               IN THE SUPREME COURT OF IOWA
                                   No. 14–0401

                               Filed March 11, 2016


PHUOC NGUYEN,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      Appeal      from   the     Iowa   District   Court    for     Polk   County,

Rebecca Goodgame Ebinger, Judge.



      In this second application for postconviction relief, a defendant

challenges   his    murder      conviction   under    the   state    and    federal

constitutions and on state common law retroactivity grounds. DISTRICT

COURT JUDGMENT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Martha E. Trout, Assistant

Attorney General, John P. Sarcone, County Attorney, and Celene

Gogerty, Assistant County Attorney, for appellee.
                                           2

ZAGER, Justice.

       In 1999, Phuoc Thanh Nguyen was convicted of first-degree

murder. The jury was instructed on both the premeditation and felony-

murder alternatives of first-degree murder.             The underlying predicate

felony was Terrorism. 1       The use of an assaultive predicate felony was

supported by a line of cases starting with State v. Beeman, which found

willful injury to be a proper predicate felony for a felony-murder

instruction. 315 N.W.2d 770, 776 (Iowa 1982). In 2006, we overturned

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

Heemstra, we held that when a willful injury is the same act that causes

a victim’s death, the two crimes merge and the act causing willful injury

cannot be used as a predicate felony under the felony-murder rule. Id. If

Heemstra had been controlling at the time of Nguyen’s conviction,

terrorism could not have been used as the predicate felony, and the

felony-murder instruction could not have been given as a theory to

convict Nguyen. In contemplation of our prerogative under the common

law, we specifically held that the decision was not retroactive and would

only be applicable to the present case and those cases not finally

resolved on direct appeal. Id. In 2009, this court decided Goosman v.

State. 764 N.W.2d 539, 545 (Iowa 2009). In Goosman, we held that the

nonretroactive application of Heemstra does not violate the federal Due

Process Clause. Id.




        1The crime of terrorism, which was the predicate felony in this case, is now

referred to as intimidation with a dangerous weapon. Compare Iowa Code § 708.6
(2015) with Iowa Code § 708.6 (1997). In a later case, this court applied the
independent felony rule to the use of intimidation with a dangerous weapon (formerly
terrorism) as the predicate felony in felony murder. State v. Millbrook, 788 N.W.2d 647,
652–53 (Iowa 2010).
                                   3

      Within three years of our decision in Heemstra, Nguyen filed this

second application for postconviction relief. In this application, Nguyen

argues that his conviction should be vacated and a new trial ordered,

contending that the nonretroactive application of Heemstra violates the

due process, separation of powers, and equal protection clauses of the

Iowa Constitution. Nguyen also argues it violates the Equal Protection

Clause of the United States Constitution.    For the first time, Nguyen

further argues on appeal his postconviction counsel were ineffective for

failing to raise and argue for the retroactive application of Heemstra

under the common law.

      For the reasons set forth below, we conclude that Nguyen’s

postconviction counsel were not ineffective. We also conclude that the

nonretroactivity of the rule expressed in Heemstra does not violate the

due process, separation of powers, or equal protection clauses of the

Iowa Constitution, or the Equal Protection Clause of the United States

Constitution.

      I. Background Facts and Proceedings.

      In 1999, Phuoc Thanh Nguyen was convicted of first-degree

murder based on alternative theories that included a felony-murder

theory. On direct appeal, the court of appeals recounted the evidence

presented at trial and established a number of facts that a jury could

have found based on the record:

            On the afternoon of July 15, 1998, Nguyen and Dao
      approached “The Cloud,” a Des Moines bar. Dao exited the
      car and expressed his interest in purchasing an ounce of
      cocaine.    While Nguyen stayed near the car, several
      individuals accompanied Dao into an alley where he was
      beaten and robbed. After the robbery, Dao left the area on
      foot and Nguyen departed in the vehicle.

           Later the same day, a car approached The Cloud and
      one or more of its occupants fired several gunshots into a
                              4
crowd of people standing outside the bar. Monty Thomas
was fatally shot. Two witnesses recorded the license plate of
the vehicle in which the gun-toting assailants rode. When
law enforcement officers stopped the vehicle later that
evening, Nguyen was driving with Dao as his passenger. Dao
and Nguyen were charged with first-degree murder. The
defendants were tried separately.

      ....

      . . . Witness testimony linked Nguyen to the incident
before, during, and after the shooting. The testimony of
Rodney Martin placed Dao and a man who looked like
Nguyen at The Cloud shortly before the shooting. While the
man resembling Nguyen remained in the driver’s seat of the
car parked near the bar, Dao and a third individual solicited
drugs from Martin. Martin testified Dao was beaten and
robbed following the unsuccessful cocaine purchase, and
Nguyen and the third person drove away from the bar.
Confirming this testimony, Owen Smith described a
conversation he had with Nguyen while Dao was in the alley
attempting to purchase drugs. Smith testified he spoke to
Nguyen for ten to fifteen minutes before Nguyen left the
scene.

       Nguyen was also recognized as the driver of the car
that arrived at The Cloud transporting the armed
participants in the shooting. Elgin Byron, a teller at the
local bank where Nguyen was a regular customer, identified
Nguyen as the driver of the car involved in the shooting. He
recalled the black Mitsubishi Nguyen drove to the bar on the
day in question as the same car Nguyen had brought to the
bank on prior occasions. Shawn Duncan, who also observed
the black automobile, identified Dao as an occupant of the
car who fired a gun in his direction. Similarly, David Gray
witnessed Dao shooting from the black car. Gray noted the
car’s license plate number, which matched that of the car
Nguyen and Dao were arrested in later that evening.

      After the shooting, law enforcement officers observed a
black Mitsubishi matching the description of the vehicle and
license plate number given by eyewitnesses to the crime.
Upon stopping the car, they arrested its driver, Nguyen, and
the vehicle’s backseat passenger, Dao. Two bullet holes in
the vehicle’s trunk were of a size consistent with the .45
caliber casings found outside The Cloud. The man who
loaned the black Mitsubishi to Nguyen testified the first time
he noticed the trunk bullet holes was upon recovering his
car from police after Nguyen’s arrest. Lastly, Nguyen made
an incriminating statement regarding his involvement in the
shooting. An officer testified upon telling Nguyen he was
                                          5
      being arrested for his role in The Cloud homicide, Nguyen
      replied “all he did was drive the car.”

State v. Nguyen, No. 99–1444, 2002 WL 575746, at *1–2 (Iowa Ct. App.

Mar. 13, 2002). Nguyen raised several issues before the court of appeals

on   direct    appeal    including   insufficiency           of     the    evidence,    the

Confrontation Clause, and ineffective assistance of counsel. The court of

appeals affirmed his conviction on March 13, 2002, and procedendo

issued on May 30.

      In      August    2002,    Nguyen       filed    his        first   application   for
postconviction relief in the district court.           He asserted new claims of

ineffective assistance of counsel primarily related to trial counsel’s failure

to raise certain evidentiary objections. The district court found that his

counsel was ineffective and ordered a new trial. The State appealed the

decision, and we transferred the case to the court of appeals. The court

of appeals reversed the district court.               Nguyen applied for, and we

granted, further review.        On December 23, 2005, we concluded that

Nguyen did not establish the requisite prejudice to support his claims of

ineffective assistance of counsel. We vacated the decision of the court of

appeals and reversed the judgment of the district court.                      Procedendo

issued on January 19, 2006.

      In August 2006, we issued our opinion in Heemstra. This opinion

overruled a long line of cases, starting with Beeman. 2                    Heemstra, 721

N.W.2d at 558. Heemstra held that if an act causing willful injury is the

same act that causes a victim’s death, the two crimes merge and the act

causing willful injury cannot be used as the predicate felony under the

      2Beeman’s   progeny, all of which we overruled in Heemstra, include State v.
Anderson, 517 N.W.2d 208, 214 (Iowa 1994); State v. Rhomberg, 516 N.W.2d 803, 805
(Iowa 1994); State v. Ragland, 420 N.W.2d at 791, 793; and State v. Mayberry, 411
N.W.2d 677, 682–83 (Iowa 1987).
                                    6

felony-murder rule.    Id.   Our opinion in Heemstra stated that the

decision would be applicable only to the present case and to cases not

finally resolved on direct appeal. Id. As previously stated, if Heesmtra

had been controlling authority at the time of Nguyen’s conviction rather

than Beeman, it would have eliminated the felony-murder theory of first-

degree murder as a viable theory on which Nguyen could be convicted.

      On April 2, 2009, Nguyen filed pro se this second application for

postconviction relief. On the same day, he filed a pro se brief in support

of his application. On April 17, we decided Goosman, which held that

Heemstra’s nonretroactivity does not violate the federal Due Process

Clause.   764 N.W.2d at 545.      On March 19, 2010, court-appointed

counsel filed a motion to withdraw on the basis that she found no legal

grounds to proceed after the Goosman decision.         The district court

granted the motion to withdraw and appointed substitute counsel to

represent Nguyen in his postconviction relief action. Nguyen’s substitute

counsel also moved to withdraw on the same grounds, but the district

court denied the motion.

      On October 6, the State moved for summary disposition. The State

noted that procedendo in the first postconviction relief action issued

more than three years before Nguyen filed his second postconviction

relief action. Therefore, the State argued, the action was barred by the

statute of limitations. Nguyen filed a resistance, arguing that the action

was not barred by the statute of limitations because it was based on the

Heemstra decision and therefore fell within the exception for “a ground of

fact or law that could not have been raised within the applicable time

period.” Iowa Code § 822.3 (2009). Nguyen acknowledged that Goosman

foreclosed an argument under the federal Due Process Clause. However,

Nguyen argued that retroactivity was required under the federal Equal
                                      7

Protection Clause and under the due process, separation of powers, and

equal protection clauses of the Iowa Constitution.           None of these

arguments were raised or decided in Goosman. See 764 N.W.2d at 545.

      The district court granted the State’s motion and Nguyen appealed.

We retained Nguyen’s appeal and reversed the district court’s dismissal

of Nguyen’s postconviction relief application on statute of limitation

grounds.    Nguyen v. State, 829 N.W.2d 183, 189 (Iowa 2013).            We

determined that Nguyen’s postconviction relief application fell within the

exception contained in Iowa Code section 822.3 because Nguyen could

not have argued for the retroactive application of Heemstra until after

Heemstra had been decided.       Id. at 188.      Since Nguyen had filed his

application for postconviction relief within three years, his claims as to

retroactivity were not time-barred.       Id.   We remanded the case to the

district court to hear the merits of Nguyen’s arguments that Heemstra

must be applied retroactively under the due process, separation of

powers, and equal protection clauses of the Iowa Constitution or the

Equal Protection Clause of the United States Constitution. Id. at 189.

Procedendo issued on April 18.

      The district court appointed new counsel to represent Nguyen and

ordered Nguyen’s postconviction relief case be consolidated with two

other applicants who were also pursuing the retroactive application of

Heemstra.   Nguyen, along with Tony Sihavong and Thanh Dao, filed a

consolidated trial brief. They argued that if the rule in Heemstra applied,

each applicant would be entitled to a new trial.        Further, they argued

retroactive application of Heemstra was required under the constitutional

theories we identified in Nguyen’s appeal. See id. The district court held

a joint postconviction relief trial for Nguyen, Dao, and Sihavong.      The

district court denied all three claims for postconviction relief.   It ruled
                                        8

that the claims of Dao and Shihavong were procedurally barred. It also

considered all of the constitutional claims raised by Nguyen and held the

nonretroactivity of Heemstra was not unconstitutional under any of the

theories raised.

      Nguyen filed a notice of appeal.      He appealed each ruling of the

district court on the constitutional challenges and for the first time

raised an ineffective-assistance-of-counsel claim for the failure of

postconviction counsel to argue for the retroactive application of

Heemstra     on    nonconstitutional,   common   law   grounds.      Nguyen

requested that the merits of his nonconstitutional, common law claim be

considered under the ineffective-assistance-of-postconviction-counsel

framework.

      II. Standard of Review.

      “Generally, an appeal from a denial of an application for

postconviction relief is reviewed for correction of errors at law.” Perez v.

State, 816 N.W.2d 354, 356 (Iowa 2012) (quoting Goosman, 764 N.W.2d

at 541).   However, “[u]nder both the State and Federal Constitutions,

ineffective-assistance-of-counsel claims are reviewed de novo.” Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). We review these claims de

novo because they are based on the constitutional guarantees of the

effective assistance of counsel found in the Sixth Amendment of the U.S.

Constitution and article I, section 10 of the Iowa Constitution. See State

v. McNeal, 867 N.W.2d 91, 99 & n.1 (Iowa 2015).

      Ineffective-assistance-of-counsel     claims   are   not    bound   by

traditional rules of error preservation.    State v. Ondayog, 722 N.W.2d

778, 784 (Iowa 2006). “To the extent error is not preserved on an issue,

any objections must be raised within an ineffective-assistance-of-counsel

framework.” State v. Ambrose, 861 N.W.2d 550, 555 (Iowa 2015).
                                      9

      III. Analysis.

      In pertinent part, the Iowa Code in force at the time of Nguyen’s

crime defined first-degree murder as a murder that occurs when a

person “willfully, deliberately, and with premeditation kills another

person” or when a person “kills another person while participating in a

forcible felony.” Iowa Code § 707.2 (1997).

      When Nguyen was convicted, Beeman and its progeny were

controlling law.   In Beeman, the court held that Iowa’s first-degree

murder statute made willful injury a proper predicate felony for a felony-

murder instruction. 315 N.W.2d at 776. We concluded the legislature

neither intended for the felonies to merge nor required an independent

felony for the felony-murder rule to apply. Id. at 777. Under the Beeman

line of cases, it was proper for a jury to be instructed on felony murder

even when the act that constituted the underlying felony was also the

same act that caused the victim’s death. See id.

      We overruled Beeman in Heemstra.             721 N.W.2d at 558.       We

adopted the merger doctrine for felony murder and held “if the act

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

former is merged into the murder and therefore cannot serve as the

predicate felony for felony-murder purposes.” Id. In Heemstra, we also

stated that the rule announced in the case would only be applicable to

“those cases not finally resolved on direct appeal in which the issue has

been raised in the district court.”       Id.   Three years later, we held in

Goosman that the nonretroactivity of Heemstra did not violate federal due

process.    764    N.W.2d   at   545.           Nguyen   now   challenges   the

nonretroactivity of Heemstra under the due process, separation of

powers, and equal protection clauses of the Iowa Constitution and the

Equal Protection Clause of the United States Constitution. Alternatively,
                                       10

Nguyen argues that postconviction counsel were ineffective for failing to

additionally   urge    the     retroactive   application    of    Heemstra     on

nonconstitutional, common law grounds.

       Our doctrine of constitutional avoidance instructs us that we

should “steer clear of ‘constitutional shoals’ when possible.”           State v.

Iowa Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014). Therefore, we will analyze

whether postconviction counsel were ineffective before determining

whether we need to address the constitutional arguments.

       A. Ineffective Assistance of Postconviction Counsel.              Nguyen

claims his postconviction counsel were ineffective for failing to pursue

Heemstra retroactivity on nonconstitutional, common law grounds.

       1. Statute of limitations.       The State argues that Nguyen’s

ineffective-assistance-of-counsel claim is time-barred by Iowa Code

section 822.3, which covers the statute of limitations for postconviction

relief actions. In relevant part, this section states:

       [A]pplications 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. However, this limitation
       does not apply to a ground of fact or law that could not have been
       raised within the applicable time period.

Iowa   Code    §   822.3     (2009).    Nguyen’s    current      application   for

postconviction relief was filed on April 2, 2009. It is not clear at what

point the State alleges the statute of limitations began running on

Nguyen’s ineffective-assistance-of-counsel claim.          However, it appears

the State argues that the limitation period began to run at the time

counsel was allegedly ineffective—when counsel failed to raise the issue

of common law retroactivity.

       We find that the claim is not time-barred. In his April 2009 pro se

brief filed in support of his second application for postconviction relief,
                                        11

Nguyen clearly asserted that Heemstra should be applied retroactively to

his case, thereby entitling him to a new trial.         While not specifically

referring   to     it     as    such,        Nguyen   also   discusses    the

Teague/Bousley/Schriro—i.e., common law—framework for evaluating

the retroactive application of state decisions. See Schriro v. Summerlin,

542 U.S. 348, 351–52, 124 S. Ct. 2519, 2522–23, 159 L. Ed. 2d 442, 448

(2004); Bousley v. United States, 523 U.S. 614, 620–21, 118 S. Ct. 1604,

1610, 140 L. Ed. 2d 828, 838–39 (1998); Teague v. Lane, 489 U.S. 288,

310, 109 S. Ct. 1060, 1075 103 L. Ed. 2d 334, 356 (1989). This brief put

the issue of common law retroactivity into play.

      After counsel was appointed, the district court granted summary

judgment to the State on all of the grounds alleged in the postconviction

relief application. Following an appeal, on March 22, 2013, this court

reversed the decision of the district court and remanded the case to

consider only the state and federal constitutional claims raised in

Nguyen’s 2009 postconviction relief application. This is the point in the

proceedings when the common law claim was lost to Nguyen because the

scope of the district court’s consideration of the postconviction relief

application on remand was limited by this court’s pronouncement. See

In re Marriage of Davis, 608 N.W.2d 766, 769 (Iowa 2000). Therefore, if

postconviction counsel intended to raise the common law retroactivity

argument, it would have been their duty to file a rule 6.1205 petition for

rehearing with this court asking for a modified disposition to permit

Nguyen to present his common law argument to the district court on

remand. Iowa R. App. P. 6.1205. The first time counsel could have been

ineffective was April 5, 2013, the day the deadline passed for a rule

6.1205 petition.        Nguyen raised his ineffective-assistance-of-counsel

claim on April 13, 2015, comfortably within the three-year statute of
                                      12

limitations.   Therefore, Nguyen’s allegation of ineffective assistance of

counsel is timely.

        2. Merits of ineffective-assistance-of-counsel claim.    “The right to

assistance of counsel under the Sixth Amendment to the United States

Constitution and article I, section 10 of the Iowa Constitution is the right

to ‘effective’ assistance of counsel.”      Ambrose, 861 N.W.2d at 556

(quoting State v. Fountain, 786 N.W.2d 260, 265 (Iowa 2010)). When we

evaluate ineffective-assistance-of-counsel claims, we apply a two-pronged

test.   State v. Gaskins, 866 N.W.2d 1, 5 (Iowa 2015).          We ask if trial

counsel breached an essential duty. Id. We also ask whether prejudice

resulted from said breach. Id. The defendant has the burden of proving

both elements by a preponderance of the evidence.                See State v.

Halverson, 857 N.W.2d 632, 635 (Iowa 2015).

        Under the first prong, when we decide whether counsel’s

performance was deficient, “we measure counsel’s performance against

the standard of a reasonably competent practitioner.” Dempsey v. State,

860 N.W.2d 860, 868 (Iowa 2015) (quoting State v. Clay, 824 N.W.2d

488, 495 (Iowa 2012)). “We assess counsel’s performance ‘objectively by

determining whether [it] was reasonable, under prevailing professional

norms, considering all the circumstances.’ ”      Id. (alteration in original)

(quoting State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010)).                It is

presumed that counsel acted competently, and therefore, the defendant

must overcome that presumption.         See Strickland v. Washington, 466

U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694–95 (1984).

        Because of the difficulties inherent in making the evaluation,
        a court must indulge a strong presumption that counsel’s
        conduct falls within the wide range of reasonable
        professional assistance; that is, the defendant must
        overcome the presumption that, under the circumstances,
                                     13
      the challenged action “might be considered sound trial
      strategy.”

Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164,

100 L. Ed. 83, 93 (1955)).     In this case, we must determine whether

Nguyen’s postconviction counsel failed to perform an essential duty by

not pursuing the nonconstitutional, common law retroactivity claim.

      We note that in his pro se brief, Nguyen raised both constitutional

and common law claims in support of his argument for the retroactive

application of Heemstra. We also note that we have not yet adopted the
federal per se framework Nguyen advances in his brief for evaluating the

retroactive effect of our own state cases.

      In 1965, the United States Supreme Court decided Linkletter v.

Walker, which adopted a practical balancing test that considered a

number of factors in determining whether a United States Supreme

Court case should be applied retroactively. 381 U.S. 618, 629, 85 S. Ct.

1731, 1738, 14 L. Ed. 2d 601, 608 (1965), abrogated by Griffith v.

Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). Soon

thereafter, we began using the same Linkletter balancing framework to

determine the retroactivity of our own state supreme court decisions.

See, e.g., Everett v. Brewer, 215 N.W.2d 244, 247–48 (Iowa 1974).

      Since our decision in Everett, the United States Supreme Court has

developed a different framework in analyzing retroactivity.     The Court

eventually stopped using the Linkletter balancing approach because of

difficulties in its application. See Teague, 489 U.S. at 302–05, 109 S. Ct.

at 1071–73, 103 L. Ed. 2d at 350–52. In a trilogy of cases, the Supreme

Court adopted a new, per se framework for evaluating the retroactivity of
                                           14

its own decisions to already-final cases. 3 See Schriro, 542 U.S. at 351–

52, 124 S. Ct. 2522–23, 159 L. Ed. 2d at 448; Bousley, 523 U.S. 620–21,

118 S. Ct. 1610, 140 L. Ed. 2d at 838–39; Teague, 489 U.S. at 310, 109

S. Ct. at 1075, 103 L. Ed. 2d at 356.                 As in Linkletter, this per se

approach was adopted to determine the retroactivity of already-final

United States Supreme Court cases. See, e.g., Teague, 489 U.S. at 310,

109 S. Ct. at 1075, 103 L. Ed. 2d at 355–56.                    This is the approach

Nguyen urges us to adopt and apply in determining the retroactive

application of our own state supreme court cases. 4

       Without expressly adopting the federal per se framework, we have

applied a similar per se framework to evaluate the retroactive effect of

United States Supreme Court cases.               See, e.g., State v. Ragland, 836

N.W.2d 107, 114 (Iowa 2013); Perez, 816 N.W.2d at 358–59; Goosman,


       3As  discussed in detail below, the United States Supreme Court has summarized
its per se approach since its decision in Schriro:
       [A]n old rule applies both on direct and collateral review, but a new rule
       is generally applicable only to cases that are still on direct review. A new
       rule applies retroactively in a collateral proceeding only if (1) the rule is
       substantive or (2) the rule is a “ ‘watershed rul[e] of criminal procedure’
       implicating the fundamental fairness and accuracy of the criminal
       proceeding.”
Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1180–81, 167 L. Ed. 2d 1, 10–
11 (2007) (second alteration in original) (citation omitted) (quoting Saffle v. Parks, 494
U.S. 484, 495, 110 S. Ct. 1257, 1264, 108 L. Ed. 2d 415, 429 (1990)).
       4Nguyen    has submitted additional authority on the federal approach to
retroactivity. See Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, ___ L. Ed. 2d
___ (2016). However, Montgomery does not assist us in deciding this case. In
Montgomery, the United States Supreme Court stated,
       The Court now holds that 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’s
       conclusion establishing the retroactivity of new substantive rules is best
       understood as resting upon constitutional premises.
Id. at ___, 136 S. Ct. at 729, ___ L. Ed. 2d at ___.     Heemstra did not create a new
substantive rule of constitutional dimension.
                                         15

764 N.W.2d at 540, 544–45; Morgan v. State, 469 N.W.2d 419, 422 (Iowa

1991).

      We likewise fully considered common law retroactivity in deciding

Heemstra.     Following our initial opinion in Heemstra, there were

concerns about the retroactive or prospective application of our ruling.

The State applied for rehearing and asked for guidance on the issue of

retroactivity. In the application for rehearing, the State argued that we

should only apply Heemstra prospectively.             The application, however,

noted that we had four options in determining the issue of retroactivity.

We   could    apply    full   retroactivity,      limited    retroactivity,   limited

prospectivity, or full prospectivity. This is because in nonconstitutional

cases, we have the ability to give a new rule only prospective application

when we overrule one of our own prior decisions. See State v. Robinson,

618 N.W.2d 306, 312 (Iowa 2000).

      At the time we determined that Heemstra would only apply

prospectively, we were aware of the possibility of the common law remedy

now advanced by Nguyen; however, we declined to adopt the per se

approach to our decision.       We relied on and considered the authority

presented within the petition for rehearing and decided under the

common law that Heemstra would have prospective application only. We

adhere to our decision in Heemstra and see no legitimate reason to

change it.    Bierman v. Weier, 826 N.W.2d 436, 459 (Iowa 2013) (noting

that precedent should not be set aside lightly because of the importance

of stare decisis for stability under the law).              Since the common law

application   of   retroactivity   was    fully    contemplated      in   Heemstra,

postconviction counsel had no duty to pursue a meritless claim.

Halverson, 857 N.W.2d at 635.
                                    16

      Additionally, in 2013, we remanded Nguyen’s case to specifically

address the question of “whether retroactive application of Heemstra is

required by the equal protection, due process, and separation of powers

clauses of the Iowa Constitution, or the Equal Protection Clause of the

United States Constitution.” Nguyen, 829 N.W.2d at 189. When a case

is remanded for a special purpose, “the district court upon such remand

is limited to do the special thing authorized by the appellate court in its

opinion and nothing else.”    Davis, 608 N.W.2d at 769.         Because the

district court was limited to hear only the constitutional claims on

remand, counsel cannot be ineffective for failing to raise common law

grounds for relief. A reasonable attorney faced with such a remand order

would not be expected to raise alternate arguments.

      Because the test for ineffective assistance of counsel is a two-

pronged test, a defendant must show both prongs have been met.

Dempsey, 860 N.W.2d at 868. If the defendant fails “to establish either

of these elements, we need not address the remaining element.”          Id.

Since we conclude that counsel did not fail to perform an essential duty,

we need not address the prejudice prong of the ineffective-assistance-of-

counsel analysis. Because we conclude that postconviction counsel were

not ineffective, we proceed to review Nguyen’s constitutional claims.

      B. Constitutional      Claims.       Nguyen     alleges    that   the

nonretroactivity of Heemstra violates the due process, separation of

powers, and equal protection clauses of the Iowa Constitution and the

Equal Protection Clause of the United States Constitution. We address

each in turn.

      1. Due process clause of the Iowa Constitution.     In Goosman, we

held that the Due Process Clause of the United States Constitution does

not require the retroactive application of Heemstra to individuals whose
                                     17

direct appeals were final prior to the decision. 764 N.W.2d at 545. We

found that the decision in Heemstra was substantive rather than

procedural and considered two United States Supreme Court decisions

that addressed the retroactive application of state supreme court

decisions affecting substantive criminal law. Id. at 542–43; see Bunkley

v. Florida, 538 U.S. 835, 840 123 S. Ct. 2020, 2023, 155 L. Ed. 2d 1046,

1051 (2003); Fiore v. White, 531 U.S. 225, 227–28, 121 S. Ct. 712, 714

148 L. Ed. 2d 629, 633 (2001). Based on those two cases, we noted that

federal due process only requires retroactive application of clarifications

to existing substantive law, not changes to substantive law:

              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 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.

Goosman, 764 N.W. 2d at 544.

       Because we determined that the ruling in Heemstra constituted a
change in the law rather than a clarification, we held that federal due

process does not require retroactive application of Heemstra to already-

final direct appeals. Id. at 545. Our analysis in Goosman focused solely

on the application of federal due process to retroactivity but never

reached an independent analysis of the state due process clause.          We

now turn our analysis to the Iowa Constitution.

       The Iowa Constitution provides that “no person shall be deprived of

life, liberty, or property, without due process of law.” Iowa Const. art. I,

§ 9.   This court has generally considered the federal and state due
                                         18

process clauses to be “identical in scope, import[,] and purpose.” War

Eagle Vill. Apartments v. Plummer, 775 N.W.2d 714, 719 (Iowa 2009)

(quoting State v. Bower, 725 N.W.2d 435, 441 (Iowa 2006)). However, we

note that we “jealously guard our right and duty to differ in appropriate

cases.” State v. Short, 851 N.W.2d 474, 513 (Iowa 2014) (quoting State v.

Cline, 617 N.W.2d 277, 285 (Iowa 2000)). “Even in these cases in which

no substantive distinction had been made between state and federal

constitutional provisions, we reserve the right to apply the principles

differently   under   the    state   constitution   compared     to   its   federal

counterpart.”    Gaskins, 866 N.W.2d at 6 (quoting King v. State, 797

N.W.2d 565, 571 (Iowa 2011)). We are free to interpret our constitution

more    stringently   than    its    federal   counterpart,   providing     greater

protection for our citizens’ constitutional rights. See, e.g., id. at 13–14;

Iowa Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 4–5, 16

(Iowa 2004). However, “our independent authority to construe the Iowa

Constitution does not mean that we generally refuse to follow the United

States Supreme Court decisions.” Short, 851 N.W.2d at 490.

       Nguyen argues that we should exercise our discretion to interpret

our state due process clause differently than the federal Due Process

Clause and urges us to provide greater protections for citizens under the

Iowa Constitution. The State responds that this court should utilize the

same analysis under our state due process clause as we did for the

federal Due Process Clause in Goosman. In support of its argument for

analyzing the state due process clause in an identical manner, the State

argues there is a presumption in favor of upholding lawfully-obtained

convictions, citing State v. Thompson. 856 N.W.2d 915, 920 (Iowa 2014)

(noting that the principle of stare decisis respects prior precedent and

does not require the court to overturn a case because it may have
                                    19

reached a different outcome).       The State also raises public policy

considerations if the court were to depart from the federal analysis. The

State cautions that there are practical concerns with ordering a new trial

for a murder that occurred seventeen years ago—fading memories,

unavailable witnesses, and renewed trauma for the victim’s family.

      However, because Nguyen’s case falls squarely within the class of

cases for which the federal courts have decided retroactivity is not

required under due process, we do not find a compelling reason to depart

from the federal analysis we used in Goosman. Nor has Nguyen offered

an alternative framework that we find sufficiently compelling to justify a

departure from the federal analysis.     See Hensler v. City of Davenport,

790 N.W.2d 569, 579 & n.1 (Iowa 2010) (noting that even when a party

does advance a standard for interpreting the Iowa Constitution

differently, we may still interpret it using the federal analysis if we find

that analysis more compelling). We therefore hold that under Iowa’s due

process clause, the Iowa Constitution does not require the retroactive

application of Heemstra to individuals whose direct appeals were final

prior to the Heemstra decision.

      2. Iowa separation of powers clause.         The Iowa Constitution

provides,

      The powers of the government of Iowa shall be divided into
      three separate departments—the legislative, the executive,
      and the judicial: and no person charged with the exercise of
      powers properly belonging to one of these departments shall
      exercise any function appertaining to either of the others,
      except in cases hereinafter expressly directed or permitted.

Iowa Const. art. III, § 1.
      Nguyen argues that the Beeman decision that allowed defendants

in Nguyen’s situation to be convicted of first-degree murder violated the

separation of powers doctrine of the Iowa Constitution. Under Beeman
                                    20

and its progeny, Nguyen and others like him were convicted of first-

degree murder under the felony-murder doctrine when the act causing

willful injury was the same act causing the victim’s death. See Beeman,

315 N.W.2d at 776. In Heemstra, we overruled the Beeman line of cases

and adopted the merger doctrine. Heemstra, 721 N.W.2d at 558.

      Nguyen correctly asserts that defining crimes is a legislative

function. He argues that the Beeman decision allowed defendants like

himself to be convicted of first-degree murder for conduct the legislature

did not intend to constitute that offense—namely, willful injury that was

the same act that caused the victim’s death. He further contends that

due to our decision in Heemstra, the Beeman decision was a judicial

abrogation of the legislature’s definition of first-degree murder, which

violated the separation of powers doctrine.

      The State responds that this is a “chicken and egg” argument and

that it could be argued that either Heemstra or Beeman amounted to a

violation of the separation of powers doctrine. However, the State asserts

that rather than a violation of the separation of powers, Beeman was an

attempt to interpret the law.         Although we later changed our

interpretation of the law in Heemstra, the State responds that

interpretational evolution happens often in the law.

      Further, we addressed this argument in our Heemstra opinion.

First, we noted that

      nothing in any of the statutes . . . suggests that the
      legislature had any intent to abolish the principle of merger
      under the circumstances of this case. Furthermore, we
      should not defer to the legislature for a signal for us to adopt
      a legal principle that is the responsibility of the court and
      within the power of the court to apply, based on legal
      precedent, common sense, and fairness.

Id.
                                    21

      We also stated that “[t]he legislature has never considered the

issue of whether, when the act causing willful injury is the same as that

causing death, the two acts should be deemed merged.”          Id. at 557.

Because of this, we determined that we “should not attribute to the

legislature an intent to ‘create[] an ever-expanding felony murder rule’ by

characterizing every willful injury as a forcible felony for felony-murder

purposes.” Id. at 558 (alteration in original) (quoting 4 Robert R. Rigg,

Iowa Practice Series: Criminal Law § 3:16 (2006)).

      In Heemstra, we did not see our decision as encroaching on the

legislative function in violation of the separation of powers. Because we

effectively rejected this same argument in Heemstra, we now also reject

the argument as applied to Beeman. In neither Heemstra nor Beeman

did we encroach on the legislative branch.           Rather, we properly

performed our function in interpreting the law by considering the

legislative intent behind the first-degree murder statute and the felony-

murder doctrine.

      3. Equal protection claims.   Both the Fourteenth Amendment to

the United States Constitution and article I, section 6 of the Iowa

Constitution provide all citizens equal protection under the law.     U.S.
Const. amend. XIV; Iowa Const. art. I, § 6. This requires that “similarly

situated persons be treated alike under the law.” Jud. Branch v. Iowa

Dist. Ct., 800 N.W.2d 569, 578–79 (Iowa 2011) (quoting In re Det. of

Williams, 628 N.W.2d 447, 452 (Iowa 2001)); see also City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed.

2d 313, 320 (1985).     More precisely, “the equal protection guarantee

requires that laws treat all those who are similarly situated with respect

to the purposes of the law alike.” Varnum v. Brien, 763 N.W.2d 862, 883

(Iowa 2009). Although we have “generally applied the same analysis to
                                         22

federal and state equal protection claims, this court has not foreclosed

the possibility that there may be situations where differences in the

scope, import, or purpose of the two provisions warrant divergent

analyses.”   In re Det. of Hennings, 744 N.W.2d 333, 338 (Iowa 2008)

(quoting Racing Ass’n of Cent. Iowa, 675 N.W.2d at 5). Generally, when

the parties have not argued that our analysis under the Iowa

Constitution    should   differ   from    our analysis   under the   Federal

Constitution, we decline to apply divergent analyses. See, e.g., State v.

Wade, 757 N.W.2d 618, 624 (Iowa 2008).           However, Nguyen requests

that based on the distinction between direct review and collateral review

applications, we should provide greater protection under the Iowa

Constitution.

      The Supreme Court has clearly stated that in situations such as

these, it does not violate the federal constitution for states to choose to

apply the holding of a case prospectively rather than retroactively. See

Wainwright v. Stone, 414 U.S. 21, 23–24, 94 S. Ct. 190, 193, 38

L. Ed. 2d 179, 182 (1973); see also Hill v. Roberts, 793 F. Supp. 1044,

1045 (D. Kan. 1992) (“The decision of a state court to make a ruling

retroactive or prospective raises no constitutional issue.”); Northrop v.

Alexander, 642 F. Supp. 324, 327 (N.D. Cal. 1986) (“The retroactivity of a

state change of law is a state question and ‘the federal constitution has

no voice upon the subject.’ ”) (quoting Great N. Ry. Co. v. Sunburst Oil &

Ref. Co., 287 U.S. 358, 364, 53 S. Ct. 145, 148, 77 L. Ed. 360, 366

(1932)).

      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 backward. It may say that
      decisions of its highest court, though later overruled, are law
      none the less for intermediate transactions.
                                     23

Wainwright, 414 U.S. at 23–24, 94 S. Ct. at 193, 38 L. Ed. 2d at 182

(quoting Great N. Ry., 287 U.S. at 364, 53 S. Ct. at 148, 77 L. Ed. at 366.

Thus, we reject Nguyen’s assertion that our prospective-only application

of Heemstra violates the federal Equal Protection Clause.

       The first step in our equal protection analysis under the Iowa

Constitution is to determine whether there is a distinction made between

similarly situated individuals. See Varnum, 763 N.W.2d at 882.

       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 under a statute is permitted under the
       equal protection clause.

Id.   In Varnum, we noted that it is sometimes difficult to apply this

threshold test and that we sometimes have “directly or indirectly infused

[our] analysis with principles traditionally applied in the complete equal

protection analysis.” Id. at 884 n.9. We have attributed the difficulty in

applying the threshold test to the “inescapable relationship between the
threshold test and the ultimate scrutiny of the . . . basis for the

classification.” State v. Dudley, 766 N.W.2d 606, 616 (Iowa 2009).

       The State argues that Heemstra created two different classes of

defendants: defendants whose convictions were final before the decision

and defendants whose convictions became final after the decision. The

State asserts that a person who was convicted before Heemstra is not

similarly situated to a person charged with the same crimes after

Heemstra changed the law.

       In Everett, this court heard a similar—though not identical—

argument by a defendant.      215 N.W.2d at 245–46.       In that case, the

defendant was convicted of larceny of a motor vehicle. Id. at 245. After
                                   24

his conviction became final, the court heard two cases that changed the

law. Id. at 246. Had the defendant challenged his conviction after these

cases rather than before, his conviction would have been reversed. Id.

Among other claims, the defendant challenged the difference between

those whose convictions were final and those whose convictions were not

yet final under the equal protection clause of the Iowa Constitution. Id.

We held that the defendant was not denied equal protection of the laws

under the Iowa Constitution because we found “there is a rational basis

for classifying appellants in accordance with whether their claim

previously has been fully considered and adjudicated.”       Id. at 247.

Because it is consistent with our previous cases to find that the

distinction between direct review and collateral review applications does

not violate the equal protection clause of the Iowa Constitution, we

decline to adopt a more restrictive standard than that of the clause’s

federal counterpart.

      We agree with the State that defendants whose convictions became

final before the law changed in Heemstra are not similarly situated to

defendants charged after Heemstra.      Nguyen was not denied equal

protection of the laws under the Iowa Constitution.

      IV. Conclusion.

      For the reasons set forth above, we conclude that Nguyen’s

postconviction counsel were not ineffective for failing to pursue a

nonconstitutional, common law retroactivity argument.           We also

conclude that the nonretroactive application of Heemstra does not violate

the due process, separation of powers, or equal protection clauses of the

Iowa Constitution or the Equal Protection Clause of the United States

Constitution.

      DISTRICT COURT JUDGMENT AFFIRMED.
