                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-1259
                        ___________________________

                             Joseph Michael Stephen

                      lllllllllllllllllllllPetitioner - Appellant

                                          v.

                                   Cornell Smith

                      lllllllllllllllllllllRespondent - Appellee
                                      ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                           Submitted: January 15, 2020
                              Filed: June 26, 2020
                                 ____________

Before KELLY, MELLOY, and KOBES, Circuit Judges.
                           ____________

KOBES, Circuit Judge.

       Joseph Michael Stephen filed a petition for habeas corpus under 28 U.S.C.
§ 2254 challenging his three Iowa methamphetamine-related convictions. He argues
that the evidence for two of his convictions was insufficient under the Fourteenth
Amendment’s Due Process Clause, his trial counsel were ineffective, the State
violated Brady v. Maryland, 373 U.S. 83 (1963), and his sentence violated the Fifth
and Eighth Amendments. The district court1 denied his petition. We affirm.

                                           I.

       In April 2009, Des Moines Police Officer Paul Parizek stopped a pickup truck
with a burned-out license plate light. He could see through the back window that the
passenger, Stephen, was shifting around. Officer Parizek exited his car and
approached the passenger side of the truck, when he saw Stephen turn toward his
seatbelt buckle “[l]ike, he was stuffing something into the seats.” D.Ct. Dkt. 13-1 at
135. Officer Parizek knocked on the window, took Stephen’s and the driver’s
identification, and asked the driver to exit the truck so he could show him the license
plate light. He then asked to search the truck and the driver consented.

      Officer Parizek asked Stephen to step out of the truck and if he could pat him
down. Stephen agreed and turned over a pocketknife. During the pat down, Officer
Parizek felt what seemed to be a plastic baggie in Stephen’s pocket. He reached into
his pocket and found a baggie containing a small amount of methamphetamine.
Officer Parizek placed Stephen under arrest and, at this point, or shortly after,
Stephen stated he “knew he was going to go to prison.” Id. at 163.

       Officer Parizek then searched the truck. In between the seats where Stephen’s
attention had been focused during the stop he found two Ziploc bags—one containing
a significant amount of crushed pseudoephedrine and the other stripped lithium
batteries. On the passenger side floorboard, he discovered a plastic bag containing
a fume mask. On the bench seat, he found a pair of channel lock pliers. And in the
bed of the truck, he found plastic pitchers, coffee filters, and a modified propane tank.


      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.

                                          -2-
       The State charged Stephen with conspiracy to manufacture methamphetamine
(Count I), possession of lithium with intent to use it in the manufacture of
methamphetamine (Count II), possession of anhydrous ammonia with intent to use
it in the manufacture of methamphetamine (Count III), and possession of
methamphetamine (Count IV). Stephen’s trial was initially set for July 2009 but the
State dropped the charges because the federal government was prosecuting Stephen,
and the case was dismissed without prejudice. The State later re-filed the charges and
Stephen’s trial was set for October 2009. A few weeks before trial, his attorney,
Rachel Seymour, withdrew from the case and the court appointed Kent Balduchi.

      At trial, the jury convicted Stephen on everything but Count III (the anhydrous
ammonia offense), and the court sentenced him to 60 years in prison. In calculating
the sentence, the court applied both Iowa’s habitual offender enhancement, Iowa
Code § 902.9(1)(c), and the second or subsequent offense enhancement, Iowa Code
§ 124.411. The Iowa Court of Appeals affirmed Stephen’s convictions on direct
review, State v. Stephen (Stephen I), 2011 WL 5393453 (Iowa Ct. App. Nov. 9,
2011), and the Iowa Supreme Court denied further relief. Stephen then sought state
post-conviction relief, which was denied by the trial court and the Iowa Court of
Appeals. State v. Stephen (Stephen II), 2016 WL 3556367 (Iowa Ct. App. June 29,
2016) (unpublished).

       Stephen then filed a petition for habeas corpus under 28 U.S.C. § 2254, and
later filed a supplemental amended petition. The district court denied Stephen’s
petition, Stephen v. Smith (Stephen III), 2019 WL 8219405 (S.D. Iowa Jan. 25, 2019),
but issued a certificate of appealability for each of his claims.

                                          II.

      The Anti-Terrorism and Effective Death Penalty Act provides two avenues for
habeas relief for claims a state court decided on the merits. A petitioner can show the

                                          -3-
decision: (1) “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States”
or (2) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2).
“Claims that have not been presented to the state courts, and for which there are no
remaining state remedies, are procedurally defaulted,” and we cannot consider them
unless the petitioner can show “cause and prejudice or that he is actually innocent of
the charges.” Skillicorn v. Luebbers, 475 F.3d 965, 976–77 (8th Cir. 2007) (citations
omitted). “When reviewing a district court’s denial of a § 2254 petition, we review
the district court’s findings of fact for clear error and its conclusions of law de novo.”
Kennell v. Dormire, 873 F.3d 637, 639 (8th Cir. 2017).

                                           A.

       Stephen first argues that his conviction for conspiracy to manufacture
methamphetamine violated the Fourteenth Amendment’s Due Process Clause because
the State failed to prove two elements of his offense beyond a reasonable doubt. He
contends the State showed only that he was merely present in the truck—not that: (1)
he “agreed with [the driver] that one or both of them would manufacture or attempt
to manufacture methamphetamine,” or (2) he “entered into such an agreement with
the intent to promote or facilitate the manufacture of methamphetamine.” Stephen I,
2011 WL 5393453, *6 (listing the elements of the offense). He claims he is entitled
to habeas relief because “no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” Jackson, 443 U.S. at 324.

       But Stephen’s burden is even higher than that. Under AEDPA, he must show
the Iowa court’s application of “the Jackson sufficiency of the evidence standard
[was] ‘both incorrect and unreasonable.’” Garrison v. Burt, 637 F.3d 849, 855 (8th
Cir. 2011) (emphasis in original) (citation omitted). A state court’s decision is



                                           -4-
reasonable “‘so long as fairminded jurists could disagree’ on the correctness of the
. . . decision.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (citation omitted).

       Stephen has not met this burden. A juror could find that Stephen’s unusual
movements during the traffic stop, stuffing methamphetamine ingredients in between
the seats, and his admission that he was “going to jail” showed that the batteries and
pseudoephedrine were his. The other items commonly used in the production of
methamphetamine in plain view and in the back of the truck suggest that the driver
also had knowledge of and control over parts of a rolling meth lab. We therefore
agree with the district court that a reasonable juror might infer an agreement between
Stephen and the driver from this evidence—or at least “fairminded jurists could
disagree” about it. Harrington, 562 U.S. at 100.

       Stephen’s challenges to the state court’s factual findings also fail. He argues
that Officer Parizek’s testimony about him stuffing items between the seats is
implausible because no officer would leave a suspect alone next to incriminating
evidence. He also contends that it was unreasonable to conclude that the
pseudoephedrine and batteries belonged to him because they were within the driver’s
reach. But Stephen cannot carry his burden by pointing to “some contrary evidence
in the record.” Cole v. Roper, 783 F.3d 707, 711 (8th Cir. 2015). AEDPA requires
we give “the state trial court substantial deference” in this area. Brumfield v. Cain,
576 U.S. 305, 314 (2015) (citing 28 U.S.C. § 2254(d)(2)). We presume the court’s
factual findings are correct unless Stephen “rebut[s] the presumption . . . by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Stenhouse v. Hobbs, 631
F.3d 888, 891 (8th Cir. 2011). He has not done so. His arguments do not clearly
show that Officer’s Parizek’s testimony was false or that the pseudophedrine and
batteries belonged to the driver.




                                          -5-
                                          B.

       Stephen next argues that his conviction for possession of lithium with intent
to manufacture methamphetamine violated the Fourteenth Amendment because the
State failed to prove that offense beyond a reasonable doubt. We need not reach this
claim because it is procedurally defaulted.

       “We review de novo the question whether [a] claim is procedurally defaulted.”
Kemp v. Kelly, 924 F.3d 489, 499 (8th Cir. 2019). “[We] will not review the merits
of claims, including constitutional claims, that a state court declined to hear because
the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S.
1, 9 (2012). On direct review, the Iowa Court of Appeals refused to consider whether
the evidence for the lithium possession conviction was sufficient because Stephen had
not raised this argument in his motion for judgment of acquittal. Stephen I, 2011 WL
5393453, at *8, *8 n.3. We may not reach this claim either unless Stephen “shows
cause and prejudice or that he is actually innocent of the charges.” Skillicorn, 475
F.3d at 976. Stephen “makes no attempt to meet [these] standards,” so this claim was
properly dismissed. Morgan v. Javois, 744 F.3d 535, 539 (8th Cir. 2013).

                                          C.

      Stephen next claims that his counsel was ineffective under Strickland v.
Washington, 466 U.S. 668 (1984). In evaluating Strickland claims, we ask whether
“counsel’s performance was in fact deficient and, if so, whether the defendant was
prejudiced by the inadequate representation.” Fields v. United States, 201 F.3d 1025,
1027 (8th Cir. 2000). If we answer either question in the negative, “we need not
address the other part of the test.” Id. “The question is whether an attorney’s
representation amounted to incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most common custom.” Harrington, 562
U.S. at 105 (citation omitted). Establishing that a state court unreasonably applied

                                         -6-
Strickland under § 2254 is “all the more difficult.” Id. “When § 2254(d) applies . . .
[t]he question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.

                                           1.

      Stephen first argues that Seymour and Balduchi were ineffective because they
did not file a motion to dismiss his second indictment because it violated the Sixth
Amendment’s2 speedy trial provision. This argument fails because Stephen did not
exhaust it in state court as required by 28 U.S.C. § 2254(b)(1)(A).

       To exhaust a federal claim, the petitioner must “present the same facts and legal
theories to the state court that he later presents to the federal courts.” Jones v.
Jerrison, 20 F.3d 849, 854 (8th Cir. 1994). “Mere similarity between the state law
claim[] and the federal habeas claim is insufficient.” McCall v. Benson, 114 F.3d
754, 757 (8th Cir. 1997). In the Iowa Court of Appeals on post-conviction review,
Stephen argued only that his counsel were ineffective because they failed to contest
the State’s violation of Iowa Rule of Criminal Procedure 2.33—Iowa’s procedural
speedy-trial rule. His state briefing never mentioned the Sixth Amendment or the
Constitution, and nearly all of the cases he referenced relate to Rule 2.33. The two
Sixth Amendment cases he did cite merely suggest that, like constitutional
speedy-trial violations, a violation of Rule 2.33 should result in a dismissal with


      2
        Stephen’s petition also arguably suggested that his counsel failed to argue that
the State violated Iowa’s procedural speedy-trial rule requiring his trial to be held
within 90 days of his indictment absent “good cause.” See Iowa R. Crim. P. 2.33.
But on appeal Stephen only asserts that the State’s actions “violat[ed] Stephen’s
federal right to a speedy trial.” Stephen Br. 32. He has therefore forfeited any
ineffective assistance argument relating to Iowa’s speedy trial rule. See United States
v. Owen, 854 F.3d 536, 541 n. 5 (8th Cir. 2017) (issue a party chooses not to raise in
opening brief is forfeited).

                                          -7-
prejudice. In short, Stephen did nothing to put the state court on notice that his claim
implicated the Sixth Amendment right to a speedy trial. This claim is therefore
unexhausted and, because an application for review or a successive application for
post-conviction relief would be untimely, see Iowa R. App. P. 6.1103; Iowa Code
§ 822.3, it is also procedurally defaulted. See Armstrong v. Iowa, 418 F.3d 924,
926–27 (8th Cir. 2005). Stephen does not argue that this default should be excused
because of cause and prejudice or actual innocence. Morgan, 744 F.3d at 539.

                                           2.

       Stephen next argues that his attorneys were ineffective for failing to file a
motion to suppress the methamphetamine found in his pocket. On post-conviction
review, the Iowa Court of Appeals agreed with Stephen that Officer Parizek’s seizure
of the baggie violated the plain feel exception to Fourth Amendment’s warrant
requirement under Minnesota v. Dickerson, 508 U.S. 366, 373, 375-76 (1993),
because the Officer did not testify that it was “immediately apparent” that the baggie
was contraband. Stephen II, 2016 WL 3556367, at *3–*4. Nevertheless, because
Officer Parizek would inevitably have arrested and searched Stephen after finding the
batteries and pseudoephedrine, the court held that the evidence would have been
admissible, and his attorneys had no duty to make a meritless motion. Id. at *4.

       Here, Stephen challenges the Iowa Court of Appeals’s factual findings, arguing
that the record does not show the batteries and pseudoephedrine belonged to him, and
so—absent finding the drugs in his pocket—there would have been no reason for
Officer Parizek to arrest him. However, there was evidence in the record that showed
he owned the batteries and the pseudoephedrine: Officer Parizek testified that he saw
Stephen stuffing those items in between the seats. Stephen has not shown that it was
unreasonable for the Iowa Court of Appeals to credit this testimony nor has he
rebutted it by clear and convincing evidence. We therefore agree that his attorneys
were not ineffective in failing to file a meritless motion to suppress.

                                          -8-
                                          3.

       Stephen further contends that Balduchi was ineffective because he failed to
investigate whether his seatbelt coupler was broken. He argues this finding would
have shown he was trying to connect his seatbelt instead of stuffing the batteries and
pseudoephedrine between the seats.

       Even if Balduchi had found that the seatbelt was broken, however, Stephen’s
suspicious movements would still have given Officer Parizek reason to search in
between the seats and discover the contraband. Also, in light of this evidence it is
unlikely a jury would have believed Stephen was more concerned with buckling his
seatbelt than with hiding the various components of methamphetamine production all
around him. We agree with the state court that Stephen has not shown prejudice from
this alleged failing of his counsel and this claim fails. See Stephen II, 2016 WL
3556367, at *6; United States v. Orr, 636 F.3d 944, 950 (8th Cir. 2011) (“Prejudice
is established if there is a reasonable probability that, but for counsel’s errors, the
result would have been different.”).

                                          D.

        Stephen next argues that the State violated Brady v. Maryland, 373 U.S. 83
(1963) by failing to disclose receipts showing the driver had purchased
pseudoephedrine prior to Stephen’s arrest. The Iowa Court of Appeals rejected this
argument because a heading on the scanned receipts indicated that the State had faxed
them to Balduchi and they were “found in his file, thus indicating he had [them] prior
to trial.” Stephen II, 2016 WL 3556367, *9. Stephen responds that these findings
were unreasonable because the fax numbers show only that the Drug Enforcement
Administration sent the document to the Polk County Attorney, and there is no other
evidence that it was sent to Stephen’s counsel.



                                         -9-
       We disagree. Not only was there evidence that the receipts were found in
Balduchi’s file, he conceded that—although he did not remember seeing them—it
was “probably likely that [he] did receive [the receipts] from the state in 2009.” D.Ct.
Dkt. 13-10 at 60. It was not unreasonable for the Iowa Court of Appeals to accept
this concession. Nor has Stephen presented clear and convincing evidence rebutting
the Iowa Court of Appeals’ factual findings.

                                          E.

      Finally, Stephen argues the trial court violated the Fifth and Eighth
Amendments because it used the same grounds to justify applying both the habitual
offender and second or subsequent offense enhancements to his sentence.

       Though the Fifth Amendment prevents the “imposi[tion] of multiple
punishments for the same offense,” our role in evaluating such claims “is strictly
cabined.” Dodge v. Robinson, 625 F.3d 1014, 1018 (8th Cir. 2010) (citation omitted).
“[T]he question of what punishments are constitutionally permissible is not different
from the question of what punishments the Legislative Branch intended to be
imposed.” Missouri v. Hunter, 459 U.S. 366 (1983). Moreover, “whether a state
legislature intends cumulative punishment . . . is an issue of state law, over which
state courts have final authority.” Dodge, 625 F.3d at 1018.

       At least two Iowa appellate courts have held that the Iowa legislature did intend
the habitual offender and second or subsequent offense enhancements to apply in
tandem. On direct review, the Iowa Court of Appeals held that the legislature
intended for both enhancements to apply together. Stephen I, 2011 WL 5393453, at
*14 (citation omitted). The Iowa Supreme Court has also so held. State v. Sisk, 577
N.W.2d 414, 416 (Iowa 1998). Because “[w]e are bound by the Iowa courts’
interpretation of Iowa law,” Dodge, 625 F.3d at 1019, Stephen’s claim fails.



                                         -10-
       We decline to consider Stephen’s Eighth Amendment claim because it was not
exhausted. Petitioners “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.” Welch v. Lund, 616 F.3d 756, 758 (8th Cir. 2010) (citation
omitted) (petitioner who did not apply for review in the Supreme Court of Iowa did
not exhaust his claim). Stephen did not raise his Eighth Amendment claim in his
application to the Supreme Court of Iowa on direct review, so he did not satisfy this
requirement. Because it would now be futile for him to do so, see Iowa R. App. P.
6.1103, this claim is procedurally defaulted. See Welch, 616 F.3d at 759–60. Stephen
does not contend that this default should be excused because of cause and prejudice
or actual innocence. Morgan, 744 F.3d at 539.

                                         III.

      The judgment of the district court is affirmed.
                     ______________________________




                                        -11-
