Tony Armstrong v. State of Iowa, 418 F.3d 924 (8th Cir. 2005). · Go Syfert
Tony Armstrong v. State of Iowa, 418 F.3d 924 (8th Cir. 2005). Cases Citing This Book View Copy Cite
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Failure to exhaust state remedies provides an independent and adequate state-law ground barring federal habeas review even if resort to state courts would be futile.

A state prisoner convicted of second-degree sexual abuse seeks federal habeas relief after failing to appeal the denial of state post-conviction relief. The court must determine whether the failure to exhaust state remedies bars federal review. The court applies the rule that if no state court remedy is available because resort would be futile, the exhaustion requirement is satisfied, but the failure to exhaust provides an independent and adequate state-law ground preventing federal review unless the petitioner demonstrates cause and prejudice. Because Iowa law bars both untimely appeals and successive petitions, the state remedy is futile. The prisoner’s claim of ineffective assistance of post-conviction counsel does not constitute cause because there is no Sixth Amendment right to effective assistance in that context. The court affirms the dismissal of the petition with prejudice.

139 citation events (139 in the last 25 years) across 14 distinct courts.
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At page 926 Determining procedural default and exhaustion requirements43 citing cases“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 pr…”31 citing courts quote it
  • Marshall v. Lewis, No. 1:19-cv-00083 (E.D. Mo. Apr. 23, 2021). 2 cites
    ([T]he 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 demonstra…)
  • Munoz v. Jeffreys, No. 8:21-cv-00344 (D. Neb. Mar. 27, 2025).
    (dismissal with prejudice is appropriate where the ground for dismissal is procedural default)
  • Jimenez v. Jeffreys, No. 8:21-cv-00261 (D. Neb. Oct. 9, 2024).
    (dismissal with prejudice is appropriate where the ground for dismissal is procedural default)
  • Gonzalez Martinez v. Wilhelm, No. 8:20-cv-00372 (D. Neb. Mar. 29, 2023). 2 cites
    Armstrong, 418 F.3d at 926 (citation omitted) (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)).
  • Brown v. Warden of Minnesota Corr. Facility - Faribault, No. 0:22-cv-01122 (D. Minn. July 27, 2022). 4 cites
    Where “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 a…
  • Causey v. Payne, No. 4:21-cv-00308 (E.D. Ark. Sept. 20, 2021).
    Armstrong, 418 F.3d at 926.
  • Walford v. Bosch, No. 0:20-cv-01637 (D. Minn. Jan. 26, 2021). 2 cites
    “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 an…
  • Boss v. Ludwick, 863 F. Supp. 2d 845 (N.D. Iowa 2012).published 11 cites
    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…
  • Hamilton v. Roehrich, 628 F. Supp. 2d 1033 (D. Minn. 2009).published 3 cites
    However, our Court of Appeals has also concluded that, “if no state court remedy is available for the unexhausted claims — that is, if resort to the state courts would be futile — then the exhaustion requirement in § 2254(b) is satisfied,…
  • Creek v. Weber, 598 F. Supp. 2d 1004 (D.S.D. 2009).published 2 cites
    Armstrong, 418 F.3d at 925-27; Whitepipe, 536 F.Supp.2d at 1098-1100.
Show 33 more citing cases
At page 925 Barring successive petitions for ineffective assistance of counsel4 citing cases
  • Kiir v. Young, No. 4:19-cv-04056 (D.S.D. July 22, 2019).
    Armstrong, 418 F.3d at 925.
  • Boss v. Ludwick, 863 F. Supp. 2d 845 (N.D. Iowa 2012).published 11 cites
    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…
  • Creek v. Weber, 598 F. Supp. 2d 1004 (D.S.D. 2009).published 2 cites
    Armstrong, 418 F.3d at 925-27; Whitepipe, 536 F.Supp.2d at 1098-1100.
  • Whitepipe v. Weber, 536 F. Supp. 2d 1070 (D.S.D. 2007).published 7 cites
    Edwards, 529 U.S. at 450 -53 & n. 3, 120 S.Ct. 1587 ; Interiano, 471 F.3d at 856-57 ; Armstrong, 418 F.3d at 925-26; Docket No. 15 at 1100-01 & nn. 7-8 (Report and Recommendation (Dec. 5, 2006)). [¶ 22] Aside from this, the references Whit…
At page 927 Procedural default and rights of post-conviction counsel4 citing cases“iowa's limitations on successive petitions are adequate and independent state-law grounds preventing federal habeas review unless the habeas petitioner can show cause and prejudice for his default.”1 citing court quotes it
  • Daniels v. Iowa, State of, No. 6:19-cv-02079 (N.D. Iowa Jan. 4, 2021).
    “iowa's limitations on successive petitions are adequate and independent state-law grounds preventing federal habeas review unless the habeas petitioner can show cause and prejudice for his default.”
  • Brown v. Warden of Minnesota Corr. Facility - Faribault, No. 0:22-cv-01122 (D. Minn. July 27, 2022). 4 cites
    Where “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 a…
  • Whitepipe v. Weber, 536 F. Supp. 2d 1070 (D.S.D. 2007).published 7 cites
    Edwards, 529 U.S. at 450 -53 & n. 3, 120 S.Ct. 1587 ; Interiano, 471 F.3d at 856-57 ; Armstrong, 418 F.3d at 925-26; Docket No. 15 at 1100-01 & nn. 7-8 (Report and Recommendation (Dec. 5, 2006)). [¶ 22] Aside from this, the references Whit…
  • Lotter v. Houston, 771 F. Supp. 2d 1074 (D. Neb. 2011).published
    See Armstrong, 418 F.3d at 927.
establishing that dismissal with prejudice is appropriate where the ground for dismissal is procedural defaultno pin page on record · 2 citing cases listed
  • White, No. 4:25-cv-04103 (D.S.D. Feb. 9, 2026).
    (establishing that dismissal with prejudice is appropriate where the ground for dismissal is procedural default)
  • Duncan v. Dooley, No. 4:17-cv-04141 (D.S.D. Dec. 13, 2017).
    (dismissal with prejudice is appropriate where the ground for dismissal is procedural default)
Other citing cases7 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Tony Dion James Beach ARMSTRONG, Petitioner—Appellant,
v.
State of IOWA, Respondent—Appellee
04-2071.
Court of Appeals for the Eighth Circuit.
Aug 17, 2005.
Published opinion
418 F.3d 924
2005 U.S. App. LEXIS 17331
Counsel who represented the appellant was Frank Burnette of Des Moines, Iowa., Thomas W. Andrews, Assistant Attorney General,Des Moines, IA (Thomas J. Miller, on brief), for appellee.
Loken, Riley, Smith.
Cited by 1 opinion  |  Published
1 passage pin-cited by 1 case
Citer courts: N.D. Iowa (1)
LOKEN, Chief Judge.

Tony Armstrong was convicted by an Iowa court of second-degree sexual abuse and sentenced to twenty-five years in prison. The Supreme Court of Iowa dismissed his direct appeal as frivolous, and the trial court denied his application for state post-conviction relief. Armstrong then filed this pro se petition for federal habeas corpus relief. The district court [1] dismissed the petition with prejudice, concluding that Armstrong’s claims are procedurally defaulted because he did not appeal the denial of post-conviction relief to the Supreme Court of Iowa and he failed to show adequate “cause” to excuse the default. Armstrong appeals. We affirm.

Federal habeas relief is available to a petitioner after he “has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To exhaust an available state post-conviction remedy, the petitioner must “use the State’s established appellate review procedures.” O’Sullivan v. Boerckel, 526 U.S.[*926] 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Thus, Armstrong’s failure to appeal the denial of state post-conviction relief to the Supreme Court of Iowa was a failure to exhaust the claims that were raised or that should have been raised in the state court petition.

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).

1. Armstrong argues that the district court erred in dismissing his federal habeas claims with prejudice, thereby precluding him from returning to state court to exhaust the claims. This issue turns on whether Armstrong has a non-futile state court remedy for his unexhausted claims. The time to appeal the Iowa trial court’s denial of his post-conviction petition has long passed. See Iowa R.App. P. 6.5(1), 6.20(2). The Supreme Court of Iowa does not permit a delayed appeal from the denial of post-conviction relief unless “a valid due process argument might be advanced should the right of appeal be denied.” Swanson v. State, 406 N.W.2d 792, 793 (Iowa 1987). Armstrong has raised no due process issue in this case.

Another possible state court remedy would be a successive petition for post-conviction relief. But under Iowa law, successive petitions are severely limited:

All grounds for [post-conviction] relief available to an applicant under this chapter must be raised in the applicant’s original ... application. Any ground finally adjudicated or not raised ... may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original ... application.

Iowa Code § 822.8. 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 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.

[*927] Because both a belated appeal and a successive petition are procedurally barred under Iowa law, Armstrong has no available non-futile state court remedy. Iowa’s rule against untimely appeals and its limitations on successive petitions are adequate and independent state-law grounds preventing federal habeas review unless Armstrong can show cause and prejudice for his default. See Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir.1995), cert. denied, 517 U.S. 1172, 116 S.Ct. 1578, 134 L.Ed.2d 676 (1996). Absent such a showing, the district court properly dismissed his federal claims with prejudice.

2. Armstrong argues that the ineffective assistance of his state post-conviction counsel in failing to appeal to the Supreme Court of Iowa violated his Sixth and Fourteenth Amendment rights and therefore was cause excusing his procedural default in state court. “[A]ttorney error that results in a procedural default” is not cause unless the attorney’s performance was constitutionally deficient. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). We have consistently construed Coleman v. Thompson, 501 U.S. at 752-54, 111 S.Ct. 2546, as confirming that there is no Sixth Amendment right to the effective assistance of post-conviction counsel. See, e.g., Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir. 1992). Armstrong urges us to reconsider these decisions, but as a panel of the Court we may not do so.

Alternatively, Armstrong argues that the district court erred in failing to grant a hearing on whether there was cause and prejudice excusing his procedural default in state court. However, the only cause asserted was counsel’s ineffective assistance in failing to appeal the denial of state post-conviction relief. As there is no Sixth Amendment right to effective assistance of post-conviction counsel, the cause alleged by Armstrong was insufficient as a matter of law and therefore properly denied without a hearing.

The judgment of the district court is affirmed.

1

. The HONORABLE JAMES E. GRITZNER, United States District Judge for the Southern District of Iowa.