                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-1653
                                ________________

Romeo C. Hardin El,                       *
                                          *
             Appellant,                   *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Southern District of Iowa.
State of Iowa,                            *
                                          *               [UNPUBLISHED]
             Appellee.                    *

                                ________________

                                Submitted: December 13, 2004
                                    Filed: January 6, 2005
                                ________________

Before BYE, HANSEN, and GRUENDER, Circuit Judges.
                         ________________

PER CURIAM.

      Romeo C. Hardin El (“Hardin El”)1 appeals the district court’s2 denial and
dismissal of his Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. We
affirm.


      1
        Although the Iowa courts referred to the petitioner as Hardin, this Court will
refer to the petitioner as Hardin El, the name he gave in this proceeding.
      2
       The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
I.    BACKGROUND

       Hardin El is serving a life sentence and two concurrent ten-year terms pursuant
to state jury verdicts of first-degree murder, willful injury and terrorism with intent
to injure. Hardin El appealed, and the Iowa Court of Appeals affirmed his
convictions.

       Hardin El then applied for postconviction relief (PCR). In his pro se petition,
he brought claims based upon ineffective assistance of trial and appellate counsel,
prosecutorial misconduct, abuse of discretion and newly discovered evidence.
Appointed PCR counsel filed an amended petition raising two different claims. At
the PCR hearing, the court briefly discussed with Hardin El whether he was willing
to proceed only on the two grounds raised by his appointed counsel in the amended
petition. When asked whether he had a dispute with his counsel over which claims
to present, Hardin El replied, “I don’t have nothing to say. We basically went over
it and I’m comfortable with it.” Ruling only on the two issues presented by Hardin
El’s PCR counsel, the court denied Hardin El’s PCR application. The Iowa Court of
Appeals affirmed.

       Hardin El filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254. Hardin El claimed the following: “(1) he was denied effective assistance of
counsel when counsel (appellate and postconviction) refused to raise claims of
prosecutory misconduct, abuse of trial court’s discretion and newly discovered
evidence before the Iowa courts; (2) violation of federal law regarding his juvenile
court waiver; (3) actual innocence premised on newly discovered evidence; [and] (4)
denial of state court review of his pro se claims on direct appeal in postconviction
relief proceedings.”

       The district court held that Hardin El failed to exhaust claims (1), (2), and (4)
in state court and that claim (3) did not warrant an evidentiary hearing. Hardin El

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filed a timely notice of appeal, and the district court granted a certificate of
appealability on all four claims.

II.   DISCUSSION

      A. Exhaustion

       We review the district court’s findings of fact for clear error and its conclusions
of law de novo. Thomas v. Bowersox, 208 F.3d 699, 701 (8th Cir. 2000). Whether
Hardin El failed to exhaust his claims in state court proceedings is a matter of law,
which we review de novo. See Randolf v. Kemna, 276 F.3d 401, 403 (8th Cir. 2002).
We agree with the district court’s holding that Hardin El failed to exhaust claims (1),
(2), and (4).

      Before obtaining federal habeas review, a state prisoner must exhaust his
federal claims by presenting them for review in the appropriate state forum. 28
U.S.C. § 2254(b). The exhaustion doctrine requires state prisoners to “‘give the state
court one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.’” Dixon v.
Dormire, 263 F.3d 774, 777 (8th Cir. 2001) (quoting O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999)).

      Hardin El’s first two claims for habeas relief were never raised in Iowa courts
and are not exhausted. Hardin El never brought a claim for ineffective assistance of
PCR counsel in state court,3 and he never challenged his waiver of juvenile

      3
        Even if we were to reach the merits of this claim, it would fail because a
petitioner cannot claim constitutionally ineffective assistance of state postconviction
counsel. Coleman v. Thompson, 501 U.S. 722, 752 (1991); Nolan v. Armontrout, 973
F.2d 615, 616-17 (8th Cir. 1992). In addition, Hardin El’s current claim for
ineffective assistance of direct appeal counsel was one of the pro se claims he waived
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proceedings on federal constitutional grounds in state court. McCall v. Benson, 114
F.3d 754, 757 (8th Cir. 1997) (explaining that a petitioner must refer to a specific
constitutional right to fairly present a federal claim in state court).

       In his fourth claim for habeas relief, Hardin El attempts to resurrect the claims
he raised in his pro se PCR petition. The district court found that Hardin El waived
these claims when he agreed to pursue only the two claims brought by his appointed
counsel. We agree with the district court that Hardin El’s statement to the PCR court
that he was “comfortable” proceeding on the two claims brought by his counsel
constituted a waiver of his original pro se claims. Because Hardin El waived his pro
se claims, Iowa courts were never given an opportunity to address those claims, and
they were not exhausted under 28 U.S.C. § 2254. See Iowa Code § 822.8; McCall,
114 F.3d at 756-57 (holding that a federal court may consider only those claims that
the petitioner presented to the state court in accordance with state procedural rules).4

       For these reasons, we hold that Hardin El did not exhaust claims (1), (2), and
(4) of his habeas petition pursuant to 28 U.S.C. § 2254(b). Thus, the district court did
not err in dismissing these claims.

      B. Actual Innocence

      The district court held that Hardin El’s third claim, actual innocence, did not
warrant an evidentiary hearing. We agree.


during PCR proceedings. We dispose of that claim with his fourth claim below.

      4
        Hardin El claims that he re-asserted these claims in a Motion Requesting
Order for Limited Remand that he filed with the Iowa Supreme Court while the PCR
court’s decision was pending. That document only requested a remand of those
issues to the Iowa district court. In denying this motion, the Iowa Supreme Court
neither addressed nor had opportunity to address the merits of those claims.
                                          -4-
       Hardin El claims he is entitled to an evidentiary hearing because he possesses
newly discovered evidence of his actual innocence. Because Hardin El failed to
develop this claim in state court, he is not entitled to an evidentiary hearing unless
there is either a new rule of constitutional law or “a factual predicate that could not
have been previously discovered through the exercise of due diligence,” and the facts
would establish “by clear and convincing evidence” his actual innocence. 28 U.S.C.
§ 2254(e)(2); Morris v. Dormire, 217 F.3d 556, 560 (8th Cir. 2000).

       Hardin El’s petition provides only the following to support his claim of actual
innocence: “Since [the time of trial, the petitioner has received] evidence which
proves that petitioner did not commit the offense including but not limited to (A)
eyewitnesses identifying person other than petitioner and (B) new testimony in
petitioner’s defense.” He provides nothing further. Such bare allegations are
insufficient to prove by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found Hardin El guilty. Thus, the district
court did not err in denying Hardin El’s request for an evidentiary hearing.

III.   CONCLUSION

      For these reasons, we affirm the district court’s denial and dismissal of Hardin
El’s Petition for Writ of Habeas Corpus.




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