                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-2071
                                     ___________

Tony Dion James Beach Armstrong,          *
                                          *
      Petitioner - Appellant,             *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
State of Iowa,                            *
                                          *
      Respondent - Appellee.              *
                                     ___________

                                Submitted: February 14, 2005
                                   Filed: August 17, 2005
                                    ___________

Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Tony Armstrong was convicted by an Iowa court of second-degree sexual
abuse and sentenced to twenty-five years in prison. The Supreme Court of Iowa
dismissed his direct appeal as frivolous, and the trial court denied his application for
state post-conviction relief. Armstrong then filed this pro se petition for federal
habeas corpus relief. The district court1 dismissed the petition with prejudice,
concluding that Armstrong’s claims are procedurally defaulted because he did not


      1
       The HONORABLE JAMES E. GRITZNER, United States District Judge for
the Southern District of Iowa.
appeal the denial of post-conviction relief to the Supreme Court of Iowa and he failed
to show adequate “cause” to excuse the default. Armstrong appeals. We affirm.

       Federal habeas relief is available to a petitioner after he “has exhausted the
remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To exhaust
an available state post-conviction remedy, the petitioner must “use the State’s
established appellate review procedures.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). Thus, Armstrong’s failure to appeal the denial of state post-conviction relief
to the Supreme Court of Iowa was a failure to exhaust the claims that were raised or
that should have been raised in the state court petition.

       When a state court remedy is available for a state prisoner’s unexhausted claim,
the federal habeas court must defer action until the claim is exhausted, either by
dismissing the federal petition without prejudice or by using the “stay and abeyance”
procedure described in Rhines v. Weber, 125 S. Ct. 1528 (2005). However, if no
state court remedy is available for the unexhausted claim -- that is, if resort to the
state courts would be futile -- then the exhaustion requirement in § 2254(b) is
satisfied, but the failure to exhaust “provides an independent and adequate state-law
ground for the conviction and sentence, and thus prevents federal habeas corpus
review of the defaulted claim, unless the petitioner can demonstrate cause and
prejudice for the default” (or actual innocence, which is not an issue in this case).
Gray v. Netherland, 518 U.S. 152, 162 (1996); see Coleman v. Thompson, 501 U.S.
722, 731-32 (1991).

       1. Armstrong argues that the district court erred in dismissing his federal
habeas claims with prejudice, thereby precluding him from returning to state court to
exhaust the claims. This issue turns on whether Armstrong has a non-futile state
court remedy for his unexhausted claims. The time to appeal the Iowa trial court’s
denial of his post-conviction petition has long passed. See Iowa R. App. P. 6.5(1),
6.20(2). The Supreme Court of Iowa does not permit a delayed appeal from the

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denial of post-conviction relief unless “a valid due process argument might be
advanced should the right of appeal be denied.” Swanson v. State, 406 N.W.2d 792,
793 (Iowa 1987). Armstrong has raised no due process issue in this case.

      Another possible state court remedy would be a successive petition for post-
conviction relief. But under Iowa law, successive petitions are severely limited:

             All grounds for [post-conviction] relief available to an applicant
      under this chapter must be raised in the applicant’s original . . .
      application. Any ground finally adjudicated or not raised . . . may not
      be the basis for a subsequent application, unless the court finds a ground
      for relief asserted which for sufficient reason was not asserted or was
      inadequately raised in the original . . . application.

Iowa Code § 822.8. Iowa recognizes a statutory right to effective assistance of post-
conviction counsel, see Iowa Code § 822.5, and ineffective assistance of post-
conviction counsel can provide “sufficient reason” for not raising or inadequately
raising an issue in the prior proceeding. Sims v. State, 295 N.W.2d 420, 422-23
(Iowa 1980). However, a successive petition is barred unless petitioner can “state the
specific ways in which counsel’s performance was inadequate and how competent
representation would have changed the outcome.” Rivers v. State, 615 N.W.2d 688,
690 (Iowa 2000), quoting Bugley v. State, 596 N.W.2d 893, 898 (Iowa 1999); see
also Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa 1994). Armstrong alleges that
post-conviction counsel’s failure to appeal was ineffective assistance. But he makes
no showing that an appeal would have changed the outcome of the claims finally
adjudicated by the state trial court, and no showing of sufficient reason why the new
grounds asserted in his federal petition were not raised in state court.

       Because both a belated appeal and a successive petition are procedurally barred
under Iowa law, Armstrong has no available non-futile state court remedy. Iowa’s
rule against untimely appeals and its limitations on successive petitions are adequate

                                         -3-
and independent state-law grounds preventing federal habeas review unless
Armstrong can show cause and prejudice for his default. See Wyldes v. Hundley, 69
F.3d 247, 253 (8th Cir. 1995), cert. denied, 517 U.S. 1172 (1996). Absent such a
showing, the district court properly dismissed his federal claims with prejudice.

        2. Armstrong argues that the ineffective assistance of his state post-conviction
counsel in failing to appeal to the Supreme Court of Iowa violated his Sixth and
Fourteenth Amendment rights and therefore was cause excusing his procedural
default in state court. “[A]ttorney error that results in a procedural default” is not
cause unless the attorney’s performance was constitutionally deficient. Murray v.
Carrier, 477 U.S. 478, 488 (1986). We have consistently construed Coleman v.
Thompson, 501 U.S. at 752-54, as confirming that there is no Sixth Amendment right
to the effective assistance of post-conviction counsel. See, e.g., Nolan v. Armontrout,
973 F.2d 615, 617 (8th Cir. 1992). Armstrong urges us to reconsider these decisions,
but as a panel of the Court we may not do so.

       Alternatively, Armstrong argues that the district court erred in failing to grant
a hearing on whether there was cause and prejudice excusing his procedural default
in state court. However, the only cause asserted was counsel’s ineffective assistance
in failing to appeal the denial of state post-conviction relief. As there is no Sixth
Amendment right to effective assistance of post-conviction counsel, the cause alleged
by Armstrong was insufficient as a matter of law and therefore properly denied
without a hearing.

      The judgment of the district court is affirmed.
                     ______________________________




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