## On April 24, 1996, President Clinton signed the Anti-Terrorism and Effective 1 

## Death Penalty Act of 1996, Pub. L. No. 104-132, 1 996 U.S.C.C.A.N. (110 Stat. 1214) 12 14. The amendments to the statute which deal with habeas corpus petitions i n noncapita lcases 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), an d Lamp filed this habeas suit long before the recent revisions became law. Furthermore, the p arties have not argued that the provisions of the Act should apply in this case

. Therefore, we consider the issue w aived. See Cornell v. Nix , No. 95-3829, slip op. at 2 n.2 (8th Cir. July 16, 1997). United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-2946

___________ Fred Louis Lamp, *

Plaintiff - Appellant, *

v. * District Court for the
State of Iowa; Director, Division * of Adult Corrections; County * Attorney in and for Polk County, *

Defendants - * Appellees. *

* Appeal from the United States

* Southern District of Iowa.

*

___________ 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 th is habeas corpus action under 28 U.S.C. § 2254 (1994), challenging h is conviction for first-degree murder. 1 Lamp raised nine

## -2-

possible grounds for habeas relief in his petition before the distric t
cour t. The court granted summary judgment on five of Lamp's claims , reasoning that Lamp a bused 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 constitu tional concern. The court reached the merits of Lamp's two remaining claim s, 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 wh o found her that her as sailant's name was Fred and that he had been driving

a blue v an. Authorities at the scene believed that Lamp, a suspect i n another case, matched the description Oliver gave of her assailant. Olive r died shortly after being taken to the hospital.

At ap proximately 4:20 a.m., a Polk City police officer observed a blu e van driving toward the city. The officer stopped the van t o investigate. When the officer realized that the driver of the van wa s Lamp, he radioed for assistance. The officers took Lamp in for questionin g and eventually placed him under arrest for the murder of Melody Oliver

. Lamp's first habeas petition raised arguments concerning the method b y which he was interrogated. The facts underlying those arguments are set forth fully in a prio r panel opinion. See Lamp v. Farrier , 763 F.2d 994, 996 (8th Cir.), cert. denied , 474 U.S. 1009 (1985).

## Before the Supreme Court of Iowa, Lamp argued that the trial court made the 2 

## following errors: (1) denying a motion to suppress evidence obtained during a n unrea sonable 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 suppres s evi dence obtained pursuant to an unreasonable search of his person; (4) denying a motion to suppress evid ence obtained during an in-custody interrogation conducted in viol ation of his right to counsel; (5) denying a motion to suppress evidence obtaine d pu rsuant 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- While hou sed in the Polk County Jail, Lamp occupied a cell adjacent to the cell of Keith Trotter, who was imprisoned on theft charges. John Lindbl oom, another prisoner with whom Lamp was already acquainted, tol d Lamp t hat Trotter was a trustworthy prisonmate. Lamp subsequentl y confessed to Trotter that he murdered Oliver and another woman named Carol Donn elly. Soon thereafter, Polk County Detective Jim Locke met wit h Trotter to encourage him not to plead guilty to theft until he was able to gain representation. During this meeting, Trotter informed Locke that Lam p admitte d to him that he killed Oliver. Locke told Trotter to "keep hi s mouth shut [and] keep his ears open," and that if he heard anything else to le t him know. Over the next couple of weeks, Trotter met with Lock e several times to report on Lamp's confessions. Locke kept a log detailing his conve rsations with Trotter. The log noted that Trotter had no t receiv ed any promises or special treatment in exchange for informatio n regarding Lamp. During Lamp's murder trial, Trotter testified that Lamp admitte d killing Oliver. Trot ter relayed many details of the crime which Lamp had elucidated to him while in jail. On November 25, 1980, an Iowa jur y convicted Lamp of first degree murder, and on De cember 29 of the same year he was sentenced to life in prison. Lamp appealed his conviction to the Supreme Court of Iowa, raising severa l issues. The court determined that 2 Lamp’s contentions were without merit and affirmed the conviction.

## Lamp raised eight arguments in his petition for post-conviction relief: (1) the 3 

## State violated his Sixth Amendment right to counsel and Fift h Amendment right against self-incrimination when Trotter "interrogated" hi m 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 SixthAmendment right to effective assistance of counsel when trial counsel failed to obtain a n expert to testify concerning lab techniques; (4) the State violated his Sixth Amend ment

right to effective assistance of counsel when trial counsel failed t o independently examine blood tests; (5) the State violated his Sixth Amendment righ t 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 Amendmentright to effective assistance of counsel when appellate counsel failed t o raise cla ims (2) through (5); (7) the State violated his Fourteenth Amendment right to due process; an d (8) newly discovered evidence that neither he nor his attorney knew about at the time of trial warranted a new trial.
-4- See S tate v. Lamp , 322 N.W.2d 48 (Iowa 1982). On August 27, 1982, Lam p fil ed an application for a writ of habeas corpus in the United State s District Court for the Southern District of Iowa, alleging violations of his Fifth Amendment right to have counsel present during a custodia l interrogation and his Sixth Amendment right to counsel. The argument s raised in Lamp's first habeas petition focused entirely upon th e interrogation which immediately followed his detention and apprehension. The district court denied Lamp’s request for habeas relief. The Eight h Circuit affirmed the district court's judgment. See Lamp , 763 F.2d at 999

.

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

## -5-

suppress Trotter's testimony. The Iowa Court of Appeals ruled against Lam p on both issues.

Fo llowing his unsuccessful attempt at postconviction relief in th e Iowa courts, Lamp fil ed his second federal habeas petition. Lamp claimed the following errors: (1) he received ineffective assistance of counsel when trial counsel failed to question the medica l examiner about the chain of custody for the blood evidence; (2) the State failed to establish a pro per chain of custody for the blood evidence; (3) the State use d unreliable blood test s; (4) he received ineffective assistance of counsel during his first fede ral habeas proceeding; (5) the State violated Lamp’s Fifth Amendment right to due process when it failed to disclose potentiall y exculpatory evidence to the defense; (6) his Fif th Amendment right against self -incrimination was violated when Trotter interrogated him; (7) hi s Sixth Amendment right to counsel was violated when Trotter interrogate d him; (8) he received ineffective assistance of counsel when trial counsel failed to move to suppress Trotter's testimony; and (9) he receive d ineffective assistanc e of counsel during his post-conviction proceedings. The State of Iowa moved for summary judgment on all nine claims. Th e district court granted summary judgment on claims One, Two, Three, Five, and Six, reasoning th at several of the claims represented an abuse of the writ , and those that did not were procedurally defaulted. The cour t granted su mmary judgment on claims Four and Nine because they did no t properly assert violations of constitutional rights. The court reached th e merits of claims Seven and Eight, but concluded that Lamp could not prevai l 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 ju dgment 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

## -6-

viewe d in the light most favorable to the non-moving party, shows tha t there is no genuine issue as to any material fact and that the moving part y 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); Celote x Corp. v. Catrett , 477 U.S. 317, 322-23 (1986)). Lamp a sserts that he did not default on counts One and Six becaus e they wer e substantially similar to arguments he raised in the Iow a postconviction court. Specifically, Lamp argues that Count One in hi s habeas petition (ineffective assistance of trial counsel for failure t o question the medical examiner about chain of cus tody) was not procedurally defaulted because it raised the same argument as Count Three from his stat e po stconviction petition (ineffective assistance of trial counsel fo r failure to obtain a d efense expert to testify concerning unacceptable lab procedures). While L amp's assertion that these two claims are similar in nature is not wholly without merit, the district court correctly determine d that Count One was procedurally barred because Lamp did not appeal th e denial of post-convic tion relief on Count Three. See Lowe-Bey v. Groose , 28 F.3d 816, 818 (8th Cir.) ("The failure to raise the ineffectiv e assistance claims in an appeal from the denial o f [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 p rocedurally default Count Six in his habeas petition ( violation of his Fifth Amendment right against selfincrimination through the use of a jailhouse informant) because Count One in his petition for postconviction relief assert ed the identical argument. However, the district court did not, as Lamp contends, determine that Coun t 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 argumen t in his second habeas petition abused the writ because the argument could have been , but was not, raised during his first habeas proceeding. Se e McCleskey v. Zant , 499 U.S. 467, 490

## Lam p also argues that he has established cause for failing to raise Count Si x 4 

## because he was denied meaningful access to the Iowa courts during his postconviction proceedings. Lamp continuousl y assumes the district court determined that Count Six
was p rocedurally defaulted. However, the district court specifically concluded tha t Lamp's failure to r aise 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 pr oceeding, and we will not seek to establish cause for Lamp's abuse of the writ sua sponte

. -7- (1991); Murray v. Del o , 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 49 3, or by showing "that a fundamental miscarriage of justice woul d result from a failure to entertain the claim," id. at 495. Lamp argue s that he p resented a genuine issue of material fact as to whether h e established cause for his procedural default on counts One, Two, Three, an d Five. To establish cause for his p rocedural default, Lamp must show that

4 "some objective factor external to the defense impeded counsel's efforts to comply with the St ate's procedural rule." Murray v. Carrier , 477 U.S. 478, 488 (1986). In proceedings in which the Sixth Amendment require s legal representation, ineffective assistance of counsel is cause for a procedur al default. See id. However, because a defendant is no t constit utionally entitled to effective assistance of counsel in stat e postco nviction proceedings, see Coleman v. Thompson , 501 U.S. 722, 75 2 (1991); Nolan v. Armontrout , 973 F.2d 615, 616-1 7 (8th Cir. 1992), a state post conviction attorney's rendering of ineffective assistance will no t constitut e cause for a procedural default. See Nolan , 973 F.2d at 617

. Lamp attempts to avoi d this result by arguing that he has shown cause for his failure to properly raise his claims because he was denied hi s "const itutional right [of] meaningful access to the courts during hi s postconviction proceedings." Lamp Br. at 24. While it is conceivable tha t the denial of access to the

## -8-

courts may be imputed to the State and thus constitute cause in som e circumstances, we conclude that Lamp did in fact have meaningful access to the postconviction court and therefore has failed to establish cause t o 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 adequat e assistanc e from persons trained in the law." Bounds v. Smith , 430 U.S

. 817, 828 (1977). Additionally, a petitioner claiming lack of access to th e courts must show that "the lack of a library or the attorney's inadequacie s hindered [his] efforts to proceed with a legal c laim 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 t o the courts is satisfied. See Schrie r , 60 F.3d at 1313. Lamp contends that he did not receiv e adequate legal assistance because he was only permitted to communicate wit h 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 modif y 'assistan ce from persons trained in the law,' refers not to th e 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 acces s to the co urts does not require the State to "enable the prisoner t o 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 "capabilit y of bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis , 1 16 S. Ct. at 2182. We conclude that the state postconvictio n court provided Lamp with this capability. The S tate provided Lamp with an attorney who adequately presented claims on Lamp's behalf. Furthermore, Lamp was able to communicate with his attorney t hrough the mail during the process

## Lamp al so argues that his attorney was an agent of the State and that hi s 5 

## postco nvictionattorney's inadequacy and ineffectiveness are therefore "objectiv e 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 o mitted), cert. denied , 117 S . Ct. 1117 (1997). Therefore, Lamp "cannot claim constitutionally ineffectiv e assistance of counsel in such proceedings." Coleman , 501 U.S. at 752.
-9- of bringing his claims. We hold that these effo rts satisfied Lamp's right of access to the courts.

Lamp also complains that his attorne y failed to raise several claims he reques ted the attorney to bring, which impeded his access to th e courts. Lamp's contention appears to illustrate an effectiven ess argument

5 rather tha n an adequacy of access argument, which is not the standar d enunciated in Bounds

. See Schrier , 60 F.3d at 1314. However, even under th e constitutional ineffectiveness standard, to "impose on appointe d counsel a duty to raise every 'colorable' claim suggested by a client woul d disserve t he very goal of vigorous and effective advocacy." Jones v

. Barne s , 463 U.S. 745, 754 (1983); accord Blair v. Armontrout , 976 F.2 d 1130, 1139 (8th Cir. 1992) ("[T]he Supreme Court has squarely rejected the argument that appellate counsel has a duty to raise every nonfrivolou s issue his client requests."), cert. denied , 508 U.S. 916 (1993). Likewise , under the Bounds access to courts standard, a de fendant is not entitled to

an attorney who will raise every nonfrivolous claim he wishes to pursue. For, onc e the State has provided a petitioner with an attorney i n postco nviction proceedings, it has provided him with the "capability o f bringing contemplated challenges to sentences or conditions of confinement before the courts." Lewis , 116 S. Ct. at 2182. As such, the Stat e provided Lamp with meaningful access to the courts. Therefore, Lamp has failed to establish cause for procedurally defaulting claims One, Two , Three, and Five.

## Follo wing a thorough review of the record, we conclude that the State raise d 6 

## Lamp's abuse of the writ during the district court proceedings and Lamp was given a full and fair opportunity to respond.
-10- The dist rict court addressed the merits of counts Seven and Eight

. Though the district court recognized that Lamp a bused the writ by bringing the se claims because he could have raised them in his first habea s petition, it determined that "cause" existed for the abuse. Lamp argued that ca use existed for his abuse of the writ on Count Seven because hi s attorney in the first habeas proceeding was ineffective for failing t o raise the claim. Alt hough the district court recognized that ineffective assist ance of counsel in a petitioner's first habeas proceeding canno t const itute 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 abu se of the writ defense does not properly arise until a petitioner files a second habeas petition alle ging 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 Stat e failed to raise the d efense 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 Unite d State s v. Fallon , 992 F.2d 212, 213 (8th Cir. 1993). Lamp claims tha t 6

cause existed for his failure to raise Count Seven in his first habea s petiti on because he received ineffective assistance of counsel in tha t proceedi ng. Because a petitioner may not establish cause based o n ineffective assistance of habeas counsel, see Blair , 976 F.2d at 1139, Lam p has not shown cause for his abuse of the writ. Thus, we affirm th e 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 becau se he received ineffective assistance of counsel

## -11-

in his first habeas proceeding. The court adduced that because Lamp had the same attorney at trial, on appeal, and in hi s 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 tha t wher e a defendant's trial counsel also represents him on appeal, th e 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' bas ed on ineffective assistance of counsel in a federal habea s case." Blair , 976 F.2d at 1139. Therefore, Lamp is not able t o sho w cause based on ineffective assistance of his first habeas attorne y
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 r easons 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.