Boss v. Ludwick

Filing 41

ORDER Accepting Report and Recommendation for 29 Motion to Stay filed by Donald L Boss, Jr, and 35 Report and Recommendation. Boss's Motion To Stay at 29 is denied. Ground Two of Boss's section 2254 Petition is dismissed with prejud ice as procedurally defaulted. Ground Five of Boss's section 2254 Petition is dismissed with prejudice as without merit. Boss shall have to and including 5/31/2012, to file a brief on the merits of Grounds One, Three and Four of his section 2254 Petition. Signed by Judge Mark W Bennett on 05/01/2012. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DONALD L. BOSS, JR.,
Petitioner,

No. C 11-4014-MWB

vs.
MEMORANDUM OPINION AND
ORDER REGARDING PETITIONER’S
OBJECTIONS TO REPORT AND
Respondent.
RECOMMENDATION TO DENY
STAY OF § 2254 PETITION
___________________________

NICK LUDWICK,

TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 
A. 
State Proceedings ................................................................... 2 
B. 
Federal Proceedings ................................................................ 3 
1. 
Boss’s § 2254 Petition ..................................................... 3 
2. 
Boss’s Motion To Stay..................................................... 4 
3. 
The Report and Recommendation ....................................... 5 
4. 
Boss’s Objections ........................................................... 6 

II. 

LEGAL ANALYSIS ........................................................................ 8 
A. 
The Standards Of Review ......................................................... 8 
1. 
The statutory standards ................................................... 8 
2. 
Interpretation of the standards .......................................... 9 
a. 
Permissive de novo review ........................................ 9 
b. 
Mandatory de novo review ....................................... 9 
c. 
“Clear error” review ............................................ 10 
B. 
Unexhausted Claims Versus Defaulted Claims ............................. 11 
1. 
Rules for unexhausted claims .......................................... 12 
a. 
Dismissal rules ................................................... 12 
b. 
The “stay and abeyance” rule ................................. 14 
i.  The procedure ................................................ 14 
ii.  The relevant factors ........................................ 14 
2. 
Rules for procedurally defaulted claims ............................. 15 

C. 

III. 

Application Of The Rules ....................................................... 17 
1. 
Is Boss’s request for a stay moot? .................................... 17 
a. 
Untimeliness of further state proceedings ................... 17 
b. 
The § 822.8 exception ........................................... 18 
c. 
The § 822.3 exception ........................................... 21 
d. 
Boss’s further objections ....................................... 22 
e. 
Summary........................................................... 23 
2. 
Can Boss overcome procedural default .............................. 24 

CONCLUSION ............................................................................ 25 

Should this action pursuant to 28 U.S.C. § 2254 be stayed to give a state
prisoner a chance to exhaust state remedies on unexhausted claims, where the
unexhausted claims are (or appear to be) barred by the applicable state statute of
limitations? In a report and recommendation, a magistrate judge concluded that a stay
should be denied and the unexhausted claims dismissed. The prisoner objects, arguing,
inter alia, that the state court, rather than this federal court, should decide whether his
admittedly unexhausted claims are now time-barred. The prisoner’s objections have
triggered my obligation to consider the question de novo.
I.

INTRODUCTION1

A.

State Proceedings

On December 12, 2002, petitioner Donald L. Boss, Jr., was convicted, in the
Iowa District Court for Plymouth County, of the first-degree murder of his son,
1

Boss does not object to the summary of the state and federal proceedings in the
Report and Recommendation, 1-3.
2

Timothy, in violation of IOWA CODE § 707.2.

On December 16, 2002, he was

sentenced to life imprisonment without possibility of parole. He appealed. On January
28, 2004, the Iowa Court of Appeals affirmed Boss’s conviction. See State v. Boss,
796 N.W.2d 458, 2004 WL 137627 (Iowa Ct. App. 2004) (slip op.). Boss sought
further review by the Iowa Supreme Court, but that request was denied on April 23,
2004, and his conviction became final on April 28, 2004.
On March 11, 2005, Boss filed an application for post-conviction relief in the
Iowa District Court for Plymouth County, but that application was denied on August
28, 2008. Boss appealed the denial of post-conviction relief, the Iowa Court of Appeals
affirmed on August 11, 2010, see Boss v. State, 789 N.W.2d 165, 2010 WL 3155198
(Iowa Ct. App. 2010) (slip op.), and the Iowa Supreme Court denied further review on
October 21, 2010.

Procedendo on the denial of post-conviction relief issued on

November 8, 2010.
B.
1.

Federal Proceedings

Boss’s § 2254 Petition

On November 15, 2010, Boss commenced this federal action by filing a pro se
Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State
Custody (§ 2254 Petition) (docket nos. 1 and 9) in the United States District Court for
the Southern District of Iowa.

However, on January 20, 2011, this action was

transferred to this district, which includes the county where Boss was convicted. See
Order Transferring Case (docket no. 4).
Boss asserts five grounds for § 2254 relief. Ground One alleges that counsel
provided ineffective assistance by disclosing the location of the victim’s body during a
bond review hearing. Ground Two alleges that counsel provided ineffective assistance
by failing to investigate inconsistences in the statements of Boss’s children (specifically,
3

Boss’s son, Claxton) and by failing to secure or investigate a tape recording of Boss’s
statement to Officer Bartolozzi, purportedly made while Officer Bartolozzi was
transporting Boss to the station. Ground Three alleges that counsel provided ineffective
assistance by failing to object to numerous uses by the prosecution in its closing
argument of the word “liar” to describe Boss.

Ground Four alleges prosecutorial

misconduct in waving a fist up against pictures of the skeleton of the victim, multiple
uses of the word “liar,” and substitution of the prosecutor’s opinions for facts,
prejudicing Boss’s ability to receive a fair trial. Ground Five alleges a constitutional
violation arising from the Iowa Supreme Court’s subsequent redefinition of the felony
murder rule, in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), in such a way that it
would not have supported a conviction in Boss’s case.
In an Initial Review Order (docket no. 8), Chief United States Magistrate Judge
Paul A. Zoss directed the respondent to file an answer to Boss’s § 2254 Petition and
directed the Clerk of Court to appoint an attorney to represent Boss in this matter. The
respondent filed his Answer (docket no. 15) on May 2, 2011, asserting, inter alia, that
Grounds Two and Five of Boss’s § 2254 Petition are procedurally defaulted. Judge
Zoss then set a briefing schedule on the merits of Boss’s claims by Order (docket no.
16), filed on May 3, 2011.
2.

Boss’s Motion To Stay

Boss did not file a brief on the merits. Instead, on December 15, 2011, Boss
filed, through counsel, a Motion To Stay Proceedings Pending Exhaustion Of State
Proceedings (Motion To Stay) (docket no. 29).

In his Motion To Stay, Boss

acknowledged that Grounds Two and Five of his Petition were not exhausted, but
argued that this action should be stayed to allow him to attempt to exhaust those claims
in state court, while maintaining the timeliness of his other claims for federal relief.
The respondent filed a Resistance (docket no. 30), arguing that a stay is inappropriate.
4

The respondent argued that the two claims at issue are not merely unexhausted, but now
procedurally defaulted, because the applicable state statute of limitations for claims for
post-conviction relief has expired, where more than three years have passed since
Boss’s conviction became final. Thus, the respondent argued that a return to state court
on the unexhausted claims would be futile. The respondent also argued that Boss has
not shown good cause for failing to exhaust the claims at issue. Finally, the respondent
argued that Ground Five is plainly meritless.
3.

The Report and Recommendation

On January 20, 2012, Judge Zoss heard oral arguments on Boss’s Motion To
Stay.2 On February 28, 2012, Judge Zoss filed a Report and Recommendation (docket
no. 35) recommending that Boss’s Motion To Stay be denied, that Grounds Two and
Five be dismissed with prejudice, and that, if I accepted the Report and
Recommendation, Boss should be ordered to brief the merits of the remaining grounds
for relief within 30 days.
Somewhat more specifically, Judge Zoss concluded that Boss had not exhausted
Grounds Two and Five, either on direct appeal or on appeal of the denial of his
application for post-conviction relief. Judge Zoss found that Boss had raised those
claims in his application for post-conviction relief, but then either abandoned them,
when pursuing appellate relief, or failed to pursue them, when seeking further review
by the Iowa Supreme Court. Therefore, Judge Zoss concluded that the claims were
never fairly presented to the state courts. Judge Zoss also found that the three-year
statute of limitations in IOWA CODE § 822.3 prevented Boss from asserting those claims
in state court now, so that the claims were not just unexhausted, but procedurally

2

Apparently owing to technical difficulties, a miscommunication, or a problem
at the prison where Boss is incarcerated, Boss was unable to participate in the oral
arguments telephonically, as the court and the parties had arranged.
5

defaulted. Judge Zoss concluded that Boss could not excuse his procedural default,
because he had not demonstrated “cause” for and “actual prejudice” from his failure to
present the claims in state court, because “[t]he failure to diligently assert his claims
after the Iowa District Court for Plymouth County denied his application for postconviction relief and pursue further appellate relief falls solely on the petitioner.”
Report and Recommendation at 9. Judge Zoss concluded that Boss could not “call into
question appointed [post-conviction relief] counsel’s decision to forego appealing an
issue or filing an application for further review.” Id. (also concluding that Boss had
not asserted a fundamental miscarriage of justice as an alternative basis to excuse
procedural default).

Next, Judge Zoss concluded that Boss had not met the

requirements for a stay of a “mixed petition” for habeas corpus relief to allow him to
attempt to exhaust his unexhausted claims, because no state remedies were available for
the procedurally defaulted claims, making a stay futile. Id. at 12.
Finally, Judge Zoss observed,
Rather than request a stay, the petitioner should have filed a
merits brief which addressed: (1) whether the highest state
court had a full and fair opportunity to consider each claim,
(2) whether the petitioner’s claims are procedurally barred
under state law and (3) whether the petitioner can
demonstrate cause and prejudice for any procedurally
defaulted claim. And, notwithstanding any failure of the
petitioner to exhaust the remedies that were available to him,
he should have addressed the merits of his claims.
Report and Recommendation at 12.
4.

Boss’s Objections

On March 21, 2012, after an extension of time to do so, Boss filed the
Objections To Report And Recommendation (Objections) (docket no. 40) now before
me. In his Objections, Boss reiterates his acknowledgment that Grounds Two and Five
are unexhausted. However, he offers an explanation for why he did not argue the
6

merits or exceptions to procedural default of those unexhausted claims. Specifically, he
argues that the claim concerning the recording of his statements by Officer Bartolozzi
could not be adequately developed, where the state still has not produced the tape
recording in question, his current counsel believes that he had a better chance of
obtaining the recording in state post-conviction relief proceedings than through the
limited discovery permitted in federal habeas proceedings, and he does not want to lose
federal review of the claim by failing to assert it in his first federal habeas petition.
Boss specifically objects to Judge Zoss’s recommendation that a stay be denied,
at least to the extent that it forecloses the opportunity to develop the claim relating to
the recording, because Boss argues that the recording, if obtained, will establish that his
right to counsel was violated and will also impeach the officer’s denial that he recorded
the conversation. He takes issue with Judge Zoss’s conclusion that a return to state
court would be futile, because the state statute of limitations on post-conviction relief
claims has expired, and no exception applies in his case. Boss contends that, in so
concluding, Judge Zoss unreasonably ignored his contention that the State has
deliberately withheld potentially exculpatory evidence in the form of the tape.

He

contends that his claim is similar to one found timely in Harrington v. State, 659
N.W.2d 509 (Iowa 2003), and, thus, is one that requires factual development. He
contends that the proper course would be to allow the state courts to determine whether
or not his claim is timely.
Boss also objects to Judge Zoss’s conclusion that the blame for default of the
claim lies with him.

He argues that, even though ineffective assistance of post-

conviction relief counsel cannot establish “cause” to excuse a procedural default, it can
be considered to determine whether a stay should be granted to allow him to attempt to
exhaust the claim in question. Boss asserts that, because he was unable to participate in
the oral arguments before Judge Zoss, I should hear oral arguments on his Objections,
7

so that he can now describe how important he feels the recording issue is and how
clearly he communicated a desire to pursue it to counsel in the post-conviction relief
proceedings at the district court and appellate levels.
Boss now acknowledges, however, that his Ground Five, concerning subsequent
redefinition of Iowa’s felony murder rule by the Iowa Supreme Court in State v.
Heemstra, 721 N.W.2d 549 (Iowa 2006), is fruitless. He acknowledges that every
federal court to consider the issue has concluded that the Iowa Supreme Court’s
decision in Heemstra does not apply retroactively to cases that became final before the
redefinition was announced. See Graves v. Ault, 614 F.3d 501, 509-12 (8th Cir.), cert.
denied, ___ U.S. ___, 131 S. Ct. 508 (2010).

Thus, my analysis concerns only

Ground Two.
II.
A.
1.

LEGAL ANALYSIS
The Standards Of Review

The statutory standards

The district court’s standards of review for a magistrate judge’s report and
recommendation are established by statute:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of
the court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or
recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1) (2006); see FED. R. CIV. P. 72(b) (stating identical
requirements); N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a

8

magistrate judge but not articulating any standards to review the magistrate judge’s
report and recommendation).
2.

Interpretation of the standards

The United States Supreme Court has explained the statutory standards, as
follows:
Any party that desires plenary consideration by the Article
III judge of any issue need only ask. Moreover, while the
statute does not require the judge to review an issue de novo
if no objections are filed, it does not preclude further review
by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, the specific standard of review may
depend upon whether or not a party has objected to portions of the report and
recommendation. I will explain what triggers each specific standard of review in a
little more detail.
a.

Permissive de novo review

A district court may review de novo any issue in a magistrate judge’s report and
recommendation at any time. Id. This discretion to conduct de novo review of any
issue at any time makes sense, because the Eighth Circuit Court of Appeals has
“emphasized the necessity . . . of retention by the district court of substantial control
over the ultimate disposition of matters referred to a magistrate.” Belk v. Purkett, 15
F.3d 803, 815 (8th Cir. 1994).
b.

Mandatory de novo review

If a party files an objection to the magistrate judge’s report and recommendation,
however, the district court must “make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1) (emphasis added). In most cases, to trigger de novo review,
9

“objections must be timely and specific.” Thompson v. Nix, 897 F.2d 356, 358-59 (8th
Cir. 1990).

However, the Eighth Circuit Court of Appeals has been willing to

“liberally construe[]” otherwise general pro se objections to require a de novo review
of all “alleged errors,” see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and
has also been willing to conclude that general objections require “full de novo review”
if the record is concise, Belk, 15 F.3d at 815 (“Therefore, even had petitioner’s
objections lacked specificity, a de novo review would still have been appropriate given
such a concise record.”). When objections have been made, and the magistrate judge’s
report is based upon an evidentiary hearing, “‘the district court must, at a minimum,
listen to a tape recording or read a transcript of the evidentiary hearing.’” United
States v. Azure, 539 F.3d 904, 910 (8th Cir. 2008) (quoting Jones v. Pillow, 47 F.3d
251, 252 (8th Cir. 1995), in turn quoting Branch v. Martin, 886 F.2d 1043, 1046 (8th
Cir. 1989)). As part of my de novo review of Boss’s Objections in this case, I have
listened to the recording of the oral arguments before Judge Zoss on Boss’s Motion To
Stay on January 20, 2012.
c.

“Clear error” review

In the absence of an objection, the district court is not required “to give any
more consideration to the magistrate’s report than the court considers appropriate.”
Thomas, 474 U.S. at 150; see also Peretz v. United States, 501 U.S. 923, 939 (1991)
(stating that § 636(b)(1) “provide[s] for de novo review only when a party objected to
the magistrate’s findings or recommendations” (emphasis added)); United States v.
Ewing, 632 F.3d 412, 415 (8th Cir. 2011) (“By failing to file objections, Ewing waived
his right to de novo review [of a magistrate judge’s report and recommendation on a
suppression motion] by the district court.”). Indeed, Thomas suggests that no review at
all is required. Id. (“We are therefore not persuaded that [§ 636(b)(1)] requires some
lesser review by the district court when no objections are filed.”).
10

Nevertheless, the Eighth Circuit Court of Appeals has indicated that a district
court should review the portions of a magistrate judge’s report and recommendation to
which no objections have been made under a “clearly erroneous” standard of review.
See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that, when no
objections are filed and the time for filing objections has expired, “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”);
Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990) (noting that the advisory
committee’s note to FED. R. CIV. P. 72(b) indicates “when no timely objection is filed
the court need only satisfy itself that there is no clear error on the face of the record”).
Review for clear error, even when no objection has been made, is consistent with
“retention by the district court of substantial control over the ultimate disposition of
matters referred to a magistrate.” Belk, 15 F.3d at 815.
Although the Eighth Circuit Court of Appeals has not explained precisely what
“clear error” review means in this context, in other contexts, the Supreme Court has
stated that the “foremost” principle under this standard of review “is that ‘[a] finding is
“clearly erroneous” when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.’” Anderson v. City of Bessemer City, 470 U.S. 564, 573 74 (1985)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
I will review Judge Zoss’s Report and Recommendation with these standards in
mind.
B.

Unexhausted Claims Versus Defaulted Claims

At first blush, Boss’s § 2254 Petition appears to be a “mixed petition,” that is,
“one in which some claims have been fully exhausted in state court and others have
not.” White v. Dingle, 616 F.3d 844, 846 (8th Cir. 2010). “To exhaust an available
11

state post-conviction remedy, the petitioner must ‘use the State’s established appellate
review procedures.’” Armstrong v. Iowa, 418 F.3d 924, 925-26 (8th Cir. 2005) (citing
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

Where the petitioner fails to

appeal the denial of state post-conviction relief to the state supreme court, he has failed
to exhaust the claims that were raised or that should have been raised in the state court
petition. Id. at 926.
Boss’s Grounds One, Three, and Four were fully exhausted on Boss’s direct
appeals and in state post-conviction relief proceedings, including appeal to the Iowa
Court of Appeals and a request for further review to the Iowa Supreme Court. Id. at
925-26. On the other hand, Boss admits that, although he raised Ground Two in his
application for post-conviction relief, he either did not raise that ground in his postconviction relief appeal or did not pursue it in his application for further review.
Report and Recommendation at 8. Therefore, Ground Two was not fully exhausted.
Armstrong, 418 F.3d at 925-26.3 I conclude, however, that the failure to exhaust his
Ground Two for § 2254 relief does not necessarily mean that Boss’s § 2254 Petition is
“mixed,” because it leaves open the question of whether Ground Two is merely
unexhausted, or is procedurally defaulted.
1.

Rules for unexhausted claims
a.

Dismissal rules

For three decades, “mixed petitions,” involving both exhausted and unexhausted
claims, have been subject to special rules. As the Eighth Circuit Court of Appeals has
explained,
In Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982), the Supreme Court held . . . that a
mixed petition should be dismissed without prejudice and
3

The same is true of Ground Five, but Boss raises no objections to the dismissal
of Ground Five as without merit.
12

that the petitioner should be given “the choice of returning
to state court to exhaust his claims or of amending or
resubmitting the habeas petition to present only exhausted
claims to the district court.” Id.
White, 616 F.3d at 846. Thus, at least initially, “mixed petitions” were subject to
dismissal, albeit without prejudice, in their entirety.
The Lundy rule created problems under the Antiterrorism and Effective Death
Penalty Act (AEDPA):
Because Rose v. Lundy was decided before the AEDPA’s
one-year statute of limitations was established, however, it
did not contemplate that a dismissal without prejudice after
expiration of the AEDPA limitations period could eliminate
access to federal habeas review. The potential peril for the
unwary habeas petitioner is exacerbated by the fact that the
limitations period is not tolled while a petition is pending in
federal court. See Duncan v. Walker, 533 U.S. 167, 18182, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). A petitioner
like White, for example, who files his petition well before
the expiration of the AEDPA’s one-year deadline may find
that the limitations period has expired while his case was
under consideration. In such a situation, dismissal without
prejudice does not provide a petitioner with the options that
the Court envisioned in Rose v. Lundy; rather, it leaves the
petitioner both out of court and out of time to file another
petition.
The Supreme Court considered this issue in Rhines v.
Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 161 L.Ed.2d
440 (2005), and concluded that when dismissal of a mixed
petition without prejudice might unreasonably impair a
petitioner’s opportunity to obtain federal habeas review, “the
court should allow the petitioner to delete the unexhausted
claims and to proceed with the exhausted claims.” In other
words, the petitioner should be given the opportunity to have
his exhausted claims considered on the merits.

13

White, 616 F.3d at 846-47. Thus, the first remedy to the problem created by the
unanticipated effect of the Lundy rule in conjunction with the AEDPA’s one-year statute
of limitations was to allow piecemeal dismissal of the unexhausted claims, while
exhausted claims were allowed to proceed through federal habeas review.
b.

The “stay and abeyance” rule
i.

The procedure

In Rhines v. Weber, 544 U.S. 269 (2005), however, the United States Supreme
Court did not authorize dismissal of unexhausted claims as the only remedy. The Court
also authorized a “stay and abeyance” procedure for the petitioner’s entire § 2254
petition. Rhines, 544 U.S. at 275. Specifically,
Under this procedure, rather than dismiss the mixed petition
pursuant to Lundy, a district court might stay the petition
and hold it in abeyance while the petitioner returns to state
court to exhaust his previously unexhausted claims. Once
the petitioner exhausts his state remedies, the district court
will lift the stay and allow the petitioner to proceed in
federal court.
Rhines, 544 U.S. at 275-76. Thus, the “stay and abeyance” procedure allows the
petitioner to attempt to exhaust his or her unexhausted claims in state court, while the
entire petition is stayed in federal court, then, after all claims are exhausted, proceed
with all of his or her claims for § 2254 relief in the original § 2254 proceeding in
federal court.
ii.

The relevant factors

Although the Court held in Rhines that the district court has the authority to
impose a stay, the Court also observed but that the district court should do so “only in
limited circumstances.” Id. at 277. As the Eighth Circuit Court of Appeals explained
on remand,
The Court’s opinion provided the following guidance:
14

[S]tay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner’s failure to exhaust his claims first in state
court. Moreover, even if a petitioner had good cause
for that failure, the district court would abuse its
discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless.
******
Even where stay and abeyance is appropriate . . . [a]
mixed petition should not be stayed indefinitely. . . .
Thus, district courts should place reasonable time
limits on a petitioner’s trip to state court and
back. . . . And if a petitioner engages in abusive
litigation tactics or intentional delay, the district court
should not grant him a stay at all.
[Rhines, 544 U.S. at 277-78, 125 S. Ct.] at 1535.
Rhines, 409 F.3d at 983.

The Eighth Circuit Court of Appeals subsequently

summarized the factors pertinent to the determination of whether or not to stay a
“mixed petition” as follows: “(1) [the petitioner] had good cause for his failure to
exhaust, (2) his unexhausted claims were potentially meritorious, and (3) he had not
engaged in intentionally dilatory litigation tactics.” Howard v. Norris, 616 F.3d at
801.
There is at least one “prerequisite” to invocation of the “stay and abeyance”
procedure. The Eighth Circuit Court of Appeals has recognized that, if the petitioner’s
federal habeas petition is untimely, that untimeliness renders the “stay and abeyance”
issue moot. See Parmley v. Norris¸ 586 F.3d 1066, 1073 (8th Cir. 2009).
2.

Rules for procedurally defaulted claims

Different rules apply if the claims in question are not just unexhausted, but
procedurally defaulted.

In Armstrong v. Iowa, 418 F.3d 924 (8th Cir. 2005), the

Eighth Circuit Court of Appeals explained,
15

When a state court remedy is available for a state
prisoner’s unexhausted claim, the federal habeas court must
defer action until the claim is exhausted, either by
dismissing the federal petition without prejudice or by using
the “stay and abeyance” procedure described in Rhines v.
Weber, --- U.S. ----, 125 S.Ct. 1528, 161 L.Ed.2d 440
(2005). However, if no state court remedy is available for
the unexhausted claim—that is, if resort to the state courts
would be futile—then the exhaustion requirement in
§ 2254(b) is satisfied, but the failure to exhaust “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” (or
actual innocence, which is not an issue in this case). Gray
v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135
L.Ed.2d 457 (1996); see Coleman v. Thompson, 501 U.S.
722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Armstrong, 418 F.3d at 926. Thus, if the challenged claims are procedurally defaulted,
not merely unexhausted, then the petition is no longer “mixed,” the “stay and
abeyance” issue is moot, and the only question is whether the petitioner can overcome
the procedural default of the challenged claims to allow them to be considered by the
federal court pursuant to § 2254.

Furthermore, if the petitioner cannot overcome

procedural default of the challenged claims, dismissal of those claims is proper. See,
e.g., Welch v. Lund, 616 F.3d 756, 760 (8th Cir. 2010).
The practical effect of this reading of Armstrong here is that the first question is
not whether the Rhines factors warrant a “stay and abeyance,” but whether the “stay
and abeyance” issue is moot. That question turns on whether Ground Two is merely
unexhausted, or is procedurally defaulted. If the “stay and abeyance” issue is moot,
because Ground Two is procedurally defaulted, then the next question will be whether
Boss can overcome the procedural default or whether the procedurally defaulted claim
should be dismissed. If the “stay and abeyance” issue is not moot, because Ground
16

Two is unexhausted, but not defaulted, then the next question will be whether or not a
stay is warranted in light of the Rhines factors.
C.

Application Of The Rules

Although Judge Zoss did not follow precisely the analytical procedure outlined
just above, he did make the findings that would be dispositive under that procedure
(and, hence, under Armstrong). Specifically, Judge Zoss found that Ground Two, the
claim relating to recording of Boss’s statements by Officer Bartolozzi, was not merely
unexhausted, but was procedurally defaulted, which would render the “stay and
abeyance” issue moot.

Judge Zoss also found that Boss could not overcome the

procedural default of Ground Two, so that Ground Two should be dismissed.
Similarly, Boss made the pertinent objections, because he objects to Judge Zoss’s
conclusion that resort to state court on Ground Two would be “futile,” to Judge Zoss’s
conclusion that Ground Two was procedurally defaulted, and to Judge Zoss’s further
conclusion that he has not shown “cause and prejudice” to overcome procedural default
of that claim. Therefore, I will review de novo the conclusions to which Boss objects,
but in the context of the analytical procedure that I have outlined above.
1.

Is Boss’s request for a stay moot?

Again, the first question is not whether the Rhines factors warrant a “stay and
abeyance,” but whether the “stay and abeyance” issue is moot. That question turns on
whether Ground Two is merely unexhausted or is procedurally defaulted.
a.

Untimeliness of further state proceedings

In Armstrong, the Eighth Circuit Court of Appeals concluded that a petitioner’s
unexhausted claims in his “mixed petition” were “futile,” and consequently
procedurally defaulted, for two reasons: (1) the petitioner had not appealed the denial
of his state application for post-conviction relief, and the time for such an appeal had
17

long since passed, see Armstrong, at 418 F.3d at 925-26 (citing IOWA R. APP. P. 6.5);
and (2) the petitioner could not demonstrate the viability of a successive petition for
post-conviction relief to reassert the unexhausted claims, where he could not satisfy the
“severely limited” circumstances in which a successive petition is allowed under Iowa
law, see id. (citing IOWA CODE § 822.8). Similarly, here, Judge Zoss concluded that
an attempt to exhaust Boss’s claim relating to the recording of his statements by Officer
Bartolozzi would be “futile,” because any attempt to raise the claim now in state court
is untimely under the three-year statute of limitations in IOWA CODE § 822.3. Thus, the
question here, as in Armstrong, is “whether [Boss] has a non-futile state court remedy
for his unexhausted claim[].” Armstrong, 418 F.3d at 926.
As in Armstrong, “[t]he time to appeal the Iowa trial court’s denial of [Boss’s]
post-conviction petition,” as to a claim that Boss did not pursue through all levels of
appellate review, “has long passed.” Id. (citing IOWA R. APP. P. 6.5(1), 6.20(2)).4
Boss has not raised any due process issue that might permit a delayed appeal of his
unexhausted claim. Id. Also, Judge Zoss is correct that the applicable three-year
statute of limitations has expired since Boss’s conviction became final on April 28,
2004. See IOWA CODE § 822.3 (“All other applications [for post-conviction relief,
other than those pursuant to § 822.2(1)(f), pertaining to loss of a reduction of sentence]
must 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.”).
b.

The § 822.8 exception

What Judge Zoss did not adequately consider was whether or not circumstances
exist that would permit Boss to assert his otherwise untimely claim in state postconviction relief proceedings. Judge Zoss did cite Wemark v. Iowa, 322 F.3d 1018
4

The Iowa Rules of Appellate Procedure cited in Amstrong were renumbered as
Rules 6.101(1) and 6.101(5), respectively, effective January 1, 2009.
18

(8th Cir. 2003), for the proposition that “Iowa law requires post-conviction applicants
to raise all available grounds for relief in their original, supplemental, or amended
applications,” and that “‘[a]ny ground . . . not raised . . . may not be the basis for a
subsequent application’ unless the court finds ‘sufficient reason’ to justify the
omission.” Wemark, 322 F.3d at 1022 (quoting IOWA CODE § 822.8); see Report and
Recommendation at 8. However, Judge Zoss did not then consider whether Boss had
asserted any “sufficient reason” to justify his failure to exhaust Ground Two.

In

fairness to Judge Zoss, Boss’s habeas counsel did not clearly articulate his reasons for
seeking a stay to exhaust his admittedly untimely claim in terms of whether there was
“sufficient reason” to justify the omission of that claim from appellate review of the
denial of his post-conviction relief application. Indeed, it is not clear from Boss’s
habeas counsel’s framing of Boss’s Objections that Boss is now asserting “sufficient
reason” to justify that omission. What is clear, however, is that Boss is asserting that
his counsel on his state post-conviction relief application failed to assert Ground Two
for relief on appeal, notwithstanding Boss’s requests that counsel do so.

In an

abundance of caution, I construe that argument to be an argument that the § 822.8
“sufficient reason” exception applies to Boss’s Ground Two.
In Armstrong, the Eighth Circuit Court of Appeals addressed a habeas
petitioner’s “sufficient reason” argument concerning his unexhausted and untimely
claims. Armstrong, 418 F.3d at 926. After quoting IOWA CODE § 822.8, the court
explained,
Iowa recognizes a statutory right to effective assistance of
post-conviction counsel, see Iowa Code § 822.5, and
ineffective assistance of post-conviction counsel can provide
“sufficient reason” for not raising or inadequately raising an
issue in the prior proceeding. Sims v. State, 295 N.W.2d
420, 422-23 (Iowa 1980). However, a successive petition is
barred unless petitioner can “state the specific ways in which
19

counsel’s performance was inadequate and how competent
representation would have changed the outcome.” Rivers v.
State, 615 N.W.2d 688, 690 (Iowa 2000), quoting Bugley v.
State, 596 N.W.2d 893, 898 (Iowa 1999); see also Dunbar
v. State, 515 N.W.2d 12, 14-15 (Iowa 1994). Armstrong
alleges that post-conviction counsel’s failure to appeal was
ineffective assistance. But he makes no showing that an
appeal would have changed the outcome of the claims finally
adjudicated by the state trial court, and no showing of
sufficient reason why the new grounds asserted in his federal
petition were not raised in state court.
Armstrong, 418 F.3d at 926.
Here, Boss also asserts ineffective assistance of post-conviction relief counsel in
failing to appeal the unexhausted ground.

His argument that post-conviction relief

counsel’s failings prevented adequate appellate review of the unexhausted ground is
undercut, however, by his admission that the Iowa Supreme Court has “been very
supportive of supplemental pro se pleading and has openly encouraged pro se
supplementing of the briefing.”

Petitioner’s Brief In Support Of Motion To Stay

(docket no. 29-1), 6 (citing Leonard v. State, 461 N.W.2d 465, 468 (Iowa 1990)).
Thus, Boss himself had the opportunity to pursue appellate review of the claim that he
contends was important to him, notwithstanding his post-conviction relief counsel’s
failure to do so. Furthermore, Boss fails to make any showing that an appeal of the
denial of Ground Two would have changed the outcome. See Armstrong, 418 F.3d at
926.

Although Boss argues that proper prosecution of the recording claim might

establish that his right to counsel was violated and might also impeach the officer’s
denial that he recorded the conversation, he has not demonstrated how either showing
would have changed the outcome of his post-conviction relief proceedings.
Specifically, he has not argued or shown that any information obtained when Officer
Bartolozzi purportedly recorded his statements was the basis for his conviction or, if it
20

was, that other sufficient evidence to support his conviction was lacking.5 Thus, he has
not shown “sufficient reason” for failing to exhaust Ground Two within the meaning of
IOWA CODE § 822.8 to assert an untimely state post-conviction relief action to address
that claim.
c.

The § 822.3 exception

Judge Zoss also did not consider whether Boss can escape the bar on successive
applications for post-conviction relief pursuant to the exception stated in IOWA CODE
§ 822.3. Section 822.3 provides that post-conviction relief applications “must 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,” but “this limitation does not
apply to a ground of fact or law that could not have been raised within the applicable
time period.” IOWA CODE § 822.3. Again, in fairness to Judge Zoss, Boss’s habeas
counsel did not clearly articulate any arguments in his Motion To Stay in terms of
fitting this exception.

In his Objections, however, Boss’s habeas counsel does

expressly rely on this exception by citing Harrington v. State, 659 N.W.2d 509 (Iowa
2003), and asserting that, like the petitioner in Harrington, he is presented with
circumstances in which the State has deliberately withheld potentially exculpatory
evidence consisting of Officer Bartolozzi’s recording, and he asserts that he should be
given the opportunity to establish that he can meet the § 822.3 exception. Objections at
7-8.

5

Although the Iowa Court of Appeals concluded, on Boss’s direct appeal, that
“Boss’s statements to police officers at the time of his arrest reinforce this version of
events,” drawn from the testimony of another of Boss’s children and forensic evidence,
see Boss, 796 N.W.2d 458, 2004 WL 137627 at *4, this statement in no way suggests
that the other evidence was inadequate to support Boss’s conviction in the absence of
any statements that he made to the police.
21

The § 822.3 exception is not available to Boss, however. As the Iowa Supreme
Court explained in Harrington, an “obvious requirement” of the § 822.3 exception is
that “the alleged ground of fact could not have been raised earlier.” Harrington, 659
N.W.2d at 520. Here, Boss clearly knew at the time of his criminal trial about the
“alleged ground of fact” supporting his claim concerning a recording by Officer
Bartolozzi, that is, that Officer Bartolozzi purportedly recorded his conversation,
because he asserts that he “saw Officer Bartolozzi turn on the recorder.” Objections at
8. The factual basis for a claim that the recording existed and that the State was
withholding it clearly could have been raised earlier. This is quite different from the
circumstances in Harrington. In Harrington, eight police reports were unknown to and
had never been disclosed to either trial counsel or post-conviction relief counsel in the
petitioner’s first post-conviction relief action. Those police reports were only made
known to the petitioner and his post-conviction relief attorneys more than twenty years
after the petitioner’s conviction, when a person interested in the case asked the police
department for a copy of the complete file pertaining to the murder. See Harrington,
659 N.W.2d at 517-18. Thus, the § 822.3 “ground of fact that could not have been
raised” exception does not avoid the futility of an untimely attempt to pursue Boss’s
claim concerning the recording in further state post-conviction relief proceedings, as it
did in Harrington. Id. at 521.
d.

Boss’s further objections

I reject Boss’s objection that Judge Zoss should have left to the state court the
determination of whether or not his claim regarding the recording by Officer Bartolozzi
was “futile” and, consequently, procedurally defaulted, and his further objection that
neither Judge Zoss nor I should decide the issue without his personal participation in a
hearing so that he can now describe how important he feels the recording issue is and
how clearly he communicated a desire to pursue it to counsel in the post-conviction
22

relief proceedings at the district court and appellate levels. As to the decisionmaker
issue, Boss cites no authority for the proposition that the federal habeas court is
incompetent to make the determination of whether or not an attempt to exhaust a claim
in further state post-conviction relief proceedings would be futile. Rather, the Eighth
Circuit Court of Appeals has directed the federal habeas court to decide “whether [the
petitioner] has a non-futile state court remedy for his unexhausted claims.” Armstrong,
418 F.3d at 926. As to both Boss’s decisionmaker objection and his objection that he
has not participated in any hearing in this court, Boss could not dispute—in this or any
other court—that he knew of his claim that Officer Bartolozzi recorded his statements,
so that his assertion of a § 822.3 exception fails as a matter of law. Similarly, Boss has
not argued, nor could he—in this or any other court—that the evidence was insufficient
to convict him without evidence obtained directly or indirectly from the allegedly
improper recording of his statements to Officer Bartolozzi, so that the outcome of the
state proceedings might have been different. See Armstrong, 418 F.3d at 926. This is
so, because the Iowa Court of Appeals concluded, on direct appeal, that Boss’s
statements to police only “reinforce[d]” other evidence sufficient to sustain his
conviction.

See Boss, 796 N.W.2d 458, 2004 WL 137627 at *4.

Thus, Boss’s

assertion of a § 822.8 exception also fails as a matter of law.
e.

Summary

Upon de novo review, I agree with Judge Zoss’s conclusion that attempts to
exhaust Boss’s unexhausted claim regarding the recording are futile as a matter of law,
and that, consequently, the claim is procedurally defaulted. See Armstrong, 418 F.3d
at 926. That conclusion renders the “stay and abeyance” issue moot, and the next
question is whether Boss can overcome that procedural default or whether the
procedurally defaulted claim should be dismissed.

23

2.

Can Boss overcome procedural default

Judge Zoss concluded that Boss could not overcome the procedural default of his
unexhausted claims on the basis of “cause and prejudice,” because ineffective
assistance of his post-conviction relief counsel could not constitute “cause” for the
default, where there is no constitutional right to post-conviction relief counsel. Report
and Recommendation at 9-10 (citing Murray v. Carrier, 477 U.S. 478, 486 (1986);
Oglesby v. Bowersox, 592 F.3d 922, 925 (8th Cir. 2010); and 28 U.S.C. § 2254(i)).
He also found that Boss had not asserted actual innocence to support a “miscarriage of
justice” as a basis to overlook the default. Id. at 10 (citing Zeitvogel v. Delo, 84 F.3d
276, 279 (8th Cir. 1996)).

Boss acknowledges that ineffective assistance of post-

conviction relief counsel cannot constitute “cause” to excuse procedural default, and he
makes no new or renewed argument based on “actual innocence” to try to overcome his
default. Objections at 8. Therefore, there is no basis in the record to overlook Boss’s
procedural default of his unexhausted claims.
Boss attempts to avoid the consequences of procedural default by arguing that,
even if ineffective assistance of post-conviction relief counsel cannot constitute “cause”
to overcome procedural default, it can be considered to determine whether the “stay
and abeyance” procedures should be invoked.

Objections at 8-9 (citing Rhines v.

Weber, 408 F. Supp. 2d 844, 849 (D.S.D. 2005)). In his Resistance to Boss’s Motion
To Stay, the respondent pointed out that the district court in Rhines stayed the federal
action only because the petitioner in that case could still return to state court, but Boss
cannot do so here. Respondent’s Resistance (docket no. 30) at 6 (citing Rhines, 408 F.
Supp. 2d at 848-49).
In Rhines, the district court believed “that the Supreme Court suggested a more
expansive definition of ‘good cause’ [for a stay] in Pace and Rhines than the showing
needed for ‘cause’ to excuse a procedural default.” Rhines, 408 F. Supp. 2d at 849
24

(citing Pace v. DiGuglielmo, 544 U.S. 408, ___, 125 S. Ct. 1807, 1814 (2005), and
Rhines, 544 U.S. 269). Even accepting that premise as true, however, it does not
warrant a stay in this case, because the unexhausted claims here are procedurally
defaulted, while those in Rhines were not. Compare Rhines, 408 F. Supp. 2d at 849
(“[U]nlike the procedural default situation where a petitioner is barred from presenting
his claims to state courts, Rhines is not barred from presenting his claim to the state
court.”).

The procedural default of Boss’s claims entirely moots the “stay and

abeyance” issue, see Armstrong, 418 F.3d at 926, so what “cause” will satisfy the
“stay and abeyance” standard is simply irrelevant. Here, the only question is whether
or not Boss can overcome procedural default of Ground Two, and he has not shown
that he can, because ineffective assistance of post-conviction relief counsel does not
constitute “cause” that would excuse procedural default. See, e.g., Murray, 477 U.S.
at 486; see also Armstrong, 418 F.3d at 926.
Under these circumstances, Judge Zoss correctly concluded that Ground Two
should be dismissed, because it is procedurally defaulted, and Boss cannot excuse that
default. See, e.g., Welch, 616 F.3d at 760 (recognizing that, if the petitioner cannot
overcome procedural default of the challenged claims, dismissal of those claims is
proper).6
III.

CONCLUSION

Upon de novo review of the parts of the Report and Recommendation (docket
no. 35) to which Boss objected, I overrule Boss’s Objections (docket no. 40), and

6

On “clear error” review of Judge Zoss’s recommendation that Ground Five be
dismissed as without merit, I also agree with Judge Zoss, and Boss now admits that the
claim is without merit.
25

finding no other “clear error” in the Report and Recommendation, I accept the Report
and Recommendation. Consequently,
1.

Boss’s Motion To Stay (docket no. 29) is denied;

2.

Ground Two of Boss’s § 2254 Petition is dismissed with prejudice as

procedurally defaulted;
3.

Ground Five of Boss’s § 2254 Petition is dismissed with prejudice as

without merit; and
4.

Boss shall have to and including May 31, 2012, to file a brief on the

merits of Grounds One, Three, and Four of his § 2254 Petition.
IT IS SO ORDERED.
DATED this 1st day of May, 2012.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

26