                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0275
                               Filed April 19, 2017


JAMES E. WRIGHT, JR.,
    Applicant-Appellee,

vs.

STATE OF IOWA,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      The State appeals from a district court order granting a defendant

postconviction relief. REVERSED AND REMANDED.




      Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant

Attorney General, for appellant State.

      Gary Dickey and Angela Campbell of Dickey & Campbell Law Firm,

P.L.C., Des Moines, for appellee.




      Heard by Vogel, P.J., and Doyle and McDonald, JJ.
                                         2


MCDONALD, Judge.

       In State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), the supreme

court held willful injury cannot serve as the predicate felony for felony murder “if

the act causing willful injury is the same act that causes the victim’s death.” The

court limited application of this new rule “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.” Heemstra, 721 N.W.2d at 558.

       The primary question presented in this postconviction-relief appeal is

whether the supreme court’s limitation of the application of Heemstra to only non-

final cases in which the issue had been raised in the district court violated the

equal protection and due process clauses of the Iowa Constitution.              The

postconviction court held it did:

       If the specific facts of a criminal case on direct appeal require
       application of a new substantive rule, it should be applied. There is
       little perceptible difference between defendants who needlessly
       raised the merger issue at trial before Heemstra, and those who
       focused their arguments on issues supported by the law at the time.
       Application of the new merger rule to all cases pending on appeal,
       whether the issue was raised in the district court or not, is required
       to provide equal treatment to all similarly situated defendants with
       appeals which are not final and to comport with the requirements of
       due process.

The postconviction court vacated Wright’s conviction for murder in the first

degree and ordered new trial. The State timely filed this appeal.

                                         I.

       On May 4, 2000, James Wright was involved in the shooting death of Ollie

Talton. Wright was charged with first-degree murder, in violation of Iowa Code

section 707.2 (1999).     The district court instructed the jury on premeditated
                                          3


murder and felony murder with willful injury serving as the predicate felony. The

jury returned a general guilty verdict. Wright did not object to the jury instruction

or verdict form or otherwise raise the Heemstra issue.

       Wright appealed his conviction.        While the appeal was pending, the

supreme court decided Heemstra. Wright’s appellate counsel filed a motion to

amend his brief to address the Heemstra decision.               This court ordered

supplemental briefing on the issue.      Meanwhile, the State filed a petition for

rehearing in Heemstra, asking the supreme court to address whether its merger

rule would apply retrospectively or prospectively. The supreme court amended

its decision, writing: “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.” Heemstra, 721 N.W.2d at

558 (emphasis added). We affirmed Wright’s conviction shortly thereafter. State

v. Wright, No. 05-0679, 2006 WL 3018149, at *4 (Iowa Ct. App. Oct. 25, 2006).

       Wright filed an application for postconviction relief in 2008. Among other

claims, Wright asserted his trial counsel was ineffective for failing to object to the

felony-murder instruction. While Wright’s application for postconviction relief was

pending, the supreme court decided Goosman v. State, 764 N.W.2d 539, 545

(Iowa 2009). In that case, the court held Heemstra was a change in the law and

trial counsel could not be deemed ineffective for failing to anticipate the change

in law in Heemstra. See Goosman, 764 N.W.2d at 545. The Goosman court

also held due process did not require application of the Heemstra rule to cases

final prior to Heemstra. See id.
                                          4


       Wright’s postconviction case proceeded to trial. The postconviction court

held Wright’s trial counsel had no duty to object to the felony-murder instruction

on merger grounds because that argument had been repeatedly rejected in the

years prior to Wright’s trial. See, e.g., Davis v. State, No. 13-1630, 2015 WL

4642053, at *2 (Iowa Ct. App. Aug. 5, 2015) (explaining “the change in law

resulting from Heemstra was clearly and repeatedly rejected by controlling

precedent” prior to Heemstra). The postconviction court held appellate counsel

performed competently by seeking supplemental briefing.             The court did,

however, hold the equal protection clause and due process clause of the Iowa

Constitution required application of the Heemstra rule to all cases on appeal at

the time Heemstra was decided, without regard to whether trial counsel objected

to the instruction or otherwise raised the issue.

                                         II.

                                         A.

       “Like the Federal Equal Protection Clause found in the Fourteenth

Amendment to the United States Constitution, Iowa’s constitutional promise of

equal protection ‘is essentially a direction that all persons similarly situated

should be treated alike.’” Varnum v. Brien, 763 N.W.2d 862, 878 (Iowa 2009)

(citation omitted). “This requirement of equal protection—that the law must treat

all similarly situated people the same—has generated a narrow threshold test.

Under this threshold test, if plaintiffs cannot show as a preliminary matter that

they are similarly situated, courts do not further consider whether their different

treatment . . . is permitted under the equal protection clause.” Id. at 882.
                                          5


         The district court appeared to conclude Heemstra and Wright were

similarly situated, noting there was “little perceptible difference” between those

cases on direct appeal in which the defendant objected to the felony-murder

instruction and those cases in which the defendant did not object to the felony-

murder instruction. We disagree. The two classes of defendants did not have

the same legal claim on direct appeal. Heemstra’s specific legal claim was the

district court erred in overruling his objection to the felony-murder instruction

where willful injury served as the predicate felony but the act causing willful injury

was the same act that caused the victim's death. Wright could not and cannot

assert this legal claim because he failed to object to the instruction. Wright’s

specific legal claim was and is his trial counsel provided constitutionally deficient

representation in failing to object to the felony-murder instruction.

         Although the district court elided over the difference between Heemstra

and Wright’s cases, the difference is material. The respective legal claims are

substantively different. Unlike Heemstra, to prevail on his claim, Wright was

required to establish that his “trial counsel failed to perform an essential duty and

that this failure resulted in prejudice.” State v. Kress, 636 N.W.2d 12, 20 (Iowa

2001). The postconviction court in this case, relying on Goosman and more

recent precedents, correctly granted summary judgment on Wright’s claim of

ineffective assistance of counsel.     Thus, at the time Heemstra was decided,

those cases on direct appeal in which the defendant had objected to the

instruction had a potentially meritorious claim whereas those cases in which the

defendant had failed to object to the instruction had no claim or no meritorious

claim.
                                         6

       The district court relied on Griffith v. Kentucky, 479 U.S. 314 (1987), to

conclude principles of equal protection required Wright be allowed a new trial

despite him not having any legal claim or any meritorious legal claim. In Griffith,

the Supreme Court considered the retrospective application of Batson v.

Kentucky, 476 U.S. 79 (1986), and held “a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or federal, pending

on direct review or not yet final, with no exception for cases in which the new rule

constitutes a ‘clear break’ with the past.” Griffith, 479 U.S. at 328. Griffith is

distinguishable in three respects. First, it is an enunciation of federal principles

and is not controlling on questions of state law. Second, the case applies to new

federal constitutional rules of criminal procedure, while Heemstra was a change

in state substantive law. Finally, and most important, Griffith—like Batson before

him—objected at the trial level and preserved error on the issue. See id. at 317;

Batson, 476 U.S. at 83.

       Wright argues Montgomery v. Louisiana, 136 S. Ct. 718 (2016), is

controlling and requires he be given a new trial. In Montgomery, the Supreme

Court held:

       when a new substantive rule of constitutional law controls the
       outcome of a case, the Constitution requires state collateral review
       courts to give retroactive effect to that rule. Teague [v. Lane, 489
       U.S. 288 (1989)]’s conclusion establishing the retroactivity of new
       substantive rules is best understood as resting upon constitutional
       premises. That constitutional command is, like all federal law,
       binding on state courts.

136 S. Ct. at 729. Wright argues “the Constitution requires substantive rules to

have retroactive effect regardless of when a conviction becomes final.” Id. Our

supreme court already has rejected the conclusion that Montgomery required
                                         7

retrospective application of Heemstra, distinguishing the case by noting

“Heemstra did not create a new substantive rule of constitutional dimension.”

Nguyen v. State, 878 N.W.2d 744, 753 n.4 (Iowa 2016). Therefore, Montgomery

is inapplicable. See id.

       “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.” Wainwright v. Stone, 414

U.S. 21, 24 (1973). “When questions of state law are at issue, state courts

generally have the authority to determine the retroactivity of their own decisions.”

American Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 177 (1990).               Our

supreme court decided Heemstra was applicable only to “cases not finally

resolved on direct appeal in which the issue [was] raised in the district court.”

Heemstra, 721 N.W.2d at 558. No constitutional principle—federal or state—

required retrospective application of Heemstra to those cases in which the issue

was never raised. See Wainwright, 414 U.S. at 24.

       It is not unconstitutional or even unreasonable to treat as similarly situated

only those parties whose cases are “‘factually and legally similar’ and ‘share

similar procedural histories.’” State ex rel. Brown v. Bradley, 658 N.W.2d 427,

433 n.7 (Wis. 2003) (citations omitted); see also Shea v. Louisiana, 470 U.S. 51,

58 n.4 (1985) (holding new rule must be applied to cases pending at the time of

decision establishing new rule, “subject, of course, to established principles of

waiver, harmless error, and the like”); Stovall v. Denno, 388 U.S. 293, 301 (1967)

(“Inequity arguably results from according the benefit of a new rule to the parties
                                          8


in the case in which it is announced but not to other litigants similarly situated in

the trial or appellate process who have raised the same issue.” (emphasis

added)), overruled on other grounds by Griffith, 479 U.S. at 328; United States v.

David, 83 F.3d 638, 643 n.6 (4th Cir. 1996) (“[W]e believe that a defendant who

objects to an alleged error (as did the defendant in Griffith) is not ‘similarly

situated’ . . . to a defendant who did not, and so a new rule created for the former

need not be deemed plain for the latter.”); Ferguson v. State, 13 So. 3d 418, 430

(Ala. Crim. App. 2008) (“The ‘similarly situated defendants’ the United States

Supreme Court considers itself bound to treat the same are defendants who can

still come before that Court on certiorari review of an appeal from a final

judgment of conviction or from a decision of a United States Court of Appeals.”);

Asay v. State, No. SC16-223, 2016 WL 7406538, at *21 (Fla. Dec. 22, 2016)

(Lewis, J., concurring in result) (stating new rule should be retroactive to those

defendants who properly preserved challenge at trial); Belvedere v. State, 889

N.E.2d 286, 288 (Ind. 2008) (“Because Belvedere’s challenge to this pre-

[Litchfield v. State, 824 N.E.2d 356 (Ind. 2005)] search was first raised after

Litchfield was decided, Litchfield is not available to him in this appeal.”); State v.

Reichmand, 243 P.3d 423, 425 (Mont. 2010) (defining “similarly situated” as

“having raised the issue addressed by the new rule at the trial court level, thereby

preserving it for appeal”); State v. Tierney, 839 A.2d 38, 44 (N.H. 2003) (requiring

issue to be preserved for new rule to apply); Commonwealth v. Ardestani, 736

A.2d 552, 555 (Pa. 1999) (requiring issue to be preserved for new rule to apply);

Taylor v. State, 10 S.W.3d 673, 683 (Tex. Crim. App. 2000) (“Even if the rule is

retroactively imposed, a defendant may yet be denied relief on the basis that the
                                           9

error was not properly preserved or was harmless.”); State v. Reed, 625 S.E.2d

348, 352 (W. Va. 2005) (requiring defendant seeking benefit of new rule to have

“properly preserved the issue below”).

       Our supreme court had the authority to limit the retroactive application of

Heemstra. It has done so, distinguishing those cases on appeal where error was

preserved and a potentially meritorious legal claim was presented and those

cases where error was not preserved and no legal claim or no meritorious legal

claim was presented. The equal protection clause does not require that these

dissimilar cases be treated the same.          The district court erred in holding

otherwise.

                                          B.

       The State also argues due process does not require application of the

Heemstra rule to Wright’s case. The analysis of Wright’s case under a due

process theory is much the same as above. Our supreme court has held neither

the federal nor state constitution requires Heemstra retroactivity for cases

decided before Heemstra.       See Nguyen, 878 N.W.2d at 756; Goosman, 764

N.W.2d at 545. For the reasons stated above, we see no compelling reason to

apply Heemstra to cases pending on appeal when Heemstra was decided but in

which the issue was not raised in district court.

       Nothing in Griffith, nor any other Supreme Court decision, requires
       this result. In fact, Supreme Court precedent indicates that the
       rules of retroactivity are subject to established principles of
       procedural default, waiver, and the like. Indeed, as outlined below,
       the defendant in Griffith timely preserved the constitutional error at
       issue during his trial and on appeal. . . . That fact is important . . . .
                                        10

United States v. Levy, 391 F.3d 1327, 1329 (11th Cir. 2004). We conclude the

same reasoning would apply to a claim arising under the due process clause of

the Iowa Constitution. See, e.g., Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 322

(Iowa 2013) (“Even issues implicating constitutional rights must be presented to

and ruled upon by the district court in order to preserve error for appeal.”). Due

process does not require that a criminal defendant be allowed to assert anew

unpreserved, waived, barred, or defaulted legal claims. The district court erred in

holding otherwise.

                                        III.

       Related to the constitutional claims above, Wright argues his direct-appeal

counsel was ineffective for failing to file a motion for limited remand, after

Heemstra was decided, to allow counsel to make an objection to the felony-

murder instruction after the fact. The postconviction court rejected the argument.

Wright did not file a cross-appeal. Error is not preserved on this claim. See

Reg’l Util. Serv. Sys. v. City of Mount Union, 874 N.W.2d 120, 126 (Iowa 2016)

(“Ordinarily a successful party need not cross-appeal on a ground presented to

but ignored or rejected by the district court to preserve error. But this general

rule applies only when the party received a favorable ruling on the claim at

issue.” (citations omitted)).

       Even if error were preserved, however, Wright’s claim would fail. Wright

contends his counsel should have, in addition to requesting supplemental briefing

following the Heemstra decision, also requested limited remand to preserve

error. See Iowa R. App. P. 6.1004. We review claims of ineffective assistance

de novo. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). We can find
                                          11


no case in which limited remand was granted for an evidentiary hearing outside

the context of providing a factual basis for ineffective-assistance claims. See,

e.g., In re D.L., No. 14-1302, 2015 WL 5285658, at *4 (Iowa Ct. App. Sept. 10,

2015).    That is not what Wright requests.       His request is akin to asking for

another opportunity to file an Iowa Rule of Civil Procedure 1.904(2) motion to

raise an argument not originally raised at trial.       Because an application for

limited remand “will not revive a time-barred posttrial motion,” Wolf v. City of Ely,

493 N.W.2d 846, 849 (Iowa 1992), we think an application for limited remand

cannot provide the foundation for a time-barred posttrial motion, either. Because

Wright asks the procedurally impossible, we will not find his counsel ineffective

for failing to pursue a meritless argument. See State v. Halverson, 857 N.W.2d

632, 635 (Iowa 2015).

                                          IV.

         Wright also argues his trial counsel was ineffective for failing to object to

the following jury instruction:

         Where two or more alternative theories are presented, or where two
         or more facts would produce the same result, the law does not
         require each juror to agree as to which theory or facts leads to his
         or her verdict. It is the verdict itself which must be unanimous, not
         the theory or facts upon which it is based.

See State v. Hunt, No. 07-0181, 2008 WL 4569877, at *8 (Iowa Ct. App. Oct. 15,

2008) (examining identical instruction).        Wright argues the jury instruction

violated his right to due process and the rule of jury unanimity. He also takes

issue with the prosecutor’s related statement in closing argument that “you can

rely on different facts or assume different facts” in reaching a unanimous

decision. He argues these failures are enough to undermine confidence in the
                                        12

general verdict. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (“A

reasonable probability [of prejudicial ineffective assistance] is a probability

sufficient to undermine confidence in the outcome.”).

       The postconviction court rejected this claim. Wright did not cross-appeal

the ruling on this issue. Error therefore has not been preserved. See Reg’l Util.

Serv. Sys., 874 N.W.2d at 126.

       Even if Wright had preserved error, this claim would not entitle him to

relief. The Supreme Court has rejected this claim. See Schad v. Arizona, 501

U.S. 624, 636 (1991). Our appellate courts have rejected similar arguments.

See State v. Bratthauer, 354 N.W.2d 774, 776 (Iowa 1984) (“If substantial

evidence is presented to support each alternative method of committing a single

crime, and the alternatives are not repugnant to each other, then unanimity of the

jury as to the mode of commission of the crime is not required.”); State v.

Williams, 285 N.W.2d 248, 270 (Iowa 1979) (“[A] showing that the murder

occurred in the perpetration of a felony is merely a particular statutorily

prescribed method for showing the mental elements of deliberation and

premeditation.”). “Jurors may disagree about the means of committing a single

crime.” State v. James, 2014 WL 4230203, at *8–9 (Iowa Ct. App. Aug. 27,

2014) (Tabor, J., concurring) (citing Schad, 501 U.S. at 636).         As a result,

counsel had no duty to object to the jury instruction. His failure to do so does not

place his representation outside the normal range of professional competency.

See State v. Graves, 668 N.W.2d 860, 870 (Iowa 2003).
                                           13


                                           V.

          For the foregoing reasons, we reverse the decision of the district court and

remand for entry of an order dismissing Wright’s application for postconviction

relief.

          REVERSED AND REMANDED.
