                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0885
                               Filed March 6, 2019


KHAMFEUNG THONGVANH,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Adria A.D. Kester,

Judge.



      Khamfeung Thongvanh appeals the denial of his application for post-

conviction relief. AFFIRMED.



      Jamie L. Hunter of Dickey & Campbell Law Firm, PLC, Des Moines, and

Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, Storm Lake, for

appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.



      Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
                                         2


McDONALD, Judge.

       This appeal arises out of the denial of Khamfeung Thongvanh’s second

application for postconviction relief. The questions presented in this appeal are (1)

whether Thongvanh’s second application for postconviction relief is time-barred

and (2) whether State v. Plain, 898 N.W.2d 801, 829 (Iowa 2017)—in which the

supreme court held the absolute-disparity test is not the exclusive test to “be used

in deciding whether [a] jury pool was drawn from a fair cross-section of the

community”—applies retroactively.

       By way of background, in 1984, Thongvanh was convicted of first-degree

murder.   This court affirmed his conviction on direct appeal.        See State v.

Thongvanh, 398 N.W.2d 182, 189 (Iowa Ct. App. 1986). Thongvanh subsequently

sought postconviction relief. In his application for postconviction relief, Thongvanh

argued “systematic and intentional exclusion of Asians from the jury pool

prevented the jury from being representative of the community and violated his

Sixth Amendment right to an impartial jury.” Thongvanh v. State, 494 N.W.2d 679,

683 (Iowa 1993). The district court denied the application for postconviction relief,

and the supreme court affirmed. See id. at 684. In affirming the district court, the

supreme court noted the case of State v. Jones, 490 N.W.2d 787, 793 (Iowa 1992)

overruled by State v. Plain, 898 N.W.2d 801, 829 (Iowa 2017), held that a showing

of absolute disparity was the exclusive method to show a jury pool was not drawn

from a fair cross-section of the community. “Absolute disparity is calculated ‘by

taking the percentage of the distinct group in the population and subtracting from

it the percentage of that group represented in the jury panel.’” Plain, 898 N.W.2d

at 822 (quoting Jones, 490 N.W.2d at 793). The Thongvanh court concluded:
                                          3


        There were no Asian jurors on applicant’s jury. According to
        applicant’s calculations, there was a .18 percent absolute disparity
        between Asians picked for jury duty and Asians in the general
        population of Webster County. Applicant argues that this disparity
        demonstrates Asians were significantly underrepresented in the jury
        selection process.
               In State v. Jones, 490 N.W.2d 787 (Iowa 1992), we held that
        an absolute disparity of 1.5 percent was insufficient to establish a
        prima facie violation of the Sixth Amendment. We conclude applicant
        has not made a prima facie case of underrepresentation in this case.
        Further, we do not believe applicant has established that the disparity
        that does exist is due to a systematic exclusion of Asians from jury
        duty.

Thongvanh, 494 N.W.2d at 683-84.

        Subsequently, in 2017, the supreme court decided Plain and overruled

Jones. See Plain, 898 N.W.2d at 826. The court reasoned that the absolute

disparity formula was not always an accurate method of determining disparity. Id.

at 823. The court held a defendant could show a jury pool was not drawn from a

fair cross section of the community using formulae other than an absolute disparity

formula. See id. at 826. The particular formulae endorsed by the supreme court

are not of consequence in the resolution of this appeal, and we need not discuss

them.

        After Plain, Thongvanh filed a second application for postconviction relief.

Thongvanh again argued the venire was not drawn from a fair cross section of the

community and therefore violated his Sixth Amendment right. He argued Plain

should apply retroactively to his case. The district court dismissed the application,

concluding the application was untimely and Plain did not apply retroactively.

Thongvanh timely filed this appeal.

        This court reviews the denial of an application for postconviction relief for

correction of errors at law. See Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012).
                                          4

We review constitutional claims de novo. See State v. Neiderbach, 837 N.W.2d

180, 190 (Iowa 2013).

       We    first   address   whether    Thongvanh’s     second     application   for

postconviction relief is time-barred.    Generally, applications for postconviction

relief “must 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 (2018). Applications filed after three years are usually barred.

See, e.g., Everett v. State, No. 12-1032, 2014 WL 3749338, at *1-2 (Iowa Ct. App.

July 30, 2014) (finding an application for postconviction relief was barred when

brought five years after writ of procedendo was issued); State v. Hoehn, No. 11-

2122, 2013 WL 1750984, at *1-2 (Iowa Ct. App. Apr. 24, 2013) (stating an

application for postconviction relief would be barred because eleven years had

passed since the defendant’s conviction).       However, an applicant may seek

postconviction relief after the three-year period if the applicant relies on “a ground

of fact or law that could not have been raised within the applicable time period.”

Iowa Code § 822.3. A ground of law could not have been raised if it “had been

clearly and repeatedly rejected by controlling precedent.” Nguyen v. State, 829

N.W.2d 183, 188 (Iowa 2013).

       We conclude Thongvanh’s application is not time-barred. Thongvanh’s

application was filed more than three years after procedendo issued in his direct

appeal. However, during the relevant time period Jones was the controlling case.

See State v. Huffaker, 493 N.W.2d 832, 833 (Iowa 1992); State v. Harkey, No. 10-

0118, 2012 WL 299535, at *6 (Iowa Ct. App. Feb. 1, 2012); State v. Jackson, No.

09-0462, 2010 WL 624906, at *6 (Iowa Ct. App. Feb. 24, 2010); State v. Fetters,
                                         5

562 N.W.2d 770, 777 (Iowa Ct. App. 1997). Plain overruled Jones and established

a potential new ground of law not previously available to Thongvanh during the

three-year period. Thongvanh filed his second application for postconviction relief

within three years of Plain. His application is thus not time-barred. See Frasier v.

State, No. 15-0533, 2016 WL 3269574, at *2 (Iowa Ct. App. June 15, 2016).

       We next address whether Plain should be applied retroactively. Thongvanh

contends this court should apply the test set forth in Teague v. Lane, 489 U.S. 288

(1989), to determine whether an Iowa Supreme Court case applies retroactively.

We thus consider Thongvanh’s claim under this framework. Under Teague, “new

rules should not be applied retroactively to cases on collateral review unless the

change: (1) places certain types of individual, private conduct beyond the ability of

lawmakers to proscribe, or (2) creates a ‘watershed’ rule of criminal procedure

implicating issues of fundamental trial fairness.” Brewer v. State, 444 N.W.2d 77,

81 (Iowa 1989) (citing Teague, 489 U.S. at 311).

       Thongvanh contends Plain created a watershed rule of criminal procedure

implicating issues of fundamental trial fairness and should be applied retroactively.

We disagree. The bar for finding a watershed rule is very high. See Teague, 489

U.S. at 314 (providing examples of watershed rules as those that prevented

“proceeding[s] . . . dominated by mob violence,” “prosecutor[s] knowingly ma[king]

use of perjured testimony,” and convictions secured through “confession[s]

extorted from the defendant by brutal methods” (quoting Rose v. Lundy, 455 U.S.

509, 544 (1982) (Stevens, J., dissenting))). A watershed rule is one “without which

the likelihood of an accurate conviction is seriously diminished.” Id. at 313. “This

class of rules is extremely narrow, and ‘it is unlikely that any has yet to emerge.’”
                                          6

Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (altered for readability) (quoting

Tyler v. Cain, 533 U.S. 656, 667, n.7 (2001)). The rule at issue in this case is not

the type of watershed rule without which the accuracy of the conviction is seriously

diminished. Indeed, the Teague court specifically held the absence of a fair cross

section on the jury venire does not seriously diminish the accuracy of a conviction.

See Teague, 489 U.S. at 315. This leads us to conclude the rule announced in

Plain is not a “bedrock procedural element” that should be retroactively applied.

       Our conclusion that Plain does not have retroactive effect is also supported

by Brewer v. State, 444 N.W.2d 77 (Iowa 1989).             That case involved the

retroactivity of Duren v. Missouri, 439 U.S. 357 (1979). In Brewer, the jury venire

excluded persons age sixty-five and older. 444 N.W.2d at 80. Brewer challenged

this exclusion on direct appeal as a Sixth Amendment violation. Id. The court

found no violation because the exclusion had a rational basis. Id. The Supreme

Court later held in Duren that “[t]he right to a proper jury cannot be overcome on

merely rational grounds. Rather, it requires that a significant state interest be

manifestly and primarily advanced by those aspects of the jury-selection process,

such as exemption criteria, that result in the disproportionate exclusion of a

distinctive group.” 439 U.S. at 367-68 (citation omitted). After Duren, Brewer again

challenged his conviction, arguing Duren should apply retroactively. See Brewer,

444 N.W.2d at 80. Brewer’s argument depended on a finding that Duren had

created a watershed rule of criminal procedure. Id. at 81-82. The court held that

the new rule regarding the composition of the jury venire did not require retroactive

application. See id. at 82 (applying Teague and stating “we find no error in the trial
                                          7

court’s rejection of Brewer’s claim that Duren v. Missouri announced new law that

should be retrospectively applied to furnish Brewer a new trial”).

       Finally, Thongvanh argues the Iowa Constitution should be interpreted to

“give broader retroactive application to new rules of criminal procedure than

provided in Teague.” In our view, Brewer forecloses any relief for Thongvanh. We

are not at liberty to ignore supreme court precedent. To the extent Thongvanh

seeks to revisit supreme court precedent, the argument is better directed to the

supreme court. See West v. State, No. 15-0461, 2016 WL 3010518, at *1 n.1

(Iowa Ct. App. May 25, 2016) (“[The defendant] asks this court to reconsider this

holding in light of other jurisdictions that require a court to conduct such a colloquy

with the defendant. The supreme court [has] declined such an invitation . . . , and

‘[w]e are not at liberty to overrule controlling supreme court precedent.’” (quoting

State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014)); see also State v. Colton,

No. 15-1604, 2016 WL 3276939, at *3 (Iowa Ct. App. June 15, 2016) (refusing to

expand constitutional rights when the supreme court had declined to expand those

rights); State v. Njenga, No. 04-0573, 2005 WL 1397219, at *2 (Iowa Ct. App. June

15, 2005) (same).

       Thongvanh’s claim is not time-barred. However, the district court was

correct in dismissing Thongvanh’s claim because Plain does not apply retroactively

to his case.

       AFFIRMED.
