                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1195
                                   ___________

Robert William Kerns,                   *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Southern
                                        * District of Iowa.
John Ault, Warden,                      *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: November 16, 2004
                                Filed: May 17, 2005
                                 ___________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       In this habeas corpus case, Robert Kerns appeals the district court's dismissal
of his 28 U.S.C. § 2254 petition. Because we agree that his claim is procedurally
defaulted, we affirm.
I.    BACKGROUND

       An associate of Kerns mugged a man, using a knife or razor1 as a weapon, and
stole the man's laptop computer. Kerns then participated in the theft by pawning the
laptop. Later, Kerns held up a series of businesses by handing the desk clerk a note
demanding money and insinuating that he had a weapon. Once caught, Kerns pled
guilty to theft and four second-degree robbery charges. Pursuant to the government's
recommendation, the state court sentenced Kerns to two consecutive ten-year
sentences, two concurrent ten-year sentences, and one concurrent five-year sentence,
for a total of twenty years.

        As relevant to this action, Kerns appealed to the Iowa Court of Appeals
claiming that the sentencing court improperly relied on the premise that he used a
razor in the mugging, because his associate performed the mugging and used the
weapon. However, Kerns only advanced state law arguments in support of this
position. The Iowa Court of Appeals rejected Kerns' claim and cited no federal law
in its opinion. State v. Kerns, No. 99-811, 2000 WL 702877 (Iowa Ct. App. May 31,
2000). Kerns did not seek state post-conviction relief.

      Kerns timely filed a federal habeas corpus petition that contained both
exhausted and unexhausted claims. The government filed an answer and moved to
dismiss the mixed petition on this basis, and it also asserted in its answer that some
of Kerns' claims (including the sentencing issue based upon the use of the razor) were
procedurally defaulted. The district court agreed that Kerns' petition contained
unexhausted assertions and allowed him to amend his petition to assert only his
exhausted claims. After Kerns filed his amended petition, the district court denied


      1
        At various points in the record, the weapon is referred to as a "scalpel-type
knife" and a razor. We, like the parties, will simply refer to the weapon throughout
this opinion as a razor.

                                         -2-
the state's motion to dismiss. Kerns proceeded with two claims–a due process claim
based on the razor/sentencing issue, and a constitutional challenge to Iowa's eighty-
five percent sentencing law. The district court2 denied the sentencing claim on its
merits. The court further concluded that because Kerns had not presented a federal
constitutional challenge for the razor/sentencing issue in his direct state appeal, the
issue was procedurally defaulted.

     The only issue certified for appeal concerns the due process claim.
Importantly, Kerns concedes that the claim is procedurally defaulted.3 However, he


      2
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa, adopting the Report and Recommendation of Chief
Magistrate Judge Ross A. Walters.
      3
        All parties discuss this issue without mentioning the exhaustion doctrine.
While Kerns did fairly present the factual basis for his claim to the state court, he
clearly did not present a federal constitutional allegation, nor did the court decide the
case on federal grounds. Both the factual and legal basis must be presented for
exhaustion to occur. McCartney v. Vitek, 902 F.2d 616, 617 (8th Cir. 1990). Kerns
need not have cited to any particular federal case, but must have "fairly apprize[d] the
state court of the facts and the 'substance' of his federal claim." Odem v. Hopkins,
192 F.3d 772, 776 (8th Cir. 1999). However, the record indicates that for whatever
reason, the government has, in a roundabout way, expressly waived exhaustion for
this claim. In briefing to the district court, the state asserts that it conceded
exhaustion of this claim in its motion to dismiss. Respondent's Brief at 9, Kerns v.
Ault, Civil No. 4-01-CV-10656 (S.D. Ia. Apr. 17, 2002). Our review of Respondent's
Motion to Dismiss, Brief in Support of the Motion to Dismiss, and the Answer
reveals no such concession. Nonetheless, we find that the state's declaration of
waiver in its district court brief is a sufficient affirmative waiver of exhaustion for the
purposes of 28 U.S.C. § 2254(b)(3) ("A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance upon the requirement unless the
State, through counsel, expressly waives the requirement.").

        Accordingly, because exhaustion has been waived, we need not examine the
futility doctrine and we can proceed directly to the question of whether Iowa law

                                           -3-
argues that because the claim survived the motion to dismiss despite the state's
argument that it was procedurally defaulted, and because the district court did not
suggest that he replead the claim, his claim can advance on one of two grounds: 1)
that it is "law of the case" that the district court implicitly rejected the procedural
default defense when it did not grant the motion to dismiss or counsel Kerns to
replead this claim; or 2) that the state has waived the procedural default defense after
it was implicitly rejected by the district court and the state did not ask for a motion
to reconsider the denial of the motion to dismiss.

II.   DISCUSSION

      We review the district court's legal conclusions concerning procedural default
de novo. Frasier v. Maschner, 304 F.3d 815, 817 (8th Cir. 2002).

      We summarily dispose of Kerns' law-of-the-case argument. The district court
denied the state's motion to dismiss once Kerns had withdrawn the unexhausted
claims. The order denying this motion cites only to Rose v. Lundy, 455 U.S. 509
(1982), for the proposition that an unexhausted claim can be dismissed to avoid
dismissal of the entire petition. The order does not mention procedural default in any
way. At that point in the litigation, Kerns had only filed a pro se petition, and the


would currently apply a procedural bar to Kerns' claim. Gray v. Netherland, 518 U.S.
152, 161-62 (1996) (holding that procedural default is not implicated for an
unexhausted claim until it is established that further resort to state law would be
futile, and it is clear that state law would procedurally bar the claims). At the time the
federal habeas corpus petition was filed in 2001, state post-conviction relief would
still have been available, because the decision became final under state law in late
2000. Iowa Code Ann. § 822.3 (a post-conviction claim can be brought within three
years from the date the decision is final). The state post-conviction remedy would no
longer be available at this time, however, and it is clear that Iowa law would
procedurally bar this claim. Thus we proceed directly to the procedural default
analysis.

                                           -4-
government had responded with an answer and a motion to dismiss. There had been
no hearing and no appointment of counsel for Kerns. Under these circumstances, the
law-of-the-case doctrine does not apply, as the district court had not in any way
adjudicated the issue.

        Similarly, Kerns' waiver argument–that the state waived its procedural default
defense by not asking for reconsideration of the denial of the motion to dismiss–is
without merit. The state raised procedural default defenses in its answer, and when
it later (after the motion to dismiss was denied) filed its Respondent's Brief with the
district court, it continued to assert the procedural default defenses.

       Kerns argues that because of the state's "waiver" of the issue, he did not have
adequate notice to respond to the procedural bar argument. When Kerns drafted his
amended pro se petition to exclude the unexhausted claims, he was under the
mistaken assumption that the procedural bar defense had been rejected, and therefore
did not assert cause, prejudice or actual innocence claims. However, after counsel
was appointed, Kerns filed a reply brief in response to the state's brief. Instead of
advancing arguments in favor of the cause and prejudice or actual innocence
exceptions to the procedural default rule, Kerns argued that the law of the case
prevented consideration of the procedural default issue, and that, in any event, the
razor/sentencing due process claim was presented to the Iowa courts and therefore not
procedurally defaulted (though he now concedes that same point). Even now, on
appeal, Kerns has failed to advance arguments in his briefs4 about what might
constitute cause and prejudice or actual innocence in this case. We, like the district
court, decline to make these arguments for Kerns. The federal component to the
claim was not presented to the state courts, and Kerns would now be barred from
bringing such a claim in state court. See ante n.3.


      4
       Kerns argued at oral argument that one of the two exceptions to the procedural
bar rule should be applied to his admittedly procedurally barred claim.

                                         -5-
       In any event, the claim clearly would fail on the merits. See Perry v. Kemna,
356 F.3d 880, 886 (8th Cir.) (holding that while petitioner's claim was probably
procedurally barred, the court need not decide that issue because the claim clearly
failed on the merits), cert. denied, 125 S. Ct. 657 (2004). Kerns' due process rights
were not violated because the record indicates that the sentencing judge knew Kerns
was not the person who utilized a razor during a robbery. Furthermore, Kerns had
ample opportunity to correct any misinformation about the issue. Accordingly Kerns
could not establish a due process violation based on these facts. West v. United
States, 994 F.2d 510, 512 (8th Cir. 1993) ("[A] defendant is not deprived of due
process when sentenced on the basis of [false] information as long as the defendant
was afforded an adequate opportunity to challenge the information.") (quotation
omitted).

III.   CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court.
                       ______________________________




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