                   IN THE SUPREME COURT OF IOWA
                                  No. 18–0745

                            Filed January 24, 2020


MICHAEL NAVARRO JONES,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      Appeal from the Iowa District Court for Black Hawk County,

George L. Stigler, Judge.



      An applicant for postconviction relief appeals the district court’s

dismissal of his application. AFFIRMED.



      Nate Nieman, Rock Island, Illinois, for appellant.



      Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney
General, Brian Williams, County Attorney, and Kimberly A. Griffith,

Assistant County Attorney, for appellee.
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WIGGINS, Chief Justice.
      In 2008, a jury convicted Michael Navarro Jones of first-degree

robbery and of being a felon in possession of a firearm. Jones appealed,

the court of appeals affirmed the convictions, and procedendo issued in

February 2010.      Jones then filed and appealed three unsuccessful

postconviction-relief (PCR) applications.

      On December 11, 2017—almost eight years after procedendo issued

in his criminal case—Jones filed his fourth PCR application, which he

amended through appointed counsel. He contended his Sixth Amendment
right under the Federal Constitution to an impartial jury drawn from a fair

cross section of the community and his right to an impartial jury under

article I, section 10 of the Iowa Constitution were violated during his

criminal trial. He also alleged violations of his rights to equal protection

and due process under the Federal Constitution and article I, sections 1

and 9 of the Iowa Constitution. He based his claims on State v. Plain, 898

N.W.2d 801 (Iowa 2017).

      The State filed a motion to dismiss Jones’s PCR application,

asserting Iowa Code section 822.3’s three-year statute of limitations had

run, there was no new ground of fact or law allowing Jones to get around
the statute of limitations, and res judicata applied under section 822.8.

Notably, the State made no argument or contention that Jones did not

have a cause of action because Plain is not retroactive.

      Jones resisted, arguing section 822.3’s limitations period does not

apply because he could not have raised his Plain claims as a ground of law

within that period. Like the State, he did not discuss Plain’s retroactivity.

      At the hearing on the motion to dismiss, the PCR court inquired

whether Plain applied retroactively even though neither party had raised
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or briefed the issue. After hearing the parties’ responses, the court stated

to Jones,

       Well, you’ve got your issue and your issue is simple. Does
       Plain have retroactive applicability, and I am going to give you
       a ruling that it does not. And so you now have an appealable
       issue. And you may take it before the Iowa Supreme Court as
       to whether Plain has retroactive applicability or not. I am
       concluding that it is too burdensome, and it imposes far too
       many costs upon society to apply this new rule of law
       [retrospectively]. The flood gates would be just horrendous if
       we were to buy your interpretation. But you’ve got an
       appealable issue and we will go from there.

The court issued a written ruling consistent with its oral ruling and
granted the State’s motion to dismiss. Jones appealed, and we retained

the appeal.

       The court dismissed Jones’s application based upon a ground

neither party raised. This was improper. See, e.g., Manning v. State, 654

N.W.2d 555, 561 (Iowa 2002).           However, on appeal we can affirm the

district court decision on any ground argued below and urged on appeal

by the appellee, even if the court below did not reach that issue. See Ne.

Cmty. Sch. Dist. v. Easton Valley Cmty. Sch. Dist., 857 N.W.2d 488, 491

(Iowa 2014).

       On today’s date, we filed our decision in Thongvanh v. State, ___

N.W.2d ___ (Iowa 2020).        In Thongvanh, we addressed the exact same

issues as raised in the instant case. Id. at ___. In deciding those issues,

we held Plain’s holding on the second prong of the Duren 1 test constitutes

a new ground of law under section 822.3; therefore, the three-year statute

of limitations under section 822.3 does not apply. Id. at ___. However, we

concluded that the new law of criminal procedure announced in Plain does

not apply retroactively to cases on collateral review. Id. at ___.

       1Duren   v. Missouri, 439 U.S. 357, 364, 367–68, 99 S. Ct. 664, 668, 670 (1979)
(laying out the test for evaluating Sixth Amendment fair cross-section claims).
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      Applying these holdings to Jones, we affirm the dismissal of his PCR

application.

      AFFIRMED.
