United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3249
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Paul E. Welch, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Mark Lund, *
*
Appellee. *
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Submitted: June 16, 2010
Filed: August 5, 2010
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Before RILEY, Chief Judge, CLEVENGER,1 and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Paul Welch, an Iowa prisoner, appeals the judgment of the district court2
dismissing his petition for a writ of habeas corpus. He argues that the district court
erred in concluding that he procedurally defaulted several claims by failing to exhaust
them in the Iowa state courts. We affirm.
1
The Honorable Raymond C. Clevenger, III, Judge of the United States Court
of Appeals for the Federal Circuit, sitting by designation.
2
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
I.
In 2001, an Iowa jury convicted Paul Welch on eight counts of second-degree
sexual abuse of minor C.B., and eleven counts of third-degree sexual abuse of minor
A.J. The district court sentenced him to a total of 35 years’ imprisonment. The Iowa
Court of Appeals affirmed his convictions on direct appeal.
In 2004, Welch filed an application for postconviction relief in the state trial
court, raising several constitutional claims. The trial court denied relief, and the court
of appeals affirmed. On July 3, 2007, Welch, acting pro se, mailed a motion that he
titled “motion for expanded [a]nd corrected findings and conclusion of my post-
conviction appeal hearing” to the Iowa Court of Appeals. This motion was summarily
denied in September 2007 in an order signed by the chief judge of the court of
appeals.
In 2008, Welch filed a pro se petition for writ of habeas corpus in federal
district court. The court appointed counsel to represent Welch, and Welch then filed
an amended petition through counsel that raised sixteen grounds for relief. The State
moved for partial summary judgment, arguing that Welch failed properly to exhaust
his state court remedies with regard to thirteen of the claims. The district court
granted the motion, holding that Welch did not properly exhaust the thirteen claims
in state court and that the claims were thus procedurally defaulted. The court later
denied the remaining three claims on the merits and dismissed the petition.
The district court certified several issues for appeal, including whether Welch’s
pro se motion “for expanded [a]nd corrected findings and conclusion of [his] post-
conviction appeal hearing” was sufficient to exhaust his claims properly under Iowa’s
appellate review process. The parties agree that if the district court erred in its
conclusions on procedural default, then the case should be remanded for the district
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court to address the merits of several claims in the first instance. The three claims
already resolved on the merits were not certified for appeal.
II.
An application for a writ of habeas corpus filed in federal court by a state
prisoner “shall not be granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To fulfill
this requirement properly, “state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of
the State’s established appellate review process” before presenting those issues in an
application for habeas relief in federal court. O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999). A state prisoner is not required to pursue “extraordinary” remedies
outside of the standard review process, but he “must seek the discretionary review of
the state supreme court when that review is part of the ordinary and established
appellate review process in that state.” Dixon v. Dormire, 263 F.3d 774, 777 (8th Cir.
2001); see O’Sullivan, 526 U.S. at 847. A failure to exhaust remedies properly in
accordance with state procedure results in procedural default of the prisoner’s claims.
O’Sullivan, 526 U.S. at 848.
Welch argues that he properly exhausted his state remedies when he filed, with
the Supreme Court of Iowa, an appeal of the state district court’s denial of his
application for postconviction relief. The state supreme court transferred the appeal
to the state court of appeals, but Welch asserts that the state supreme court retained
jurisdiction over his appeal after the transfer. He argues that the ordinary and
established appellate review process in Iowa did not require him to file an application
for further review in the state supreme court after an adverse decision by the court of
appeals. Therefore, Welch contends, he properly exhausted his state remedies as
required by § 2254(b)(1)(A), even if his pro se motion is not construed as an
application for further review in the supreme court.
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Welch’s contention misunderstands Iowa’s “deflective appellate structure.”
State v. Effler, 769 N.W.2d 880, 883 (Iowa 2009). Under that system, a party wishing
to appeal a ruling of an Iowa district court may appeal to the supreme court. Iowa R.
App. P. 6.1(1) (2007)3; see Effler, 769 N.W.2d at 883. The supreme court may then
choose to transfer any case (except a case in which state law grants that court
exclusive jurisdiction) to the court of appeals. Iowa Code §§ 602.4102(2), 5103(3);
Iowa R. App. P. 6.401(1) (2007); see Effler 769 N.W.2d at 883. “Once a transfer has
been made, the supreme court no longer has jurisdiction of the matter, unless a party
seeks further review of the court of appeals decision.” Effler, 769 N.W.2d at 883; see
Iowa Code § 602.4102(2). The supreme court regains jurisdiction only if it grants an
application for further review. Effler, 769 N.W.2d at 883; Iowa Code § 602.4102(2),
(4); see Iowa R. App. P. 6.402 (2007). Nothing in Iowa law indicates that an
application for further review in the supreme court is an extraordinary measure outside
of the state’s established appellate review process. Cf. Akins v. Kenney, 410 F.3d 451,
454 (8th Cir. 2005) (analyzing Nebraska’s appellate review process); Dixon, 263 F.3d
at 779 (analyzing Missouri’s appellate review process). Therefore, an Iowa prisoner
whose appeal is deflected to the Iowa Court of Appeals must file an application for
further review in the Supreme Court of Iowa to exhaust his claims properly in the state
courts.
Welch next argues that even if he was required to petition for further review in
the state supreme court, his pro se motion for expanded and corrected findings did
constitute such a petition. He points out that the Supreme Court of Iowa and the Iowa
Court of Appeals share a joint clerk’s office, which received his motion, and that an
order directing the State to file a response was styled, “In the Supreme Court of Iowa,”
and signed by a deputy clerk of the supreme court. He highlights that his motion
referred to a desire for “further review,” and says that the motion “strongly implies”
3
We cite the Iowa Rules of Appellate Procedure in effect at the time Welch filed
his appeal.
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that he claimed an “error of law,” which is one ground for further review by the state
supreme court under the Iowa rules. See Iowa R. App. P. 6.402(3)(a) (2007). He also
notes that the motion mentions the court of appeals and gives the date of the adverse
decision, as required by the Iowa rule governing applications for further review in the
supreme court. See Iowa R. App. P. 6.402(4) (2007).
Welch contends that the federal habeas courts should make an “independent
determination” as to whether the pro se motion was an application for further review
in the state supreme court, rather than defer to the determination of the state courts
that it was not. It is the prerogative of the state courts, however, to define and apply
their procedural rules. Once the state courts have ruled, the adequacy of a state
procedural bar is a federal question. Beard v. Kindler, 130 S. Ct. 612, 617 (2009).
But the duty to scrutinize the application of state rules that bar the review of federal
claims does not authorize the federal courts to recharacterize a State’s procedural
rulings under state law. “[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62,
67-68 (1991).
Like the district court, we conclude that the Iowa courts did construe Welch’s
pro se filing as a motion in the court of appeals rather than an application for further
review by the supreme court. The motion was denied in an order styled “In the Court
of Appeals of Iowa” and signed by that court’s chief judge. This order reflects the
state judiciary’s judgment that Welch’s motion did not constitute an application to the
supreme court for further review under Iowa law. This determination is hardly
surprising upon examination of the motion as a whole. Welch’s motion for expanded
and corrected findings states that “[t]his court ruled in favor of the ruling of the PCR
courts [sic] ruling,” and that “[m]y PCR attorney held this courts [sic] ruling for 9
days,” thus indicating that the motion was directed to the same court that had just
issued a ruling. And the envelope in which the motion was delivered was addressed
to the “Iowa Court of Appeals.”
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Welch, therefore, never filed a proper application for further review by the
Supreme Court of Iowa, and it is now too late for him to do so. See Iowa R. App. P.
6.402(2) (2007). He technically has exhausted his state remedies for the claims raised
in his state postconviction petition, because it is clear that there is no state-law remedy
still available. Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). But he has not
exhausted them properly; as a consequence of his failure to seek further review in the
state supreme court, the claims are procedurally defaulted. O’Sullivan, 526 U.S. at
848; Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
This procedural bar “provides an independent and adequate state-law ground
for the conviction and sentence, and thus prevents federal habeas corpus review of the
defaulted claim, unless the petitioner can demonstrate cause and prejudice for the
default,” Gray, 518 U.S. at 162, or some other reason to avoid the default rule. Welch
does not argue that he can show cause and prejudice. Nor does he contend that
enforcing the procedural default rule would result in “a miscarriage of justice” by
denying relief to a prisoner who is “actually innocent,” see Murray v. Carrier, 477
U.S. 478, 496 (1986), that Iowa’s procedural requirement is not firmly established and
regularly followed, see James v. Kentucky, 466 U.S. 341, 348 (1984), or that the state
ground is otherwise inadequate. See Lee v. Kemna, 534 U.S. 362, 376 (2002).
Welch does briefly invoke provisions of the federal habeas corpus statute that
excuse the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A) when “there is an
absence of available State corrective process,” 28 U.S.C. § 2254(b)(1)(B)(i), or
“circumstances exist that render such process ineffective to protect the rights of the
applicant.” Id. § 2254(b)(1)(B)(ii). These provisions excuse the need for exhaustion
of state remedies when, for example, an inordinate and unjustifiable delay renders the
state’s process ineffective to protect the petitioner’s rights. See Jackson v. Duckworth,
112 F.3d 878, 881 (7th Cir. 1997). Welch’s reliance on § 2254(b)(1)(B) is
misdirected in this case, however, because he has “exhausted” his claims in the courts
of Iowa by failing to seek further review in the state supreme court within the allotted
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time. His petition was properly dismissed because the exhausted claims are
procedurally defaulted.
* * *
The judgment of the district court is affirmed.
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