from the Iowa District Court for Webster County, Adria A.D.
Thongvanh appeals the denial of his application for
L. Hunter of Dickey & Campbell Law Firm, PLC, Des Moines,
and Andrew J. Smith of Mack, Hansen, Gadd, Armstrong &
Brown, Storm Lake, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vogel, C.J., and Tabor and McDonald, JJ.
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.
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.
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.
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.
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 ...