               IN THE SUPREME COURT OF IOWA
                               No. 07–1416

                            Filed April 17, 2009


JOEL GOOSMAN,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      Appeal from the Iowa District Court for Woodbury County,

Duane E. Hoffmeyer, Judge.



      Applicant appeals from the dismissal of his application for

postconviction relief asserting that it is unconstitutional to apply State v.

Heemstra prospectively only. AFFIRMED.



      Martha M. McMinn, Sioux City, and Gary Dickey, Jr. of Dickey &

Campbell Law Firm, PLC, Des Moines, for appellant.


      Thomas J. Miller, Attorney General, Mary Tabor and Thomas S.

Tauber, Assistant Attorneys General, Patrick Jennings, County Attorney,

and Mark Campbell, Assistant County Attorney, for appellee.



      Edward Bull of Bull Law Office, PC, Des Moines, for amici curiae

Robert Henry, Timothy Palmer, and Dennis Gress, Iowa inmates.
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APPEL, Justice.

      This case presents the issue of whether federal due process

requires our decision in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006),

be applied retroactively to persons whose direct appeals were final prior

to the issuance of the Heemstra decision.         We conclude that this

constitutional provision does not require that the Heemstra decision be

applied in such cases.

      I. Factual and Procedural History.

      In 1992, Joel Goosman was charged with first-degree murder in

connection with the shooting death of Chad Mackey.               The State

proceeded on two alternate first-degree murder theories, premeditation

with malice aforethought and felony murder.

      The underlying felony alleged in the trial information was willful

injury.   The jury was instructed that the State must prove the malice

aforethought element required for a first-degree murder conviction and

either that the “defendant acted willfully, deliberately, premeditatedly,

and with specific intent to kill,” or, in the alternative, that Goosman shot

Mackey with the intent to cause a serious injury and that Mackey

sustained a serious injury.

      The jury convicted Goosman of first-degree murder, and he was

sentenced to life imprisonment. The conviction was affirmed by the court

of appeals on November 28, 1994.

      Almost twelve years after the direct appeal of Goosman’s conviction

was finalized, this court decided State v. Heemstra on August 25, 2006.

In Heemstra, this court reversed a murder conviction holding that

because the act causing willful injury was the same act that caused the

victim’s death, the assault necessarily merged into the murder and thus

could not serve as a predicate felony for felony murder purposes.
                                      3

Heemstra, 721 N.W.2d at 558. Because Heemstra had been convicted on

a general verdict which could have rested on either a felony-murder

theory or on a finding of premeditation with malice aforethought, this

court vacated his conviction. Id. at 558–59.

      The State filed a motion for rehearing. In the rehearing motion, the

State urged this court to clarify its ruling by holding that the decision did

not   apply   retroactively   to   postconviction   actions.    This   court

subsequently modified its ruling to state that the holding applied only to

cases where the issue was raised and where there was no final

disposition on direct appeal. Id. at 558.

      On February 23, 2007, Goosman filed this application for

postconviction relief. Goosman argued that federal due process requires

the Heemstra decision be applied retroactively in postconviction-relief

proceedings. Goosman sought to have his conviction vacated and a new

trial granted or, in the alternative, to have his conviction reduced to

second-degree murder. The district court denied relief. Goosman filed

this timely appeal.

      II. Standard of Review.

      Generally, an appeal from a denial of an application for

postconviction relief is reviewed for correction of errors at law. Harpster

v. State, 569 N.W.2d 594, 596 (Iowa 1997). However, when the applicant

alleges constitutional error, review is de novo “in light of the totality of

the circumstances and the record upon which the postconviction court’s

rulings was made.” Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994).

      III. Discussion.

      A. The Heemstra Decision. Under Iowa law, a defendant may be

convicted of first-degree murder if the defendant “willfully, deliberately,

and with premeditation kills another person.” Iowa Code § 707.2 (2009).
                                     4

In the alternative, a person may be convicted of first-degree murder if the

defendant “kills another person while participating in a forcible felony.”

Id.

      The second alternative is commonly known as the felony-murder

rule. In seeking a conviction under the felony-murder rule, the State is

not required to show willfulness, deliberation, or premeditation.      The

mental element of the crime is imputed from the commission of the

underlying felony. State v. Williams, 285 N.W.2d 248, 270 (Iowa 1979).

Under this alternative, the State need only prove that the homicide

occurred in the perpetration of a forcible felony. Id.

      One of the questions that arises under Iowa’s version of the felony-

murder rule is whether a felonious assault, such as willful injury under

Iowa Code section 708.4, may serve as the predicate felony for felony-

murder purposes.     In other words, can the same act that causes the

death of another serve as the underlying felony or does that act merge

with the homicide unless the felonious assault is a separate and distinct

action?

      We first considered this question in State v. Beeman, 315 N.W.2d

770 (Iowa 1982).     In Beeman, the defendant kicked and choked the

victim before inflicting seventeen wounds to the chest.      Beeman, 315

N.W.2d at 772. Under these facts, there was ample evidence to convict

the defendant of first-degree murder even if the court adopted a

requirement that the underlying felony be independent of the act causing

death.    This court, however, elected to announce a broader approach,

namely, that felonious assaults could serve as predicate felonies as

merger rules do not apply. Id. at 777. The approach in Beeman was

vigorously upheld in subsequent cases.        See State v. Mayberry, 411

N.W.2d 677, 682–83 (Iowa 1987) (noting “[w]e rejected the legal premise
                                        5

[merger] . . . in State v. Beeman”); State v. Ragland, 420 N.W.2d 791, 793

(Iowa 1988) (“We see no reason to retreat from our previous decisions.”);

State v. Rhomberg, 516 N.W.2d 803, 805 (Iowa 1994) (“We have now

reexamined the argument . . . and confirm our prior analyses.”); State v.

Anderson, 517 N.W.2d 208, 214 (Iowa 1994) (“We have steadfastly

declined these invitations to disavow the principles established in

Beeman . . . [a] settled construction. . . .”).

      In Heemstra, this court once again revisited the question.

Heemstra, 721 N.W.2d at 554–58.             The court noted that the felony-

murder approach under Beeman and its progeny was far broader than

the approach employed in other states under similar statutes and by

other state courts. Id. at 556–58. We further noted that Beeman had

been subject to local criticism on the ground that it unduly expanded the

felony-murder rule far beyond that intended by the legislature.        Id. at

555–56.

      After reconsidering the issue, we held in Heemstra that where the

act causing willful injury is the same act that caused the victim’s death,

the former merges with the murder and cannot serve as a predicate

felony for felony-murder purposes.          Id. at 558.   This is not to say,

however, that willful injury could never serve as the predicate felony for

felony-murder purposes. We narrowed Heemstra’s scope by noting, for

example, that where a “defendant assaulted the victim twice, first

without killing him and second with fatal results,” only the second act

would be merged with the murder and that the first act could be

considered as a predicate felony.       Id. at 557.   Thus, the merger rule

announced in Heemstra applied only in cases involving a single felonious

assault on the victim which results in the victim’s death.
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         Our original opinion in Heemstra disposed of the case before us,

but did not address the question of whether and how the decision would

be applied to other cases.      On rehearing, we modified the opinion to

state,
         The rule of law announced in this case regarding the use of
         willful injury as a predicate felony for felony-murder
         purposes shall be applicable only to the present case and
         those cases not finally resolved on direct appeal in which the
         issue has been raised in the district court.
Id. at 558.

         A    number    of   subsequent      cases   have   challenged    the

constitutionality of this statement.       Goosman asserts that the federal

guarantees of due process and equal protection and the separation of

powers doctrine require retroactive application of Heemstra to his

postconviction-relief proceeding.

         B. Federal Due Process. At the outset, the threshold question in

considering whether federal due process requires a judicial decision be
applied to postconviction relief proceedings is whether the decision is

substantive or procedural. Schriro v. Summerlin, 542 U.S. 348, 352–53,

124 S. Ct. 2519, 2522–23, 159 L. Ed. 2d 442, 449 (2004).           Here, the

parties agree that our decision in Heemstra was substantive rather than

procedural in nature.

         Federal precedent concerning the application of substantive law in

collateral proceedings, therefore, guides our analysis. The United States

Supreme Court has recently considered the question of retroactive

application of state court judicial decisions affecting substantive criminal

law in two cases, Fiore v. White, 531 U.S. 225, 121 S. Ct. 712, 148 L. Ed.

2d 629 (2001), and Bunkley v. Florida, 538 U.S. 835, 123 S. Ct. 2020,

155 L. Ed. 2d 1046 (2003).
                                       7

      In Fiore, the Supreme Court considered the constitutionality of the

defendant’s conviction for violating a state statute that prohibited

operating a waste facility without a permit. Fiore, 531 U.S. at 226, 121

S. Ct. at 713, 148 L. Ed. 2d at 632. Fiore was convicted of the offense

even though he actually had a permit to operate the facility in question.

Id. at 227, 121 S. Ct. at 713, 148 L. Ed. 2d at 632. The prosecution

successfully asserted, however, that his activities exceeded the scope of

the operations authorized by the permit and Fiore was convicted of the

offense.   Id.   The Pennsylvania Supreme Court declined review, and

Fiore’s conviction became final. Id.

      After Fiore’s conviction became final, the Pennsylvania Supreme

Court reviewed the conviction of Fiore’s co-defendant, David Scarpone,

who was convicted of the same offense.              Id.     In that case, the

Pennsylvania Supreme Court held that the underlying statute was

inapplicable to persons that held a valid permit.           Id.     A person who

merely deviated from the permit’s terms, such as Fiore, could not violate

the statute. Id.

      Based      on   the   Pennsylvania   Supreme        Court’s     decision   in

Commonwealth v. Scarpone, 634 A.2d 1109, 1113 (Pa. 1993), Fiore

collaterally challenged his conviction.    Id.   His claims were rejected in

state courts. Id. He then filed an application in federal court for habeas

relief, which was granted by the federal district court.           Id.   The Third

Circuit reversed, reasoning that “ ‘state courts are under no [federal]

constitutional obligation to apply their decisions retroactively.’ ” Id. at

227–28, 121 S. Ct. at 714, 148 L. Ed. 2d at 633 (quoting Fiore v. White,

149 F.3d 221, 222 (3d Cir. 1998)).

      The United States Supreme Court granted certiorari and certified a

question to the Pennsylvania Supreme Court.               Id.     Specifically, the
                                         8

Supreme Court inquired whether the state court’s decision interpreting

the statute was a new interpretation, or whether it was “the correct

interpretation of the law of Pennsylvania at the date Fiore’s conviction

became final?” Id. The Pennsylvania Supreme Court responded,

        “Scarpone did not announce a new rule of law. Our ruling
        merely clarified the plain language of the statute. . . . Our
        interpretation . . . in Scarpone furnishes the proper
        statement of law at the date Fiore’s conviction became final.”

Id. (quoting Fiore v. White, 757 A.2d 842, 848–49 (Pa. 2000)).

        The United States Supreme Court held that because the issue

decided in Scarpone was “not new law” but simply the Pennsylvania

Supreme Court’s first gloss on the statute, an issue of “retroactivity” was

not raised.      Id.   The only question was whether federal due process

prevented Pennsylvania from convicting Fiore for conduct that its

criminal statute, as properly interpreted, did not prohibit at the time of

his conviction. Id. The Supreme Court reversed Fiore’s conviction on due

process grounds because the state did not prove each element of the

crime beyond a reasonable doubt. Id. (citing In re Winship, 397 U.S. 358,

364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970)).

        The Supreme Court revisited the issue of decisional retroactivity in
Bunkley. In Bunkley, the defendant had been convicted of burglary in

the first degree under a Florida statute which provided increased

penalties for burglary when the perpetrator is armed with a “dangerous

weapon.” Bunkley, 538 U.S. at 836, 123 S. Ct. at 2021, 155 L. Ed. 2d at

1049.      The     statute,   however,   explicitly   exempted   the   “common

pocketknife” from the term “dangerous weapon.” Id. at 837, 123 S. Ct. at

2021, 155 L. Ed. 2d at 1049. In Bunkley’s case, the dangerous weapon

at issue was a pocketknife with a two-and-a-half to three-inch blade. Id.
                                          9

at 836, 123 S. Ct. at 2021, 155 L. Ed. 2d at 1049. His conviction was

affirmed on appeal in 1989.

        In 1997, the Florida Supreme Court in L.B. v. State, 700 So. 2d

370, 373 (Fla. 1997), considered the meaning of the term “common

pocketknife” in the statute for the first time. Id. at 837, 123 S. Ct. at

2021, 155 L. Ed. 2d at 1049. The Florida court held “that a pocketknife

with a blade of 3 3/4 inches ‘plainly falls within the statutory exception’ ”

for the common pocketknife. Id. (quoting L.B., 700 So. 2d at 373). After

the L.B. decision, Bunkley filed an application for postconviction relief in

state court. Id. at 838, 123 S. Ct. at 2021, 155 L. Ed. 2d at 1050. The

Florida Supreme Court, however, held that its decision in L.B. was not

retroactive,   ignoring   Fiore    analysis,   because    only   “jurisprudential

upheavals,”    as   opposed       to   “evolutionary   refinements,”   warranted

retroactive application. Id. at 838, 123 S. Ct. at 2022, 155 L. Ed. 2d at

1050.

        The United States Supreme Court ruled that the Florida court

erred in not considering the Fiore question—in light of L.B., what was the

meaning of the pocketknife exception at the time of Bunkley’s conviction.

Id. at 840, 123 S. Ct. at 2023, 155 L. Ed. 2d at 1051. The Supreme

Court recognized that while the Florida statute had not changed since

1901, the Florida Supreme Court may have “changed” the law through

its decisional precedents.        Id. at 841–42, 123 S. Ct. at 2023–24, 155

L. Ed. 2d at 1052. The case was remanded to determine precisely what

the law was at the time of Bunkley’s conviction. Id. at 842, 123 S. Ct. at

2024, 155 L. Ed. 2d at 1052–53.

        Taken together, Fiore and Bunkley stand for two propositions.

First, where a court announces a new rule of substantive law that simply

“clarifies” ambiguities in existing law, federal due process requires that
                                   10

the decision be retroactively applied to all cases, including collateral

attacks where all avenues of direct appeal have been exhausted. Second,

where a court announces a “change” in substantive law which does not

clarify existing law but overrules prior authoritative precedent on the

same substantive issue, federal due process does not require retroactive

application of the decision.

      The treatment of Fiore and Bunkley by other state courts confirms

our analysis of the issue. For example, in Clem v. State, 81 P.3d 521,

523 (Nev. 2003), the Nevada Supreme Court considered whether federal

due process required its overruling of prior precedent regarding the

meaning of the term “deadly weapon” be applied in a state habeas corpus

proceeding.   81 P.3d at 526.    The Nevada Supreme Court ruled that

because its recent case overruled a prior decision regarding the meaning

of the term “deadly weapon,” it amounted to a change in law, not a mere

clarification, and that, as a result, there was no federal due process

requirement that the change in law apply in the habeas proceeding. Id.

at 529.

      Other courts have employed a similar analysis to reach the

conclusion that where a judicial decision works a change as compared to

a clarification of substantive law, federal due process is not implicated.

See Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1335 n.12 (11th Cir.

2008); Chapman v. LeMaster, 302 F.3d 1189, 1197 n.4 (10th Cir. 2002);

Easterwood v. State, 44 P.3d 1209, 1212–21 (Kan. 2002).

      Goosman draws our attention to a number of cases, particularly

Schriro, 542 U.S. at 348, 124 S. Ct. at 2519, 159 L. Ed. 2d at 442,

Bousley v. United States, 523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d

828 (1998), and In re Hinton, 100 P.3d 801 (Wash. 2004). Each of these

cases, however, is inapplicable as it involves a clarification of existing
                                         11

law, not a change in law under the Fiore-Bunkley framework, involves

application of a federal court decision, or constitutes a procedural rather

than substantive change in the law. Schriro, 542 U.S. at 358, 124 S. Ct.

at 2526, 159 L. Ed. 2d at 453 (holding a new procedural rule did not

have to be applied retroactively where state faithfully applied the law as it

understood it at the time); Bousley, 523 U.S. at 618, 118 S. Ct. at 1609,

140 L. Ed. 2d at 837 (discussing whether a first clarification of a federal

statute by the United States Supreme Court should be applied

retroactively); In re Hinton, 100 P.3d at 859–60 (holding a prior decision

clarifying the state of the law at the time of the defendants’ convictions

must be applied retroactively).

       We conclude that Goosman does not have a federal due process

claim. Our ruling in Heemstra clearly involved a change in law and not a

mere clarification. Thus, Goosman was convicted of first-degree murder

under jury instructions, which properly stated the law at the time of his

conviction.    As a result, the limitation of retroactivity announced in

Heemstra to cases on direct appeal where the issue has been preserved

did not violate federal due process under Fiore and Bunkley.1

       C.   Federal Equal Protection and Separation of Powers.                  The
State asserts that any claim on appeal based on equal protection and

separation of powers has not been preserved. Our review of the record

confirms that Goosman did not raise equal protection or separation of

powers in his application for postconviction relief and the district court

did not rule upon these issues.          As a result, these issues cannot be

raised for the first time on appeal. State v. McCright, 569 N.W.2d 605,

607 (Iowa 1997).

       1Because   we have concluded that Goosman’s federal due process claim is
without merit, we do not decide whether his claim for postconviction relief was time-
barred by operation of Iowa Code section 822.3.
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      IV. Conclusion.

      For the above reasons, the decision of the district court dismissing

Goosman’s petition is affirmed.

      AFFIRMED.
