Welch v. Mark Lund, No. 09-3249.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: COLLOTON, Circuit Judge.
• Citation: 616 F.3d 756
• Decision Date: 05 August 2010
• Docket Number: No. 09-3249.
• Parties: Paul E. WELCH, Appellant, v. Mark LUND, Appellee.

616 F.3d 756

Paul E. WELCH, Appellant,
v.
Mark LUND, Appellee.

No. 09-3249.

United States Court of Appeals,Eighth Circuit.

Submitted: June 16, 2010.
Filed: Aug. 5, 2010.

616 F.3d 757

Robert P. Ewald, argued, Ames, IA, for appellant.

Thomas William Andrews, AAG, argued, Des Moines, IA, for appellee.

Before RILEY, Chief Judge, CLEVENGER, ¹ and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Paul Welch, an Iowa prisoner, appeals the judgment of the district court ² 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.

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

616 F.3d 758

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 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, 119 S.Ct. 1728, 144 L.Ed.2d 1 (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, 119 S.Ct. 1728. 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, 119 S.Ct. 1728.

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.

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); ...