IN THE SUPREME COURT OF IOWA No. 18–0885
Filed January 24, 2020
KHAMFEUNG THONGVANH,
Appellant,
vs.
STATE OF IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Webster County, Adria A.D.
Kester, Judge.
An applicant for postconviction relief seeks further review of a court
of appeals decision affirming the dismissal of his application. AFFIRMED.
Jamie L. Hunter of Dickey & Campbell Law Firm, PLC, Des Moines, and Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, P.C.,
Storm Lake, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Darren Driscoll, County Attorney, and Brad M.
McIntyre, Assistant County Attorney, for appellee. 2
WIGGINS, Chief Justice.
An applicant sought postconviction relief (PCR), claiming a violation
of his constitutional right to an impartial jury drawn from a fair cross
section of the community under the United States and Iowa Constitutions.
He based his claim on State v. Plain, 898 N.W.2d 801 (Iowa 2017). The
district court dismissed his PCR application, and he appealed the order of
dismissal.
On appeal, we find Plain is a new ground of law allowing an applicant
to bring a PCR action after the three-year statute of limitations in Iowa
Code section 822.3 (2018) has run. Nonetheless, we affirm the order of
dismissal because we find our holding in Plain does not apply retroactively
to cases on collateral review.
I. Background Facts and Proceedings.
A jury convicted Khamfeung Thongvanh of first-degree murder in
1984. He appealed, and the court of appeals affirmed his conviction in
1986. State v. Thongvanh, 398 N.W.2d 182, 184, 189 (Iowa Ct. App. 1986)
(en banc). A few years later, he filed a PCR application, raising among
other things a fair-cross-section claim. Thongvanh v. State (Thongvanh II),
494 N.W.2d 679, 680, 683 (Iowa 1993). We affirmed the denial of that
application in 1993. Id. at 684.
On June 30, 2017, we decided Plain, which addressed the Duren
three-part test for evaluating Sixth Amendment fair-cross-section claims.
898 N.W.2d at 821–28; see Duren v. Missouri, 439 U.S. 357, 364, 367–68,
99 S. Ct. 664, 668, 670 (1979) (laying out test for evaluating Sixth
Amendment fair-cross-section claims). Under Duren, the criminal
defendant must first establish a prima facie fair-cross-section violation by
showing 3 (1) that the group alleged to be excluded is a ‘‘distinctive’’ group in the community; (2) 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; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Plain, 898 N.W.2d at 822 (quoting Duren, 439 U.S. at 364, 99 S. Ct. at 668). Then, if the defendant establishes a prima facie violation, “the
burden shifts to the state to justify the disproportionate representation by
proving ‘a significant state interest’ is ‘manifestly and primarily advanced’
by the causes of the disproportionate exclusion.” Id. (quoting Duren, 439
U.S. at 367–68, 99 S. Ct. at 670).
In Plain, we expressly overruled our precedent that had adopted the
absolute-disparity method as the exclusive indicator of representativeness
under the second prong of Duren. Id. at 826. That is, we held,
Parties challenging jury pools on the ground that they are unrepresentative may base their challenges on multiple analytical models [such as the absolute disparity, comparative disparity, and standard deviation tests]. The district court may use multiple analytical models in its analysis, taking into account the various strengths and weaknesses of each test when determining whether jury pools comport with the Sixth Amendment mandate of representativeness.
Id. at 827. 1 This past term we modified Plain’s holding in State v. Lilly, 930
N.W.2d 293, 302 (Iowa 2019). Lilly involved a fair-cross-section claim
raised under both the Sixth Amendment and article I, section 10, but the
defendant did not advance a distinct analysis under article I, section 10.
Id. at 300, 301. Accordingly, we applied the Sixth Amendment framework
1Plainalso addressed the Duren test’s third prong—systematic exclusion. Plain, 898 N.W.2d at 827–28. But because Thongvanh did not develop any new arguments regarding Plain’s holding on the third prong, that portion of Plain is not pertinent here. 4
under article I, section 10 but reserved the right to apply that framework
differently. Id. at 301.
We held that neither the absolute disparity method nor the
comparative-disparity method is appropriate to use when considering the
underrepresentation prong of a fair-cross-section claim. Id. at 302.
However, we acknowledged that the standard deviation method is
appropriate. Id. In State v. Veal and State v. Williams, two companion
cases to Lilly, we applied Lilly’s holding with modifications to Sixth
Amendment fair-cross-section claims and further discussed the
application of Plain to such claims. Veal, 930 N.W.2d 319, 328–30, 328
n.5 (Iowa 2019); Williams, 929 N.W.2d 621, 629–30, 629 n.1 (Iowa 2019).
On January 26, 2018, Thongvanh filed the instant PCR application.
Relying on our holding in Plain, he alleged he was denied his rights to due
process, equal protection, and a fair and impartial trial under the United
States and Iowa Constitutions. The State moved to dismiss Thongvanh’s
application, contending no new ground of law or fact obviated Iowa Code
section 822.3’s three-year statute of limitations and section 822.8 barred
Thongvanh’s fair-cross-section claim. The State did not argue or contend
that Thongvanh’s application should be dismissed because Plain is not
retroactive.
Thongvanh resisted, arguing section 822.3’s limitations period did
not apply because Plain constitutes a new ground of law that could not
have been raised within the applicable time period. Like the State, he did
not discuss Plain’s retroactivity.
During the hearing on the State’s motion to dismiss, the court
inquired whether Plain can apply retroactively to a fair-cross-section claim
made on collateral review and then ordered the attorneys to brief that issue
in more detail. In his posthearing brief, Thongvanh argued Plain created 5
a watershed rule of criminal procedure that implicates the fundamental
fairness of a trial and, thus, could apply retroactively to cases on collateral
review.
The district court disagreed with Thongvanh and granted the State’s
motion to dismiss. It first concluded that Plain is not retroactive because,
“[d]espite the imperative of fair jury representation in criminal matters, by
merely permitting challenges based on different statistical models, Plain
does not make a ‘watershed rule of criminal procedure.’ ”
The court also concluded that neither equal protection nor due
process require retroactive application of Plain to cases on collateral
review. It acknowledged Thongvanh’s contention that the Iowa
Constitution provides greater guarantees of equal protection than the
Federal Constitution but noted Thongvanh did not explain why the Iowa
provision should provide protection that is any different than that of the
federal provision.
Lastly, the court noted that Thongvanh had been unable to establish
the third prong of the Duren fair-cross-section test—systematic
exclusion—in his 1993 PCR case. It found he had not presented any new
ground of law or fact that would allow reconsideration of our conclusion
in Thongvanh’s 1993 appeal. Particularly, that he had not established the
underrepresentation of Asians on his jury panel was due to systematic
exclusion of Asians from jury duty.
Thongvanh appealed, and we transferred the case to the court of
appeals. The court of appeals agreed with the district court that
Thongvanh’s claim based on Plain’s holding on the second prong of the
Duren test was a new ground of law not previously available to Thongvanh
and, therefore, was not time-barred by section 822.3. It also agreed that
Plain is not retroactive because it did not create a watershed rule of 6
criminal procedure. Finally, it declined Thongvanh’s invitation to interpret
the Iowa Constitution to give broader retroactive application to new rules
of criminal procedure than under federal caselaw, reasoning our precedent
precluded it from doing so and it was not at liberty to ignore or modify that
precedent.
We granted Thongvanh’s petition for further review.
II. Scope and Standards of Review.
“Our review of the court’s ruling on the State’s statute-of-limitations
defense is for correction of errors of law.” Phuoc Thanh Nguyen v. State,
829 N.W.2d 183,186 (Iowa 2013) (quoting Harrington v. State, 659 N.W.2d
509, 519 (Iowa 2003)). We will affirm if substantial evidence supports the
district court’s findings of fact and the court correctly applied the law. Id.
Similarly, we review the district court’s ruling on the motion to
dismiss for correction of errors of law. Shumate v. Drake Univ., 846 N.W.2d
503, 507 (Iowa 2014). “For purposes of reviewing a ruling on a motion to
dismiss, we accept as true the petition’s well-pleaded factual allegations,
but not its legal conclusions.” Id. When the petition’s allegations are taken
as true yet fail to state a claim upon which relief may be granted, we will
affirm the district court’s granting of the motion to dismiss. Id.
III. Issues.
We address two issues in this appeal. First, whether Thongvanh’s
Plain claim is time-barred by section 822.3. Second, whether Plain can
apply retroactively to a case on collateral review.
IV. Whether Thongvanh’s Plain Claim Is Time-Barred by Iowa Code Section 822.3.
The State appears to challenge the district court’s conclusion that,
because Thongvanh filed his PCR application raising his Plain claim within
three years of Plain, his Plain claim is not time-barred by section 822.3. 7
Section 822.3 requires PCR applications “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. There
is an exception to that three-year statute of limitations for “a ground of
fact or law that could not have been raised within the applicable time
period.” Id.
Thongvanh contends that a challenge to a jury pool based on Plain
is a ground of law that could not have been raised before Plain was decided.
We agree.
When Thongvanh raised his fair-cross-section claim in his original
PCR application and we rejected that claim on appeal in 1993, the
absolute-disparity method was the exclusive test used in Iowa when
evaluating the second prong of the Duren test. See State v. Jones, 490
N.W.2d 787, 793 (Iowa 1992) (expressly rejecting reliance on the
comparative-disparity method and holding the absolute-disparity method
“is the appropriate method to be used”), overruled in part by Plain, 898
N.W.2d at 826; see also Plain, 898 N.W.2d at 825 (indicating Jones
resulted in the exclusive use of the absolute-disparity method);
Thongvanh II, 494 N.W.2d at 683–84 (finding criminal defense counsel was
not ineffective for failing to raise a fair-cross-section claim because the
results of the absolute-disparity method prevented the PCR applicant from
making a prima facie case of underrepresentation); State v. Huffaker, 493
N.W.2d 832, 833–34 (Iowa 1992) (rejecting the defendant’s fair-cross-
section claim after considering only the absolute disparity method).
Plain effected an unmistakable change in the law when it expressly
overruled Jones. Cf. Phuoc Thanh Nguyen, 829 N.W.2d at 188 (discussing
the felony-murder rule as law at the time of the defendant’s conviction and
our decision in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006) was not 8
“simply a ‘clarification of the law’ or ‘an application of preexisting law’ ”
but an express overruling of prior law (quoting Perez v. State, 829 N.W.2d
354, 360–61 (Iowa 2012))). Specifically, we stated in Plain,
Our decision to adopt absolute disparity as the exclusive test and to reject comparative disparity in Jones rested upon an error of law and on cases from other jurisdictions that have since been overruled or criticized. After surveying the various tests, and bearing in mind the practical problems associated with the use of the absolute disparity test in Iowa, we conclude it is no longer appropriate to rely exclusively upon the absolute disparity test as an indicator of representativeness. We therefore overrule Jones, 490 N.W.2d at 792–93.
898 N.W.2d at 826.
Plain’s overruling of Jones is distinguishable from a situation such
as the one in Perez, 816 N.W.2d 354. In Perez, we concluded the Supreme
Court’s holding in Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473,
1486 (2010)—that a criminal defendant has a Sixth Amendment right to
be advised by counsel of the risk of deportation before pleading guilty—
was not a new ground of law under section 822.3. Perez, 816 N.W.2d at
360. We found Perez could have raised such an argument before Padilla
was decided, even though at the time of Perez’s guilty plea our caselaw
imposed a different rule. Id. at 360–61. We explained that a case
challenging our precedent was pending at the time Perez’s conviction
became final and that while we did not overrule our precedent in that
pending case, we acknowledged there was some merit to the argument to
do so. Id. at 360. Additionally, we noted that at any time, the Supreme
Court could have overturned any of our precedents, which is what
eventually happened in Padilla. Id. Finally, we noted that shortly after we
declined to overrule our precedent, we amended Iowa Rule of Criminal
Procedure 2.8 to require defendants be informed that pleading guilty may
affect their immigration status under federal law. Id. 9
Unlike in Perez, we had not considered or espoused any
disagreement with Jones’s holding before Plain. Rather, we had reaffirmed
sole use of the absolute-disparity method. See Thongvanh II, 494 N.W.2d
at 683–84; Huffaker, 493 N.W.2d at 833–34; see also State v. Lambert, 501
N.W.2d 64, 68 (Iowa Ct. App. 1993) (utilizing the absolute-disparity
method without questioning our exclusive reliance on it).
Because we had clearly held to the contrary in Jones, between
1993—when procedendo issued following our rejection of Thongvanh’s
fair-cross-section claim in his original PCR application—and 1996—when
the three-year statute of limitations period ran—Thongvanh could not
have successfully argued that the jury pool in his criminal trial was not
drawn from a fair cross section of the community as demonstrated by
using any method other than absolute disparity as the indicator of
representativeness. See Phuoc Thanh Nguyen, 829 N.W.2d at 188 (stating
that the exception to section 822.3’s limitations period “must envision a
category of legal claims that were viewed as fruitless at the time but
became meritorious later on”). Thus, Thongvanh’s Plain claims are not
barred by section 822.3’s three-year statute of limitations.
V. Whether Plain Can Apply Retroactively to a Case on Collateral Review.
Thongvanh contends our holding in Plain applies retroactively to
cases on collateral review under the retroactivity analysis provided by the
United States Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S. Ct.
1060 (1989). Alternatively, he asks us to adopt a broader approach to
retroactivity under the Iowa Constitution’s due process and equal
protection clauses.
A. Retroactivity Under Teague. Teague and its progeny lay out
the framework for whether a new rule announced in a Supreme Court 10
opinion applies retroactively to cases on federal habeas review—what we
will refer to as the “Teague framework.” E.g., Danforth v. Minnesota, 552
U.S. 264, 266, 281–82, 128 S. Ct. 1029, 1032, 1042 (2008); Whorton v.
Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1180 (2007); Schriro v.
Summerlin, 542 U.S. 348, 351–52, 124 S. Ct. 2519, 2522–23 (2004);
Nguyen v. State (Nguyen II), 878 N.W.2d 744, 753 & n.3 (Iowa 2016).
Under this framework, a “new rule” includes one that “was not dictated by
precedent existing at the time the defendant’s conviction became final.”
Teague, 489 U.S. at 301, 109 S. Ct. at 1070 (emphasis omitted).
New substantive rules will generally apply retroactively. E.g.,
Schriro, 542 U.S. at 351, 124 S. Ct. at 2522. These are rules “that narrow
the scope of a criminal statute by interpreting its terms as well as
constitutional determinations that place particular conduct or persons
covered by the statute beyond the State’s power to punish.” Id. at 351–52,
124 S. Ct. at 2522 (citation omitted); accord Montgomery v. Louisiana, 577
U.S. ___, ___, 136 S. Ct. 718, 728 (2016) (“Substantive rules include ‘rules
forbidding criminal punishment of certain primary conduct,’ as well as
‘rules prohibiting a certain category of punishment for a class of
defendants because of their status or offense.’ ” (quoting Penry v. Lynaugh,
492 U.S. 302, 330, 109 S. Ct. 2934, 2953 (1989), abrogated on other
grounds by Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252
(2002))). They apply retroactively because they “necessarily carry a
significant risk that a defendant stands convicted of ‘an act that the law
does not make criminal’ or faces a punishment that the law cannot
impose.” Schriro, 542 U.S. at 352, 124 S. Ct. at 2522–23 (quoting Bousley
v. United States, 523 U.S. 614, 620, 118 S. Ct. 1604, 1610 (1998)). 2
2“Although Teague describes new substantive rules as an exception to the bar on
retroactive application of procedural rules, th[e] Court has recognized that substantive 11
Conversely, under the Teague framework, new rules of procedure
generally do not apply retroactively. E.g., Montgomery, 577 U.S. at ___,
136 S. Ct. at 728. The Court has explained that this is because their
connection to innocence is more attenuated:
New rules of procedure . . . do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.
Schriro, 542 U.S. at 352, 124 S. Ct. at 2523. Accordingly, it gives
retroactive effect to only new “ ‘watershed rules of criminal procedure’
implicating the fundamental fairness and accuracy of the criminal
proceeding.” Montgomery, 577 U.S. at ___, 136 S. Ct. at 728 (quoting
Schriro, 542 U.S. at 352, 124 S. Ct. at 2523). Watershed rules implicating
fundamental fairness are those
best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus—that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods.
Teague, 489 U.S. at 313–14, 109 S. Ct. at 1077 (quoting Rose v. Lundy, 455 U.S. 509, 544, 102 S. Ct. 1198, 1216–17 (1982) (Stevens, J.,
dissenting)). See generally Danforth, 552 U.S. at 271–73, 128 S. Ct. at
1036 (summarizing the development of under what grounds federal
habeas relief was available).
The Teague retroactivity framework resulted from the Court
interpreting the scope of the relief available under the federal habeas
statute. Danforth, 552 U.S. at 278–79, 128 S. Ct. at 1039–40. In other
rules ‘are more accurately characterized as . . . not subject to the bar.’ ” Montgomery, 577 U.S. at ___, 136 S. Ct. at 728 (second alteration in original) (emphasis added) (quoting Schriro, 542 U.S. at 352 n.4, 124 S. Ct. at 2522 n.4). 12
words, the Teague test indicates whether the federal habeas statute
requires that a new rule be given retroactive application to cases that were
already final when the new rule was announced. But that framework “does
not in any way limit the authority of a state court, when reviewing its own
state criminal convictions, to provide a remedy for a violation that is
deemed ‘nonretroactive’ under Teague.” Id. at 282, 128 S. Ct. at 1042.
We have applied the Teague framework when determining whether
we will retroactively apply Supreme Court holdings. See Nguyen II, 878
N.W.2d at 753; see also, e.g., Perez, 816 N.W.2d at 358–60 (using Teague
framework when considering whether the Court’s holding in Padilla, 559
U.S. 356, 130 S. Ct. 1473, applies retroactively); Bonilla v. State, 791
N.W.2d 697, 700–01 (Iowa 2010) (concluding the Court’s holding in
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010), applies
retroactively under the Teague framework); Morgan v. State, 469 N.W.2d
419, 422–25 (Iowa 1991) (applying Teague framework when considering
whether to retroactively apply the Court’s holding in Coy v. Iowa, 487 U.S.
1012, 108 S. Ct. 2798 (1988)); Brewer v. State, 444 N.W.2d 77, 81–82
(Iowa 1989) (relying on Teague framework to determine whether the
Court’s holding in Duren, 439 U.S. 357, 99 S. Ct. 664, should be given
retroactive effect to a case on collateral review). However, we have not yet
adopted that framework for evaluating the retroactive effect of our own
holdings. See Nguyen II, 878 N.W.2d at 753–54.
There can be little dispute that Plain announced a new rule under
the Teague framework as Plain’s holding on the second Duren prong “was
not dictated by precedent existing at the time [Thongvanh]’s [original
post]conviction[-relief judgment] became final.” Teague, 489 U.S. at 301,
109 S. Ct. at 1070 (emphasis omitted). Plain’s holding expressly departed
from the rule dictated by precedent at the time the judgment in 13
Thongvanh’s original PCR action became final. 3 Additionally, it would be
contradictory to conclude Plain announced a new ground of law under
section 822.3 while also concluding it did not announce a new rule—but
was merely an application of preexisting law—for Teague retroactivity
purposes. See Perez, 816 N.W.2d at 360.
On appeal, the court of appeals found that our holding in Brewer
foreclosed any relief for Thongvanh. In Brewer, we applied the Teague
framework and concluded that the new rule of criminal procedure from
the Court’s Duren case, i.e., a modification of the standard applied in fair-
cross-section challenges, would not be given retroactive effect to a case on
PCR. 444 N.W.2d at 80, 81–82. We found Duren did not create a
watershed rule of criminal procedure and relied on the following reasoning
from Teague:
Because the absence of a fair cross section on the jury venire does not undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction, we conclude that a rule requiring that petit juries be composed of a fair cross section of the community would not be a “bedrock procedural element” that would be retroactively applied under the second exception we have articulated.
Id. at 81–82 (quoting Teague, 489 U.S. at 315, 109 S. Ct. at 1078). The court of appeals, here, reasoned that because Duren’s new fair-cross-
3We acknowledge that Teague defined a new rule as one that “was not dictated by precedent existing at the time the defendant’s conviction became final.” 489 U.S. at 301, 109 S. Ct. at 1070 (emphasis added). Here, Thongvanh’s conviction became final in 1986, but the precedent we overruled in Plain—our holding in Jones that absolute disparity was the exclusive method for evaluating the second Duren prong—was not announced until 1992. Therefore, at the time Thongvanh’s conviction became final, no precedent dictated that absolute disparity was the exclusive method for evaluating the second Duren prong. However, the State makes no argument that Plain does not announce a new rule with respect to Thongvanh based on the law in effect at the time Thongvanh’s conviction became final. Accordingly, we assume without deciding that a new rule under the Teague framework can include one that was not dictated by precedent existing at the time the defendant or PCR applicant originally raised the legal challenge. 14
section rule was not retroactive in Brewer, Plain’s new fair-cross-section
rule could not be retroactive in Thongvanh’s collateral review case.
Under a straight application of the Teague framework, as we utilized
in Brewer, Plain’s holding would not qualify as a watershed rule. Nothing
in subsequent Supreme Court caselaw has directly rejected or abrogated
Teague’s explanation of why a violation of the right to a jury venire drawn
from a fair cross section (or a modification to the standard used to
determine if there was such a violation) does not undermine the
fundamental fairness of the trial or seriously diminish the likelihood of
obtaining an accurate conviction. See Teague, 489 U.S. at 315, 109 S. Ct.
at 1078).
The same analysis applies even if it were argued that Plain error
amounts to structural error for which no prejudice need be shown.
Structural errors are those “affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself.” Neder v.
United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999) (quoting Arizona
v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991)). “Such
errors ‘infect the entire trial process,’ and ‘necessarily render a trial
fundamentally unfair.’ ” Id. (first quoting Brecht v. Abrahamson, 507 U.S.
619, 630, 113 S. Ct. 1710, 1717 (1993); and then quoting Rose v. Clark,
478 U.S. 570, 577, 106 S. Ct. 3101, 3106 (1986)). In contrast, a trial error
is “error which occurred during the presentation of the case to the jury,
and which may therefore be quantitatively assessed in the context of other
evidence presented in order to determine whether its admission was
harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307–08,
111 S. Ct. at 1264. When there is structural error, “the criminal adversary
process itself [becomes] ‘presumptively unreliable.’ ” Lado v. State, 804
N.W.2d 248, 252 (Iowa 2011) (quoting United States v. Cronic, 466 U.S. 15
648, 659, 104 S. Ct. 2039, 2047 (1984)). See generally United States v.
Gonzalez-Lopez, 548 U.S. 140, 148–49, 126 S. Ct. 2557, 2563–64 (2006)
(dividing constitutional errors into trial errors, which are subject to
harmless-error review, and structural defects, which defy analysis under
the harmless error standard).
While neither we nor the Supreme Court has expressly weighed in
on whether a violation of the Court’s holding in Taylor—that defendants
have a Sixth Amendment right to a jury drawn from a fair cross section of
the community—or in Duren—establishing the test for a fair-cross-section
claim—qualifies as a structural error, one circuit court has. In United
States v. Rodriguez-Lara, the Ninth Circuit concluded, “The selection of a
grand or petit jury in violation of either the equal protection or the fair
cross-section guarantee is structural error.” 421 F.3d 932, 940 (9th Cir.
2005), overruled on other grounds by United States v. Hernandez-Estrada,
749 F.3d 1154, 1164 (9th Cir. 2014). The Ninth Circuit’s conclusion
accords with the well-established rule that unlawful discrimination in the
jury-selection process is structural error. See, e.g., Batson v. Kentucky,
476 U.S. 79, 87, 100, 106 S. Ct. 1712, 1718, 1725 (1986) (noting harms
of racial discrimination in jury selection and holding that a violation of its
holding required reversal of the conviction); Vasquez v. Hillery, 474 U.S.
254, 263, 106 S. Ct. 617, 623 (1986) (“[W]hen a petit jury has been
selected upon improper criteria or has been exposed to prejudicial
publicity, we have required reversal of the conviction because the effect of
the violation cannot be ascertained.”); Duren, 439 U.S. at 370, 99 S. Ct. at
671–72 (establishing fair-cross-section test and reversing without
engaging in a harmless-error or prejudice analysis); Taylor v. Louisiana,
419 U.S. 522, 537–38, 95 S. Ct. 692, 701–02 (1975) (holding categorically
excluding women from juries violates the Sixth Amendment’s fair-cross- 16
section requirement and reversing without engaging in a harmless-error
or prejudice analysis); Strauder v. West Virginia, 100 U.S. (10 Otto) 303,
305, 312 (1879) (invalidating a state statute that provided only white men
could serve as jurors and holding it was error to proceed to trial with such
a jury), abrogated on other grounds by Taylor, 419 U.S. at 536 n.19, 537,
95 S. Ct. at 701 & n.19.
However, even if a violation of the fair-cross-section right is
structural error, this does not mean that it affects the fundamental
fairness of the criminal trial or is “central to an accurate determination of
innocence or guilt.” Teague, 489 U.S. at 313, 109 S. Ct. at 1077; see
Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1908 (2017)
(“An error can count as structural even if the error does not lead to
fundamental unfairness in every case.”). As the Court explained in
Weaver, there are three general reasons for why a particular error is
determined to be structural: (1) “if the right at issue is not designed to
protect the defendant from erroneous conviction but instead protects some
other interest,” such as the defendant’s right to self-representation; (2) “if
the effects of the error are simply too hard to measure,” such as when a
defendant is denied the right to counsel of choice; and (3) “if the error
always results in fundamental unfairness,” for example, when an indigent
is denied the right to an attorney. 582 U.S. at ___, 137 S. Ct. at 1908.
Here, even if a violation of the right to a fair cross section is a
structural error, it would not be of the kind that would protect the
defendant from a fundamentally unfair trial. Likewise, a new rule
changing how a defendant can challenge a violation of the fair-cross-
section right would not implicate the fundamental fairness of the trial and
would, therefore, not qualify as a watershed rule. 17
Under the Teague framework, we conclude that 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. The
Teague framework does not permit Thongvanh to make a Plain claim on
PCR.
B. Retroactivity Under the Iowa Constitution’s Due Process and
Equal Protection Guarantees. Thongvanh asks us to adopt our own
framework for retroactivity under the Iowa Constitution’s due process and
equal protection guarantees that provide for broader retroactivity than the
Court’s Teague framework. 4 See Iowa Const. art. I, §§ 6, 9. Thongvanh
proposes that we use the retroactivity rule from Griffith v. Kentucky, 479
U.S. 314, 107 S. Ct. 708 (1987), as the baseline for our constitutional
retroactivity framework.
In Griffith, the Court held that
a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.
479 U.S. at 328, 107 S. Ct. at 716. At issue there was the retroactivity of
the holding in Batson, 476 U.S. 79, 106 S. Ct. 1712, to cases “pending on
4We reiterate, as discussed above, that the Court’s Teague framework is used to
determine whether the federal habeas statute allows a court to grant relief on collateral review based on a new rule. Danforth, 552 U.S. at 278, 128 S. Ct. at 1040. The Teague framework does not dictate when the relief based on a new rule is constitutionally required—at least not with respect to the watershed-rule exception. See Montgomery, 577 U.S. at ___, 136 S. Ct. at 729 (clarifying that Teague’s rule that new substantive rules apply retroactively “is best understood as resting upon constitutional premises” but also reserving the question of the constitutional status of Teague’s watershed-rules exception for another day). Accordingly, it is important to clarify that the Teague framework was not designed as the test for determining whether a constitutional guarantee—such as due process or equal protection—requires a new rule of criminal procedure apply retroactively to cases on collateral review. 18
direct state or federal review or not yet final when Batson was decided.”
Griffith, 479 U.S. at 316, 107 S. Ct. at 709. However, Thongvanh’s
criminal conviction and sentence became final long ago, and thus he would
not benefit from the Griffith holding.
In essence, Thongvanh is asking us to apply the same retroactivity
rule for cases that are not final at the time the new rule is announced to
cases that have become final at the time the new rule is announced. In
support of this request, he appears to argue that people whose convictions
have become final at the time the new rule is announced are similarly
situated to people whose convictions have not become final.
He notes that Plain and empirical evidence recognize that
underrepresentation of minorities in jury pools can affect trial outcomes.
See Plain, 898 N.W.2d at 826. He appears to argue that, therefore, any
person denied the application of Plain is similarly situated—regardless of
whether that person’s conviction had become final at the time Plain was
decided.
We are not persuaded by his argument. The Griffith Court expressly
acknowledged that in United States v. Johnson, 457 U.S. 537, 102 S. Ct.
2579 (1982), it “concluded that the retroactivity analysis for convictions
that have become final must be different from the analysis for convictions
that are not final at the time the new decision is issued.” Griffith, 479 U.S.
at 321–22, 107 S. Ct. at 712. And it noted that the Johnson Court largely
adopted the rationale for distinguishing between cases that had become
final and those that had not as explained in Justice Harlan’s separate
opinions in Desist v. United States, 394 U.S. 244, 256, 257–58, 89 S. Ct.
1030, 1038 (1969) (Harlan, J., dissenting), and Mackey v. United States,
401 U.S. 667, 679–81, 91 S. Ct. 1171, 1173–74 (1971) (Harlan, J.
concurring in the judgment). Griffith, 479 U.S. at 322, 107 S. Ct. at 712– 19
13. Thongvanh makes no attack on Justice Harlan’s rationale or the
Johnson Court’s decision to largely adopt that rationale. Thus, Thongvanh
does not explain why persons whose cases had become final are similarly
situated to persons whose cases had not become final.
We recognize that the composition of jury pools can have real-world
effects. That is why we changed the law in Plain. In fact, since 1984, when
Thongvanh was tried and convicted, Iowa’s criminal justice system has
evolved in many ways—hopefully for the better. We believe if Thongvanh
were tried today, thirty-six years later, he would receive better procedural
protections on the whole. But against this consideration, we have to weigh
the need for finality of judgments when the issue does not bear directly on
guilt or innocence and the impracticality of reconstructing events that
occurred between three and four decades ago. 5
We are not persuaded that either the Teague framework or the Iowa
Constitution’s due process and equal protection guarantees require Plain
to apply retroactively to convictions that were already final at the time we
decided Plain. The district court did not err in concluding Thongvanh
could not rely on Plain as the basis for his current PCR application.
5Another point to be noted is that Thongvanh, unlike Teague and Brewer, did not
raise any objection at trial to the composition of the jury pool or panel, even an objection under the then-existing law. See Thongvanh II, 494 N.W.2d at 683 (“Applicant maintains that he was denied his Sixth Amendment right to assistance of counsel because of trial counsel’s failure to object to the selection of the jury venire and petit jury.”); cf. Teague, 489 U.S. at 293, 109 S. Ct. at 1066 (noting that Teague moved twice for a mistrial); Brewer, 444 N.W.2d at 79 (noting that the alleged constitutional infirmities were “preserved at trial” and Brewer was seeking a “re-evaluation of his original claim that the statutory exclusion of persons aged sixty-five and over from his jury panel violated his sixth and fourteenth amendment rights to a fair and impartial jury”). We have no occasion to decide today how a ruling that Plain is retroactive would be applied to the case where the defendant did not make a contemporaneous objection. 20
VI. Disposition.
We conclude Plain’s holding on the second prong of the Duren test
constitutes a new ground of law under section 822.3. However, because
we find that the new law of criminal procedure announced in Plain does
not apply retroactively to cases on collateral review, we affirm the dismissal
of Thongvanh’s PCR application.
AFFIRMED.
All justices concur except McDonald, J., who takes no part.