                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1179
                               Filed April 29, 2020


MICHAEL B. WEATHERSPOON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Colleen D.

Weiland, Judge.



      Michael Weatherspoon appeals from the summary dismissal of his fifth

postconviction-relief application. AFFIRMED.




      Shawn Smith of The Smith Law Firm, PC, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.




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


VAITHESWARAN, Presiding Judge.

       A jury found Michael Weatherspoon guilty of first-degree murder in

connection with a stabbing in 1998.           This court affirmed his judgment and

sentence. See State v. Weatherspoon, No. 98-2214, 2000 WL 328056, at *3 (Iowa

Ct. App. Mar. 29, 2000). We also affirmed the denial of several postconviction-

relief applications. See Weatherspoon v. State, 16-0115, 2016 WL 5408155, at *2

(Iowa Ct. App. Sept. 28, 2016); Weatherspoon v. State, No. 13-0094, 2014 WL

250243, at *2 (Iowa Ct. App. Jan. 23, 2014); Weatherspoon v. State, No. 03-0498,

2005 WL 723882, at *2 (Iowa Ct. App. Mar. 31, 2005). This is an appeal from the

summary dismissal of Weatherspoon’s fifth postconviction-relief application.

       Weatherspoon alleged in part that he “was denied a jury that represented a

fair cross-section of the community” and the supreme court’s recent opinion in

State v. Plain, 898 N.W.2d 801, 829 (Iowa 2017), should afford him relief.1 The

State responded with a motion to dismiss, asserting the three-year statute of

limitations generally applicable to postconviction-relief applications barred

Weatherspoon’s claim. See Iowa Code § 822.3 (2017). Weatherspoon countered

that the Plain issue fell within an exception to the three-year time bar for a ground



1 In Plain, the court applied the second prong of what has come to be known as
the Duren test governing fair cross-section challenges. 898 N.W.2d at 827; see
Duren v. Missouri, 439 U.S. 357, 364 (1979) (requiring a showing “that the
representation of this group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community”). The
court held “the district court made an error of law in concluding the absolute
disparity test must be used in deciding whether the jury pool was drawn from a fair
cross-section of the community.” Plain, 898 N.W.2d at 829, holding modified by
State v. Lilly, 930 N.W.2d 293 (Iowa 2019). The court further held “[p]arties
challenging jury pools on the ground that they are unrepresentative may base their
challenges on multiple analytical models.” Id. at 827.
                                           3

of law “that could not have been raised within the applicable time period.” Id. The

district court concluded Weatherspoon’s claims were not time-barred but the

grounds of law on which he relied, including Plain, could not be “applied

retroactively” to afford him any relief.

         On appeal, Weatherspoon argues “the district court committed an error of

law” in summarily ruling that Plain did not apply retroactively. In his view, “the

potential retroactivity of a statute or court decision is a disputed matter of fact until

reported decisions of Iowa appellate courts conclude otherwise.”

         A reported decision of the Iowa Supreme Court recently concluded

otherwise. In Thongvanh v. State, 938 N.W.2d 2, 12–14 (Iowa 2020), the court

applied the federal framework for analyzing retroactivity set forth in Teague v.

Lane, 489 U.S. 288 (1989). The court concluded, “Plain’s holding on the second

prong of the Duren test constitutes a new rule under the Teague framework.

However, because it is not a watershed rule of criminal procedure, it does not apply

retroactively to cases on collateral review.” Thongvanh, 938 N.W.2d at 14. The

court also concluded the Iowa Constitution did not require retroactive application

of Plain “to convictions that were already final at the time” Plain was decided. Id.

at 16.

         Thongvanh is controlling. The postconviction court did not err in summarily

dismissing Weatherspoon’s postconviction-relief application.

         AFFIRMED.
