Thanh Dao, Applicant-Appellant v. State of Iowa, 14-0499

Thanh Dao was convicted of first-degree murder (life sentence) for a drive-by shooting and appealed; direct appeal affirmed and procedendo issued in 2001.
Dao filed a first PCR in 2001 alleging ineffective assistance of counsel; it was denied and appellate review dismissed as frivolous.
After the Iowa Supreme Court decided Heemstra (2006) narrowing predicate felonies for felony murder, Dao filed a second PCR in 2009 claiming trial counsel was ineffective for failing to object to felony-murder instructions; the district court dismissed it as untimely under Iowa Code § 822.3 and this court affirmed in 2013.
Dao’s PCR counsel failed to inform him of the appellate ruling, preventing further review; Dao filed a third PCR in 2013 claiming ineffective assistance of postconviction counsel and constitutional violations (due process, equal protection, separation of powers) based on nonretroactive application of Heemstra.
The court reviewed ineffective-assistance claims de novo and required Dao to prove both deficient performance by PCR counsel and prejudice from that deficiency.
The court concluded even assuming PCR counsel erred, Dao could not show prejudice because the Iowa Supreme Court in Nguyen and earlier in Goosman rejected the constitutional arguments for retroactive application of Heemstra.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dao’s third PCR alleging postconviction counsel failed to inform him of appeal rights warrants relief	PCR counsel was ineffective for not notifying Dao of his right to further review, entitling him to relief	Any failure by PCR counsel did not cause prejudice because substantive constitutional claims lack merit	Denied — even if counsel erred, Dao cannot show prejudice because his constitutional claims fail
Whether Heemstra must be applied retroactively to Dao’s conviction	Heemstra should apply retroactively; nonretroactive application violates equal protection and due process	Heemstra is nonretroactive; applying it retroactively is not constitutionally required	Denied — Heemstra’s nonretroactivity does not violate due process or equal protection
Whether failure to give retroactive effect to Heemstra violates Iowa Constitution (due process, equal protection, separation of powers)	Such failure violates state constitutional provisions	State courts’ nonretroactive application of Heemstra is permissible under Iowa Constitution	Denied — state constitutional claims rejected per Nguyen
Timeliness of PCR claims under Iowa Code § 822.3	Second PCR claims were timely due to Heemstra-based error	Second PCR was filed after the three-year period following procedendo and was untimely	Second PCR previously held untimely; issue not revived by third PCR

Nguyen v. State, 878 N.W.2d 744 (Iowa 2016) (rejected retroactivity and constitutional challenges to Heemstra; dispositive of Dao’s claims)
Goosman v. State, 764 N.W.2d 539 (Iowa 2009) (Due Process does not require retroactive application of Heemstra)
State v. Heemstra, 721 N.W.2d 549 (Iowa 2006) (held that an act causing willful injury that also causes death merges into murder and cannot serve as felony-murder predicate)