### IN THE SUPREME COURT OF IOWA

No. 14

– 0401
Filed March 11 , 20 16

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 challenge s his murder conviction under the s tate and f ederal

c onstitutions 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 Than h 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 prope r 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,
t errorism could not have been used as the predicate felony, and the
felon y
- murder instruction could not have be en 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.

1 The 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
argue s that his conviction should be vacated and a ne w trial ordered , contending that the non retroactive application of Heemstra violates the due process , separation of powers , and equal protection clause s of the
Iowa C onstitution

. Nguyen also argue s it violates the Equal Protection
Clause of the United States Constitution

. For the first time, Nguyen
furth er 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 C onstitution , or the Equal Protection Clause of the United States
Con stitution.
I. Background Facts and Proceedings. In 1999, Phuoc Than h Nguyen was convicted of first

- degree
murder based on alternative theories that included a felony

- murder theory. On direct appeal, the court of appeals recount ed 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 d eparted in the vehicle. Later the same day, a car approached The Cloud and one or more of its occupants fired several gunshots into a4 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 de fendants were tried separat ely.

. . . .

. . . 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 resemblin g Nguy en 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 fro m 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 minute s before Nguyen left the scene. Nguyen was a lso 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 wh o fired a gun in his direction. Similarly, David Gray witnessed Dao shooting from th e 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 backse at 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 up on recovering h is 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 was5 being arrested for his role in The Cloud homicide, Nguyen
r eplied “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 ra ised several issues before the c ourt of a ppeals on direct appeal including insufficiency of the evidence, the
Confrontatio n C lause , and ineffective assistance of counsel. The court of appeals affirmed his conviction on March 13, 2002 , and p rocedendo
issued on May 30. In August 2002, Nguye n filed his first application for post conviction 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 Stat e appealed the
decis ion , and w e 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 t o s upport his claim s 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 issue d our opinion in Heemstra

. This opinion
overruled a long line of cases, starting with Beeman

. 2 Heemstra , 721
N.W.2d at 558. Heemstr a 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

2 Beeman ’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 Stat e 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, i f Heesmtra had been controlling authority at the time of Nguyen’s conviction rather
than Beeman , it would have eliminated th e 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 t h is second application for postconviction relief

. On the same day, he filed a pro se brief in support
of his a pplication

. 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 54 5

. 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

. T herefore , the State argued , the action was barred by the
statute of limitations

. Nguyen filed a resistance , ar guing 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 § 8 2 2.3 (200 9 )

. Nguyen acknowledged that Goosman foreclosed an argument under the federal D ue P rocess Clause

. However, Nguyen argued that retroactivity was required under the federal Equal7

Protection Clause and under the due process , separation of powers , and equal protection clauses of the Iowa C onstitution

. None of these arguments were raised or decided in Goosman

. See 764 N.W.2d at 54 5

. 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 C onstitution 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. The y argued that if th e rule in Heemstra applied, each applicant would be entitled to a new trial

. Further, the y argued retroactive application of Heemstra was required under the constitutional theories we identified in Nguyen’s appeal. See id. The district court he ld a joint postconviction relief trial for Nguyen, Dao, and Sihavong

. The
district court denied all three claims for postconviction relief

. It ruled8 that the claims of Dao and Shihavong were procedurally barred. It also
considered all of the constitutiona l claims raised by Nguyen and held the nonretroactivity of Heemstra was not un constitutional under any of the
theories raised

. Nguyen filed a notice of appeal

. He appealed each ruling of the
district court o n 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 non constitutional , common law grounds

. Nguyen requested that the merits of his non constitutional , common law claim be

c onsidered 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 erro rs 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 S tate and Federal C onstitutions , ineffective

- assistance

- of

- counsel claims are reviewed de novo. ” Enne n ga 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

. S ee S tate 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 is sue, any objections must be raised within an ineffective

- assistance

- of

- counsel
framework.” State v. Ambrose , 8 61 N.W.2d 550, 555 (Iowa 2015).9

III. Analysis. In pertinent part, the Iow a Code in force at the time of Nguyen’s
crime define d 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 convicte d, 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 n or require d 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 under lying 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. I n 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 non retroactivity of Heemstra did not violate federal due
process. 764 N.W.2d at 54 5

. Nguyen now challenges the

non retroactivity of Heemstra under the d ue process , s eparation of
p owers, and e qual p rotection c lause s of the Iowa C onstitution 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

non constitutional , common law grounds.
Our doctrine of constitutional avoidance instructs us that we should “steer clear of ‘constitutional shoals’ when possible.” State v.
Iowa Dist. C t

. , 843 N.W.2d 76, 85 (Iowa 2014). Therefore , we will analyze whether postconviction counsel were ineffective bef ore 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 non constitutional , common law grounds.
1. Statute of limitations. The State argues that Nguyen’s
ineffective

- assistance

- of

- counsel claim i s 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 o r, 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 fil ed 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 a rgues 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 o f his second application for postconviction relief,11 Nguyen clearly assert ed 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/B ousley/Sch r iro

— 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. C t

. 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 commo n 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 an d 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
I

n re Marriage of Davis , 608 N.W.2d 766, 769 (Iowa 2000). Therefore, if postconviction counsel intended to raise the common law retro activity 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 distri ct court on remand. Iowa R. App. P. 6.1205. Th e 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 of12

limitatio ns. 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, sect ion 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
b oth elements by a preponderance of the evidence. S ee S tate v. Halverson , 857 N.W.2d 632, 635 (Iowa 2015). Under the first prong, w hen we decide whether counsel’s performance was deficient, “we measure counsel’s performance against
the standard of a reason ably 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, un der 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 essenti al duty by not pursu ing the non constitutional, c ommon 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 appl ication 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, 173 8 , 14 L. Ed. 2d 601, 608 (1965) , abrogated by G riffith 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 C ourt has developed a different framework in analyzing retroactivity. The Court eventually stopped using the Linkletter balancing approach because of
difficulties i n 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 of14 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 83 8

– 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 ad opted 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 retroacti ve 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 ,

3 As 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 i s 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 fundament al 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)).

4 Nguyen 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 , p ostconviction counsel had no duty to pu rsue a meritless claim.
Halverson , 857 N.W.2d at 635

.16 Additionally, i n 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 18 9. 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 r aise alternate arguments.
B ecause 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 fail s “ 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 in effective

- assistance

- of

counsel analysis. Because we conclude that postconvicti on counsel were not ineffective, we proceed to review Nguyen’s const itutional claims

. B. C onstitutional 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 C onstitution. In Goosman , we held that the D ue P rocess C lause of the United States Constitution does not require the retroactive application of Heemstra to individuals whose17 direct appeals were final prior to the decision

. 764 N.W.2d at 54 5

. We
found that the decision in Heemst ra 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 applicatio n 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 appl ication 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 al ready

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 C on stitution.
The Iowa C onstitution 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 due18 process clauses to be “identica l 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 th e se 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 , 85 1 N.W.2d at 490. Nguyen argues that we should exercise our discretion to interpret our state due process clause differently than the federal D ue P rocess C lause 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 D ue P rocess C lause 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. T hompso n
. 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 have19 reached a different outcome)

. The State also raises public policy
considerations if the court were to d epart from the federal analysis. The State cautions that there are practical concerns with ordering a new trial
for a murder t hat occurred seventeen years ago

— fading memories, unavailable witnesses, and renewed trauma for the victim’s family. However, b ecause Nguyen’s case falls squar ely within the class of
cases for which the federal courts have decided retroactivity is not
requ ired 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 justif y 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 mor e compelling)

. We therefore hold that under Iowa’s due process clause, the Iowa C onstitution does not require the retroactive application of Heemstra to individuals whose direct appeals wer e final prior to the Heemstra decision

. 2. Iowa separation of powers clause. The Iowa C onstitution 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 e xpressly directed or permitted.

Iowa Const. art. III , § 1. Nguyen argues that the Beeman decision that allowed defendants in Nguyen’s si t uation to be convicted of first

- degree murder violated the separation of powers doctrine of the Iowa C onstitution. Under Beeman20 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
h imself 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 le gislature’s definition of first

- degree murder, which violated the separ ation 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 violati on 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 thi s argument in our Heemstra opinion. First, we noted that

n othing 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 le gislature 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 legislat ure 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))

. I n 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

. R ather , we properly performed our function in interpreting the law by considering the legi slative intent behind the first

- degre e 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.
C onst. amend. XIV; Iowa Const. a rt. I, § 6. This requires that “similarly situated persons be treated alike under the law.” Jud. Branch v. Iowa
Dist. C t. , 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 Li ving Ctr. , 473 U.S. 432, 439 , 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985). More precisely, “t he 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 to22 federal and state equal protection claims, this court has not foreclosed the possibility that there may be situations where differences in the scope, impo rt, or purpose of the two provisions warrant divergent analyses.” In re Det. o f Hennings , 7 4 4 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 analyse s
. See, e.g. , State v.
Wade , 757 N.W.2d 6 18, 624 (Iowa 2008). However, Nguyen requests
that based on the distinction be tween 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 hold ing 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,
10 45 (D. Kan. 1992) ( “ T he 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 subjec t.’ ”) (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 backw a rd. 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 und er the equa l protection clause.
Id. I n Varnum , we noted that it is sometimes difficult to apply this
threshold test and that we sometimes have “d irectly or indirectly infused [our] analysis with principles traditionally applied in the complete equal protection analy sis.” 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 , 7 66 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 24 5

– 4 6 . In that case, the defendant was convicted of larceny of a motor vehicle. Id. at 245. After24 his conviction became final, the court heard two cases that changed the
law. Id. at 246. Had the defendant challenged h is conviction after these

cases rather than before, his conviction would have be en 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 C onstitution. I d.
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 ad judicated.” 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 mo re 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 C onstitution.
IV. Conclusion
. For the reasons set forth above, we conclude that Nguyen’s postconviction counsel were not ineffec tive for failing to pursue a

non constitutional, 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 C onstitution or the Equal Protection Clause of t he United States
Constitution.
DISTRICT COURT JUDGMENT AFFIRMED.