1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the

Eastern District of Missouri, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3322

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Wallace James Beaulieu, *

*

Petitioner-Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

State of Minnesota, *

*

Respondent-Appellee. *

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Submitted: June 9, 2009

Filed: October 8, 2009

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Before SMITH, and SHEPHERD, Circuit Judges, and LIMBAUGH,1

 District Judge.

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SMITH, Circuit Judge.

A Minnesota trial court ordered that Wallace James Beaulieu be civilly

committed as a sexually psychopathic personality (SPP) and a sexually dangerous

person (SDP). Beaulieu's attorney appealed the commitment order after the appeals

deadline had passed, and the Minnesota Court of Appeals dismissed the appeal as

untimely. Beaulieu filed a petition for a writ of habeas corpus, arguing that the State

of Minnesota ("State") lacked subject matter jurisdiction to enforce its civil
2

The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota, adopting the report and recommendation of the Honorable Janie

S. Mayeron, United States Magistrate Judge for the District of Minnesota.

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commitment statutes on an Indian reservation. The district court2

 dismissed Beaulieu's

petition. On appeal, Beaulieu argues that his subject matter jurisdiction claim is not

subject to procedural default and that his attorney's failure to file a timely appeal

constitutes cause for any procedural default and resulted in actual prejudice. We reject

Beaulieu's arguments and affirm the judgment of the district court.

I. Background

On October 12, 2004, the State filed a petition to commit Beaulieu, an enrolled

member of the Leech Lake Band of Ojibwe, as a SPP and a SDP pursuant to

Minnesota Statutes §§ 253B.18 and 253B.185. Beaulieu's attorney moved to dismiss

the commitment petition on the ground that the state trial court lacked jurisdiction

over Beaulieu because of tribal sovereignty principles, but the trial court denied the

motion. On March 17, 2006, the trial court ordered Beaulieu committed to the

Minnesota Sex Offender Program, concluding that he satisfied the requirements for

commitment as a SPP under Minnesota Statutes § 253B.02, subdivision 18b, and as

a SDP under Minnesota Statutes § 253B.02, subdivision 18c. On July 3, 2006, the trial

court ordered Beaulieu indeterminately committed as a SPP and a SDP. Minnesota

law grants a right to appellate review of a commitment order or judgment "within 60

days after the date of filing of the order or entry of judgment." Minn. Stat. § 253B.23,

subd. 7. Accordingly, Beaulieu's appeal was due by September 1, 2006. 

On August 1, 2006, the trial court appointed Frank Bibeau to represent Beaulieu

on appeal, and Bibeau filed an untimely appeal on September 8, 2006. After the

Minnesota Court of Appeals ordered the parties to file informal memoranda

addressing the untimeliness issue, the State moved to dismiss Beaulieu's appeal.

Beaulieu filed an application for relief from judgment with the trial court, requesting

that the court "find that [his] mistake, inadvertence[,] and accidental neglect [was]
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excusable" and stay the time to appeal. In the application for relief from judgment,

Beaulieu's attorney admitted that he "did misread/misinterpret and make a genuine

plain error and genuine mistake in erroneously filing the appeal of the indeterminate

commitment order untimely." Beaulieu attached his application for relief from

judgment as an exhibit to his informal memorandum filed with the Minnesota Court

of Appeals. Emphasizing that it lacked authority to vacate a final judgment for the

purpose of extending the time to file an appeal, the trial court ultimately denied

Beaulieu's application for relief from judgment.

The Minnesota Court of Appeals dismissed Beaulieu's appeal as untimely,

specifically rejecting Beaulieu's argument that his appeal should not be dismissed

because he had raised a challenge to the trial court's subject matter jurisdiction. The

Minnesota Supreme Court denied Beaulieu's petition for review.

On December 5, 2006, Beaulieu filed a pro se petition for a writ of habeas

corpus in district court pursuant to 28 U.S.C. § 2254. In his petition, Beaulieu argued

that the "State of Minnesota lacks subject matter jurisdiction to enforce civil statutes

on an Indian reservation." The magistrate judge concluded that Beaulieu had

procedurally defaulted his claim and failed to demonstrate any cause excusing the

default. Adopting the magistrate judge's report and recommendation, the district court

dismissed Beaulieu's petition with prejudice.

II. Discussion

Section 2254(a) of 28 U.S.C. authorizes a district court to "entertain an

application for a writ of habeas corpus in behalf of a person in custody pursuant to the

judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States." Federal habeas relief can be

granted on a claim "adjudicated on the merits in State court proceedings" only if the

state court adjudication either "resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the
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Supreme Court of the United States" or "resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding." Id. § 2254(d).

"Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254

proceeding may consider only those claims which the petitioner has presented to the

state court in accordance with state procedural rules." Gilmore v. Armontrout, 861

F.2d 1061, 1065 (8th Cir. 1988). "This requirement implicates consideration of . . .

whether the petitioner has exhausted all remedies available in the courts of the state

at the time the federal habeas corpus petition is filed," as well as "whether he has

preserved his claims for federal habeas corpus review by complying with state

procedural rules governing their presentation." Id.

In all cases in which a state prisoner has defaulted his federal claims 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. 

Coleman v. Thompson, 501 U.S. 722, 750 (1991) (emphasis added). "[C]ounsel's

ineffectiveness will constitute cause only if it is an independent constitutional

violation." Id. at 755. We have held "that no showing of prejudice or likelihood of

success on the merits need be made to show ineffective assistance of counsel for

failure to file a timely appeal." Hollis v. United States, 687 F.2d 257, 259 (8th Cir.

1982).

A. Subject Matter Jurisdiction

Beaulieu first argues that his subject matter jurisdiction claim is not subject to

procedural default and that the Minnesota Court of Appeals thus erred in dismissing

his appeal as untimely. Beaulieu emphasizes that subject matter jurisdiction is not
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We also reject Beaulieu's reliance on United States v. Mooring, 287 F.3d 725

(8th Cir. 2002). In Mooring, the defendant appealed the denial of his 28 U.S.C. § 2255

motion, in which he had argued that the district court lacked jurisdiction to impose an

enhanced sentence because the government had failed to comply with 21 U.S.C. §

851(a)(1) (requiring the government to file an information identifying a defendant's

prior conviction before that conviction can be used to enhance the defendant's

sentence). Id. at 727. We held that the government's failure to comply with § 851(a)(1)

was not a jurisdictional defect but noted that, if the error were jurisdictional, it could

"be raised on collateral review without being subjected to procedural default analysis."

Id. Because the alleged jurisdictional defect in Mooring arose in federal court rather

than in state court and the case was not before us on habeas review, Beaulieu's

reliance on Mooring is misplaced.

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subject to waiver. See United States v. Cotton, 535 U.S. 625, 630 (2002) ("This latter

concept of subject-matter jurisdiction, because it involves a court's power to hear a

case, can never be forfeited or waived. Consequently, defects in subject-matter

jurisdiction require correction regardless of whether the error was raised in district

court."). 

Although Beaulieu is correct that subject matter jurisdiction is not subject to

waiver, that is not the issue before us. The issue before us is whether Beaulieu's

subject matter jurisdiction challenge to Minnesota's civil commitment action precludes

a finding of procedural default for purposes of federal habeas review. We are not

addressing whether subject matter jurisdiction is subject to waiver before the state

court. And we have held that "[j]urisdiction is no exception to the general rule that

federal courts will not engage in collateral review of state court decisions based on

state law." Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994). Whether Minnesota had

jurisdiction of his claim was a matter for the Minnesota courts to address. See id.

Beaulieu misapprehends the nature of federal habeas review, and we hold that his

subject matter jurisdiction claim does not preclude a finding of procedural default.3

Beaulieu's claim is procedurally defaulted and unreviewable in federal court because

he failed to present it in a timely manner to the Minnesota courts.
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B. Failure To Exhaust

Having concluded that Beaulieu's subject matter jurisdiction claim does not

preclude a finding of procedural default for purposes of federal habeas review, we

next turn to Beaulieu's argument that his attorney's failure to file a timely appeal

constitutes cause for his procedural default and resulted in actual prejudice. See

Coleman, 501 U.S. at 750 ("In all cases in which a state prisoner has defaulted his

federal claims 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 . . . .").

Beaulieu contends that he satisfies the cause and prejudice requirements because his

attorney's failure to file a timely appeal constituted ineffective assistance of counsel

in violation of the Sixth Amendment. 

The State responds that Beaulieu cannot rely on an alleged Sixth Amendment

violation to demonstrate cause and prejudice because he failed to exhaust his

ineffective-assistance-of-counsel claim in state court. Section 2254(b)(1)(A) provides

that "[a]n application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that

. . . the applicant has exhausted the remedies available in the courts of the State . . . ."

Under § 2254(c), "[a]n applicant shall not be deemed to have exhausted the remedies

available in the courts of the State . . . if he has the right under the law of the State to

raise, by any available procedure, the question presented." 

"[T]he exhaustion doctrine requires that a claim for ineffective assistance of

counsel be initially 'presented to the state courts as an independent claim before it may

be used to establish cause for a procedural default' in a federal habeas proceeding."

Taylor v. Bowersox, 329 F.3d 963, 971 (8th Cir. 2003) (quoting Murray v. Carrier,

477 U.S. 478, 489 (1986)). Explaining that "the exhaustion doctrine is designed to

give the state courts a full and fair opportunity to resolve federal constitutional claims

before those claims are presented to the federal courts," the Supreme Court has held
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"that state prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State's established

appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

Similarly, "we require habeas petitioners to present to the state courts 'the same

specific claims of ineffective assistance made out in the habeas petition.'" Wyldes v.

Hundley, 69 F.3d 247, 253 (8th Cir. 1995) (quoting Tippitt v. Lockhart, 903 F.2d 552,

554 (8th Cir. 1990)). 

The State argues that the magistrate judge correctly concluded that Beaulieu

"has never asserted to . . . a state court that [his attorney's] performance was

constitutionally ineffective." Beaulieu claims that he did, in fact, adequately raise his

ineffective-assistance-of-counsel claim before the Minnesota Court of Appeals,

emphasizing that (1) he included a copy of his application for relief from judgment as

an exhibit to his memorandum addressing the untimeliness issue and (2) in that

application, his attorney accepted responsibility for filing the untimely appeal.

Although Beaulieu does refer to his application for relief from judgment in the

memorandum, he never specifically raises an ineffective-assistance-of-counsel claim.

Beaulieu has not "invok[ed] one complete round of [Minnesota's] established appellate

review process." O'Sullivan, 526 U.S. at 845. 

The State also argues that Beaulieu's proper remedy is to petition for habeas

relief in Minnesota state court. See State ex rel. Anderson v. U.S. Veterans Hosp., 128

N.W.2d 710, 714 (Minn. 1964) (holding that "a person committed because of mental

illness can test the legality of his confinement by habeas corpus"); Minn. Stat.

§ 253B.23, subd. 5 ("Nothing in [the civil commitment] chapter shall be construed to

abridge the right of any person to the writ of habeas corpus."). Beaulieu concedes that

he has not petitioned for habeas relief in Minnesota state court, but he argues that

doing so would be futile because State ex rel. Thomas v. Rigg, 96 N.W.2d 252 (Minn.

1959), suggests that a state habeas petition is barred if it raises issues that could have

been raised on direct appeal absent a procedural bar. But the Minnesota Supreme
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Court simply stated in Thomas "that habeas corpus may not be used as a substitute for

a writ of error or appeal or as a cover for a collateral attack upon a judgment of a

competent tribunal which had jurisdiction of the subject matter and of the person of

the defendant" and clarified that "[t]his principle applies even though defendant has

permitted the time for appeal to elapse." Id. at 257. Beaulieu cites no authority

demonstrating that petitioning for habeas relief in Minnesota state court would be

futile. Because Beaulieu "has the right under the law of [Minnesota] to raise . . . the

question presented," he "shall not be deemed to have exhausted the remedies available

in the courts of [Minnesota]." 28 U.S.C. § 2254(c).

Beaulieu has not invoked one complete round of Minnesota's appellate review

process and can seek habeas relief in Minnesota state court. Therefore, the exhaustion

doctrine prevents us from considering whether the failure of Beaulieu's attorney to file

a timely appeal constitutes cause for his procedural default and resulted in actual

prejudice. The district court did not err in dismissing Beaulieu's habeas petition.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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