IN THE SUPREME COURT OF IOWA

No. 14–0401

Filed March 11, 2016

PHUOC NGUYEN,

Appellant,

vs.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Polk County, 

Rebecca Goodgame Ebinger, Judge.

In this second application for postconviction relief, a defendant 

challenges his murder conviction under the state and federal 

constitutions and on state common law retroactivity grounds. DISTRICT 

COURT JUDGMENT AFFIRMED.

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

Assistant Appellate Defender, for appellant.

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

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

Gogerty, Assistant County Attorney, for appellee.
2

ZAGER, Justice.

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

murder. The jury was instructed on both the premeditation and felonymurder alternatives of first-degree murder. The underlying predicate 

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

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

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

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

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

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

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

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

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

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

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

convict Nguyen. In contemplation of our prerogative under the common 

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

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

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

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

nonretroactive application of Heemstra does not violate the federal Due 

Process Clause. Id.

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

referred to as intimidation with a dangerous weapon. Compare Iowa Code § 708.6 

(2015) with Iowa Code § 708.6 (1997). In a later case, this court applied the 

independent felony rule to the use of intimidation with a dangerous weapon (formerly 

terrorism) as the predicate felony in felony murder. State v. Millbrook, 788 N.W.2d 647, 

652–53 (Iowa 2010).

 
3

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

second application for postconviction relief. In this application, Nguyen 

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

contending that the nonretroactive application of Heemstra violates the 

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

Iowa Constitution. Nguyen also argues it violates the Equal Protection 

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

further argues on appeal his postconviction counsel were ineffective for 

failing to raise and argue for the retroactive application of Heemstra

under the common law.

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

postconviction counsel were not ineffective. We also conclude that the 

nonretroactivity of the rule expressed in Heemstra does not violate the 

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

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

Constitution.

I. Background Facts and Proceedings.

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

murder based on alternative theories that included a felony-murder 

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

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

have found based on the record:

On the afternoon of July 15, 1998, Nguyen and Dao 

approached “The Cloud,” a Des Moines bar. Dao exited the 

car and expressed his interest in purchasing an ounce of 

cocaine. While Nguyen stayed near the car, several 

individuals accompanied Dao into an alley where he was 

beaten and robbed. After the robbery, Dao left the area on 

foot and Nguyen departed in the vehicle.

Later the same day, a car approached The Cloud and 

one or more of its occupants fired several gunshots into a 
4

crowd of people standing outside the bar. Monty Thomas 

was fatally shot. Two witnesses recorded the license plate of 

the vehicle in which the gun-toting assailants rode. When 

law enforcement officers stopped the vehicle later that 

evening, Nguyen was driving with Dao as his passenger. Dao 

and Nguyen were charged with first-degree murder. The 

defendants were tried separately.

. . . .

. . . Witness testimony linked Nguyen to the incident 

before, during, and after the shooting. The testimony of 

Rodney Martin placed Dao and a man who looked like 

Nguyen at The Cloud shortly before the shooting. While the 

man resembling Nguyen remained in the driver’s seat of the 

car parked near the bar, Dao and a third individual solicited 

drugs from Martin. Martin testified Dao was beaten and 

robbed following the unsuccessful cocaine purchase, and 

Nguyen and the third person drove away from the bar. 

Confirming this testimony, Owen Smith described a 

conversation he had with Nguyen while Dao was in the alley 

attempting to purchase drugs. Smith testified he spoke to 

Nguyen for ten to fifteen minutes before Nguyen left the 

scene.

Nguyen was also recognized as the driver of the car 

that arrived at The Cloud transporting the armed 

participants in the shooting. Elgin Byron, a teller at the 

local bank where Nguyen was a regular customer, identified 

Nguyen as the driver of the car involved in the shooting. He 

recalled the black Mitsubishi Nguyen drove to the bar on the 

day in question as the same car Nguyen had brought to the 

bank on prior occasions. Shawn Duncan, who also observed 

the black automobile, identified Dao as an occupant of the 

car who fired a gun in his direction. Similarly, David Gray 

witnessed Dao shooting from the black car. Gray noted the 

car’s license plate number, which matched that of the car 

Nguyen and Dao were arrested in later that evening.

After the shooting, law enforcement officers observed a 

black Mitsubishi matching the description of the vehicle and 

license plate number given by eyewitnesses to the crime. 

Upon stopping the car, they arrested its driver, Nguyen, and 

the vehicle’s backseat passenger, Dao. Two bullet holes in 

the vehicle’s trunk were of a size consistent with the .45 

caliber casings found outside The Cloud. The man who 

loaned the black Mitsubishi to Nguyen testified the first time 

he noticed the trunk bullet holes was upon recovering his 

car from police after Nguyen’s arrest. Lastly, Nguyen made 

an incriminating statement regarding his involvement in the 

shooting. An officer testified upon telling Nguyen he was 
5

being arrested for his role in The Cloud homicide, Nguyen 

replied “all he did was drive the car.”

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

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

on direct appeal including insufficiency of the evidence, the 

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

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

issued on May 30.

In August 2002, Nguyen filed his first application for 

postconviction relief in the district court. He asserted new claims of 

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

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

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

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

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

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

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

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

appeals and reversed the judgment of the district court. Procedendo 

issued on January 19, 2006.

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

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

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

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

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

2Beeman’s progeny, all of which we overruled in Heemstra, include State v. 

Anderson, 517 N.W.2d 208, 214 (Iowa 1994); State v. Rhomberg, 516 N.W.2d 803, 805 

(Iowa 1994); State v. Ragland, 420 N.W.2d at 791, 793; and State v. Mayberry, 411 

N.W.2d 677, 682–83 (Iowa 1987).

 
6

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

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

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

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

than Beeman, it would have eliminated the felony-murder theory of firstdegree murder as a viable theory on which Nguyen could be convicted.

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

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

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

Heemstra’s nonretroactivity does not violate the federal Due Process 

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

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

grounds to proceed after the Goosman decision. The district court 

granted the motion to withdraw and appointed substitute counsel to

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

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

court denied the motion.

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

noted that procedendo in the first postconviction relief action issued 

more than three years before Nguyen filed his second postconviction

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

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

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

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

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

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

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

Nguyen argued that retroactivity was required under the federal Equal 
7

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

equal protection clauses of the Iowa Constitution. None of these 

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

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

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

of Nguyen’s postconviction relief application on statute of limitation 

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

determined that Nguyen’s postconviction relief application fell within the 

exception contained in Iowa Code section 822.3 because Nguyen could 

not have argued for the retroactive application of Heemstra until after 

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

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

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

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

must be applied retroactively under the due process, separation of 

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

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

Procedendo issued on April 18.

The district court appointed new counsel to represent Nguyen and 

ordered Nguyen’s postconviction relief case be consolidated with two 

other applicants who were also pursuing the retroactive application of 

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

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

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

retroactive application of Heemstra was required under the constitutional 

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

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

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

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

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

nonretroactivity of Heemstra was not unconstitutional under any of the 

theories raised.

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

district court on the constitutional challenges and for the first time 

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

postconviction counsel to argue for the retroactive application of 

Heemstra on nonconstitutional, common law grounds. Nguyen 

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

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

framework.

II. Standard of Review.

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

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

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

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

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

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

novo because they are based on the constitutional guarantees of the 

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

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

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

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

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

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

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

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

III. Analysis.

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

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

person “willfully, deliberately, and with premeditation kills another 

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

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

When Nguyen was convicted, Beeman and its progeny were 

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

murder statute made willful injury a proper predicate felony for a felonymurder instruction. 315 N.W.2d at 776. We concluded the legislature 

neither intended for the felonies to merge nor required an independent 

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

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

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

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

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

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

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

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

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

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

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

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

Goosman that the nonretroactivity of Heemstra did not violate federal due 

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

nonretroactivity of Heemstra under the due process, separation of 

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

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

Nguyen argues that postconviction counsel were ineffective for failing to 

additionally urge the retroactive application of Heemstra on

nonconstitutional, common law grounds.

Our doctrine of constitutional avoidance instructs us that we 

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

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

whether postconviction counsel were ineffective before determining 

whether we need to address the constitutional arguments.

A. Ineffective Assistance of Postconviction Counsel. Nguyen 

claims his postconviction counsel were ineffective for failing to pursue 

Heemstra retroactivity on nonconstitutional, common law grounds.

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

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

section 822.3, which covers the statute of limitations for postconviction 

relief actions. In relevant part, this section states:

[A]pplications must be filed within three years from the date the 

conviction or decision is final or, in the event of an appeal, from 

the date the writ of procedendo is issued. However, this limitation 

does not apply to a ground of fact or law that could not have been 

raised within the applicable time period.

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

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

point the State alleges the statute of limitations began running on 

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

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

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

of common law retroactivity.

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

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

Nguyen clearly asserted that Heemstra should be applied retroactively to 

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

referring to it as such, Nguyen also discusses the 

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

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

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

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

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

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

the issue of common law retroactivity into play.

After counsel was appointed, the district court granted summary 

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

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

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

consider only the state and federal constitutional claims raised in 

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

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

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

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

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

postconviction counsel intended to raise the common law retroactivity 

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

rehearing with this court asking for a modified disposition to permit 

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

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

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

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

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

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

counsel is timely.

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

assistance of counsel under the Sixth Amendment to the United States 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

determining whether [it] was reasonable, under prevailing professional 

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

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

presumed that counsel acted competently, and therefore, the defendant 

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

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

Because of the difficulties inherent in making the evaluation, 

a court must indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, 
13

the challenged action “might be considered sound trial 

strategy.”

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

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

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

not pursuing the nonconstitutional, common law retroactivity claim.

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

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

application of Heemstra. We also note that we have not yet adopted the 

federal per se framework Nguyen advances in his brief for evaluating the 

retroactive effect of our own state cases.

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

Walker, which adopted a practical balancing test that considered a 

number of factors in determining whether a United States Supreme 

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

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

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

thereafter, we began using the same Linkletter balancing framework to 

determine the retroactivity of our own state supreme court decisions. 

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

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

developed a different framework in analyzing retroactivity. The Court 

eventually stopped using the Linkletter balancing approach because of 

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

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

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

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

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

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

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

approach was adopted to determine the retroactivity of already-final 

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

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

Nguyen urges us to adopt and apply in determining the retroactive 

application of our own state supreme court cases.4

Without expressly adopting the federal per se framework, we have 

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

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

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

3As discussed in detail below, the United States Supreme Court has summarized 

its per se approach since its decision in Schriro:

[A]n old rule applies both on direct and collateral review, but a new rule 

is generally applicable only to cases that are still on direct review. A new 

rule applies retroactively in a collateral proceeding only if (1) the rule is 

substantive or (2) the rule is a “ ‘watershed rul[e] of criminal procedure’ 

implicating the fundamental fairness and accuracy of the criminal 

proceeding.”

Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1180–81, 167 L. Ed. 2d 1, 10–

11 (2007) (second alteration in original) (citation omitted) (quoting Saffle v. Parks, 494 

U.S. 484, 495, 110 S. Ct. 1257, 1264, 108 L. Ed. 2d 415, 429 (1990)).

4Nguyen has submitted additional authority on the federal approach to 

retroactivity. See Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, ___ L. Ed. 2d 

___ (2016). However, Montgomery does not assist us in deciding this case. In 

Montgomery, the United States Supreme Court stated,

The Court now holds that when a new substantive rule of constitutional 

law controls the outcome of a case, the Constitution requires state 

collateral review courts to give retroactive effect to that rule. Teague’s

conclusion establishing the retroactivity of new substantive rules is best 

understood as resting upon constitutional premises.

Id. at ___, 136 S. Ct. at 729, ___ L. Ed. 2d at ___. Heemstra did not create a new 

substantive rule of constitutional dimension.

 
15

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

1991).

We likewise fully considered common law retroactivity in deciding

Heemstra. Following our initial opinion in Heemstra, there were 

concerns about the retroactive or prospective application of our ruling. 

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

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

should only apply Heemstra prospectively. The application, however, 

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

We could apply full retroactivity, limited retroactivity, limited 

prospectivity, or full prospectivity. This is because in nonconstitutional 

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

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

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

At the time we determined that Heemstra would only apply

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

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

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

presented within the petition for rehearing and decided under the 

common law that Heemstra would have prospective application only. We 

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

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

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

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

application of retroactivity was fully contemplated in Heemstra, 

postconviction counsel had no duty to pursue a meritless claim. 

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

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

address the question of “whether retroactive application of Heemstra is 

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

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

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

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

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

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

district court was limited to hear only the constitutional claims on 

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

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

would not be expected to raise alternate arguments.

Because the test for ineffective assistance of counsel is a twopronged test, a defendant must show both prongs have been met. 

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

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

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

we need not address the prejudice prong of the ineffective-assistance-ofcounsel analysis. Because we conclude that postconviction counsel were 

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

B. Constitutional Claims. Nguyen alleges that the 

nonretroactivity of Heemstra violates the due process, separation of 

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

Equal Protection Clause of the United States Constitution. We address 

each in turn.

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

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

not require the retroactive application of Heemstra to individuals whose 
17

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

found that the decision in Heemstra was substantive rather than 

procedural and considered two United States Supreme Court decisions 

that addressed the retroactive application of state supreme court 

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

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

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

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

federal due process only requires retroactive application of clarifications

to existing substantive law, not changes to substantive law:

Taken together, Fiore and Bunkley stand for two 

propositions. First, where a court announces a new rule of 

substantive law that simply “clarifies” ambiguities in existing 

law, federal due process requires that the decision be 

retroactively applied to all cases, including collateral attacks 

where all avenues of direct appeal have been exhausted. 

Second, where a court announces a “change” in substantive 

law which does not clarify existing law but overrules prior 

authoritative precedent on the same substantive issue, 

federal due process does not require retroactive application 

of the decision.

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

Because we determined that the ruling in Heemstra constituted a 

change in the law rather than a clarification, we held that federal due 

process does not require retroactive application of Heemstra to alreadyfinal direct appeals. Id. at 545. Our analysis in Goosman focused solely 

on the application of federal due process to retroactivity but never 

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

now turn our analysis to the Iowa Constitution.

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

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

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

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

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

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

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

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

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

no substantive distinction had been made between state and federal 

constitutional provisions, we reserve the right to apply the principles 

differently under the state constitution compared to its federal 

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

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

more stringently than its federal counterpart, providing greater 

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

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

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

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

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

Nguyen argues that we should exercise our discretion to interpret 

our state due process clause differently than the federal Due Process 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

cases for which the federal courts have decided retroactivity is not 

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

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

an alternative framework that we find sufficiently compelling to justify a 

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

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

does advance a standard for interpreting the Iowa Constitution 

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

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

process clause, the Iowa Constitution does not require the retroactive 

application of Heemstra to individuals whose direct appeals were final 

prior to the Heemstra decision.

2. Iowa separation of powers clause. The Iowa Constitution 

provides,

The powers of the government of Iowa shall be divided into 

three separate departments—the legislative, the executive, 

and the judicial: and no person charged with the exercise of 

powers properly belonging to one of these departments shall 

exercise any function appertaining to either of the others, 

except in cases hereinafter expressly directed or permitted.

Iowa Const. art. III, § 1.

Nguyen argues that the Beeman decision that allowed defendants 

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

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

and its progeny, Nguyen and others like him were convicted of firstdegree murder under the felony-murder doctrine when the act causing 

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

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

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

Nguyen correctly asserts that defining crimes is a legislative 

function. He argues that the Beeman decision allowed defendants like 

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

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

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

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

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

violated the separation of powers doctrine.

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

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

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

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

attempt to interpret the law. Although we later changed our 

interpretation of the law in Heemstra, the State responds that 

interpretational evolution happens often in the law.

Further, we addressed this argument in our Heemstra opinion. 

First, we noted that

nothing in any of the statutes . . . suggests that the 

legislature had any intent to abolish the principle of merger 

under the circumstances of this case. Furthermore, we 

should not defer to the legislature for a signal for us to adopt 

a legal principle that is the responsibility of the court and 

within the power of the court to apply, based on legal 

precedent, common sense, and fairness.

Id.
21

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

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

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

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

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

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

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

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

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

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

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

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

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

performed our function in interpreting the law by considering the 

legislative intent behind the first-degree murder statute and the felonymurder doctrine.

3. Equal protection claims. Both the Fourteenth Amendment to 

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

Constitution provide all citizens equal protection under the law. U.S. 

Const. amend. XIV; Iowa Const. art. I, § 6. This requires that “similarly 

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

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

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

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

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

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

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

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

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

the possibility that there may be situations where differences in the 

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

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

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

the parties have not argued that our analysis under the Iowa 

Constitution should differ from our analysis under the Federal 

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

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

that based on the distinction between direct review and collateral review 

applications, we should provide greater protection under the Iowa 

Constitution.

The Supreme Court has clearly stated that in situations such as 

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

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

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

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

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

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

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

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

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

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

(1932)).

A state in defining the limits of adherence to precedent may 

make a choice for itself between the principle of forward 

operation and that of relation backward. It may say that 

decisions of its highest court, though later overruled, are law 

none the less for intermediate transactions.
23

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

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

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

of Heemstra violates the federal Equal Protection Clause.

The first step in our equal protection analysis under the Iowa 

Constitution is to determine whether there is a distinction made between 

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

This requirement of equal protection—that the law must 

treat all similarly situated people the same—has generated a 

narrow threshold test. Under this threshold test, if plaintiffs 

cannot show as a preliminary matter that they are similarly 

situated, courts do not further consider whether their 

different treatment under a statute is permitted under the 

equal protection clause.

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

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

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

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

applying the threshold test to the “inescapable relationship between the 

threshold test and the ultimate scrutiny of the . . . basis for the 

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

The State argues that Heemstra created two different classes of 

defendants: defendants whose convictions were final before the decision 

and defendants whose convictions became final after the decision. The 

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

similarly situated to a person charged with the same crimes after 

Heemstra changed the law.

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

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

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

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

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

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

Among other claims, the defendant challenged the difference between 

those whose convictions were final and those whose convictions were not 

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

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

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

for classifying appellants in accordance with whether their claim 

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

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

distinction between direct review and collateral review applications does 

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

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

federal counterpart.

We agree with the State that defendants whose convictions became 

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

defendants charged after Heemstra. Nguyen was not denied equal 

protection of the laws under the Iowa Constitution.

IV. Conclusion.

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

postconviction counsel were not ineffective for failing to pursue a 

nonconstitutional, common law retroactivity argument. We also 

conclude that the nonretroactive application of Heemstra does not violate 

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

Iowa Constitution or the Equal Protection Clause of the United States 

Constitution.

DISTRICT COURT JUDGMENT AFFIRMED.