                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-2112
                               Filed November 7, 2018


JIMMY DEAN STEVENS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, David P.

Odekirk, Judge.



      Jimmy Stevens appeals the dismissal of his application for postconviction

relief. AFFIRMED.




      Geneva L. Williams of Williams Law Office, PLLC, Cedar Rapids, for

appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                             2


MULLINS, Judge.

I.     Background Facts and Proceedings

       In 2004, Jimmy Stevens was convicted of criminal transmission of human

immunodeficiency virus (HIV).1 Stevens appealed his conviction, challenging the

sufficiency of the evidence on the intimate-contact element of the crime,2 and the

supreme court affirmed, concluding “sexual intercourse may be committed through

oral sex” and the jury could rely on the “common knowledge that oral sex is a

manner of transmission of the HIV.” See State v. Stevens, 719 N.W.2d 547, 548–

52 (Iowa 2006).3 Procedendo issued in September 2006.

       Stevens filed his first postconviction-relief (PCR) application in July 2007.

The application was dismissed upon Stevens’s own motion in May 2013. Stevens

filed his second PCR application in October 2014, arguing his conviction should

be overturned in light of the supreme court’s decision in Rhoades v. State, 848

N.W.2d 22 (Iowa 2014). The State moved to dismiss the application on statute-of-

limitations grounds. See Iowa Code § 822.3 (2014). The district court granted the

State’s motion, concluding the argument forwarded by the applicant in Rhoades

“could have been raised by [Stevens] within three years after the writ of


1
  Chapter 709C, entitled criminal transmission of HIV, was repealed by the legislature in
2014. 2014 Iowa Acts ch. 1119, § 9. It was replaced by chapter 709D, entitled criminal
transmission of contagious or infectious diseases. See id. §§ 1–4 (codified at Iowa Code
§§ 709D.1–.4).
2
  See Iowa Code § 709C.1(1)(a), (2)(b) (2003) (requiring proof of intimate contact with
another and defining intimate contact as “intentional exposure of the body of one person
to a bodily fluid of another person in a manner that could result in the transmission of the
[HIV]”).
3
  See also State v. Keene, 629 N.W.2d 360, 365 (Iowa 2001) (“We take judicial notice of
the fact that the HIV may be transmitted through contact with an infected individual’s blood,
semen or vaginal fluid, and that sexual intercourse is one of the most common methods
of passing the virus” because “any reasonably intelligent person is aware it is possible to
transmit HIV during sexual intercourse, especially when it is unprotected”).
                                         3


procedendo issued following his appeal.”        On appeal, a panel of this court

concluded “the Rhoades decision was a change in the law ‘that could not have

been raised within the applicable time period,’ and the three-year bar should not

prevent Stevens from challenging his conviction through PCR.” Stevens v. State,

No. 15-1033, 2016 WL 1696909, at *3 (Iowa Ct. App. Apr. 27, 2016) (quoting Iowa

Code § 822.3), further review denied (July 29, 2016). This court reversed the

denial of Stevens’s PCR application and remanded the matter to the district court

to consider “whether the Rhoades case should be retroactively applied.” Id. at *4.

       On remand, Stevens conceded the United States Constitution did not

require retroactive application of Rhoades, but “urge[d] the court to turn to the

analysis of the Iowa Constitution” and conclude retroactive application of Rhoades

is required by the due process and equal protection clauses of our state

constitution. Finding Stevens failed to provide a compelling reason to depart from

the federal constitutional framework or propose a different framework under the

Iowa Constitution, the district court concluded retroactive application of Rhoades

is not constitutionally required.   The district court dismissed Stevens’s PCR

application, and this appeal followed.

II.    Standard of Review

       PCR proceedings are reviewed for correction of errors at law unless they

raise constitutional issues. More v. State, 880 N.W.2d 487, 489 (Iowa 2016).

Where, as here, there is an alleged violation of constitutional rights, our review is

de novo. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010).
                                            4


III.   Analysis

       On appeal, Stevens contends the district court erred in concluding

retroactive application of Rhoades is not required by the due process clause of the

state constitution and the equal protection clauses of the federal and state

constitutions.4   Alternatively, he argues his PCR counsel rendered ineffective

assistance in failing to urge retroactive application of Rhoades on nonconstitutional

common law grounds.

       As an additional backdrop, in 2001, the supreme court took “judicial notice

of the fact that the HIV may be transmitted through contact with an infected

individual’s blood, semen or vaginal fluid, and that sexual intercourse is one of the

most common methods of passing the virus.” Keene, 629 N.W.2d at 365. Such

taking of judicial notice “filled in the gaps” for a factual basis on the intimate-contact

element of the crime of criminal transmission of HIV, which Keene committed in

1998. Rhoades, 848 N.W.2d at 32 (discussing Keene, 629 N.W.2d at 362, 365–

67). Following Keene, the supreme court determined Stevens’s 2004 conviction

was supported by sufficient evidence because a jury at that time could rely on the

“common knowledge that oral sex is a manner of transmission of the HIV.” See

Stevens, 719 N.W.2d at 552. The Stevens court, in analyzing Stevens’s 2003 acts

resulting in conviction of criminal transmission of HIV,

       again recognized the adjudicative “‘fact that . . . HIV may be
       transmitted through contact with an infected individual’s blood,
       semen or vaginal fluid, and that sexual intercourse is one of the most
       common methods of passing the virus’” continued to be common

4
 Stevens conceded in the district court that his “federal Equal Protection Clause argument
should fail.” Because the State does not contest error preservation and Stevens argues
his counsel was ineffective in the event error was not preserved on his constitutional
claims, we will consider the merits.
                                          5


      knowledge to establish the evidence was sufficient to support a
      conviction under section 709C.1.

Rhoades, 848 N.W.2d at 32 (ellipsis in original) (discussing Stevens, 719 N.W.2d

at 550–52). The court also explained that “sexual intercourse may be committed

through oral sex” and “oral sex is a well-recognized means of transmission of the

HIV.” Stevens, 719 N.W.2d at 551. Keene and Stevens were revisited in Rhoades.

See Rhoades, 848 N.W.2d at 32–33. As to Rhoades’s conviction of the same

crime flowing from his conduct in 2008, the supreme court explained:

              Today we are unable to take judicial notice that an infected
      individual can transmit HIV when an infected person engages in
      protected anal sex with another person or unprotected oral sex,
      regardless of the infected person’s viral load. The evidence at the
      postconviction relief hearing shows there have been great strides in
      the treatment and the prevention of the spread of HIV from 2003 to
      2008. It was not apparent in 2009, at the time of [Rhoades’s] plea,
      that this fact was “capable of accurate and ready determination by
      resort to sources whose accuracy” could not reasonably be
      questioned. Further, while this fact may have been a commonly held
      belief within the territorial jurisdiction of the trial court, we note the
      purpose of judicial notice is to show the fact is not subject to
      reasonable dispute. Here, we find the fact was subject to reasonable
      dispute. At the time of the plea, Rhoades’s viral count was
      nondetectable, and there is a question of whether it was medically
      true a person with a nondetectable viral load could transmit HIV
      through contact with the person’s blood, semen or vaginal fluid or
      whether transmission was merely theoretical. The judicial notice we
      took in previous cases is subject to reasonable dispute here; thus, it
      is improper for us to similarly take judicial notice in this case. With
      the advancements in medicine regarding HIV between 2003 and
      2008, we are unable to take judicial notice of the fact that HIV may
      be transmitted through contact with an infected individual’s blood,
      semen or vaginal fluid, and that sexual intercourse is one of the most
      common methods of passing the virus to fill in the gaps to find a
      factual basis for Rhoades’s guilty plea.

Rhoades, 848 N.W.2d at 32–33 (footnote and citations omitted).               With this

landscape in mind, we consider Stevens’s contentions in turn.
                                          6


       A.     State Due Process

       Stevens simply argues we should “hold that the Iowa Due Process Clause

requires the retroactive application of the Rhoades interpretation of the evidence

necessary to convict an accused of criminal transmission of HIV.” Article I, section

9 of the Iowa Constitution provides that “no person shall be deprived of life, liberty,

or property, without due process of law.”       Our supreme court “has generally

considered the federal and state due process clauses to be ‘identical in scope,

import[,] and purpose.’” Nguyen v. State, 878 N.W.2d 744, 755 (Iowa 2016)

(alteration in original) (quoting War Eagle Vill. Apartments v. Plummer, 775 N.W.2d

714, 719 (Iowa 2009)). Iowa courts are free to interpret the state constitution more

stringently than its federal counterpart, “providing greater protection for our

citizens’ constitutional rights,” but this does not mean that we are required to refuse

to follow decisions of the United States Supreme Court. Id.

       Under the federal framework, the threshold question in considering whether

due process requires a judicial decision to be applied retroactively is whether the

decision is substantive or procedural. See Goosman v. State, 764 N.W.2d 539,

542 (Iowa 2009). Here the parties appear to agree the Rhoades decision was

substantive in nature. The second question is whether the new rule of substantive

law amounts to a clarification of the law or a change in the law. See id. at 544.

While federal due process requires that a clarification in the law “be retroactively

applied to all cases, including collateral attacks where all avenues of direct appeal

have been exhausted,” it does not require retroactive application of a change in

the law. Id. Upon our review of the decisions, and applying the law of the case,

we repeat this court’s prior holding that “[w]hile the Rhoades court did not expressly
                                         7

overrule the decisions in Keene and Stevens, it was not merely ‘a clarification of

the law’ or ‘an application of preexisting law,’” but instead “was ‘a change in the

law’ regarding the evidence the State needed to offer to meet its burden of proof

to sustain a conviction for criminal transmission of HIV.”     Stevens, 2016 WL

1696909, at *3.      As such, federal due process does not require retroactive

application of the Rhoades decision. Goosman, 764 N.W.2d at 544.

       Because the Rhoades case falls squarely within the class of cases for which

federal courts have decided due process does not require retroactivity, we find no

compelling reason to depart from the federal analysis the supreme court used in

Goosman and subsequently applied in interpreting the state due process clause in

Nguyen. See Nguyen, 828 N.W.2d at 756. To the extent Stevens provides us with

an alternative framework, we find the federal framework more compelling. See id.

We therefore hold the due process clause of the Iowa Constitution does not require

the retroactive application of Rhoades to individuals whose direct appeals were

final prior to the decision.

       B.      State and Federal Equal Protection

       Stevens argues that prospective-only application of Rhoades violates equal

protection guarantees. Both the federal and state constitutions provide all citizens

equal protection under the law. U.S. Const. amend. XIV; Iowa Const. art. I, § 6;

Nguyen, 878 N.W.2d at 757. Equal protection “requires that ‘similarly situated

persons be treated alike under the law’” and “that laws treat all those who are

similarly situated with respect to the purposes of the law alike.” Nguyen, 878

N.W.2d at 757 (citations omitted).
                                          8


        It is clearly not a violation of federal equal protection guarantees for “states

to choose to apply the holding of a case prospectively rather than retroactively.”

Id.; see also Am. Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 177 (1990) (“When

questions of state law are at issue, state courts generally have the authority to

determine the retroactivity of their own decisions.”); Wainwright v. Stone, 414 U.S.

21, 24 (1973) (“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

backw[a]rd. It may say that decisions of its highest court, though later overruled,

are law none the less for intermediate transactions.” (quoting Great N. Ry. Co. v.

Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932))).

       As to the equal protection analysis under the Iowa Constitution, we first

“determine whether there is a distinction made between similarly situated

individuals.” Nguyen, 878 N.W.2d at 758. If a party cannot make such a showing,

“courts do not further consider whether their different treatment under [law] is

permitted under the equal protection clause.” Id. (quoting Varnum v. Brien, 763

N.W.2d 862, 882 (Iowa 2009)).

       In this case, we are presented with two classes, the first containing

individuals whose convictions were final before Rhoades, and the second including

individuals whose convictions became final after the decision. The supreme court

has concluded “there is a rational basis for classifying appellants in accordance

with whether their claim previously has been fully considered and adjudicated.” Id.

(quoting Everett v. Brewer, 215 N.W.2d 244, 247 (Iowa 1974)). Further, “the

distinction between direct review and collateral review applications does not violate

the equal protection clause of the Iowa Constitution.” Id. As such, as the supreme
                                           9


court has done, “we decline to adopt a more restrictive standard than that of the

clause’s federal counterpart.” Id. We find defendants whose convictions became

final before Rhoades changed the state of law are not similarly situated to those

convicted thereafter.

       Stevens also seems to argue it violates equal protection for differing

standards to apply to collateral review applicants relying on changes in the law

announced by the United States Supreme Court as compared to the Iowa

Supreme Court. As noted, it is clearly not a violation of federal equal protection

for “states to choose to apply the holding of a case prospectively rather than

retroactively.” Id. at 757. We find no reason to hold otherwise under the Iowa

Constitution. Stevens finally argues, “The absence of a consistent framework for

evaluating the retroactive effect of state court decisions results in unequal

treatment of collateral review applicants.” Upon our de novo review, we find no

merit in this contention.

       We conclude Stevens was not denied equal protection of the laws under

the United States or Iowa Constitutions.

       C.     Ineffective Assistance of PCR Counsel

       Finally, Stevens argues his PCR counsel rendered ineffective assistance in

failing to pursue retroactive treatment of Rhoades on nonconstitutional common

law grounds. We review ineffective-assistance-of-counsel claims de novo. State

v. Henderson, 908 N.W.2d 868, 874 (Iowa 2018); see Lado v. State, 804 N.W.2d

248, 250–51 (Iowa 2011) (noting, although PCR applicants have a statutory, as

opposed to constitutional, right to counsel in PCR proceedings, the same

framework applies). Stevens must establish (1) his counsel failed to perform an
                                          10

essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668,

687 (1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We “may consider

either the prejudice prong or breach of duty first, and failure to find either one will

preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State

v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).

       In arguing counsel was ineffective, Stevens requests that we “expressly

adopt the federal per se framework for purposes of evaluating retroactive effect to

be afforded to Iowa Supreme Court decisions.” “In a trilogy of cases, the Supreme

Court adopted a new, per se framework for evaluating the retroactivity of its own

decisions to already-final cases.” Nguyen, 878 N.W.2d at 753; see Schiro v.

Summerlin, 542 U.S. 348, 351–52 (2004); Bousley v. United States, 523 U.S. 614,

620–21 (1998); Teague v. Lane, 489 U.S. 288, 310 (1989). In Nguyen, the

applicant-appellant urged the Iowa Supreme Court to adopt and apply the federal

per se framework “in determining the retroactive application of our own state

supreme court cases.” 878 N.W.2d at 753. Nguyen considered the retroactive

application of State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), but the court noted

it had already “fully considered common law retroactivity in deciding Heemstra.”

Id. Being fully “aware of the possibility of the common law remedy,” the court

“determined that Heemstra would only apply prospectively” and “declined to adopt

the per se approach.” Id. at 754. The court adhered to that decision in Nguyen,

indicating its acknowledgment of the importance of stare decisis for stability under

the law. See id.

       The unanimous Nguyen decision indicates our supreme court prefers

stability under the law over providing retroactive treatment to state court decisions
                                            11


under the common law. Although the supreme court has applied something similar

to the federal per se approach in the past, it only did so in considering the

retroactivity of United States Supreme Court decisions, not state court decisions.5

We adhere to the Nguyen court’s indication that it prefers stability under the law as

opposed to a common law right to retroactivity of state court decisions and

therefore decline Stevens’s request that we adopt the federal per se approach to

determine the retroactive effect of state court decisions. We reject Stevens’s

request that we apply the Linkletter practical balancing test, the predecessor to the

federal per se framework, for the same reason. See Griffith v. Kentucky, 479 U.S.

314, 320–22 (1987) (discussing Linkletter v. Walker, 318 U.S. 618 (1965) and its

progeny); see also Everett v. Brewer, 215 N.W.2d 244, 248 (1974) (declining to

afford retroactive treatment to state court decision under Linkletter test where,

among other things, a change in the law “occurred after [the appellant] had taken

full advantage of his appellate rights under the law as it then existed.” (emphasis

added)).

       We conclude PCR counsel did not neglect to perform an essential duty in

not pursuing common law retroactivity and Stevens did not suffer prejudice.




5
   See, e.g., State v. Ragland, 836 N.W.2d 107, 114–17 (Iowa 2013) (considering
retroactivity of Miller v. Alabama, 567 U.S. 460 (2012)); Perez v. State, 816 N.W.2d 354,
358–59 (Iowa 2012) (considering retroactivity of Padilla v. Kentucky, 559 U.S. 356 (2010));
Goosman, 764 N.W.2d at 544–45 (indicating the per se framework applies only to federal
court decisions); Bonilla v. State, 791 N.W.2d 697, 700–01 (2010) (considering
retroactivity of Graham v. Florida, 560 U.S. 48 (2010)); Morgan v. State, 469 N.W.2d 419,
422 (Iowa 1991) (considering retroactivity of Coy v. Iowa, 483 U.S. 1019 (1987)); Brewer
v. State, 444 N.W.2d 77, 80–82 (Iowa 1989) (considering retroactivity of Duren v. Missouri,
439 U.S. 357 (1979)).
                                            12


IV.    Conclusion

       We affirm the district court’s denial of Stevens’s PCR application.6

       AFFIRMED.




6
 We do not consider the arguments Stevens raises for the first time in his reply brief. See
Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992).
