Nguyen v. State

• Decision Date: 11 March 2016
• Docket Number: No. 14–0401.,14–0401.
• Citation: 878 N.W.2d 744
• Parties: Phuoc NGUYEN, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

878 N.W.2d 744

Phuoc NGUYEN, Appellant,

v.STATE of Iowa, Appellee.

No. 14–0401.

Supreme Court of Iowa.

March 11, 2016.

Rehearing Denied June 2, 2016.

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.

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.

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 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 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 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 Heemstra 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 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...