IN THE COURT OF APPEALS OF IOWA
No. 16-2112
Filed November 7, 2018
JIMMY DEAN STEVENS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David P.
Odekirk, Judge.
Jimmy Stevens appeals the dismissal of his application for postconviction
relief. AFFIRMED.
Geneva L. Williams of Williams Law Office, PLLC, Cedar Rapids, for
appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
MULLINS, Judge.
I. Background Facts and Proceedings
In 2004, Jimmy Stevens was convicted of criminal transmission of human
immunodeficiency virus (HIV).1 Stevens appealed his conviction, challenging the
sufficiency of the evidence on the intimate-contact element of the crime,2 and the
supreme court affirmed, concluding “sexual intercourse may be committed through
oral sex” and the jury could rely on the “common knowledge that oral sex is a
manner of transmission of the HIV.” See State v. Stevens, 719 N.W.2d 547, 548–
52 (Iowa 2006).3 Procedendo issued in September 2006.
Stevens filed his first postconviction-relief (PCR) application in July 2007.
The application was dismissed upon Stevens’s own motion in May 2013. Stevens
filed his second PCR application in October 2014, arguing his conviction should
be overturned in light of the supreme court’s decision in Rhoades v. State, 848
N.W.2d 22 (Iowa 2014). The State moved to dismiss the application on statute-of-
limitations grounds. See Iowa Code § 822.3 (2014). The district court granted the
State’s motion, concluding the argument forwarded by the applicant in Rhoades
“could have been raised by [Stevens] within three years after the writ of
1
Chapter 709C, entitled criminal transmission of HIV, was repealed by the legislature in
2014. 2014 Iowa Acts ch. 1119, § 9. It was replaced by chapter 709D, entitled criminal
transmission of contagious or infectious diseases. See id. §§ 1–4 (codified at Iowa Code
§§ 709D.1–.4).
2
See Iowa Code § 709C.1(1)(a), (2)(b) (2003) (requiring proof of intimate contact with
another and defining intimate contact as “intentional exposure of the body of one person
to a bodily fluid of another person in a manner that could result in the transmission of the
[HIV]”).
3
See also State v. Keene, 629 N.W.2d 360, 365 (Iowa 2001) (“We take judicial notice of
the fact that the HIV may be transmitted through contact with an infected individual’s blood,
semen or vaginal fluid, and that sexual intercourse is one of the most common methods
of passing the virus” because “any reasonably intelligent person is aware it is possible to
transmit HIV during sexual intercourse, especially when it is unprotected”).
3
procedendo issued following his appeal.” On appeal, a panel of this court
concluded “the Rhoades decision was a change in the law ‘that could not have
been raised within the applicable time period,’ and the three-year bar should not
prevent Stevens from challenging his conviction through PCR.” Stevens v. State,
No. 15-1033, 2016 WL 1696909, at *3 (Iowa Ct. App. Apr. 27, 2016) (quoting Iowa
Code § 822.3), further review denied (July 29, 2016). This court reversed the
denial of Stevens’s PCR application and remanded the matter to the district court
to consider “whether the Rhoades case should be retroactively applied.” Id. at *4.
On remand, Stevens conceded the United States Constitution did not
require retroactive application of Rhoades, but “urge[d] the court to turn to the
analysis of the Iowa Constitution” and conclude retroactive application of Rhoades
is required by the due process and equal protection clauses of our state
constitution. Finding Stevens failed to provide a compelling reason to depart from
the federal constitutional framework or propose a different framework under the
Iowa Constitution, the district court concluded retroactive application of Rhoades
is not constitutionally required. The district court dismissed Stevens’s PCR
application, and this appeal followed.
II. Standard of Review
PCR proceedings are reviewed for correction of errors at law unless they
raise constitutional issues. More v. State, 880 N.W.2d 487, 489 (Iowa 2016).
Where, as here, there is an alleged violation of constitutional rights, our review is
de novo. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010).
4
III. Analysis
On appeal, Stevens contends the district court erred in concluding
retroactive application of Rhoades is not required by the due process clause of the
state constitution and the equal protection clauses of the federal and state
constitutions.4 Alternatively, he argues his PCR counsel rendered ineffective
assistance in failing to urge retroactive application of Rhoades on nonconstitutional
common law grounds.
As an additional backdrop, in 2001, the supreme court took “judicial notice
of the fact that the HIV may be transmitted through contact with an infected
individual’s blood, semen or vaginal fluid, and that sexual intercourse is one of the
most common methods of passing the virus.” Keene, 629 N.W.2d at 365. Such
taking of judicial notice “filled in the gaps” for a factual basis on the intimate-contact
element of the crime of criminal transmission of HIV, which Keene committed in
1998. Rhoades, 848 N.W.2d at 32 (discussing Keene, 629 N.W.2d at 362, 365–
67). Following Keene, the supreme court determined Stevens’s 2004 conviction
was supported by sufficient evidence because a jury at that time could rely on the
“common knowledge that oral sex is a manner of transmission of the HIV.” See
Stevens, 719 N.W.2d at 552. The Stevens court, in analyzing Stevens’s 2003 acts
resulting in conviction of criminal transmission of HIV,
again recognized the adjudicative “‘fact that . . . HIV may be
transmitted through contact with an infected individual’s blood,
semen or vaginal fluid, and that sexual intercourse is one of the most
common methods of passing the virus’” continued to be common
4
Stevens conceded in the district court that his “federal Equal Protection Clause argument
should fail.” Because the State does not contest error preservation and Stevens argues
his counsel was ineffective in the event error was not preserved on his constitutional
claims, we will consider the merits.
5
knowledge to establish the evidence was sufficient to support a
conviction under section 709C.1.
Rhoades, 848 N.W.2d at 32 (ellipsis in original) (discussing Stevens, 719 N.W.2d
at 550–52). The court also explained that “sexual intercourse may be committed
through oral sex” and “oral sex is a well-recognized means of transmission of the
HIV.” Stevens, 719 N.W.2d at 551. Keene and Stevens were revisited in Rhoades.
See Rhoades, 848 N.W.2d at 32–33. As to Rhoades’s conviction of the same
crime flowing from his conduct in 2008, the supreme court explained:
Today we are unable to take judicial notice that an infected
individual can transmit HIV when an infected person engages in
protected anal sex with another person or unprotected oral sex,
regardless of the infected person’s viral load. The evidence at the
postconviction relief hearing shows there have been great strides in
the treatment and the prevention of the spread of HIV from 2003 to
2008. It was not apparent in 2009, at the time of [Rhoades’s] plea,
that this fact was “capable of accurate and ready determination by
resort to sources whose accuracy” could not reasonably be
questioned. Further, while this fact may have been a commonly held
belief within the territorial jurisdiction of the trial court, we note the
purpose of judicial notice is to show the fact is not subject to
reasonable dispute. Here, we find the fact was subject to reasonable
dispute. At the time of the plea, Rhoades’s viral count was
nondetectable, and there is a question of whether it was medically
true a person with a nondetectable viral load could transmit HIV
through contact with the person’s blood, semen or vaginal fluid or
whether transmission was merely theoretical. The judicial notice we
took in previous cases is subject to reasonable dispute here; thus, it
is improper for us to similarly take judicial notice in this case. With
the advancements in medicine regarding HIV between 2003 and
2008, we are unable to take judicial notice of the fact that HIV may
be transmitted through contact with an infected individual’s blood,
semen or vaginal fluid, and that sexual intercourse is one of the most
common methods of passing the virus to fill in the gaps to find a
factual basis for Rhoades’s guilty plea.
Rhoades, 848 N.W.2d at 32–33 (footnote and citations omitted). With this
landscape in mind, we consider Stevens’s contentions in turn.
6
A. State Due Process
Stevens simply argues we should “hold that the Iowa Due Process Clause
requires the retroactive application of the Rhoades interpretation of the evidence
necessary to convict an accused of criminal transmission of HIV.” Article I, section
9 of the Iowa Constitution provides that “no person shall be deprived of life, liberty,
or property, without due process of law.” Our supreme court “has generally
considered the federal and state due process clauses to be ‘identical in scope,
import[,] and purpose.’” Nguyen v. State, 878 N.W.2d 744, 755 (Iowa 2016)
(alteration in original) (quoting War Eagle Vill. Apartments v. Plummer, 775 N.W.2d
714, 719 (Iowa 2009)). Iowa courts are free to interpret the state constitution more
stringently than its federal counterpart, “providing greater protection for our
citizens’ constitutional rights,” but this does not mean that we are required to refuse
to follow decisions of the United States Supreme Court. Id.
Under the federal framework, the threshold question in considering whether
due process requires a judicial decision to be applied retroactively is whether the
decision is substantive or procedural. See Goosman v. State, 764 N.W.2d 539,
542 (Iowa 2009). Here the parties appear to agree the Rhoades decision was
substantive in nature. The second question is whether the new rule of substantive
law amounts to a clarification of the law or a change in the law. See id. at 544.
While federal due process requires that a clarification in the law “be retroactively
applied to all cases, including collateral attacks where all avenues of direct appeal
have been exhausted,” it does not require retroactive application of a change in
the law. Id. Upon our review of the decisions, and applying the law of the case,
we repeat this court’s prior holding that “[w]hile the Rhoades court did not expressly
7
overrule the decisions in Keene and Stevens, it was not merely ‘a clarification of
the law’ or ‘an application of preexisting law,’” but instead “was ‘a change in the
law’ regarding the evidence the State needed to offer to meet its burden of proof
to sustain a conviction for criminal transmission of HIV.” Stevens, 2016 WL
1696909, at *3. As such, federal due process does not require retroactive
application of the Rhoades decision. Goosman, 764 N.W.2d at 544.
Because the Rhoades case falls squarely within the class of cases for which
federal courts have decided due process does not require retroactivity, we find no
compelling reason to depart from the federal analysis the supreme court used in
Goosman and subsequently applied in interpreting the state due process clause in
Nguyen. See Nguyen, 828 N.W.2d at 756. To the extent Stevens provides us with
an alternative framework, we find the federal framework more compelling. See id.
We therefore hold the due process clause of the Iowa Constitution does not require
the retroactive application of Rhoades to individuals whose direct appeals were
final prior to the decision.
B. State and Federal Equal Protection
Stevens argues that prospective-only application of Rhoades violates equal
protection guarantees. Both the federal and state constitutions provide all citizens
equal protection under the law. U.S. Const. amend. XIV; Iowa Const. art. I, § 6;
Nguyen, 878 N.W.2d at 757. Equal protection “requires that ‘similarly situated
persons be treated alike under the law’” and “that laws treat all those who are
similarly situated with respect to the purposes of the law alike.” Nguyen, 878
N.W.2d at 757 (citations omitted).
8
It is clearly not a violation of federal equal protection guarantees for “states
to choose to apply the holding of a case prospectively rather than retroactively.”
Id.; see also Am. Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 177 (1990) (“When
questions of state law are at issue, state courts generally have the authority to
determine the retroactivity of their own decisions.”); Wainwright v. Stone, 414 U.S.
21, 24 (1973) (“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.” (quoting Great N. Ry. Co. v.
Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932))).
As to the equal protection analysis under the Iowa Constitution, we first
“determine whether there is a distinction made between similarly situated
individuals.” Nguyen, 878 N.W.2d at 758. If a party cannot make such a showing,
“courts do not further consider whether their different treatment under [law] is
permitted under the equal protection clause.” Id. (quoting Varnum v. Brien, 763
N.W.2d 862, 882 (Iowa 2009)).
In this case, we are presented with two classes, the first containing
individuals whose convictions were final before Rhoades, and the second including
individuals whose convictions became final after the decision. The supreme court
has concluded “there is a rational basis for classifying appellants in accordance
with whether their claim previously has been fully considered and adjudicated.” Id.
(quoting Everett v. Brewer, 215 N.W.2d 244, 247 (Iowa 1974)). Further, “the
distinction between direct review and collateral review applications does not violate
the equal protection clause of the Iowa Constitution.” Id. As such, as the supreme
9
court has done, “we decline to adopt a more restrictive standard than that of the
clause’s federal counterpart.” Id. We find defendants whose convictions became
final before Rhoades changed the state of law are not similarly situated to those
convicted thereafter.
Stevens also seems to argue it violates equal protection for differing
standards to apply to collateral review applicants relying on changes in the law
announced by the United States Supreme Court as compared to the Iowa
Supreme Court. As noted, it is clearly not a violation of federal equal protection
for “states to choose to apply the holding of a case prospectively rather than
retroactively.” Id. at 757. We find no reason to hold otherwise under the Iowa
Constitution. Stevens finally argues, “The absence of a consistent framework for
evaluating the retroactive effect of state court decisions results in unequal
treatment of collateral review applicants.” Upon our de novo review, we find no
merit in this contention.
We conclude Stevens was not denied equal protection of the laws under
the United States or Iowa Constitutions.
C. Ineffective Assistance of PCR Counsel
Finally, Stevens argues his PCR counsel rendered ineffective assistance in
failing to pursue retroactive treatment of Rhoades on nonconstitutional common
law grounds. We review ineffective-assistance-of-counsel claims de novo. State
v. Henderson, 908 N.W.2d 868, 874 (Iowa 2018); see Lado v. State, 804 N.W.2d
248, 250–51 (Iowa 2011) (noting, although PCR applicants have a statutory, as
opposed to constitutional, right to counsel in PCR proceedings, the same
framework applies). Stevens must establish (1) his counsel failed to perform an
10
essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668,
687 (1984); State v. Lopez, 907 N.W.2d 112, 116 (Iowa 2018). We “may consider
either the prejudice prong or breach of duty first, and failure to find either one will
preclude relief.” State v. McNeal, 897 N.W.2d 697, 703 (Iowa 2017) (quoting State
v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015)).
In arguing counsel was ineffective, Stevens requests that we “expressly
adopt the federal per se framework for purposes of evaluating retroactive effect to
be afforded to Iowa Supreme Court decisions.” “In a trilogy of cases, the Supreme
Court adopted a new, per se framework for evaluating the retroactivity of its own
decisions to already-final cases.” Nguyen, 878 N.W.2d at 753; see Schiro v.
Summerlin, 542 U.S. 348, 351–52 (2004); Bousley v. United States, 523 U.S. 614,
620–21 (1998); Teague v. Lane, 489 U.S. 288, 310 (1989). In Nguyen, the
applicant-appellant urged the Iowa Supreme Court to adopt and apply the federal
per se framework “in determining the retroactive application of our own state
supreme court cases.” 878 N.W.2d at 753. Nguyen considered the retroactive
application of State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), but the court noted
it had already “fully considered common law retroactivity in deciding Heemstra.”
Id. Being fully “aware of the possibility of the common law remedy,” the court
“determined that Heemstra would only apply prospectively” and “declined to adopt
the per se approach.” Id. at 754. The court adhered to that decision in Nguyen,
indicating its acknowledgment of the importance of stare decisis for stability under
the law. See id.
The unanimous Nguyen decision indicates our supreme court prefers
stability under the law over providing retroactive treatment to state court decisions
11
under the common law. Although the supreme court has applied something similar
to the federal per se approach in the past, it only did so in considering the
retroactivity of United States Supreme Court decisions, not state court decisions.5
We adhere to the Nguyen court’s indication that it prefers stability under the law as
opposed to a common law right to retroactivity of state court decisions and
therefore decline Stevens’s request that we adopt the federal per se approach to
determine the retroactive effect of state court decisions. We reject Stevens’s
request that we apply the Linkletter practical balancing test, the predecessor to the
federal per se framework, for the same reason. See Griffith v. Kentucky, 479 U.S.
314, 320–22 (1987) (discussing Linkletter v. Walker, 318 U.S. 618 (1965) and its
progeny); see also Everett v. Brewer, 215 N.W.2d 244, 248 (1974) (declining to
afford retroactive treatment to state court decision under Linkletter test where,
among other things, a change in the law “occurred after [the appellant] had taken
full advantage of his appellate rights under the law as it then existed.” (emphasis
added)).
We conclude PCR counsel did not neglect to perform an essential duty in
not pursuing common law retroactivity and Stevens did not suffer prejudice.
5
See, e.g., State v. Ragland, 836 N.W.2d 107, 114–17 (Iowa 2013) (considering
retroactivity of Miller v. Alabama, 567 U.S. 460 (2012)); Perez v. State, 816 N.W.2d 354,
358–59 (Iowa 2012) (considering retroactivity of Padilla v. Kentucky, 559 U.S. 356 (2010));
Goosman, 764 N.W.2d at 544–45 (indicating the per se framework applies only to federal
court decisions); Bonilla v. State, 791 N.W.2d 697, 700–01 (2010) (considering
retroactivity of Graham v. Florida, 560 U.S. 48 (2010)); Morgan v. State, 469 N.W.2d 419,
422 (Iowa 1991) (considering retroactivity of Coy v. Iowa, 483 U.S. 1019 (1987)); Brewer
v. State, 444 N.W.2d 77, 80–82 (Iowa 1989) (considering retroactivity of Duren v. Missouri,
439 U.S. 357 (1979)).
12
IV. Conclusion
We affirm the district court’s denial of Stevens’s PCR application.6
AFFIRMED.
6
We do not consider the arguments Stevens raises for the first time in his reply brief. See
Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992).