                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3423
                                   ___________

Thomas Leroy Hagen,                     *
                                        *
             Petitioner-Appellant,      * Appeal from the United States
                                        * District Court for the
       v.                               * Southern District of Iowa.
                                        *
State of Iowa;                          * [UNPUBLISHED]
Rusty Rogerson, Warden,                 *
                                        *
             Respondents-Appellees.     *
                                   ___________

                             Submitted: June 21, 2005
                                Filed: June 24, 2005
                                 ___________

Before MURPHY, BYE and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

       After Thomas Hagen was convicted of three Iowa felonies in 1999, he twice
initiated postconviction relief (PCR) proceedings in state court. Both applications
were denied, and he failed to appeal in either case. In this habeas petition he raises
claims first asserted in the PCR proceedings and argues that his failure to appeal the
disposition in those cases should be excused because he received ineffective
assistance from his court appointed counsel. The district court1 denied Hagen's

      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
petition on the grounds that he had procedurally defaulted the claims by failing to
appeal and that the alleged ineffectiveness of postconviction counsel could not excuse
the default, and Hagen appeals. We affirm.

       In 1999 an Iowa jury convicted Hagen of first degree burglary, going armed
with intent, and felony stalking, and the trial court sentenced him to thirty years. On
direct appeal Hagen raised a single claim of ineffective assistance of counsel on
which the Iowa Supreme Court declined to rule, but it was preserved for possible
postconviction relief. Under Iowa law Hagen had a statutory right to effective
assistance of counsel during the PCR process. Iowa Code § 82.5 (1998); Dunbar v.
State, 515 N.W.2d 12, 14-15 (Iowa 1994).

       With the assistance of court appointed counsel, Hagen initiated PCR
proceedings on April 16, 2001, raising three separate claims of ineffective assistance
by his trial counsel. The trial court denied his application on procedural and
substantive grounds, and Hagen did not appeal. He later filed a second PCR
application alleging that the government had unconstitutionally withheld favorable
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The claim was
dismissed due to Hagen's failure to raise it in his first PCR application. He again
failed to appeal.

       On November 6, 2003, Hagen filed this petition challenging the
constitutionality of his custody based on allegations of ineffective assistance and
Brady violations. The state moved to dismiss on the grounds that Hagen had
procedurally defaulted all of the claims in state court by failing to appeal the denials
of his PCR applications. While conceding that he had defaulted the claims, Hagen
alleged that his court appointed counsel had ineffectively assisted him during
postconviction review by advising that appeals of his PCR applications would be
fruitless. Because he had a state statutory right to the effective assistance of counsel
during postconviction review, Hagen argues that the ineffectiveness of his counsel's

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assistance was sufficient cause to excuse the default under the rule of Coleman v.
Thompson, 501 U.S. 722, 752-53 (1991).

       The district court held that under Coleman, ineffective assistance excuses
procedural default only if the petitioner had a constitutional right to effective
assistance, a right Hagen lacked during postconviction review. The court dismissed
the petition but granted a certificate of appealability on the question of whether
procedural default is excused under Coleman if the petitioner was deprived of a
statutory right to the effective assistance of counsel. In reviewing the denial of
Hagen's habeas petition, we examine the district court's legal conclusions de novo.
King v. Bowersox, 291 F.3d 539, 540 (8th Cir. 2002).

       When a petitioner has defaulted his federal claims in state court under an
independent and adequate state procedural rule, federal habeas review is barred
unless the petitioner is able to demonstrate both cause for the default and actual
prejudice from violation of federal law. Coleman, 501 U.S. at 750. A cause is
sufficient to excuse procedural default only when it is external to the petitioner, that
is not fairly attributable to the petitioner himself. Id. at 753. Ineffective assistance
is external if it can be imputed to the state due to the existence of a constitutional
right to the effective assistance of counsel. Id. at 753-54. Hagen had no right to the
effective assistance of counsel during state postconviction proceedings, however, and
instead relies on a state statutory right to such assistance. Pennsylvania v. Finley, 481
U.S. 551, 559 (1987). As a result any ineffectiveness on the part of Hagen's
postconviction counsel cannot be imputed to the state. Because Hagen has not shown
that his default was the result of any external cause, that default cannot be excused
and federal habeas review of his claims is barred.

      Accordingly, we affirm the judgment of the district court.

                          ___________________________

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