Khamfeung Thongvanh v. State of Iowa

IN THE SUPREME COURT OF IOWA
No. 18–0885

Filed January 24, 2020

KHAMFEUNG THONGVANH,

Appellant,

vs.

STATE OF IOWA,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Webster County, Adria A.D.

Kester, Judge.

An applicant for postconviction relief seeks further review of a court

of appeals decision affirming the dismissal of his application. AFFIRMED.

Jamie L. Hunter of Dickey & Campbell Law Firm, PLC, Des Moines,
and Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, P.C.,

Storm Lake, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, Darren Driscoll, County Attorney, and Brad M.

McIntyre, Assistant County Attorney, for appellee.
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WIGGINS, Chief Justice.

An applicant sought postconviction relief (PCR), claiming a violation

of his constitutional right to an impartial jury drawn from a fair cross

section of the community under the United States and Iowa Constitutions.

He based his claim on State v. Plain, 898 N.W.2d 801 (Iowa 2017). The

district court dismissed his PCR application, and he appealed the order of

dismissal.

On appeal, we find Plain is a new ground of law allowing an applicant

to bring a PCR action after the three-year statute of limitations in Iowa

Code section 822.3 (2018) has run. Nonetheless, we affirm the order of

dismissal because we find our holding in Plain does not apply retroactively

to cases on collateral review.

I. Background Facts and Proceedings.

A jury convicted Khamfeung Thongvanh of first-degree murder in

1984. He appealed, and the court of appeals affirmed his conviction in

1986. State v. Thongvanh, 398 N.W.2d 182, 184, 189 (Iowa Ct. App. 1986)

(en banc). A few years later, he filed a PCR application, raising among

other things a fair-cross-section claim. Thongvanh v. State (Thongvanh II),

494 N.W.2d 679, 680, 683 (Iowa 1993). We affirmed the denial of that

application in 1993. Id. at 684.

On June 30, 2017, we decided Plain, which addressed the Duren

three-part test for evaluating Sixth Amendment fair-cross-section claims.

898 N.W.2d at 821–28; see Duren v. Missouri, 439 U.S. 357, 364, 367–68,

99 S. Ct. 664, 668, 670 (1979) (laying out test for evaluating Sixth

Amendment fair-cross-section claims). Under Duren, the criminal

defendant must first establish a prima facie fair-cross-section violation by

showing
 3
(1) that the group alleged to be excluded is a ‘‘distinctive’’
group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection
process.

Plain, 898 N.W.2d at 822 (quoting Duren, 439 U.S. at 364, 99 S. Ct. at
668). Then, if the defendant establishes a prima facie violation, “the

burden shifts to the state to justify the disproportionate representation by

proving ‘a significant state interest’ is ‘manifestly and primarily advanced’

by the causes of the disproportionate exclusion.” Id. (quoting Duren, 439

U.S. at 367–68, 99 S. Ct. at 670).

In Plain, we expressly overruled our precedent that had adopted the

absolute-disparity method as the exclusive indicator of representativeness

under the second prong of Duren. Id. at 826. That is, we held,

Parties challenging jury pools on the ground that they are
unrepresentative may base their challenges on multiple
analytical models [such as the absolute disparity, comparative
disparity, and standard deviation tests]. The district court
may use multiple analytical models in its analysis, taking into
account the various strengths and weaknesses of each test
when determining whether jury pools comport with the Sixth
Amendment mandate of representativeness.

Id. at 827. 1
This past term we modified Plain’s holding in State v. Lilly, 930

N.W.2d 293, 302 (Iowa 2019). Lilly involved a fair-cross-section claim

raised under both the Sixth Amendment and article I, section 10, but the

defendant did not advance a distinct analysis under article I, section 10.

Id. at 300, 301. Accordingly, we applied the Sixth Amendment framework

1Plainalso addressed the Duren test’s third prong—systematic exclusion. Plain,
898 N.W.2d at 827–28. But because Thongvanh did not develop any new arguments
regarding Plain’s holding on the third prong, that portion of Plain is not pertinent here.
 4

under article I, section 10 but reserved the right to apply that framework

differently. Id. at 301.

We held that neither the absolute disparity method nor the

comparative-disparity method is appropriate to use when considering the

underrepresentation prong of a fair-cross-section claim. Id. at 302.

However, we acknowledged that the standard deviation method is

appropriate. Id. In State v. Veal and State v. Williams, two companion

cases to Lilly, we applied Lilly’s holding with modifications to Sixth

Amendment fair-cross-section claims and further discussed the

application of Plain to such claims. Veal, 930 N.W.2d 319, 328–30, 328

n.5 (Iowa 2019); Williams, 929 N.W.2d 621, 629–30, 629 n.1 (Iowa 2019).

On January 26, 2018, Thongvanh filed the instant PCR application.

Relying on our holding in Plain, he alleged he was denied his rights to due

process, equal protection, and a fair and impartial trial under the United

States and Iowa Constitutions. The State moved to dismiss Thongvanh’s

application, contending no new ground of law or fact obviated Iowa Code

section 822.3’s three-year statute of limitations and section 822.8 barred

Thongvanh’s fair-cross-section claim. The State did not argue or contend

that Thongvanh’s application should be dismissed because Plain is not

retroactive.

Thongvanh resisted, arguing section 822.3’s limitations period did

not apply because Plain constitutes a new ground of law that could not

have been raised within the applicable time period. Like the State, he did

not discuss Plain’s retroactivity.

During the hearing on the State’s motion to dismiss, the court

inquired whether Plain can apply retroactively to a fair-cross-section claim

made on collateral review and then ordered the attorneys to brief that issue

in more detail. In his posthearing brief, Thongvanh argued Plain created
 5

a watershed rule of criminal procedure that implicates the fundamental

fairness of a trial and, thus, could apply retroactively to cases on collateral

review.

The district court disagreed with Thongvanh and granted the State’s

motion to dismiss. It first concluded that Plain is not retroactive because,

“[d]espite the imperative of fair jury representation in criminal matters, by

merely permitting challenges based on different statistical models, Plain

does not make a ‘watershed rule of criminal procedure.’ ”

The court also concluded that neither equal protection nor due

process require retroactive application of Plain to cases on collateral

review. It acknowledged Thongvanh’s contention that the Iowa

Constitution provides greater guarantees of equal protection than the

Federal Constitution but noted Thongvanh did not explain why the Iowa

provision should provide protection that is any different than that of the

federal provision.

Lastly, the court noted that Thongvanh had been unable to establish

the third prong of the Duren fair-cross-section test—systematic

exclusion—in his 1993 PCR case. It found he had not presented any new

ground of law or fact that would allow reconsideration of our conclusion

in Thongvanh’s 1993 appeal. Particularly, that he had not established the

underrepresentation of Asians on his jury panel was due to systematic

exclusion of Asians from jury duty.

Thongvanh appealed, and we transferred the case to the court of

appeals. The court of appeals agreed with the district court that

Thongvanh’s claim based on Plain’s holding on the second prong of the

Duren test was a new ground of law not previously available to Thongvanh

and, therefore, was not time-barred by section 822.3. It also agreed that

Plain is not retroactive because it did not create a watershed rule of
 6

criminal procedure. Finally, it declined Thongvanh’s invitation to interpret

the Iowa Constitution to give broader retroactive application to new rules

of criminal procedure than under federal caselaw, reasoning our precedent

precluded it from doing so and it was not at liberty to ignore or modify that

precedent.

We granted Thongvanh’s petition for further review.

II. Scope and Standards of Review.

“Our review of the court’s ruling on the State’s statute-of-limitations

defense is for correction of errors of law.” Phuoc Thanh Nguyen v. State,

829 N.W.2d 183,186 (Iowa 2013) (quoting Harrington v. State, 659 N.W.2d

509, 519 (Iowa 2003)). We will affirm if substantial evidence supports the

district court’s findings of fact and the court correctly applied the law. Id.

Similarly, we review the district court’s ruling on the motion to

dismiss for correction of errors of law. Shumate v. Drake Univ., 846 N.W.2d

503, 507 (Iowa 2014). “For purposes of reviewing a ruling on a motion to

dismiss, we accept as true the petition’s well-pleaded factual allegations,

but not its legal conclusions.” Id. When the petition’s allegations are taken

as true yet fail to state a claim upon which relief may be granted, we will

affirm the district court’s granting of the motion to dismiss. Id.

III. Issues.

We address two issues in this appeal. First, whether Thongvanh’s

Plain claim is time-barred by section 822.3. Second, whether Plain can

apply retroactively to a case on collateral review.

IV. Whether Thongvanh’s Plain Claim Is Time-Barred by Iowa
Code Section 822.3.

The State appears to challenge the district court’s conclusion that,

because Thongvanh filed his PCR application raising his Plain claim within

three years of Plain, his Plain claim is not time-barred by section 822.3.
 7

Section 822.3 requires PCR applications “be filed within three years from

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

from the date the writ of procedendo is issued.” Iowa Code § 822.3. There

is an exception to that three-year statute of limitations for “a ground of

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

period.” Id.

Thongvanh contends that a challenge to a jury pool based on Plain

is a ground of law that could not have been raised before Plain was decided.

We agree.

When Thongvanh raised his fair-cross-section claim in his original

PCR application and we rejected that claim on appeal in 1993, the

absolute-disparity method was the exclusive test used in Iowa when

evaluating the second prong of the Duren test. See State v. Jones, 490

N.W.2d 787, 793 (Iowa 1992) (expressly rejecting reliance on the

comparative-disparity method and holding the absolute-disparity method

“is the appropriate method to be used”), overruled in part by Plain, 898

N.W.2d at 826; see also Plain, 898 N.W.2d at 825 (indicating Jones

resulted in the exclusive use of the absolute-disparity method);

Thongvanh II, 494 N.W.2d at 683–84 (finding criminal defense counsel was

not ineffective for failing to raise a fair-cross-section claim because the

results of the absolute-disparity method prevented the PCR applicant from

making a prima facie case of underrepresentation); State v. Huffaker, 493

N.W.2d 832, 833–34 (Iowa 1992) (rejecting the defendant’s fair-cross-

section claim after considering only the absolute disparity method).

Plain effected an unmistakable change in the law when it expressly

overruled Jones. Cf. Phuoc Thanh Nguyen, 829 N.W.2d at 188 (discussing

the felony-murder rule as law at the time of the defendant’s conviction and

our decision in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006) was not
 8

“simply a ‘clarification of the law’ or ‘an application of preexisting law’ ”

but an express overruling of prior law (quoting Perez v. State, 829 N.W.2d

354, 360–61 (Iowa 2012))). Specifically, we stated in Plain,

Our decision to adopt absolute disparity as the exclusive test
and to reject comparative disparity in Jones rested upon an
error of law and on cases from other jurisdictions that have
since been overruled or criticized. After surveying the various
tests, and bearing in mind the practical problems associated
with the use of the absolute disparity test in Iowa, we conclude
it is no longer appropriate to rely exclusively upon the
absolute disparity test as an indicator of representativeness.
We therefore overrule Jones, 490 N.W.2d at 792–93.

898 N.W.2d at 826.

Plain’s overruling of Jones is distinguishable from a situation such

as the one in Perez, 816 N.W.2d 354. In Perez, we concluded the Supreme

Court’s holding in Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473,

1486 (2010)—that a criminal defendant has a Sixth Amendment right to

be advised by counsel of the risk of deportation before pleading guilty—

was not a new ground of law under section 822.3. Perez, 816 N.W.2d at

360. We found Perez could have raised such an argument before Padilla

was decided, even though at the time of Perez’s guilty plea our caselaw

imposed a different rule. Id. at 360–61. We explained that a case

challenging our precedent was pending at the time Perez’s conviction

became final and that while we did not overrule our precedent in that

pending case, we acknowledged there was some merit to the argument to

do so. Id. at 360. Additionally, we noted that at any time, the Supreme

Court could have overturned any of our precedents, which is what

eventually happened in Padilla. Id. Finally, we noted that shortly after we

declined to overrule our precedent, we amended Iowa Rule of Criminal

Procedure 2.8 to require defendants be informed that pleading guilty may

affect their immigration status under federal law. Id.
 9

Unlike in Perez, we had not considered or espoused any

disagreement with Jones’s holding before Plain. Rather, we had reaffirmed

sole use of the absolute-disparity method. See Thongvanh II, 494 N.W.2d

at 683–84; Huffaker, 493 N.W.2d at 833–34; see also State v. Lambert, 501

N.W.2d 64, 68 (Iowa Ct. App. 1993) (utilizing the absolute-disparity

method without questioning our exclusive reliance on it).

Because we had clearly held to the contrary in Jones, between

1993—when procedendo issued following our rejection of Thongvanh’s

fair-cross-section claim in his original PCR application—and 1996—when

the three-year statute of limitations period ran—Thongvanh could not

have successfully argued that the jury pool in his criminal trial was not

drawn from a fair cross section of the community as demonstrated by

using any method other than absolute disparity as the indicator of

representativeness. See Phuoc Thanh Nguyen, 829 N.W.2d at 188 (stating

that the exception to section 822.3’s limitations period “must envision a

category of legal claims that were viewed as fruitless at the time but

became meritorious later on”). Thus, Thongvanh’s Plain claims are not

barred by section 822.3’s three-year statute of limitations.

V. Whether Plain Can Apply Retroactively to a Case on
Collateral Review.

Thongvanh contends our holding in Plain applies retroactively to

cases on collateral review under the retroactivity analysis provided by the

United States Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S. Ct.

1060 (1989). Alternatively, he asks us to adopt a broader approach to

retroactivity under the Iowa Constitution’s due process and equal

protection clauses.

A. Retroactivity Under Teague. Teague and its progeny lay out

the framework for whether a new rule announced in a Supreme Court
 10

opinion applies retroactively to cases on federal habeas review—what we

will refer to as the “Teague framework.” E.g., Danforth v. Minnesota, 552

U.S. 264, 266, 281–82, 128 S. Ct. 1029, 1032, 1042 (2008); Whorton v.

Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1180 (2007); Schriro v.

Summerlin, 542 U.S. 348, 351–52, 124 S. Ct. 2519, 2522–23 (2004);

Nguyen v. State (Nguyen II), 878 N.W.2d 744, 753 & n.3 (Iowa 2016).

Under this framework, a “new rule” includes one that “was not dictated by

precedent existing at the time the defendant’s conviction became final.”

Teague, 489 U.S. at 301, 109 S. Ct. at 1070 (emphasis omitted).

New substantive rules will generally apply retroactively. E.g.,

Schriro, 542 U.S. at 351, 124 S. Ct. at 2522. These are rules “that narrow

the scope of a criminal statute by interpreting its terms as well as

constitutional determinations that place particular conduct or persons

covered by the statute beyond the State’s power to punish.” Id. at 351–52,

124 S. Ct. at 2522 (citation omitted); accord Montgomery v. Louisiana, 577

U.S. ___, ___, 136 S. Ct. 718, 728 (2016) (“Substantive rules include ‘rules

forbidding criminal punishment of certain primary conduct,’ as well as

‘rules prohibiting a certain category of punishment for a class of

defendants because of their status or offense.’ ” (quoting Penry v. Lynaugh,

492 U.S. 302, 330, 109 S. Ct. 2934, 2953 (1989), abrogated on other

grounds by Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 2252

(2002))). They apply retroactively because they “necessarily carry a

significant risk that a defendant stands convicted of ‘an act that the law

does not make criminal’ or faces a punishment that the law cannot

impose.” Schriro, 542 U.S. at 352, 124 S. Ct. at 2522–23 (quoting Bousley

v. United States, 523 U.S. 614, 620, 118 S. Ct. 1604, 1610 (1998)). 2

2“Although Teague describes new substantive rules as an exception to the bar on

retroactive application of procedural rules, th[e] Court has recognized that substantive
 11

Conversely, under the Teague framework, new rules of procedure

generally do not apply retroactively. E.g., Montgomery, 577 U.S. at ___,

136 S. Ct. at 728. The Court has explained that this is because their

connection to innocence is more attenuated:

New rules of procedure . . . do not produce a class of persons
convicted of conduct the law does not make criminal, but
merely raise the possibility that someone convicted with use
of the invalidated procedure might have been acquitted
otherwise.

Schriro, 542 U.S. at 352, 124 S. Ct. at 2523. Accordingly, it gives

retroactive effect to only new “ ‘watershed rules of criminal procedure’

implicating the fundamental fairness and accuracy of the criminal

proceeding.” Montgomery, 577 U.S. at ___, 136 S. Ct. at 728 (quoting

Schriro, 542 U.S. at 352, 124 S. Ct. at 2523). Watershed rules implicating

fundamental fairness are those

best illustrated by recalling the classic grounds for the
issuance of a writ of habeas corpus—that the proceeding was
dominated by mob violence; that the prosecutor knowingly
made use of perjured testimony; or that the conviction was
based on a confession extorted from the defendant by brutal
methods.

Teague, 489 U.S. at 313–14, 109 S. Ct. at 1077 (quoting Rose v. Lundy,
455 U.S. 509, 544, 102 S. Ct. 1198, 1216–17 (1982) (Stevens, J.,

dissenting)). See generally Danforth, 552 U.S. at 271–73, 128 S. Ct. at

1036 (summarizing the development of under what grounds federal

habeas relief was available).

The Teague retroactivity framework resulted from the Court

interpreting the scope of the relief available under the federal habeas

statute. Danforth, 552 U.S. at 278–79, 128 S. Ct. at 1039–40. In other

rules ‘are more accurately characterized as . . . not subject to the bar.’ ” Montgomery,
577 U.S. at ___, 136 S. Ct. at 728 (second alteration in original) (emphasis added) (quoting
Schriro, 542 U.S. at 352 n.4, 124 S. Ct. at 2522 n.4).
 12

words, the Teague test indicates whether the federal habeas statute

requires that a new rule be given retroactive application to cases that were

already final when the new rule was announced. But that framework “does

not in any way limit the authority of a state court, when reviewing its own

state criminal convictions, to provide a remedy for a violation that is

deemed ‘nonretroactive’ under Teague.” Id. at 282, 128 S. Ct. at 1042.

We have applied the Teague framework when determining whether

we will retroactively apply Supreme Court holdings. See Nguyen II, 878

N.W.2d at 753; see also, e.g., Perez, 816 N.W.2d at 358–60 (using Teague

framework when considering whether the Court’s holding in Padilla, 559

U.S. 356, 130 S. Ct. 1473, applies retroactively); Bonilla v. State, 791

N.W.2d 697, 700–01 (Iowa 2010) (concluding the Court’s holding in

Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010), applies

retroactively under the Teague framework); Morgan v. State, 469 N.W.2d

419, 422–25 (Iowa 1991) (applying Teague framework when considering

whether to retroactively apply the Court’s holding in Coy v. Iowa, 487 U.S.

1012, 108 S. Ct. 2798 (1988)); Brewer v. State, 444 N.W.2d 77, 81–82

(Iowa 1989) (relying on Teague framework to determine whether the

Court’s holding in Duren, 439 U.S. 357, 99 S. Ct. 664, should be given

retroactive effect to a case on collateral review). However, we have not yet

adopted that framework for evaluating the retroactive effect of our own

holdings. See Nguyen II, 878 N.W.2d at 753–54.

There can be little dispute that Plain announced a new rule under

the Teague framework as Plain’s holding on the second Duren prong “was

not dictated by precedent existing at the time [Thongvanh]’s [original

post]conviction[-relief judgment] became final.” Teague, 489 U.S. at 301,

109 S. Ct. at 1070 (emphasis omitted). Plain’s holding expressly departed

from the rule dictated by precedent at the time the judgment in
 13

Thongvanh’s original PCR action became final. 3 Additionally, it would be

contradictory to conclude Plain announced a new ground of law under

section 822.3 while also concluding it did not announce a new rule—but

was merely an application of preexisting law—for Teague retroactivity

purposes. See Perez, 816 N.W.2d at 360.

On appeal, the court of appeals found that our holding in Brewer

foreclosed any relief for Thongvanh. In Brewer, we applied the Teague

framework and concluded that the new rule of criminal procedure from

the Court’s Duren case, i.e., a modification of the standard applied in fair-

cross-section challenges, would not be given retroactive effect to a case on

PCR. 444 N.W.2d at 80, 81–82. We found Duren did not create a

watershed rule of criminal procedure and relied on the following reasoning

from Teague:

Because the absence of a fair cross section on the jury venire
does not undermine the fundamental fairness that must
underlie a conviction or seriously diminish the likelihood of
obtaining an accurate conviction, we conclude that a rule
requiring that petit juries be composed of a fair cross section
of the community would not be a “bedrock procedural
element” that would be retroactively applied under the second
exception we have articulated.

Id. at 81–82 (quoting Teague, 489 U.S. at 315, 109 S. Ct. at 1078). The
court of appeals, here, reasoned that because Duren’s new fair-cross-

3We acknowledge that Teague defined a new rule as one that “was not dictated by
precedent existing at the time the defendant’s conviction became final.” 489 U.S. at 301,
109 S. Ct. at 1070 (emphasis added). Here, Thongvanh’s conviction became final in 1986,
but the precedent we overruled in Plain—our holding in Jones that absolute disparity was
the exclusive method for evaluating the second Duren prong—was not announced until
1992. Therefore, at the time Thongvanh’s conviction became final, no precedent dictated
that absolute disparity was the exclusive method for evaluating the second Duren prong.
However, the State makes no argument that Plain does not announce a new rule
with respect to Thongvanh based on the law in effect at the time Thongvanh’s conviction
became final. Accordingly, we assume without deciding that a new rule under the Teague
framework can include one that was not dictated by precedent existing at the time the
defendant or PCR applicant originally raised the legal challenge.
 14

section rule was not retroactive in Brewer, Plain’s new fair-cross-section

rule could not be retroactive in Thongvanh’s collateral review case.

Under a straight application of the Teague framework, as we utilized

in Brewer, Plain’s holding would not qualify as a watershed rule. Nothing

in subsequent Supreme Court caselaw has directly rejected or abrogated

Teague’s explanation of why a violation of the right to a jury venire drawn

from a fair cross section (or a modification to the standard used to

determine if there was such a violation) does not undermine the

fundamental fairness of the trial or seriously diminish the likelihood of

obtaining an accurate conviction. See Teague, 489 U.S. at 315, 109 S. Ct.

at 1078).

The same analysis applies even if it were argued that Plain error

amounts to structural error for which no prejudice need be shown.

Structural errors are those “affecting the framework within which the trial

proceeds, rather than simply an error in the trial process itself.” Neder v.

United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999) (quoting Arizona

v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991)). “Such

errors ‘infect the entire trial process,’ and ‘necessarily render a trial

fundamentally unfair.’ ” Id. (first quoting Brecht v. Abrahamson, 507 U.S.

619, 630, 113 S. Ct. 1710, 1717 (1993); and then quoting Rose v. Clark,

478 U.S. 570, 577, 106 S. Ct. 3101, 3106 (1986)). In contrast, a trial error

is “error which occurred during the presentation of the case to the jury,

and which may therefore be quantitatively assessed in the context of other

evidence presented in order to determine whether its admission was

harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307–08,

111 S. Ct. at 1264. When there is structural error, “the criminal adversary

process itself [becomes] ‘presumptively unreliable.’ ” Lado v. State, 804

N.W.2d 248, 252 (Iowa 2011) (quoting United States v. Cronic, 466 U.S.
 15

648, 659, 104 S. Ct. 2039, 2047 (1984)). See generally United States v.

Gonzalez-Lopez, 548 U.S. 140, 148–49, 126 S. Ct. 2557, 2563–64 (2006)

(dividing constitutional errors into trial errors, which are subject to

harmless-error review, and structural defects, which defy analysis under

the harmless error standard).

While neither we nor the Supreme Court has expressly weighed in

on whether a violation of the Court’s holding in Taylor—that defendants

have a Sixth Amendment right to a jury drawn from a fair cross section of

the community—or in Duren—establishing the test for a fair-cross-section

claim—qualifies as a structural error, one circuit court has. In United

States v. Rodriguez-Lara, the Ninth Circuit concluded, “The selection of a

grand or petit jury in violation of either the equal protection or the fair

cross-section guarantee is structural error.” 421 F.3d 932, 940 (9th Cir.

2005), overruled on other grounds by United States v. Hernandez-Estrada,

749 F.3d 1154, 1164 (9th Cir. 2014). The Ninth Circuit’s conclusion

accords with the well-established rule that unlawful discrimination in the

jury-selection process is structural error. See, e.g., Batson v. Kentucky,

476 U.S. 79, 87, 100, 106 S. Ct. 1712, 1718, 1725 (1986) (noting harms

of racial discrimination in jury selection and holding that a violation of its

holding required reversal of the conviction); Vasquez v. Hillery, 474 U.S.

254, 263, 106 S. Ct. 617, 623 (1986) (“[W]hen a petit jury has been

selected upon improper criteria or has been exposed to prejudicial

publicity, we have required reversal of the conviction because the effect of

the violation cannot be ascertained.”); Duren, 439 U.S. at 370, 99 S. Ct. at

671–72 (establishing fair-cross-section test and reversing without

engaging in a harmless-error or prejudice analysis); Taylor v. Louisiana,

419 U.S. 522, 537–38, 95 S. Ct. 692, 701–02 (1975) (holding categorically

excluding women from juries violates the Sixth Amendment’s fair-cross-
 16

section requirement and reversing without engaging in a harmless-error

or prejudice analysis); Strauder v. West Virginia, 100 U.S. (10 Otto) 303,

305, 312 (1879) (invalidating a state statute that provided only white men

could serve as jurors and holding it was error to proceed to trial with such

a jury), abrogated on other grounds by Taylor, 419 U.S. at 536 n.19, 537,

95 S. Ct. at 701 & n.19.

However, even if a violation of the fair-cross-section right is

structural error, this does not mean that it affects the fundamental

fairness of the criminal trial or is “central to an accurate determination of

innocence or guilt.” Teague, 489 U.S. at 313, 109 S. Ct. at 1077; see

Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1908 (2017)

(“An error can count as structural even if the error does not lead to

fundamental unfairness in every case.”). As the Court explained in

Weaver, there are three general reasons for why a particular error is

determined to be structural: (1) “if the right at issue is not designed to

protect the defendant from erroneous conviction but instead protects some

other interest,” such as the defendant’s right to self-representation; (2) “if

the effects of the error are simply too hard to measure,” such as when a

defendant is denied the right to counsel of choice; and (3) “if the error

always results in fundamental unfairness,” for example, when an indigent

is denied the right to an attorney. 582 U.S. at ___, 137 S. Ct. at 1908.

Here, even if a violation of the right to a fair cross section is a

structural error, it would not be of the kind that would protect the

defendant from a fundamentally unfair trial. Likewise, a new rule

changing how a defendant can challenge a violation of the fair-cross-

section right would not implicate the fundamental fairness of the trial and

would, therefore, not qualify as a watershed rule.
 17

Under the Teague framework, we conclude that Plain’s holding on

the second prong of the Duren test constitutes a new rule under the Teague

framework. However, because it is not a watershed rule of criminal

procedure, it does not apply retroactively to cases on collateral review. The

Teague framework does not permit Thongvanh to make a Plain claim on

PCR.

B. Retroactivity Under the Iowa Constitution’s Due Process and

Equal Protection Guarantees. Thongvanh asks us to adopt our own

framework for retroactivity under the Iowa Constitution’s due process and

equal protection guarantees that provide for broader retroactivity than the

Court’s Teague framework. 4 See Iowa Const. art. I, §§ 6, 9. Thongvanh

proposes that we use the retroactivity rule from Griffith v. Kentucky, 479

U.S. 314, 107 S. Ct. 708 (1987), as the baseline for our constitutional

retroactivity framework.

In Griffith, the Court held that

a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on
direct review or not yet final, with no exception for cases in
which the new rule constitutes a ‘clear break’ with the past.

479 U.S. at 328, 107 S. Ct. at 716. At issue there was the retroactivity of

the holding in Batson, 476 U.S. 79, 106 S. Ct. 1712, to cases “pending on

4We reiterate, as discussed above, that the Court’s Teague framework is used to

determine whether the federal habeas statute allows a court to grant relief on collateral
review based on a new rule. Danforth, 552 U.S. at 278, 128 S. Ct. at 1040. The Teague
framework does not dictate when the relief based on a new rule is constitutionally
required—at least not with respect to the watershed-rule exception. See Montgomery,
577 U.S. at ___, 136 S. Ct. at 729 (clarifying that Teague’s rule that new substantive rules
apply retroactively “is best understood as resting upon constitutional premises” but also
reserving the question of the constitutional status of Teague’s watershed-rules exception
for another day). Accordingly, it is important to clarify that the Teague framework was
not designed as the test for determining whether a constitutional guarantee—such as due
process or equal protection—requires a new rule of criminal procedure apply retroactively
to cases on collateral review.
 18

direct state or federal review or not yet final when Batson was decided.”

Griffith, 479 U.S. at 316, 107 S. Ct. at 709. However, Thongvanh’s

criminal conviction and sentence became final long ago, and thus he would

not benefit from the Griffith holding.

In essence, Thongvanh is asking us to apply the same retroactivity

rule for cases that are not final at the time the new rule is announced to

cases that have become final at the time the new rule is announced. In

support of this request, he appears to argue that people whose convictions

have become final at the time the new rule is announced are similarly

situated to people whose convictions have not become final.

He notes that Plain and empirical evidence recognize that

underrepresentation of minorities in jury pools can affect trial outcomes.

See Plain, 898 N.W.2d at 826. He appears to argue that, therefore, any

person denied the application of Plain is similarly situated—regardless of

whether that person’s conviction had become final at the time Plain was

decided.

We are not persuaded by his argument. The Griffith Court expressly

acknowledged that in United States v. Johnson, 457 U.S. 537, 102 S. Ct.

2579 (1982), it “concluded that the retroactivity analysis for convictions

that have become final must be different from the analysis for convictions

that are not final at the time the new decision is issued.” Griffith, 479 U.S.

at 321–22, 107 S. Ct. at 712. And it noted that the Johnson Court largely

adopted the rationale for distinguishing between cases that had become

final and those that had not as explained in Justice Harlan’s separate

opinions in Desist v. United States, 394 U.S. 244, 256, 257–58, 89 S. Ct.

1030, 1038 (1969) (Harlan, J., dissenting), and Mackey v. United States,

401 U.S. 667, 679–81, 91 S. Ct. 1171, 1173–74 (1971) (Harlan, J.

concurring in the judgment). Griffith, 479 U.S. at 322, 107 S. Ct. at 712–
 19

13. Thongvanh makes no attack on Justice Harlan’s rationale or the

Johnson Court’s decision to largely adopt that rationale. Thus, Thongvanh

does not explain why persons whose cases had become final are similarly

situated to persons whose cases had not become final.

We recognize that the composition of jury pools can have real-world

effects. That is why we changed the law in Plain. In fact, since 1984, when

Thongvanh was tried and convicted, Iowa’s criminal justice system has

evolved in many ways—hopefully for the better. We believe if Thongvanh

were tried today, thirty-six years later, he would receive better procedural

protections on the whole. But against this consideration, we have to weigh

the need for finality of judgments when the issue does not bear directly on

guilt or innocence and the impracticality of reconstructing events that

occurred between three and four decades ago. 5

We are not persuaded that either the Teague framework or the Iowa

Constitution’s due process and equal protection guarantees require Plain

to apply retroactively to convictions that were already final at the time we

decided Plain. The district court did not err in concluding Thongvanh

could not rely on Plain as the basis for his current PCR application.

5Another point to be noted is that Thongvanh, unlike Teague and Brewer, did not

raise any objection at trial to the composition of the jury pool or panel, even an objection
under the then-existing law. See Thongvanh II, 494 N.W.2d at 683 (“Applicant maintains
that he was denied his Sixth Amendment right to assistance of counsel because of trial
counsel’s failure to object to the selection of the jury venire and petit jury.”); cf. Teague,
489 U.S. at 293, 109 S. Ct. at 1066 (noting that Teague moved twice for a mistrial);
Brewer, 444 N.W.2d at 79 (noting that the alleged constitutional infirmities were
“preserved at trial” and Brewer was seeking a “re-evaluation of his original claim that the
statutory exclusion of persons aged sixty-five and over from his jury panel violated his
sixth and fourteenth amendment rights to a fair and impartial jury”). We have no
occasion to decide today how a ruling that Plain is retroactive would be applied to the
case where the defendant did not make a contemporaneous objection.
 20

VI. Disposition.

We conclude Plain’s holding on the second prong of the Duren test

constitutes a new ground of law under section 822.3. However, because

we find that the new law of criminal procedure announced in Plain does

not apply retroactively to cases on collateral review, we affirm the dismissal

of Thongvanh’s PCR application.

AFFIRMED.

All justices concur except McDonald, J., who takes no part.