                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-4117
                                     ___________

Henry L. Whitfield,                     *
                                        *
             Petitioner-Appellant,      *
                                        * Appeal from the United States
       v.                               * District Court for the
                                        * Southern District of Iowa.
State of Iowa,                          *
                                        *     [UNPUBLISHED]
             Respondent-Appellee.       *
                                   ___________

                              Submitted: September 13, 2005
                                 Filed: September 19, 2005
                                  ___________

Before MELLOY, LAY, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Henry L. Whitfield, who was convicted of first-degree kidnaping, appeals the
district court’s1 denial of his 28 U.S.C. § 2254 habeas petition. Whitfield contends
that the district court erred in concluding that he has failed to exhaust his state court
remedies. Whitfield acknowledges his claim is procedurally barred in state court
because he did not bring it within the three-year statute of limitations under Iowa’s
postconviction relief statute. See Iowa Code § 822.3. He also concedes that his
failure to timely bring his postconviction action in state court bars habeas review

      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
unless he can “prove cause and prejudice for the default.” Holt v. Bowersox, 191 F.3d
970, 974 (8th Cir. 1999). He argues that his mental illness excuses the default and
that he is therefore entitled to have his petition reviewed on the merits by the federal
courts. The district court dismissed Whitfield’s petition without prejudice on the
grounds that he had not obtained a state court ruling regarding whether his mental
status excused the procedural default of his claim under Iowa’s postconviction
statute. Because Whitfield “may still have an avenue of relief left in state court,” the
district court concluded he had not exhausted the remedies available in state court.
We affirm.

       When considering an appeal of a district court’s habeas ruling, we review the
district court’s findings of fact for clear error and its conclusions of law de novo.
Hall v. Luebbers, 296 F.3d 685, 692 (8th Cir. 2002). In order to obtain federal habeas
corpus review a petitioner must exhaust the remedies available in state court. 28
U.S.C. § 2254(b)(1)(A). A petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State . . . if he has the right under the law of
the State to raise, by any available procedure, the question presented.” 28 U.S.C.
§ 2254(c).

       Iowa Code § 822.3 provides that applications for postconviction relief “must
be filed within three years from the date the [petitioner’s] conviction . . . is final.”
Resolution of the appeal at hand rests on whether Iowa’s three-year limitation is
absolute or whether it may be equitably tolled by a showing that the petitioner failed
to bring a timely postconviction claim due to mental illness. Whitfield argues that the
time-bar in the Iowa statute may not be equitably tolled, and that he has therefore
exhausted his state court remedies. He asserts, however, that the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) allows for equitable tolling. See
Baker v. Norris, 321 F.3d 769, 771 (8th Cir. 2003). Accordingly, he argues that his
delay in bringing his postconviction petition should be excused and that his habeas
petition should be reviewed on the merits.

                                          -2-
        The Government replies that “no Iowa case has held that a mental deficiency
is not the sort of ‘fact’ that, if shown, would be insufficient to avoid or equitably toll
Iowa’s postconviction statute of limitations.” Upon reviewing the relevant case law
cited by both parties, we are unwilling to make the decisive determination that the
Iowa postconviction statute of limitations may not be equitably tolled upon a showing
that the petitioner’s failure to bring a petition was excused by mental illness.
Accordingly, we affirm the district court’s denial of Whitfield’s petition for habeas
relief on the grounds that Whitfield has not exhausted his state court remedies as
required by 28 U.S.C. § 2254(b)(1)(A).
                          ______________________________




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