1

The Honorable Mark W. Bennett, Chief Judge, United States District Court

for the Northern District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1755

___________

Robert E. Wemark, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

State of Iowa, sub nominee John * Northern District of Iowa.

Mathes, Warden, Newton *

Correctional Facility, *

*

Appellee. *

___________

Submitted: December 9, 2002

Filed: March 17, 2003

___________

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Robert E. Wemark appeals the district court’s1

 judgment denying his petition

for writ of habeas corpus. We affirm.
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I. Background

On August 18, 1993, Robert Wemark was convicted of first-degree murder for

fatally stabbing his estranged wife. Wemark’s conviction and sentence of life

imprisonment were affirmed on appeal. State v. Wemark, No. 4-491/93-1276 (Iowa

Ct. App. Jan. 23, 1995). 

On August 2, 1996, Wemark filed an application for post-conviction relief in

Iowa district court, alleging, inter alia, ineffective assistance of trial counsel. The

district court denied the application, and Wemark appealed. The Iowa Supreme Court

explained the factual basis for Wemark’s ineffective-assistance claim:

Wemark was . . . scheduled to be examined by Dr. Michael

Taylor, a medical expert employed by the State after Wemark filed his

diminished responsibility defense. Before the scheduled interview,

Wemark disclosed the location of the knife he used to stab his wife to

his counsel. He had placed the knife in a pile of automotive parts under

the basement steps of the house, which law enforcement authorities

failed to detect during their extensive search of the home.

Defense counsel were immediately concerned they had an ethical

obligation to disclose the location of the knife to the prosecution. They

considered nondisclosure to be the same as concealment and an

interference with police investigation. . . . [D]efense counsel concluded

they had three options to pursue once Wemark informed them of the

location of the knife. The first option was to wait for the State to search

the house again and find the knife. Yet, defense counsel believed it was

unlikely law enforcement would search the home a second time. The

second option was to have Wemark inform Dr. Taylor of the location of

the knife during the scheduled interview. Defense counsel knew Dr.

Taylor would then notify the prosecutor. The third option was to engage

the services of an attorney to relay the location of the knife to the

prosecutor without disclosing the source of the information.
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. . . .

Defense counsel informed Wemark of the ethical dilemma and the

three options. They urged him to keep the appointment with Dr. Taylor

and to disclose the location of the knife during the course of the

examination.

Wemark was subsequently interviewed by Dr. Taylor. He

informed Dr. Taylor of the location of the knife. Dr. Taylor then relayed

the information to the prosecutor and the knife was removed in a second

search of the home. The knife was introduced into evidence at trial and

displayed by the prosecutor in closing argument. The State also

conducted forensic tests on the knife prior to trial and was unable to find

any fingerprints but did find traces of blood consistent with

characteristics of Melissa[] [Wemark’s] blood. This evidence was

introduced at trial, as well as the location of the knife. Wemark claims

the location of the knife should not have been disclosed, and the ability

of the State to introduce it into evidence at trial prejudiced his defense.

Wemark v. State, 602 N.W.2d 810, 813 (Iowa 1999). 

In analyzing Wemark’s claim, the Iowa Supreme Court applied a two-pronged

test: “To establish . . . ineffective assistance of counsel[,] . . . the applicant must show

that ‘(1) counsel failed to perform an essential duty, and (2) prejudice resulted

therefrom.’” Id. at 814 (quoting State v. Miles, 344 N.W.2d 231, 233-34 (Iowa

1984)). Citing Strickland v. Washington, 466 U.S. 668, 688 (1984), the court noted

that “[t]he test of ineffective assistance of counsel focuses on whether the

performance by counsel was reasonably effective.” Id. The court determined that

although Wemark had satisfied the first prong of the ineffective-assistance inquiry,

he had failed to demonstrate prejudice. Id. at 817-18. Thus, the court concluded,

Wemark’s claim did not entitle him to post-conviction relief. 

 

On April 14, 2000, Wemark filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254, again alleging ineffective assistance of trial counsel. Relying
2

The Honorable Paul A. Zoss, United States Magistrate Judge for the Northern

District of Iowa.

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on Cuyler v. Sullivan, 446 U.S. 335 (1980), Wemark argued that because his counsel

had been burdened by an “actual conflict,” he was entitled to habeas relief without

having to demonstrate prejudice. See Cuyler, 446 U.S. at 349-50; see also Strickland,

446 U.S. at 692 (“Prejudice is presumed . . . if the defendant demonstrates that

counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of

interest adversely affected his lawyer's performance.’” (quoting Cuyler, 446 U.S. at

350, 348)). The magistrate judge,2

 however, concluded that Wemark had failed to

raise a “presumption of prejudice” argument in his state post-conviction proceedings

and had therefore procedurally defaulted the issue. The district court agreed and

denied Wemark’s petition. In doing so, the district court issued a certificate of

appealability on Wemark’s “claim of presumed prejudice.” 

II. Analysis 

 “To avoid defaulting on a claim, a petitioner seeking habeas review must have

fairly presented the substance of the claim to the state courts,” Anderson v. Groose,

106 F.3d 242, 245 (8th Cir. 1997), thereby affording such courts a “‘fair opportunity’

to apply controlling legal principles to the facts bearing upon [the] claim,” Anderson

v. Harless, 459 U.S. 4, 6 (1982) (citing Picard v. Connor, 404 U.S. 270, 276-77

(1971)). “A claim has been fairly presented when a petitioner has properly raised the

‘same factual grounds and legal theories’ in the state courts which he is attempting

to raise in his federal habeas petition.” Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th

Cir. 1996) (citations omitted); cf. Bracken v. Dormire, 247 F.3d 699, 703 (8th Cir.)

(“We are also more apt to deem a claim preserved if the claim actually raised in the

habeas petition shares the same legal analysis and standards as the different claim

relied upon by the District Court, as here, or in the appeal.” (citing Frey v. Schuetzle,

78 F.3d 359, 361 (8th Cir. 1996)), cert. denied, 534 U.S. 934 (2001).
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 Before reaching the issue of “fair presentment,” we note that Cuyler v.

Sullivan, the case on which Wemark relies, arose in the context of counsel

representing multiple defendants. See Cuyler, 446 U.S. at 337. We have not yet

clarified whether Cuyler’s presumed prejudice analysis extends beyond such

circumstances to all conflict of interest cases. See Atley v. Ault, 191 F.3d 865, 870

n.4 (8th Cir. 1999) (indicating that Cuyler’s rule is not limited to joint representation

situations); Caban v. United States, 281 F.3d 778, 783-84 (8th Cir. 2002)

(characterizing the relevant language from Atley as dictum, but avoiding “even the

appearance of a conflict” by concluding that the petitioner would lose under either the

Strickland or Cuyler standard); see also United States v. Young, 315 F.3d 911, 914

n.5 (8th Cir. 2003) (“[W]here the alleged conflict involves ethical issues other than

multiple or serial representation, this Circuit has held that Strickland is still the

appropriate standard.” (citing Caban, 281 F.3d at 783-84) (additional citation

omitted)). The Supreme Court has recognized that some appellate courts have

extended Cuyler “‘unblinkingly’ to ‘all kinds of alleged attorney ethical conflicts,’”

but has chosen not to address whether such extensions were proper. See Mickens v.

Taylor, 535 U.S. 162, 174-76 (2002) (quoting Beets v. Scott, 65 F.3d 1258, 1266 (5th

Cir. 1995) (en banc)). Thus, whether Cuyler should be extended remains “an open

question.” Id. at 176.

After reviewing Wemark’s briefs to the Iowa Supreme Court in his postconviction action, we agree that he failed to satisfy the “fair presentment”

requirement. Wemark did not cite the Cuyler case or argue its rule of presumed

prejudice. Instead, Wemark directed the court to the Strickland inquiry and its

requirement of actual prejudice. He expressly identified Strickland as the “governing

standard.” Pointing to the fact that the Strickland Court discussed the Cuyler

decision, Wemark now contends that “[t]he presumption of prejudice law and analysis

are an inherent part of the Strickland test for ineffective assistance of counsel.”

Strickland, however, makes clear that in those circumstances where “counsel is

burdened by an actual conflict of interest,” a different inquiry must be undertaken in
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reviewing an ineffective-assistance claim. Strickland, 466 U.S. at 692. Given that

neither the Supreme Court nor this court has resolved whether Cuyler extends to all

conflict of interest situations, we are not persuaded that Wemark’s citation to

Strickland afforded Iowa’s courts a “fair opportunity” to consider his presumed

prejudice theory. 

Wemark’s failure to raise his presumed prejudice theory in state court

“implicates the requirements in habeas of exhaustion and procedural default.” Gray

v. Netherland, 518 U.S. 152, 161 (1996). The United States Supreme Court has

explained the relationship between these two requirements:

Title 28 U.S.C. § 2254(b) bars the granting of habeas corpus relief

“unless it appears that the applicant has exhausted the remedies

available in the courts of the State.” Because “[t]his requirement . . .

refers only to remedies still available at the time of the federal petition,”

it is satisfied “if it is clear that [the habeas petitioner's] claims are now

procedurally barred under [state] law.” However, the procedural bar that

gives rise to exhaustion 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. 

Id. at 161-62 (internal citations omitted) (brackets in original). 

We therefore turn to the question of whether Iowa law would prevent Wemark

from raising a presumed prejudice theory in state court. McCall v. Benson, 114 F.3d

754, 757 (8th Cir. 1997). Wemark has not suggested that Iowa’s courts would

entertain his presumed prejudice claim, and our research indicates that this theory of

relief has been defaulted. Iowa law requires post-conviction applicants to raise all

available grounds for relief in their original, supplemental, or amended applications.

Iowa Code § 822.8 (1994). “Any ground . . . not raised . . . may not be the basis for

a subsequent application” unless the court finds “sufficient reason” to justify the
3

We also note that Iowa law requires post-conviction applications to be filed

within three years “from the date the conviction or decision is final or, in the event

of an appeal, from the date the writ of procedendo is issued,” unless “a ground of fact

or law [exists] that could not have been raised within the applicable time period.”

Iowa Code § 822.3 (1994).

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omission. Id.3

 Although Wemark does not specifically identify a “sufficient reason,”

he does contend that the novelty of the issue excuses his failure to raise the presumed

prejudice argument in Iowa’s state courts. We disagree. The Supreme Court has

recognized “that where a constitutional claim is so novel that its legal basis is not

reasonably available to counsel, a defendant has cause for his failure to raise the

claim in accordance with applicable state procedures.” Reed v. Ross, 468 U.S. 1, 16

(1984). Nevertheless, “[i]f the tools were available for a petitioner to construct the

legal argument at the time of the state appeals process, then the claim cannot be said

to be so novel as to constitute cause for failing to raise it earlier.” Frizzell v.

Hopkins, 87 F.3d 1019, 1021 (8th Cir. 1996) (internal quotation marks and citations

omitted). 

Cuyler was decided in 1980, well before Wemark filed his state application for

post-conviction relief. Thus, the legal tools needed to construct a presumed prejudice

argument were certainly available at the time of Wemark’s state post-conviction

proceedings. Although Wemark suggests otherwise, our uncertainty as to whether

Cuyler should be extended outside the multiple or serial representation context does

not render his theory “so novel that its legal basis [was] not reasonably available”

during his state post-conviction action. Reed, 486 U.S. at 16. We therefore conclude

that Wemark has not demonstrated either a “sufficient reason” or cause for his failure

to raise a presumed prejudice theory in Iowa’s state courts. Nor has Wemark

demonstrated that our failure to consider his claims would result in a “fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991) (“We now

make it explicit: In all cases in which a state prisoner has defaulted his federal claims
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in state court pursuant to an independent and adequate state procedural rule, federal

habeas review of the claims is barred unless the prisoner can demonstrate cause for

the default and actual prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice.”). Accordingly, we conclude that because Wemark did not

“fairly present” a presumed prejudice theory to the Iowa Supreme Court, we are

barred from reviewing the merits of his ineffective-assistance claim.

The judgment is affirmed. 

A true copy.

Attest:

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