                         United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT
                                    ___________

                                   No. 96-2946
                                    ___________
Fred Louis Lamp,                          *
                                          *
             Plaintiff - Appellant,       *
                                          *   Appeal from the United States
     v.                                   *   District Court for the
                                          *   Southern District of Iowa.
State of Iowa; Director, Division         *
of Adult Corrections; County              *
Attorney in and for Polk County,          *
                                          *
             Defendants -                 *
Appellees.
                                    ___________

                            Submitted:  March 13, 1997
                                           Filed: August 13, 1997
                                    ___________

Before McMILLIAN, FLOYD R. GIBSON, AND HANSEN, Circuit Judges.
                               ___________

FLOYD R. GIBSON, Circuit Judge.

      Appellant Fred Louis Lamp brought this habeas corpus action under 28
U.S.C. § 2254 (1994),1 challenging his conviction for first-degree murder.
Lamp raised nine




      1
        On April 24, 1996, President Clinton signed the Anti-Terrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 1996 U.S.C.C.A.N. (110 Stat. 1214)
1214. The amendments to the statute which deal with habeas corpus petitions in
noncapital cases generally apply "only to such cases as were filed after the statute's
enactment," Lindh v. Murphy, 65 U.S.L.W. 4557, 4558 (U.S. June 23, 1997), and
Lamp filed this habeas suit long before the recent revisions became law. Furthermore,
the parties have not argued that the provisions of the Act should apply in this case.
Therefore, we consider the issue waived. See Cornell v. Nix, No. 95-3829, slip op. at
2 n.2 (8th Cir. July 16, 1997).
possible grounds for habeas relief in his petition before the district
court.   The court granted summary judgment on five of Lamp's claims,
reasoning that Lamp abused the writ by bringing several of them, and that
the others were procedurally defaulted. The court determined that two of
Lamp's claims failed to raise issues of constitutional concern. The court
reached the merits of Lamp's two remaining claims, but subsequently denied
his request for habeas relief. Lamp appeals, and we affirm.

I.   BACKGROUND

      On May 10, 1980, at approximately 12:35 a.m., two people discovered
Melody Oliver lying in the middle of a road in Des Moines, Iowa. Oliver
had been raped and stabbed but was still alive. Oliver told those who
found her that her assailant's name was Fred and that he had been driving
a blue van. Authorities at the scene believed that Lamp, a suspect in
another case, matched the description Oliver gave of her assailant. Oliver
died shortly after being taken to the hospital.

      At approximately 4:20 a.m., a Polk City police officer observed a
blue van driving toward the city.       The officer stopped the van to
investigate. When the officer realized that the driver of the van was
Lamp, he radioed for assistance. The officers took Lamp in for questioning
and eventually placed him under arrest for the murder of Melody Oliver.
Lamp's first habeas petition raised arguments concerning the method by
which he was interrogated. The facts underlying those arguments are set
forth fully in a prior panel opinion. See Lamp v. Farrier, 763 F.2d 994,
996 (8th Cir.), cert. denied, 474 U.S. 1009 (1985).




                                   -2-
      While housed in the Polk County Jail, Lamp occupied a cell adjacent
to the cell of Keith Trotter, who was imprisoned on theft charges. John
Lindbloom, another prisoner with whom Lamp was already acquainted, told
Lamp that Trotter was a trustworthy prisonmate.         Lamp subsequently
confessed to Trotter that he murdered Oliver and another woman named Carol
Donnelly.    Soon thereafter, Polk County Detective Jim Locke met with
Trotter to encourage him not to plead guilty to theft until he was able to
gain representation. During this meeting, Trotter informed Locke that Lamp
admitted to him that he killed Oliver. Locke told Trotter to "keep his
mouth shut [and] keep his ears open," and that if he heard anything else
to let him know. Over the next couple of weeks, Trotter met with Locke
several times to report on Lamp's confessions. Locke kept a log detailing
his conversations with Trotter.      The log noted that Trotter had not
received any promises or special treatment in exchange for information
regarding Lamp.
      During Lamp's murder trial, Trotter testified that Lamp admitted
killing Oliver. Trotter relayed many details of the crime which Lamp had
elucidated to him while in jail.      On November 25, 1980, an Iowa jury
convicted Lamp of first degree murder, and on December 29 of the same year
he was sentenced to life in prison. Lamp appealed his conviction to the
Supreme Court of Iowa, raising several issues.2 The court determined that
Lamp’s contentions were without merit and affirmed the conviction.




      2
        Before the Supreme Court of Iowa, Lamp argued that the trial court made the
following errors: (1) denying a motion to suppress evidence obtained during an
unreasonable stop of his vehicle; (2) denying a motion to suppress evidence obtained
pursuant to an unlawful search of his vehicle; (3) denying a motion to suppress
evidence obtained pursuant to an unreasonable search of his person; (4) denying a
motion to suppress evidence obtained during an in-custody interrogation conducted in
violation of his right to counsel; (5) denying a motion to suppress evidence obtained
pursuant to a search warrant issued on the basis of unlawfully seized evidence; (6)
admitting hearsay testimony of officers concerning the investigation of the homicide;
and (7) admitting results of blood analysis without an adequate foundation showing a
proper chain of custody.

                                         -3-
See State v. Lamp, 322 N.W.2d 48 (Iowa 1982). On August 27, 1982, Lamp
filed an application for a writ of habeas corpus in the United States
District Court for the Southern District of Iowa, alleging violations of
his Fifth Amendment right to have counsel present during a custodial
interrogation and his Sixth Amendment right to counsel. The arguments
raised in Lamp's first habeas petition focused entirely upon the
interrogation which immediately followed his detention and apprehension.
The district court denied Lamp’s request for habeas relief. The Eighth
Circuit affirmed the district court's judgment. See Lamp, 763 F.2d at 999.


      On January 17, 1986, Lamp filed an application for postconviction
relief in the Polk County District Court.3 The court rejected each of the
arguments raised by Lamp. On appeal to the Iowa Court of Appeals, Lamp
raised two issues: (1) whether his Sixth Amendment right to counsel and
Fifth Amendment right against self-incrimination were violated when Trotter
"interrogated" him, and (2) whether his Sixth Amendment right to effective
assistance of counsel was violated when trial counsel failed to move to




      3
        Lamp raised eight arguments in his petition for post-conviction relief: (1) the
State violated his Sixth Amendment right to counsel and Fifth Amendment right against
self-incrimination when Trotter "interrogated" him without the presence of counsel; (2)
the State violated his Sixth Amendment right to effective assistance of counsel when
trial counsel failed to move to suppress Trotter's testimony; (3) the State violated his
Sixth Amendment right to effective assistance of counsel when trial counsel failed to
obtain an expert to testify concerning lab techniques; (4) the State violated his Sixth
Amendment right to effective assistance of counsel when trial counsel failed to
independently examine blood tests; (5) the State violated his Sixth Amendment right
to effective assistance of counsel when trial counsel failed to discover that Lamp's
daughter's blood type matched that found in his van; (6) the State violated his Sixth
Amendment right to effective assistance of counsel when appellate counsel failed to
raise claims (2) through (5); (7) the State violated his Fourteenth Amendment right to
due process; and (8) newly discovered evidence that neither he nor his attorney knew
about at the time of trial warranted a new trial.

                                          -4-
suppress Trotter's testimony.   The Iowa Court of Appeals ruled against Lamp
on both issues.

      Following his unsuccessful attempt at postconviction relief in the
Iowa courts, Lamp filed his second federal habeas petition. Lamp claimed
the following errors: (1) he received ineffective assistance of counsel
when trial counsel failed to question the medical examiner about the chain
of custody for the blood evidence; (2) the State failed to establish a
proper chain of custody for the blood evidence; (3) the State used
unreliable blood tests; (4) he received ineffective assistance of counsel
during his first federal habeas proceeding; (5) the State violated Lamp’s
Fifth Amendment right to due process when it failed to disclose potentially
exculpatory evidence to the defense; (6) his Fifth Amendment right against
self-incrimination was violated when Trotter interrogated him; (7) his
Sixth Amendment right to counsel was violated when Trotter interrogated
him; (8) he received ineffective assistance of counsel when trial counsel
failed to move to suppress Trotter's testimony; and (9) he received
ineffective assistance of counsel during his post-conviction proceedings.
The State of Iowa moved for summary judgment on all nine claims. The
district court granted summary judgment on claims One, Two, Three, Five,
and Six, reasoning that several of the claims represented an abuse of the
writ, and those that did not were procedurally defaulted.        The court
granted summary judgment on claims Four and Nine because they did not
properly assert violations of constitutional rights. The court reached the
merits of claims Seven and Eight, but concluded that Lamp could not prevail
on those issues. The district court therefore denied Lamp's petition for
habeas relief. Lamp now appeals.
II.   DISCUSSION
      On appeal, Lamp argues that the district court committed error when
it granted summary judgment on claims One, Two, Three, Five, and Six. We
review a grant of summary judgment de novo, and on appeal must determine
"whether the record, when




                                     -5-
viewed in the light most favorable to the non-moving party, shows that
there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." See Schrier v. Halford, 60
F.3d 1309, 1310 (8th Cir. 1995) (citing Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
      Lamp asserts that he did not default on counts One and Six because
they were substantially similar to arguments he raised in the Iowa
postconviction court. Specifically, Lamp argues that Count One in his
habeas petition (ineffective assistance of trial counsel for failure to
question the medical examiner about chain of custody) was not procedurally
defaulted because it raised the same argument as Count Three from his state
postconviction petition (ineffective assistance of trial counsel for
failure to obtain a defense expert to testify concerning unacceptable lab
procedures). While Lamp's assertion that these two claims are similar in
nature is not wholly without merit, the district court correctly determined
that Count One was procedurally barred because Lamp did not appeal the
denial of post-conviction relief on Count Three. See Lowe-Bey v. Groose,
28 F.3d 816, 818 (8th Cir.) ("The failure to raise the ineffective
assistance claims in an appeal from the denial of [post-conviction] relief
raises a procedural bar to pursuing those claims in federal court."), cert.
denied, 513 U.S. 1061 (1994).
      Lamp also contends that he did not procedurally default Count Six in
his habeas petition (violation of his Fifth Amendment right against self-
incrimination through the use of a jailhouse informant) because Count One
in his petition for postconviction relief asserted the identical argument.
However, the district court did not, as Lamp contends, determine that Count
Six was procedurally barred. Rather, the court concluded that Lamp abused
the writ by bringing Count Six because he failed to raise the argument in
his first habeas petition. We agree that Lamp's assertion of this argument
in his second habeas petition abused the writ because the argument could
have been, but was not, raised during his first habeas proceeding. See
McCleskey v. Zant, 499 U.S. 467, 490




                                    -6-
(1991); Murray v. Delo, 34 F.3d 1367, 1372 (8th Cir. 1994), cert. denied,
515 U.S. 1136 (1995).
      A federal habeas petitioner can overcome a procedural default or an
abuse of the writ by showing cause and prejudice, see McCleskey, 499 U.S.
at 493, or by showing "that a fundamental miscarriage of justice would
result from a failure to entertain the claim," id. at 495. Lamp argues
that he presented a genuine issue of material fact as to whether he
established cause for his procedural default on counts One, Two, Three, and
Five.4 To establish cause for his procedural default, Lamp must show that
"some objective factor external to the defense impeded counsel's efforts
to comply with the State's procedural rule." Murray v. Carrier, 477 U.S.
478, 488 (1986). In proceedings in which the Sixth Amendment requires
legal representation, ineffective assistance of counsel is cause for a
procedural default.     See id.    However, because a defendant is not
constitutionally entitled to effective assistance of counsel in state
postconviction proceedings, see Coleman v. Thompson, 501 U.S. 722, 752
(1991); Nolan v. Armontrout, 973 F.2d 615, 616-17 (8th Cir. 1992), a state
postconviction attorney's rendering of ineffective assistance will not
constitute cause for a procedural default. See Nolan, 973 F.2d at 617.
Lamp attempts to avoid this result by arguing that he has shown cause for
his failure to properly raise his claims because he was denied his
"constitutional right [of] meaningful access to the courts during his
postconviction proceedings." Lamp Br. at 24. While it is conceivable that
the denial of access to the




      4
        Lamp also argues that he has established cause for failing to raise Count Six
because he was denied meaningful access to the Iowa courts during his postconviction
proceedings. Lamp continuously assumes the district court determined that Count Six
was procedurally defaulted. However, the district court specifically concluded that
Lamp's failure to raise Count Six "in the first habeas corpus proceeding constitutes an
abuse of the writ and bars review in this action." App. at 19. Lamp has only asserted
cause for his failure to raise claims that were procedurally defaulted. He has not shown
cause to excuse his failure to raise Count Six in his first habeas proceeding, and we will
not seek to establish cause for Lamp's abuse of the writ sua sponte.

                                           -7-
courts may be imputed to the State and thus constitute cause in some
circumstances, we conclude that Lamp did in fact have meaningful access to
the postconviction court and therefore has failed to establish cause to
excuse his procedural default.
      A criminal defendant's "right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of meaningful
legal papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law." Bounds v. Smith, 430 U.S.
817, 828 (1977). Additionally, a petitioner claiming lack of access to the
courts must show that "the lack of a library or the attorney's inadequacies
hindered [his] efforts to proceed with a legal claim in a criminal appeal,
postconviction matter, or civil rights action seeking to vindicate basic
constitutional rights." Sabers v. Delano, 100 F.3d 82, 84 (8th Cir. 1996)
(per curiam). If a state postconviction court provides a defendant with
adequate legal assistance, the right of access to the courts is satisfied.
See Schrier, 60 F.3d at 1313.      Lamp contends that he did not receive
adequate legal assistance because he was only permitted to communicate with
his attorney through the mails and his attorney neglected to raise claims
that Lamp specifically directed him to raise.
      We first note that "'adequate[]' as used in Bounds to modify
'assistance from persons trained in the law,' refers not to the
effectiveness of the representation, but to the adequacy of the prisoner's
access to his or her court-appointed counsel." Id. at 1314; accord Lewis
v. Casey, 116 S. Ct. 2174, 2181 (1996) (clarifying that the right of access
to the courts does not require the State to "enable the prisoner to
discover grievances, and to litigate effectively once in court" (emphasis
omitted)). The right of access to the courts is satisfied so long as the
State provides the defendant with the "capability of bringing contemplated
challenges to sentences or conditions of confinement before the courts."
Lewis, 116 S. Ct. at 2182. We conclude that the state postconviction
court provided Lamp with this capability. The State provided Lamp with an
attorney who adequately presented claims on Lamp's behalf. Furthermore,
Lamp was able to communicate with his attorney through the mail during the
process




                                    -8-
of bringing his claims. We hold that these efforts satisfied Lamp's right
of access to the courts.

      Lamp also complains that his attorney failed to raise several claims
he requested the attorney to bring, which impeded his access to the
courts.5 Lamp's contention appears to illustrate an effectiveness argument
rather than an adequacy of access argument, which is not the standard
enunciated in Bounds. See Schrier, 60 F.3d at 1314. However, even under
the constitutional ineffectiveness standard, to "impose on appointed
counsel a duty to raise every 'colorable' claim suggested by a client would
disserve the very goal of vigorous and effective advocacy."       Jones v.
Barnes, 463 U.S. 745, 754 (1983); accord Blair v. Armontrout, 976 F.2d
1130, 1139 (8th Cir. 1992) ("[T]he Supreme Court has squarely rejected the
argument that appellate counsel has a duty to raise every nonfrivolous
issue his client requests."), cert. denied, 508 U.S. 916 (1993). Likewise,
under the Bounds access to courts standard, a defendant is not entitled to
an attorney who will raise every nonfrivolous claim he wishes to pursue.
For, once the State has provided a petitioner with an attorney in
postconviction proceedings, it has provided him with the "capability of
bringing contemplated challenges to sentences or conditions of confinement
before the courts."     Lewis, 116 S. Ct. at 2182.     As such, the State
provided Lamp with meaningful access to the courts. Therefore, Lamp has
failed to establish cause for procedurally defaulting claims One, Two,
Three, and Five.




       5
        Lamp also argues that his attorney was an agent of the State and that his
postconviction attorney's inadequacy and ineffectiveness are therefore "objective
factor[s] external to the defense." Murray, 477 U.S. at 488. Essentially, this is nothing
more than an attempt to show cause for his procedural default through a method that
we have consistently rejected, for "[i]t is well settled that 'there is no constitutional right
to an attorney in state post-conviction proceedings.'" Mack v. Caspari, 92 F.3d 637,
640 (8th Cir. 1996) (citing Coleman, 501 U.S. at 752) (alteration omitted), cert. denied,
117 S. Ct. 1117 (1997). Therefore, Lamp "cannot claim constitutionally ineffective
assistance of counsel in such proceedings." Coleman, 501 U.S. at 752.

                                             -9-
      The district court addressed the merits of counts Seven and Eight.
Though the district court recognized that Lamp abused the writ by bringing
these claims because he could have raised them in his first habeas
petition, it determined that "cause" existed for the abuse. Lamp argued
that cause existed for his abuse of the writ on Count Seven because his
attorney in the first habeas proceeding was ineffective for failing to
raise the claim. Although the district court recognized that ineffective
assistance of counsel in a petitioner's first habeas proceeding cannot
constitute cause, see Washington v. Delo, 51 F.3d 756, 760 (8th Cir.),
cert. denied, 116 S. Ct. 205 (1995), it determined that the State waived
the abuse of the writ defense because it did not raise the argument in the
state postconviction court or before the Supreme Court of Iowa. We note,
however, that the abuse of the writ defense does not properly arise until
a petitioner files a second habeas petition alleging claims that were not,
but should have been, brought in the first habeas petition. See McCleskey,
499 U.S. at 486-89. Therefore, the State cannot be faulted for failing to
raise the defense in the state courts. Furthermore, even had the State
failed to raise the defense before the district court, we have previously
held that a district court may consider the abuse of the writ sua sponte,
provided the petitioner is given a fair opportunity to respond. See United
States v. Fallon, 992 F.2d 212, 213 (8th Cir. 1993).6 Lamp claims that
cause existed for his failure to raise Count Seven in his first habeas
petition because he received ineffective assistance of counsel in that
proceeding.    Because a petitioner may not establish cause based on
ineffective assistance of habeas counsel, see Blair, 976 F.2d at 1139, Lamp
has not shown cause for his abuse of the writ.        Thus, we affirm the
district court's denial of habeas relief on that claim.
      On Count Eight, the district court determined that even though Lamp
abused the writ, he had cause for doing so because he received ineffective
assistance of counsel




      6
        Following a thorough review of the record, we conclude that the State raised
Lamp's abuse of the writ during the district court proceedings and Lamp was given a
full and fair opportunity to respond.

                                       -10-
in his first habeas proceeding. The court adduced that because Lamp had
the same attorney at trial, on appeal, and in his first habeas proceeding,
his attorney could not have been expected to raise his own ineffectiveness.
In so reasoning, the district court relied on several cases which held that
where a defendant's trial counsel also represents him on appeal, the
defendant may raise a claim of ineffective assistance for the first time
collaterally. See Osborn v. Shillinger, 861 F.2d 612, 622-23 (10th Cir.
1988); Alston v. Garrison, 720 F.2d 812, 816 (4th Cir. 1983), cert. denied,
468 U.S. 1219 (1984). However, because the right to counsel "extends to
the first appeal of right, and no further," Pennsylvania v. Finley, 481
U.S. 551, 555 (1987), ineffective assistance of counsel in such a
proceeding may establish cause. To the contrary, "[a defendant] may not
establish 'cause' based on ineffective assistance of counsel in a federal
habeas case." Blair, 976 F.2d at 1139. Therefore, Lamp is not able to
show cause based on ineffective assistance of his first habeas attorney
even though that same attorney represented him at trial and on appeal.
Accordingly, because Lamp has not shown cause for his abuse of the writ,
we affirm the district court's denial of habeas relief on Count Eight.

III. CONCLUSION

      For the reasons set forth above, we affirm the district court's
decision to deny Lamp's petition for a writ of habeas corpus.

     A true copy.


           Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -11-
