               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.
