                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1212
                                    ___________

Loren David Bailey,                       *
                                         *
      Petitioner- Appellant,             *
                                         * Appeal from the United States
      v.                                 * District Court for the Southern
                                         * District of Iowa
Terry Mapes,                             *
                                         *
      Respondent-Appellee.               *
                                         *
                                    ___________

                               Submitted: October 21, 2003

                                   Filed: March 2, 2004
                                    ___________

Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.
                             ___________

MELLOY, Circuit Judge.

I.    BACKGROUND

      Bailey was pulled over by a police officer for speeding and for having a
missing tail light on February 16, 1997. Upon searching the vehicle, the officer found
drug paraphernalia and methamphetamine. No motion to suppress was filed. Bailey
was charged and convicted in the Iowa district court of possession with intent to
deliver methamphetamine. He was sentenced to ten years in prison.
       On direct appeal, Bailey argued that his trial counsel was ineffective for failing
to object to evidence of his prior drug trafficking convictions. The Court of appeals
affirmed the conviction, ruling that the evidence would have been admissible “even
over a timely-made, proper objection.” State v. Bailey, No. 98-0584, slip at 5 (Iowa
Ct. App. February 24, 1999). Bailey raised no other issues in his direct appeal.

       Before the Iowa Court of Appeals issued a ruling on Bailey’s direct appeal, the
United States Supreme Court decided Knowles v. Iowa, 525 U.S. 113 (1998).
Knowles held that the Iowa law allowing a search incident to a traffic citation
violated the Fourth Amendment. Id. at 116.

       Bailey then applied for state postconviction relief on his first conviction and
a subsequent conviction he received while his first direct appeal was pending.1
Among other things, Bailey argued that Knowles should be retroactively applied to
his case, which would render the search of his automobile unconstitutional. The state
district court rejected Bailey’s argument and found that Knowles was not retroactive.

       Bailey appealed the postconviction relief ruling. In affirming the lower court,
the Iowa Court of Appeals refused to address the retroactivity of Knowles. Bailey v.
State, No. 00-0678, 2001 WL 539642 at *4 (Iowa Ct. App. 2001). Instead, it held
that the claim could not be raised in a postconviction proceeding because Bailey
failed to preserve that error in the underlying criminal case. Id. at *3. It noted that
Bailey had not filed a motion to suppress at the trial and did not even challenge the
search on direct appeal, even though a writ of certiorari was granted in Knowles on
March 23, 1998, which was before his sentencing. Id. In addition, it noted that

      1
        Bailey was released on bond while his first appeal was pending. During that
time, he was again pulled over for a traffic violation, and illegal drugs were
discovered during the consensual search of his vehicle. Bailey was charged with
possession with intent to deliver methamphetamine. He pled guilty and did not
appeal this conviction.

                                          -2-
Bailey failed to include a statement of error preservation in his appeal brief as
required by Iowa Rule of Appellate Procedure 14(a)(5). Id.

       Bailey then filed a petition for federal habeas relief. He argued that Knowles
should be applied retroactively and that his appellate counsel was ineffective for
failing to raise the issue on appeal. The federal district court denied Bailey’s petition,
finding that his claim was procedurally defaulted. We affirm.

II.   Applicable Law and Discussion

       On postconviction review, the Iowa Court of Appeals held that Bailey waived
his Knowles claim by failing to raise it at trial or on direct appeal. Citing to clearly
established Iowa law, the Iowa Court of Appeals noted that any claim not properly
raised at trial or on direct appeal may not be litigated in a state postconviction
proceeding unless there is a sufficient reason for not properly raising it previously.
Bailey v. State, 2001 WL 539642 at *3 (Iowa Ct. Ap. 2001) (citing Adock v. State,
528 N.W.2d 645 (Iowa Ct. App. 1994), and State v. Mann, 602 N.W.2d 785 (Iowa
1999)). The Iowa Court of Appeals held that Bailey failed to set forth a sufficient
reason for his failure to raise his fourth amendment claim at trial or on direct appeal,
noting that the United States Supreme Court granted certiorari in Knowles before
Bailey was sentenced, and that the United States Supreme Court decided Knowles
before the Iowa Court of Appeals affirmed Bailey’s conviction. Because the Iowa
Court of Appeals’ decision rested on an “independent and adequate” state procedural
ground, the federal district court correctly found that Bailey’s claims were
procedurally defaulted and barred unless he could show “cause” and “actual




                                           -3-
prejudice” for the procedural default.2 See Coleman v. Thompson, 501 U.S. 722, 750
(1991); Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995).

       At the federal district court, Bailey argued that the “cause” of his default was
ineffective assistance of counsel. Although constitutionally ineffective assistance can
serve as a “cause” excusing a procedural default, the ineffective assistance claim must
be raised in the state postconviction proceedings before it can be relied upon in a
federal habeas proceeding. Murray v. Carrier, 477 U.S. 478, 489 (1986); Wyldes, 69
F.3d at 253. Bailey did not present his ineffective assistance claim to the Iowa
Courts. Therefore, he cannot rely on that claim to establish “cause” for his procedural
default.

        In this appeal, Bailey for the first time argues that his procedural default should
be excused because of the “novelty” of the underlying Knowles claim at the time of
his trial and direct appeal. The Fourth Amendment claim was far from novel. The
issue had been addressed by the Iowa Supreme Court in State v. Doran, 563 N.W.2d
620 (Iowa 1997), and State v. Knowles, 569 N.W.2d 601 (Iowa 1997), reversed by
Knowles v. Iowa, 525 U.S. 113 (1998). Although a majority of the Iowa Supreme
Court held that Iowa’s search incident to citation law was constitutional in Doran and
Knowles, four justices dissented and set forth the legal argument that Bailey could,
and should, have made. Indeed, the United States Supreme Court ultimately agreed
with the position taken by the dissenting Iowa Supreme Court Justices.

      Because Bailey failed to establish sufficient “cause” for his procedural default,
the district court correctly found that Bailey’s habeas petition is now barred.


      2
       Bailey concedes that he violated a state procedural rule, and that the
procedural violation constitutes an “independent and adequate” state law ground. See
Appelant’s Brief, at 7-8. The sole issue before this court is whether Bailey’s
procedural default can be excused.

                                           -4-
Consequently, we need not determine whether plaintiff can show that the default
resulted in “actual prejudice.”

      The judgment of the district court is affirmed.




                                        -5-
