less than three years after Heemstra. This time, he argued
his conviction should be vacated because (1) Heemstra would not have
allowed him to be convicted of felony-murder, and (2) Heemstra should
be applied retroactively. Meanwhile, on April 17, 2009, we decided
Goosman v. State, 764 N.W.2d 539 (Iowa 2009). There we reiterated that
limiting Heemstra to prospective application did not violate federal due
process. See id. at 542–45.
Counsel was appointed for Nguyen in the postconviction relief
proceeding, but she moved to withdraw on the ground that “she ha[d] not
found a legal basis to proceed.” Her motion was granted, and another
6
counsel was appointed. Nguyen’s new counsel then moved to withdraw
for the same reason. His motion was denied. Thereafter, on October 6,
2010, the State moved for summary disposition, asserting that Nguyen’s
postconviction relief application was barred by the three-year statute of
limitations for such actions. See Iowa Code § 822.3.
Nguyen resisted the State’s motion. He argued that Heemstra
represented “a dramatic change in criminal law” that “was not previously
available to Applicant.” He also argued that the retroactivity of Heemstra
was required by the equal protection, due process, and separation of
powers clauses of the Iowa Constitution as well as the Equal Protection
Clause of the United States Constitution—grounds that had not been
addressed in Goosman.
The district court granted the State’s motion. It observed:
The problem with [Nguyen’s] argument is that it fails to
acknowledge the line of cases that led up to Heemstra that
would have alerted trial counsel that such an argument (the
scope of predicate offenses under the felony-murder rule)
was potentially viable . . . The prior criticism of the felony-
murder rule that was eventually adopted in Heemstra was
equally available to counsel in the applicant’s case during
the three-year period established in § 822.3. Accordingly,
this was a ground that could have been urged during this
period.
Thus, the court found that the three-year limitations bar applied.
Nguyen appeals.
II. Standard of Review.
“Our review of the court’s ruling on the State’s statute-of-
limitations defense is for correction of errors of law.” Harrington v. State,
659 N.W.2d 509, 519 (Iowa 2003). “Thus, we will affirm if the trial
court’s findings of fact are supported by substantial evidence and the law
was correctly applied.” Id. at 520.
7
III. Legal Analysis.
Section 822.3 provides that its three-year limitations period “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. Nguyen argues
his application for postconviction relief falls within this exception.
Simply stated, he insists his argument that Heemstra should apply
retroactively could not have been raised until 2006 when Heemstra was
decided.
Many of the State’s responses to Nguyen’s appeal raise potential
alternative grounds for affirming the dismissal of Nguyen’s application for
postconviction relief. The State contends that Heemstra was wrongly
decided and should not apply here. The State also maintains that
Heemstra should not apply to a felony-murder conviction when the
underlying felony was terrorism (now known as “intimidation with a
dangerous weapon”) rather than willful injury. The State reasons, “As
the act punished as intimidation with a dangerous weapon is sufficiently
separate from any death that results, intimidation is an appropriate
predicate felony in a prosecution for felony murder.” To the extent we
said otherwise in State v. Millbrook, the State urges us to overrule that
decision. See 788 N.W.2d 647 (Iowa 2010).
Additionally, the State contends that Nguyen’s equal protection
and separation of powers arguments are without merit. The State adds,
“[T]his Court should address and reject Nguyen’s claims now.”
We decline to reach any of these State arguments, however,
because they were not asserted below. See DeVoss v. State, 648 N.W.2d
56, 63 (Iowa 2002) (“[W]e will not consider a substantive or procedural
issue for the first time on appeal.”).
8
Instead, we turn now to the question that was raised below and is
now before us—namely, whether Nguyen is asserting a “ground of fact or
law that could not have been raised” before 2006. See Iowa Code
§ 822.3. On one level, the answer is obvious. Nguyen’s postconviction
relief argument essentially makes two assertions: (1) Heemstra requires
his first-degree murder conviction to be reversed, because (2) the holding
applies retroactively. Nguyen’s second assertion—that the Iowa and
federal constitutions require retroactive application of Heemstra—is
necessary to his overall argument for postconviction relief. He could not
have made his argument without calling for retroactivity, and he could
not have done that before we decided Heemstra.
But on another level, as suggested by the district court’s analysis,
the answer may be less clear. Assume for the sake of argument that
section 822.3 required Nguyen to raise a challenge to the application of
the felony-murder rule to his case—i.e., to anticipate Heemstra—within
three years of his conviction becoming final. If that were the case, then it
would be odd for that deadline to be revived by Heemstra if Nguyen had
never asserted a felony-murder challenge in the first place. To put it
another way, Nguyen is still making the same basic argument that the
jury should not have been instructed on a felony-murder alternative. If
that argument is untimely and had never been asserted in a timely
fashion, perhaps it should not become timely just because a 2006
decision supports that argument and the applicant contends the decision
must be applied retroactively for constitutional reasons.
The State’s position is somewhat Januslike. At one point, the
State contends that Nguyen should have challenged his felony-murder
instruction within three years of his conviction and, therefore, an
argument based on Heemstra is time-barred. Elsewhere, the State states
9
it “now believes that the better analysis is that Nguyen’s equal protection
and separation of powers claims could not have been raised until
Heemstra was decided, and that Iowa Code section 822.3 does not bar
those claims.” Yet the State acknowledges that in two previous
unpublished cases, it persuaded the court of appeals that section 822.3
barred the applicant from raising constitutional challenges to the
nonretroactivity of Heemstra. See Bennett v. State, No. 08–1157, 2010
WL 1375346 at *4 (Iowa Ct. App. Apr. 8, 2010); Jones v. State, No. 09–
0119, 2010 WL 200047 at *4 (Iowa Ct. App. Jan. 22, 2010).
Our view is that section 822.3 does not bar Nguyen’s constitutional
claims. When Nguyen was tried and convicted in 1999, a consistent line
of authority had upheld the use of a felony-murder instruction even in
cases where the felony and the murder were the same act. See 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 791, 793
(Iowa 1988); State v. Mayberry, 411 N.W.2d 677, 682–83 (Iowa 1987);
State v. Beeman, 315 N.W.2d 770, 776–77 (Iowa 1982). In Heaton v.
State, we specifically rejected a due process challenge to the State’s use
of a felony-murder charge in a terrorism case where the act of terrorism
and the homicide were “one and the same act.” 420 N.W.2d 429, 430–31
(Iowa 1988). Heaton, like the present case, involved an assailant who
fired shots into a place where people were gathered (in that case a bar).
Id. at 430.
Although our felony-murder rule as set forth in these cases had
been criticized, see Heemstra, 721 N.W.2d at 555–56, it was clearly
controlling precedent at the time. Our Heemstra decision was not simply
a “clarification of the law” or “an application of preexisting law.” See
Perez v. State, 816 N.W.2d 354, 360–61 (Iowa 2012) (holding that if the
10
United States Supreme Court’s Padilla decision was a clarification or
application of existing law, the three-year limitations period in section
822.3 applied). It expressly overruled the prior law. From 2002, when
Nguyen’s conviction became final, until 2005, when the three-year
limitations period expired, Nguyen could not have successfully raised the
argument in district court that it was improper to instruct the jury on
felony-murder, because we had squarely held to the contrary.
In our view, a ground of law that had been clearly and repeatedly
rejected by controlling precedent from the court with final decision-
making authority is one that “could not have been raised” as that phrase
is used in section 822.3. Any legal argument (at least in theory and
subject to the rules of professional conduct) can be raised in any case.
Yet, section 822.3 contemplates that some legal grounds exist that “could
not have been raised” within the three-year limitations period. Thus,
section 822.3 must incorporate the notion that there had to be a
possibility of success on the claim. It must envision a category of legal
claims that were viewed as fruitless at the time but became meritorious
later on. We believe a claim that Nguyen’s felony-murder instruction was
improper falls into this category.
The State urges at one point that section 822.3 bars any claim the
defendant “should have at least been alerted to.” See Wilkins v. State,
522 N.W.2d 822, 824 (Iowa 1994). But Wilkins involved a very different
kind of claim—relating to facts that the defendant knew about the entire
time (but whose legal consequences his allegedly ineffective counsel
failed to pursue)—rather than a change in the law. Id. Wilkins does not
support the proposition that a legal ground that was meritless under
existing law had to be asserted simply because the defendant or its
counsel might have been aware of it. To the contrary, Wilkins cited with
11
approval the court of appeals’ decision in State v. Edman. Id. at 824
(citing State v. Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989)). In
Edman, the court interpreted section 822.3 (then found in a different
section of the code) as allowing for a review of the conviction “if there has
been a change in the law that would [a]ffect the validity of the
conviction.” 444 N.W.2d at 106.
IV. Conclusion.
For the foregoing reasons, we reverse the district court’s dismissal
of Nguyen’s postconviction relief application on statute of limitations
grounds. We remand for further proceedings on 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.
DISTRICT COURT ORDER REVERSED AND CASE REMANDED.