Thongvanh v. State

Decision Date24 January 2020
Docket NumberNo. 18-0885,18-0885
Citation938 N.W.2d 2
Parties Khamfeung THONGVANH, Appellant, v. STATE of Iowa, Appellee.
CourtIowa Supreme Court

Jamie L. Hunter of Dickey & Campbell Law Firm, PLC, Des Moines, and Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, P.C., Storm Lake, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, Darren Driscoll, County Attorney, and Brad M. McIntyre, Assistant County Attorney, for appellee.

WIGGINS, Chief Justice.

An applicant sought postconviction relief (PCR), claiming a violation of his constitutional right to an impartial jury drawn from a fair cross section of the community under the United States and Iowa Constitutions. He based his claim on State v. Plain , 898 N.W.2d 801 (Iowa 2017). The district court dismissed his PCR application, and he appealed the order of dismissal.

On appeal, we find Plain is a new ground of law allowing an applicant to bring a PCR action after the three-year statute of limitations in Iowa Code section 822.3 (2018) has run. Nonetheless, we affirm the order of dismissal because we find our holding in Plain does not apply retroactively to cases on collateral review.

I. Background Facts and Proceedings.

A jury convicted Khamfeung Thongvanh of first-degree murder in 1984. He appealed, and the court of appeals affirmed his conviction in 1986. State v. Thongvanh , 398 N.W.2d 182, 184, 189 (Iowa Ct. App. 1986) (en banc). A few years later, he filed a PCR application, raising among other things a fair-cross-section claim. Thongvanh v. State (Thongvanh II ), 494 N.W.2d 679, 680, 683 (Iowa 1993). We affirmed the denial of that application in 1993. Id. at 684.

On June 30, 2017, we decided Plain , which addressed the Duren three-part test for evaluating Sixth Amendment fair-cross-section claims. 898 N.W.2d at 821–28 ; see Duren v. Missouri , 439 U.S. 357, 364, 367–68, 99 S. Ct. 664, 668, 670, 58 L.Ed.2d 579 (1979) (laying out test for evaluating Sixth Amendment fair-cross-section claims). Under Duren , the criminal defendant must first establish a prima facie fair-cross-section violation by showing

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Plain , 898 N.W.2d at 822 (quoting Duren , 439 U.S. at 364, 99 S. Ct. at 668 ). Then, if the defendant establishes a prima facie violation, "the burden shifts to the state to justify the disproportionate representation by proving ‘a significant state interest’ is ‘manifestly and primarily advanced’ by the causes of the disproportionate exclusion."

Id. (quoting Duren , 439 U.S. at 367–68, 99 S. Ct. at 670 ).

In Plain , we expressly overruled our precedent that had adopted the absolute-disparity method as the exclusive indicator of representativeness under the second prong of Duren . Id. at 826. That is, we held,

Parties challenging jury pools on the ground that they are unrepresentative may base their challenges on multiple analytical models [such as the absolute disparity, comparative disparity, and standard deviation tests]. The district court may use multiple analytical models in its analysis, taking into account the various strengths and weaknesses of each test when determining whether jury pools comport with the Sixth Amendment mandate of representativeness.

Id. at 827.1

This past term we modified Plain ’s holding in State v. Lilly , 930 N.W.2d 293, 302 (Iowa 2019). Lilly involved a fair-cross-section claim raised under both the Sixth Amendment and article I, section 10, but the defendant did not advance a distinct analysis under article I, section 10. Id. at 300, 301. Accordingly, we applied the Sixth Amendment framework under article I, section 10 but reserved the right to apply that framework differently. Id. at 301.

We held that neither the absolute disparity method nor the comparative-disparity method is appropriate to use when considering the underrepresentation prong of a fair-cross-section claim. Id. at 302. However, we acknowledged that the standard deviation method is appropriate. Id. In State v. Veal and State v. Williams , two companion cases to Lilly , we applied Lilly ’s holding with modifications to Sixth Amendment fair-cross-section claims and further discussed the application of Plain to such claims. Veal , 930 N.W.2d 319, 328–30, 328 n.5 (Iowa 2019) ; Williams , 929 N.W.2d 621, 629–30, 629 n.1 (Iowa 2019).

On January 26, 2018, Thongvanh filed the instant PCR application. Relying on our holding in Plain , he alleged he was denied his rights to due process, equal protection, and a fair and impartial trial under the United States and Iowa Constitutions. The State moved to dismiss Thongvanh’s application, contending no new ground of law or fact obviated Iowa Code section 822.3 ’s three-year statute of limitations and section 822.8 barred Thongvanh’s fair-cross-section claim. The State did not argue or contend that Thongvanh’s application should be dismissed because Plain is not retroactive.

Thongvanh resisted, arguing section 822.3 ’s limitations period did not apply because Plain constitutes a new ground of law that could not have been raised within the applicable time period. Like the State, he did not discuss Plain ’s retroactivity.

During the hearing on the State’s motion to dismiss, the court inquired whether Plain can apply retroactively to a fair-cross-section claim made on collateral review and then ordered the attorneys to brief that issue in more detail. In his posthearing brief, Thongvanh argued Plain created a watershed rule of criminal procedure that implicates the fundamental fairness of a trial and, thus, could apply retroactively to cases on collateral review.

The district court disagreed with Thongvanh and granted the State’s motion to dismiss. It first concluded that Plain is not retroactive because, "[d]espite the imperative of fair jury representation in criminal matters, by merely permitting challenges based on different statistical models, Plain does not make a ‘watershed rule of criminal procedure.’ "

The court also concluded that neither equal protection nor due process require retroactive application of Plain to cases on collateral review. It acknowledged Thongvanh’s contention that the Iowa Constitution provides greater guarantees of equal protection than the Federal Constitution but noted Thongvanh did not explain why the Iowa provision should provide protection that is any different than that of the federal provision.

Lastly, the court noted that Thongvanh had been unable to establish the third prong of the Duren fair-cross-section test—systematic exclusion—in his 1993 PCR case. It found he had not presented any new ground of law or fact that would allow reconsideration of our conclusion in Thongvanh’s 1993 appeal. Particularly, that he had not established the underrepresentation of Asians on his jury panel was due to systematic exclusion of Asians from jury duty.

Thongvanh appealed, and we transferred the case to the court of appeals. The court of appeals agreed with the district court that Thongvanh’s claim based on Plain ’s holding on the second prong of the Duren test was a new ground of law not previously available to Thongvanh and, therefore, was not time-barred by section 822.3. It also agreed that Plain is not retroactive because it did not create a watershed rule of criminal procedure. Finally, it declined Thongvanh’s invitation to interpret the Iowa Constitution to give broader retroactive application to new rules of criminal procedure than under federal caselaw, reasoning our precedent precluded it from doing so and it was not at liberty to ignore or modify that precedent.

We granted Thongvanh’s petition for further review.

II. Scope and Standards of Review.

"Our review of the court’s ruling on the State’s statute-of-limitations defense is for correction of errors of law." Phuoc Thanh Nguyen v. State , 829 N.W.2d 183, 186 (Iowa 2013) (quoting Harrington v. State , 659 N.W.2d 509, 519 (Iowa 2003) ). We will affirm if substantial evidence supports the district court’s findings of fact and the court correctly applied the law. Id.

Similarly, we review the district court’s ruling on the motion to dismiss for correction of errors of law. Shumate v. Drake Univ. , 846 N.W.2d 503, 507 (Iowa 2014). "For purposes of reviewing a ruling on a motion to dismiss, we accept as true the petition’s well-pleaded factual allegations, but not its legal conclusions." Id. When the petition’s allegations are taken as true yet fail to state a claim upon which relief may be granted, we will affirm the district court’s granting of the motion to dismiss. Id.

III. Issues.

We address two issues in this appeal. First, whether Thongvanh’s Plain claim is time-barred by section 822.3. Second, whether Plain can apply retroactively to a case on collateral review.

IV. Whether Thongvanh’s Plain Claim Is Time-Barred by Iowa Code Section 822.3.

The State appears to challenge the district court’s conclusion that, because Thongvanh filed his PCR application raising his Plain claim within three years of Plain , his Plain claim is not time-barred by section 822.3. Section 822.3 requires PCR applications "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." Iowa Code § 822.3. There is an exception to that three-year statute of limitations for "a ground of fact or law that could not have been raised within the applicable time period." Id.

Thongvanh contends that a challenge to a jury pool based on Plain is a ground of law that could not have been raised before Plain was decided. We agree.

When Thongvanh raised his fair-cross-section...

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