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

___________ No. 08-3322

___________ Wallace James Beaulieu, *

* Petitioner-Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. State of Minnesota, *

* Respondent-Appellee. *

___________ Submitted: June 9, 2009 Filed: October 8, 2009

___________ Before SMITH, and SHEPHERD, Circuit Judges, and LIMBAUGH, 1 District Judge.

___________ SMITH, Circuit Judge.

A Minnesota trial court ordered th at 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 C ourt of Appeals dismissed the appeal as untimely. Beaulieu filed a petiti on for a writ of habeas corpus, arguing that the State of Minnesota ("State") lacked subject matter jurisdiction to enforce its civil2 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.

-2- commitment statutes on an Indian reservation. The district court 2 dismissed Beaulieu's petition. On appeal, Beaulieu argues that hi s 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 proce dural default and resulted inactual 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 appoi nted Frank Bibeau to represent Beaulieu on appeal, and Bibeau filed an untimely appeal on September 8, 2006. After the Minnesota Court of Appeals ordered th e parties to file informal memoranda addressing the untimeliness issue, the St ate 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 acci dental neglect [was]-3- excusable" and stay the tim e to appeal. In the application for relief from judgment, Beaulieu's attorney admitted that he "didmisread/misinterpret and make a genuine plain error and genuine mistak e in erroneously filing the appeal of the indeterminate commitment order untimely." Beaulieu att ached his application for relief from judgment as an exhibit to his informal memorandum filed with the Minnesota Court of Appeals. Emphasizing that it lacked au thority 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 th at his appeal should not be dismissed because he had raised a cha llenge to the trial court's s ubject matter jurisdiction. The Minnesota Supreme Court deniedBeaulieu'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 faile d to demonstrate any cause excusing the default. Adopting the magistrate judge's re port 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 thathe is in custody in violation of the Constitution or laws or treaties of the Un ited 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-4- Supreme Court of the United States" or "r esulted in a decision that was based on an unreasonable determination of the facts in li ght of the evidence pr esented 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 requireme nt implicates consideration of . . . whether the petitioner has exhaus ted all remedies available in the courts of the state at the time the federal habeas corpus petiti on 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 defaulte d his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the clai ms is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of fede ral 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 sh owing 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 not3 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 argue d that the district court l acked 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 notbefore us on habeas review, Beaulieu's reliance on Mooring is misplaced

. -5- subject to waiver. See United States v. Cotton , 535 U.S. 625, 630 (2002) ("This latter concept of subject-matter jurisdiction, becau se 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 Mi nnesota'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]urisdic tion is no exception to the general rule that federal courts will not engage in collateral review of st ate 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 fo r the Minnesota courts to address. See id. Beaulieu misapprehends the nature of federa l 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.-6- B. Failure To Exhaust Having concluded that Beaulieu's subj ect matter jurisdiction claim does not preclude a finding of procedural default fo r 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 de fault 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 cau se 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 prej udice 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 exhauste d the remedies available in th e courts of the State . . . ." Under § 2254(c), "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of th e State . . . if he has the ri ght under the law of the State to raise, by any available proce dure, the question presented."

"[T]he exhaustion doctrine requires thata claim for ineffective assistance of counsel be initially 'presented to the state c ourts as an independent claim before it may be used to establish cause for a procedural default' in a federa l 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 exhaus tion doctrine is designed to give the state courts a full and fair opportunity to resolve fede ral constitutional claims before those claims are presented to the federal courts," the Supreme Court has held-7- "that state prisoners must gi ve the state courts one full opportunity to resolve any constitutional issues by invoking one comple te 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 assistan ce 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 c ourt that [his attorn ey's] performance was constitutionally ineffective." Beau lieu claims that he did, infact, adequately raise his ineffective-assistance-of-counsel claim be fore 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 anineffective-assistance-of-counsel claim. Beaulieu has not "invok[ed] one complete r ound 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 hab eas relief in Minnesota stat e 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 pr ocedural bar. But the Minnesota Supreme-8- Court simply stated in Thomas "that habeas corpus may not be used as a substitute for a writ of error or appeal oras a cover for a collatera l 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 th e remedies available in the courts of [Minnesota]." 28 U.S.C. § 2254(c).

Beaulieu has not invoked one complete round of Minneso ta's appellate review process and can seek habeas relief in Minneso ta state court. Therefore, the exhaustion doctrine prevents us from considering whethe r the failure of Beaulieu's attorney to file a timely appeal constitutes cause for his pr ocedural default and resulted in actual prejudice. The district court did not e rr in dismissing Beaulieu's habeas petition.

III. Conclusion Accordingly, we affirm the judgment of the district court.

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