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Thongvanh v. State

Court of Appeals of Iowa

March 6, 2019

KHAMFEUNG THONGVANH, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

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

         Khamfeung Thongvanh appeals the denial of his application for post-conviction relief.

          Jamie L. Hunter of Dickey & Campbell Law Firm, PLC, Des Moines, and Andrew J. Smith of Mack, Hansen, Gadd, Armstrong & Brown, Storm Lake, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee State.

          Considered by Vogel, C.J., and Tabor and McDonald, JJ.

          McDONALD, Judge.

         This appeal arises out of the denial of Khamfeung Thongvanh's second application for postconviction relief. The questions presented in this appeal are (1) whether Thongvanh's second application for postconviction relief is time-barred and (2) whether State v. Plain, 898 N.W.2d 801, 829 (Iowa 2017)-in which the supreme court held the absolute-disparity test is not the exclusive test to "be used in deciding whether [a] jury pool was drawn from a fair cross-section of the community"-applies retroactively.

         By way of background, in 1984, Thongvanh was convicted of first-degree murder. This court affirmed his conviction on direct appeal. See State v. Thongvanh, 398 N.W.2d 182, 189 (Iowa Ct. App. 1986). Thongvanh subsequently sought postconviction relief. In his application for postconviction relief, Thongvanh argued "systematic and intentional exclusion of Asians from the jury pool prevented the jury from being representative of the community and violated his Sixth Amendment right to an impartial jury." Thongvanh v. State, 494 N.W.2d 679, 683 (Iowa 1993). The district court denied the application for postconviction relief, and the supreme court affirmed. See id. at 684. In affirming the district court, the supreme court noted the case of State v. Jones, 490 N.W.2d 787, 793 (Iowa 1992) overruled by State v. Plain, 898 N.W.2d 801, 829 (Iowa 2017), held that a showing of absolute disparity was the exclusive method to show a jury pool was not drawn from a fair cross-section of the community. "Absolute disparity is calculated 'by taking the percentage of the distinct group in the population and subtracting from it the percentage of that group represented in the jury panel.'" Plain, 898 N.W.2d at 822 (quoting Jones, 490 N.W.2d at 793). The Thongvanh court concluded:

There were no Asian jurors on applicant's jury. According to applicant's calculations, there was a .18 percent absolute disparity between Asians picked for jury duty and Asians in the general population of Webster County. Applicant argues that this disparity demonstrates Asians were significantly underrepresented in the jury selection process.
In State v. Jones, 490 N.W.2d 787 (Iowa 1992), we held that an absolute disparity of 1.5 percent was insufficient to establish a prima facie violation of the Sixth Amendment. We conclude applicant has not made a prima facie case of underrepresentation in this case. Further, we do not believe applicant has established that the disparity that does exist is due to a systematic exclusion of Asians from jury duty.

Thongvanh, 494 N.W.2d at 683-84.

         Subsequently, in 2017, the supreme court decided Plain and overruled Jones. See Plain, 898 N.W.2d at 826. The court reasoned that the absolute disparity formula was not always an accurate method of determining disparity. Id. at 823. The court held a defendant could show a jury pool was not drawn from a fair cross section of the community using formulae other than an absolute disparity formula. See id. at 826. The particular formulae endorsed by the supreme court are not of consequence in the resolution of this appeal, and we need not discuss them.

         After Plain, Thongvanh filed a second application for postconviction relief. Thongvanh again argued the venire was not drawn from a fair cross section of the community and therefore violated his Sixth Amendment right. He argued Plain should apply retroactively to his case. The district court dismissed the application, concluding the application was untimely and Plain did not apply retroactively. Thongvanh timely filed this appeal.

         This court reviews the denial of an application for postconviction relief for correction of errors at law. See Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). We review constitutional claims de ...


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