IN THE COURT OF APPEALS OF IOWA No. 19

- 1179 Filed April 29, 2020

MICHAEL B. WEATHERSPOON , Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

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

Michael Weatherspoon appeals from the summary dismissal of his fifth postconviction

- relief application. AFFIRMED.

Shawn Smith of The Smith Law Firm, PC , Ames , for appellant. Thomas J. Miller, Attorney General, and Kyle Hanson , Assistant Attorney General, for appellee Stat e.

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

VAITHESWARAN , Presiding Judge
. A jury found Michael Weatherspoon guilty of first

- degree murder in connection with a stabbing in 1998. This court affirmed his judgment and
sentence

. See State v

. Weatherspoon , No. 98

- 2214, 2000 WL 328056, at *3 (Iowa Ct. App. Mar. 29, 2000)

. We also affirmed the denial of several postconviction

relief applications. See Weatherspoon v

. State , 16

- 0115, 2016 WL 5408155 , at *2 (Iowa Ct. App. Sept. 28, 2016) ; Weatherspoon v

. State , No. 13

- 0094, 2014 WL 250243, at * 2 (Iowa Ct. App. Jan. 23, 2014) ; Weatherspoon v

. State , No. 03

- 0498, 2005 WL 72388 2 , at *2 (Iowa Ct. App. Mar. 31, 2005)

. This is an appeal from the summary dismissal of Weatherspoon ’s fifth postco nviction

- relief application. Weatherspoon alleged in part that he “was denied a jury that represented a fair cross

- section of the community” and the supreme c ourt’s recent opinion in State v. Plai

n , 898 N.W.2d 801, 829 (Iowa 2017 ) , should afford him relief. 1 The State responded with a motion to dismiss, assert ing the three

- year statute of limitations generally applicable to postconviction

- relief applications barred Weatherspoon’s claim

. See Iowa Code § 822.3 (2017) . Weatherspoon countered that the Plain issue fell within an exception to the three

- year time bar for a ground

1 In Plain , the court applied the second prong of what has come to be known as the Duren test governing fair cross

- section challenges. 898 N.W.2d at 827; se e Duren v

. Missouri

, 439 U.S. 357, 364 (1979 ) (requiring a showing “ that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community ” ). The court held “ the district court ma de an error of law in concluding the absolute disparity test must be used in deciding whether the jury pool was drawn from a fair cross - section of the community

. ” Plain , 898 N.W.2d at 82 9 , holding modified by State v

. Lilly , 930 N.W.2d 293 (Iowa 2019)

. The court further held “ [p] arties challenging jury pools on the ground that they are unrepresentative may base their challenges on multiple analytical models. ” Id

. at 827.3

of law “that could not have been raised within the applicable time period.” Id. The district court concluded Weatherspoon’s claims were not time

- barred but the grounds of law on which he relied , including Plain , could not be “ applied retroactively ” to afford him any relief. On appeal, Weatherspoon argues “the district court committed an error of law” in summarily ruling that Plain did not apply retroactive ly. In his view, “the potential retroactivity of a statute or court decision is a disputed matter of fact until reported decisions of Iowa appellate courts conclude otherwise.” A reported decision of the Iowa Supreme Court recently concluded otherwise. In Thongvanh v. State , 938 N.W.2d 2, 12

– 14 (Iowa 2020), the court applied the federal framework for analyzing retroactivity set forth in Teague v. Lane , 489 U.S. 288 (1989). The court concluded , “ Plain ’s holding on the second prong of the Duren test constitutes a new rule under the Teague framework. However, because it is not a watershed rule of criminal procedure, it does not apply retroactively to cases on collateral review .” Thongvanh , 938 N.W.2d at 1 4

. The
court also concluded the Iowa Co nstitution did not require retroactive application of Plain “to convictions that were already final at the time” Plain was decided. Id. at 16. Thongvanh is controlling. The postconviction court did not err in summarily dismissing Weatherspoon’s postco nviction

- relief application. AFFIRMED.