                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 02-1755
                                  ___________

Robert E. Wemark,                    *
                                     *
            Appellant,               *
                                     *
       v.                            * Appeal from the United States
                                     * District Court for the
State of Iowa, sub nominee John      * Northern District of Iowa.
Mathes, Warden, Newton               *
Correctional Facility,               *
                                     *
            Appellee.                *
                                ___________

                            Submitted: December 9, 2002

                                 Filed: March 17, 2003
                                  ___________

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

      Robert E. Wemark appeals the district court’s1 judgment denying his petition
for writ of habeas corpus. We affirm.




      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
                                   I. Background

       On August 18, 1993, Robert Wemark was convicted of first-degree murder for
fatally stabbing his estranged wife. Wemark’s conviction and sentence of life
imprisonment were affirmed on appeal. State v. Wemark, No. 4-491/93-1276 (Iowa
Ct. App. Jan. 23, 1995).

       On August 2, 1996, Wemark filed an application for post-conviction relief in
Iowa district court, alleging, inter alia, ineffective assistance of trial counsel. The
district court denied the application, and Wemark appealed. The Iowa Supreme Court
explained the factual basis for Wemark’s ineffective-assistance claim:

             Wemark was . . . scheduled to be examined by Dr. Michael
      Taylor, a medical expert employed by the State after Wemark filed his
      diminished responsibility defense. Before the scheduled interview,
      Wemark disclosed the location of the knife he used to stab his wife to
      his counsel. He had placed the knife in a pile of automotive parts under
      the basement steps of the house, which law enforcement authorities
      failed to detect during their extensive search of the home.

             Defense counsel were immediately concerned they had an ethical
      obligation to disclose the location of the knife to the prosecution. They
      considered nondisclosure to be the same as concealment and an
      interference with police investigation. . . . [D]efense counsel concluded
      they had three options to pursue once Wemark informed them of the
      location of the knife. The first option was to wait for the State to search
      the house again and find the knife. Yet, defense counsel believed it was
      unlikely law enforcement would search the home a second time. The
      second option was to have Wemark inform Dr. Taylor of the location of
      the knife during the scheduled interview. Defense counsel knew Dr.
      Taylor would then notify the prosecutor. The third option was to engage
      the services of an attorney to relay the location of the knife to the
      prosecutor without disclosing the source of the information.



                                         -2-
              ....

              Defense counsel informed Wemark of the ethical dilemma and the
       three options. They urged him to keep the appointment with Dr. Taylor
       and to disclose the location of the knife during the course of the
       examination.

              Wemark was subsequently interviewed by Dr. Taylor. He
       informed Dr. Taylor of the location of the knife. Dr. Taylor then relayed
       the information to the prosecutor and the knife was removed in a second
       search of the home. The knife was introduced into evidence at trial and
       displayed by the prosecutor in closing argument. The State also
       conducted forensic tests on the knife prior to trial and was unable to find
       any fingerprints but did find traces of blood consistent with
       characteristics of Melissa[] [Wemark’s] blood. This evidence was
       introduced at trial, as well as the location of the knife. Wemark claims
       the location of the knife should not have been disclosed, and the ability
       of the State to introduce it into evidence at trial prejudiced his defense.

Wemark v. State, 602 N.W.2d 810, 813 (Iowa 1999).

       In analyzing Wemark’s claim, the Iowa Supreme Court applied a two-pronged
test: “To establish . . . ineffective assistance of counsel[,] . . . the applicant must show
that ‘(1) counsel failed to perform an essential duty, and (2) prejudice resulted
therefrom.’” Id. at 814 (quoting State v. Miles, 344 N.W.2d 231, 233-34 (Iowa
1984)). Citing Strickland v. Washington, 466 U.S. 668, 688 (1984), the court noted
that “[t]he test of ineffective assistance of counsel focuses on whether the
performance by counsel was reasonably effective.” Id. The court determined that
although Wemark had satisfied the first prong of the ineffective-assistance inquiry,
he had failed to demonstrate prejudice. Id. at 817-18. Thus, the court concluded,
Wemark’s claim did not entitle him to post-conviction relief.

      On April 14, 2000, Wemark filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254, again alleging ineffective assistance of trial counsel. Relying

                                            -3-
on Cuyler v. Sullivan, 446 U.S. 335 (1980), Wemark argued that because his counsel
had been burdened by an “actual conflict,” he was entitled to habeas relief without
having to demonstrate prejudice. See Cuyler, 446 U.S. at 349-50; see also Strickland,
446 U.S. at 692 (“Prejudice is presumed . . . if the defendant demonstrates that
counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of
interest adversely affected his lawyer's performance.’” (quoting Cuyler, 446 U.S. at
350, 348)). The magistrate judge,2 however, concluded that Wemark had failed to
raise a “presumption of prejudice” argument in his state post-conviction proceedings
and had therefore procedurally defaulted the issue. The district court agreed and
denied Wemark’s petition. In doing so, the district court issued a certificate of
appealability on Wemark’s “claim of presumed prejudice.”

                                     II. Analysis

        “To avoid defaulting on a claim, a petitioner seeking habeas review must have
fairly presented the substance of the claim to the state courts,” Anderson v. Groose,
106 F.3d 242, 245 (8th Cir. 1997), thereby affording such courts a “‘fair opportunity’
to apply controlling legal principles to the facts bearing upon [the] claim,” Anderson
v. Harless, 459 U.S. 4, 6 (1982) (citing Picard v. Connor, 404 U.S. 270, 276-77
(1971)). “A claim has been fairly presented when a petitioner has properly raised the
‘same factual grounds and legal theories’ in the state courts which he is attempting
to raise in his federal habeas petition.” Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th
Cir. 1996) (citations omitted); cf. Bracken v. Dormire, 247 F.3d 699, 703 (8th Cir.)
(“We are also more apt to deem a claim preserved if the claim actually raised in the
habeas petition shares the same legal analysis and standards as the different claim
relied upon by the District Court, as here, or in the appeal.” (citing Frey v. Schuetzle,
78 F.3d 359, 361 (8th Cir. 1996)), cert. denied, 534 U.S. 934 (2001).


      2
       The Honorable Paul A. Zoss, United States Magistrate Judge for the Northern
District of Iowa.

                                          -4-
        Before reaching the issue of “fair presentment,” we note that Cuyler v.
Sullivan, the case on which Wemark relies, arose in the context of counsel
representing multiple defendants. See Cuyler, 446 U.S. at 337. We have not yet
clarified whether Cuyler’s presumed prejudice analysis extends beyond such
circumstances to all conflict of interest cases. See Atley v. Ault, 191 F.3d 865, 870
n.4 (8th Cir. 1999) (indicating that Cuyler’s rule is not limited to joint representation
situations); Caban v. United States, 281 F.3d 778, 783-84 (8th Cir. 2002)
(characterizing the relevant language from Atley as dictum, but avoiding “even the
appearance of a conflict” by concluding that the petitioner would lose under either the
Strickland or Cuyler standard); see also United States v. Young, 315 F.3d 911, 914
n.5 (8th Cir. 2003) (“[W]here the alleged conflict involves ethical issues other than
multiple or serial representation, this Circuit has held that Strickland is still the
appropriate standard.” (citing Caban, 281 F.3d at 783-84) (additional citation
omitted)). The Supreme Court has recognized that some appellate courts have
extended Cuyler “‘unblinkingly’ to ‘all kinds of alleged attorney ethical conflicts,’”
but has chosen not to address whether such extensions were proper. See Mickens v.
Taylor, 535 U.S. 162, 174-76 (2002) (quoting Beets v. Scott, 65 F.3d 1258, 1266 (5th
Cir. 1995) (en banc)). Thus, whether Cuyler should be extended remains “an open
question.” Id. at 176.

       After reviewing Wemark’s briefs to the Iowa Supreme Court in his post-
conviction action, we agree that he failed to satisfy the “fair presentment”
requirement. Wemark did not cite the Cuyler case or argue its rule of presumed
prejudice. Instead, Wemark directed the court to the Strickland inquiry and its
requirement of actual prejudice. He expressly identified Strickland as the “governing
standard.” Pointing to the fact that the Strickland Court discussed the Cuyler
decision, Wemark now contends that “[t]he presumption of prejudice law and analysis
are an inherent part of the Strickland test for ineffective assistance of counsel.”
Strickland, however, makes clear that in those circumstances where “counsel is
burdened by an actual conflict of interest,” a different inquiry must be undertaken in

                                          -5-
reviewing an ineffective-assistance claim. Strickland, 466 U.S. at 692. Given that
neither the Supreme Court nor this court has resolved whether Cuyler extends to all
conflict of interest situations, we are not persuaded that Wemark’s citation to
Strickland afforded Iowa’s courts a “fair opportunity” to consider his presumed
prejudice theory.

      Wemark’s failure to raise his presumed prejudice theory in state court
“implicates the requirements in habeas of exhaustion and procedural default.” Gray
v. Netherland, 518 U.S. 152, 161 (1996). The United States Supreme Court has
explained the relationship between these two requirements:

      Title 28 U.S.C. § 2254(b) bars the granting of habeas corpus relief
      “unless it appears that the applicant has exhausted the remedies
      available in the courts of the State.” Because “[t]his requirement . . .
      refers only to remedies still available at the time of the federal petition,”
      it is satisfied “if it is clear that [the habeas petitioner's] claims are now
      procedurally barred under [state] law.” However, the procedural bar that
      gives rise to exhaustion 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.

Id. at 161-62 (internal citations omitted) (brackets in original).

       We therefore turn to the question of whether Iowa law would prevent Wemark
from raising a presumed prejudice theory in state court. McCall v. Benson, 114 F.3d
754, 757 (8th Cir. 1997). Wemark has not suggested that Iowa’s courts would
entertain his presumed prejudice claim, and our research indicates that this theory of
relief has been defaulted. Iowa law requires post-conviction applicants to raise all
available grounds for relief in their original, supplemental, or amended applications.
Iowa Code § 822.8 (1994). “Any ground . . . not raised . . . may not be the basis for
a subsequent application” unless the court finds “sufficient reason” to justify the

                                          -6-
omission. Id.3 Although Wemark does not specifically identify a “sufficient reason,”
he does contend that the novelty of the issue excuses his failure to raise the presumed
prejudice argument in Iowa’s state courts. We disagree. The Supreme Court has
recognized “that where a constitutional claim is so novel that its legal basis is not
reasonably available to counsel, a defendant has cause for his failure to raise the
claim in accordance with applicable state procedures.” Reed v. Ross, 468 U.S. 1, 16
(1984). Nevertheless, “[i]f the tools were available for a petitioner to construct the
legal argument at the time of the state appeals process, then the claim cannot be said
to be so novel as to constitute cause for failing to raise it earlier.” Frizzell v.
Hopkins, 87 F.3d 1019, 1021 (8th Cir. 1996) (internal quotation marks and citations
omitted).

       Cuyler was decided in 1980, well before Wemark filed his state application for
post-conviction relief. Thus, the legal tools needed to construct a presumed prejudice
argument were certainly available at the time of Wemark’s state post-conviction
proceedings. Although Wemark suggests otherwise, our uncertainty as to whether
Cuyler should be extended outside the multiple or serial representation context does
not render his theory “so novel that its legal basis [was] not reasonably available”
during his state post-conviction action. Reed, 486 U.S. at 16. We therefore conclude
that Wemark has not demonstrated either a “sufficient reason” or cause for his failure
to raise a presumed prejudice theory in Iowa’s state courts. Nor has Wemark
demonstrated that our failure to consider his claims would result in a “fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“We now
make it explicit: In all cases in which a state prisoner has defaulted his federal claims


      3
        We also note that Iowa law requires post-conviction applications to 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,” unless “a ground of fact
or law [exists] that could not have been raised within the applicable time period.”
Iowa Code § 822.3 (1994).


                                          -7-
in state court pursuant to an independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate cause for
the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.”). Accordingly, we conclude that because Wemark did not
“fairly present” a presumed prejudice theory to the Iowa Supreme Court, we are
barred from reviewing the merits of his ineffective-assistance claim.

      The judgment is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -8-
