                    IN THE COURT OF APPEALS OF IOWA

                                      No. 14-0499
                               Filed November 23, 2016


THANH DAO,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Rebecca Goodgame

Ebinger, Judge.



      The applicant appeals from the dismissal of his third application for

postconviction relief. AFFIRMED.




      Beau A. Bergmann of Bergmann Law Firm, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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DANILSON, Chief Judge.

         Thanh Dao appeals from the dismissal of his third application for

postconviction relief (PCR).         Because Dao’s claims recently have been

addressed and rejected by our supreme court in Nguyen v. State, 878 N.W.2d

744 (Iowa 2016), a case dealing with Dao’s co-defendant and raising the same

issues, we affirm.

                 “Generally, an appeal from a denial of an application for
         postconviction relief is reviewed for correction of errors at law.”
         However, “[u]nder both the State and Federal Constitutions,
         ineffective-assistance-of-counsel claims are reviewed de novo.”
         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.
                 Ineffective-assistance-of-counsel claims are not bound by
         traditional rules of error preservation. “To the extent error is not
         preserved on an issue, any objections must be raised within an
         ineffective-assistance-of-counsel framework.”

Nguyen, 878 N.W.2d at 750 (citations omitted).

         We summarized much of the procedural background in Dao v. State, No.

10-0844, 2013 WL 100145, at *1 (Iowa 2013):

                Thanh Dao was convicted of first-degree murder, in violation
         of Iowa Code section 707.2 (1997). The State alleged Dao and a
         co-defendant had participated in the drive-by fatal shooting of
         Monty Thomas. Dao was tried under alternative theories of (1)
         deliberation, premeditation, and specific intent to kill (section
         707.2(1)), and (2) felony murder (section 707.2(2)), with the
         underlying felony being terrorism.[1] He was sentenced to life
         imprisonment on April 23, 1999. The conviction was affirmed on
         direct appeal. State v. Dao, No. 99-0727, 2001 WL 246444 (Iowa
         Ct. App. Mar. 14, 2001). Procedendo was issued on June 28,
         2001.
                Dao filed an application for postconviction relief on
         November 15, 2001, claiming ineffective assistance from trial and
         appellate counsel. The district court denied his application. Dao’s

1
    Now titled “Intimidation with a dangerous weapon.” Iowa Code § 708.6 (2015).
                                         3


       appeal therefrom was dismissed as frivolous under Iowa Rule of
       Appellate Procedure 6.1005. Procedendo for that appeal was
       issued on July 21, 2006.
               Dao filed a second application for postconviction relief on
       April 14, 2009, again asserting ineffective assistance of trial
       counsel for failure to object to the felony-murder jury instructions
       and its submission as an alternative offense. His application is
       predicated on the Iowa Supreme Court’s ruling on August 25, 2006,
       in State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006), which
       overruled prior cases that had held an act constituting willful injury,
       causing the victim’s death, could serve as the predicate felony for
       felony-murder purposes. The court stated, “We now hold that, 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.”
       Heemstra, 721 N.W.2d at 558.
               The State filed a motion for summary disposition
       of Dao’s second application for postconviction relief upon the
       ground that it was untimely under Iowa Code section 822.3. The
       district court concluded Dao’s application had been filed more than
       three years after procedendo issued from his direct appeal, and he
       had not set forth a ground of fact or law that could not have been
       raised during the three-year time period. See Iowa Code § 822.3.
       Accordingly, the second application was dismissed as untimely.

We affirmed the dismissal of the second PCR application.            Dao, 2013 WL

100145, at *3. His PCR counsel failed to inform him of this court’s ruling, and

thus Dao was not able to seek further review.

       Dao filed this third PCR application on July 17, 2013, asserting his second

PCR counsel was ineffective in failing to inform him of his right to seek further

review, and additionally reasserting arguments that his PCR applications were

not time barred, the failure to give retroactive effect to Heemstra violates the

Equal Protection Clause of the United States Constitution, as well as the equal

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

Constitution.
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       Dao must prove both that postconviction counsel failed in an essential

duty and that prejudice resulted. Nguyen, 878 N.W.2d at 752. Even if Dao’s

claims were not time-barred and second PCR counsel failed in an essential duty,

the merits of the constitutional claims Dao propounds have been rejected by our

supreme court and thus he cannot prove prejudice.

       In Goosman v. State, 764 N.W.2d 539, 545 (Iowa 2009), our supreme

court held the Due Process Clause of the United States Constitution does not

require the retroactive application of Heemstra to individuals whose direct

appeals were final prior to the decision.

       Our supreme court also recently held “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.” Nguyen, 878 N.W.2d at 758-59. Because Dao’s

constitutional claims fail, we affirm.

       AFFIRMED.
