United States Court of Appeals

For the Eighth Circuit

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No. 19-1259

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Joseph Michael Stephen

lllllllllllllllllllllPetitioner - Appellant

v.

Cornell Smith

lllllllllllllllllllllRespondent - Appellee

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: January 15, 2020

Filed: June 26, 2020

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Before KELLY, MELLOY, and KOBES, Circuit Judges. 

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KOBES, Circuit Judge.

Joseph Michael Stephen filed a petition for habeas corpus under 28 U.S.C.

§ 2254 challenging his three Iowa methamphetamine-related convictions. He argues

that the evidence for two of his convictions was insufficient under the Fourteenth

Amendment’s Due Process Clause, his trial counsel were ineffective, the State 
violated Brady v. Maryland, 373 U.S. 83 (1963), and his sentence violated the Fifth

and Eighth Amendments. The district court1 denied his petition. We affirm.

I.

In April 2009, Des Moines Police Officer Paul Parizek stopped a pickup truck

with a burned-out license plate light. He could see through the back window that the

passenger, Stephen, was shifting around. Officer Parizek exited his car and

approached the passenger side of the truck, when he saw Stephen turn toward his

seatbelt buckle “[l]ike, he was stuffing something into the seats.” D.Ct. Dkt. 13-1 at

135. Officer Parizek knocked on the window, took Stephen’s and the driver’s

identification, and asked the driver to exit the truck so he could show him the license

plate light. He then asked to search the truck and the driver consented.

Officer Parizek asked Stephen to step out of the truck and if he could pat him

down. Stephen agreed and turned over a pocketknife. During the pat down, Officer

Parizek felt what seemed to be a plastic baggie in Stephen’s pocket. He reached into

his pocket and found a baggie containing a small amount of methamphetamine. 

Officer Parizek placed Stephen under arrest and, at this point, or shortly after,

Stephen stated he “knew he was going to go to prison.” Id. at 163.

Officer Parizek then searched the truck. In between the seats where Stephen’s

attention had been focused during the stop he found two Ziploc bags—one containing

a significant amount of crushed pseudoephedrine and the other stripped lithium

batteries. On the passenger side floorboard, he discovered a plastic bag containing

a fume mask. On the bench seat, he found a pair of channel lock pliers. And in the

bed of the truck, he found plastic pitchers, coffee filters, and a modified propane tank.

1

 The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa.

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 The State charged Stephen with conspiracy to manufacture methamphetamine

(Count I), possession of lithium with intent to use it in the manufacture of

methamphetamine (Count II), possession of anhydrous ammonia with intent to use

it in the manufacture of methamphetamine (Count III), and possession of

methamphetamine (Count IV). Stephen’s trial was initially set for July 2009 but the

State dropped the charges because the federal government was prosecuting Stephen,

and the case was dismissed without prejudice. The State later re-filed the charges and

Stephen’s trial was set for October 2009. A few weeks before trial, his attorney,

Rachel Seymour, withdrew from the case and the court appointed Kent Balduchi. 

At trial, the jury convicted Stephen on everything but Count III (the anhydrous

ammonia offense), and the court sentenced him to 60 years in prison. In calculating

the sentence, the court applied both Iowa’s habitual offender enhancement, Iowa

Code § 902.9(1)(c), and the second or subsequent offense enhancement, Iowa Code

§ 124.411. The Iowa Court of Appeals affirmed Stephen’s convictions on direct

review, State v. Stephen (Stephen I), 2011 WL 5393453 (Iowa Ct. App. Nov. 9,

2011), and the Iowa Supreme Court denied further relief. Stephen then sought state

post-conviction relief, which was denied by the trial court and the Iowa Court of

Appeals. State v. Stephen (Stephen II), 2016 WL 3556367 (Iowa Ct. App. June 29,

2016) (unpublished). 

Stephen then filed a petition for habeas corpus under 28 U.S.C. § 2254, and

later filed a supplemental amended petition. The district court denied Stephen’s

petition, Stephen v. Smith (Stephen III), 2019 WL 8219405 (S.D. Iowa Jan. 25, 2019),

but issued a certificate of appealability for each of his claims.

II.

The Anti-Terrorism and Effective Death Penalty Act provides two avenues for

habeas relief for claims a state court decided on the merits. A petitioner can show the

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decision: (1) “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States”

or (2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2). 

“Claims that have not been presented to the state courts, and for which there are no

remaining state remedies, are procedurally defaulted,” and we cannot consider them

unless the petitioner can show “cause and prejudice or that he is actually innocent of

the charges.” Skillicorn v. Luebbers, 475 F.3d 965, 976–77 (8th Cir. 2007) (citations

omitted). “When reviewing a district court’s denial of a § 2254 petition, we review

the district court’s findings of fact for clear error and its conclusions of law de novo.”

Kennell v. Dormire, 873 F.3d 637, 639 (8th Cir. 2017). 

A.

Stephen first argues that his conviction for conspiracy to manufacture

methamphetamine violated the Fourteenth Amendment’s Due Process Clause because

the State failed to prove two elements of his offense beyond a reasonable doubt. He

contends the State showed only that he was merely present in the truck—not that: (1)

he “agreed with [the driver] that one or both of them would manufacture or attempt

to manufacture methamphetamine,” or (2) he “entered into such an agreement with

the intent to promote or facilitate the manufacture of methamphetamine.” Stephen I,

2011 WL 5393453, *6 (listing the elements of the offense). He claims he is entitled

to habeas relief because “no rational trier of fact could have found proof of guilt

beyond a reasonable doubt.” Jackson, 443 U.S. at 324. 

But Stephen’s burden is even higher than that. Under AEDPA, he must show

the Iowa court’s application of “the Jackson sufficiency of the evidence standard

[was] ‘both incorrect and unreasonable.’” Garrison v. Burt, 637 F.3d 849, 855 (8th

Cir. 2011) (emphasis in original) (citation omitted). A state court’s decision is 

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reasonable “‘so long as fairminded jurists could disagree’ on the correctness of the

. . . decision.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (citation omitted).

Stephen has not met this burden. A juror could find that Stephen’s unusual

movements during the traffic stop, stuffing methamphetamine ingredients in between

the seats, and his admission that he was “going to jail” showed that the batteries and

pseudoephedrine were his. The other items commonly used in the production of

methamphetamine in plain view and in the back of the truck suggest that the driver

also had knowledge of and control over parts of a rolling meth lab. We therefore

agree with the district court that a reasonable juror might infer an agreement between

Stephen and the driver from this evidence—or at least “fairminded jurists could

disagree” about it. Harrington, 562 U.S. at 100. 

Stephen’s challenges to the state court’s factual findings also fail. He argues

that Officer Parizek’s testimony about him stuffing items between the seats is

implausible because no officer would leave a suspect alone next to incriminating

evidence. He also contends that it was unreasonable to conclude that the

pseudoephedrine and batteries belonged to him because they were within the driver’s

reach. But Stephen cannot carry his burden by pointing to “some contrary evidence

in the record.” Cole v. Roper, 783 F.3d 707, 711 (8th Cir. 2015). AEDPA requires

we give “the state trial court substantial deference” in this area. Brumfield v. Cain,

576 U.S. 305, 314 (2015) (citing 28 U.S.C. § 2254(d)(2)). We presume the court’s

factual findings are correct unless Stephen “rebut[s] the presumption . . . by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Stenhouse v. Hobbs, 631

F.3d 888, 891 (8th Cir. 2011). He has not done so. His arguments do not clearly

show that Officer’s Parizek’s testimony was false or that the pseudophedrine and

batteries belonged to the driver. 

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B.

Stephen next argues that his conviction for possession of lithium with intent

to manufacture methamphetamine violated the Fourteenth Amendment because the

State failed to prove that offense beyond a reasonable doubt. We need not reach this

claim because it is procedurally defaulted. 

“We review de novo the question whether [a] claim is procedurally defaulted.” 

Kemp v. Kelly, 924 F.3d 489, 499 (8th Cir. 2019). “[We] will not review the merits

of claims, including constitutional claims, that a state court declined to hear because

the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S.

1, 9 (2012). On direct review, the Iowa Court of Appeals refused to consider whether

the evidence for the lithium possession conviction was sufficient because Stephen had

not raised this argument in his motion for judgment of acquittal. Stephen I, 2011 WL

5393453, at *8, *8 n.3. We may not reach this claim either unless Stephen “shows

cause and prejudice or that he is actually innocent of the charges.” Skillicorn, 475

F.3d at 976. Stephen “makes no attempt to meet [these] standards,” so this claim was

properly dismissed. Morgan v. Javois, 744 F.3d 535, 539 (8th Cir. 2013).

C.

Stephen next claims that his counsel was ineffective under Strickland v.

Washington, 466 U.S. 668 (1984). In evaluating Strickland claims, we ask whether

“counsel’s performance was in fact deficient and, if so, whether the defendant was

prejudiced by the inadequate representation.” Fields v. United States, 201 F.3d 1025,

1027 (8th Cir. 2000). If we answer either question in the negative, “we need not

address the other part of the test.” Id. “The question is whether an attorney’s

representation amounted to incompetence under ‘prevailing professional norms,’ not

whether it deviated from best practices or most common custom.” Harrington, 562

U.S. at 105 (citation omitted). Establishing that a state court unreasonably applied

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Strickland under § 2254 is “all the more difficult.” Id. “When § 2254(d) applies . . .

[t]he question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id.

1.

Stephen first argues that Seymour and Balduchi were ineffective because they

did not file a motion to dismiss his second indictment because it violated the Sixth

Amendment’s2 speedy trial provision. This argument fails because Stephen did not

exhaust it in state court as required by 28 U.S.C. § 2254(b)(1)(A).

To exhaust a federal claim, the petitioner must “present the same facts and legal

theories to the state court that he later presents to the federal courts.” Jones v.

Jerrison, 20 F.3d 849, 854 (8th Cir. 1994). “Mere similarity between the state law

claim[] and the federal habeas claim is insufficient.” McCall v. Benson, 114 F.3d

754, 757 (8th Cir. 1997). In the Iowa Court of Appeals on post-conviction review,

Stephen argued only that his counsel were ineffective because they failed to contest

the State’s violation of Iowa Rule of Criminal Procedure 2.33—Iowa’s procedural

speedy-trial rule. His state briefing never mentioned the Sixth Amendment or the

Constitution, and nearly all of the cases he referenced relate to Rule 2.33. The two

Sixth Amendment cases he did cite merely suggest that, like constitutional

speedy-trial violations, a violation of Rule 2.33 should result in a dismissal with

2

 Stephen’s petition also arguably suggested that his counsel failed to argue that

the State violated Iowa’s procedural speedy-trial rule requiring his trial to be held

within 90 days of his indictment absent “good cause.” See Iowa R. Crim. P. 2.33. 

But on appeal Stephen only asserts that the State’s actions “violat[ed] Stephen’s

federal right to a speedy trial.” Stephen Br. 32. He has therefore forfeited any

ineffective assistance argument relating to Iowa’s speedy trial rule. See United States

v. Owen, 854 F.3d 536, 541 n. 5 (8th Cir. 2017) (issue a party chooses not to raise in

opening brief is forfeited).

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prejudice. In short, Stephen did nothing to put the state court on notice that his claim

implicated the Sixth Amendment right to a speedy trial. This claim is therefore

unexhausted and, because an application for review or a successive application for

post-conviction relief would be untimely, see Iowa R. App. P. 6.1103; Iowa Code

§ 822.3, it is also procedurally defaulted. See Armstrong v. Iowa, 418 F.3d 924,

926–27 (8th Cir. 2005). Stephen does not argue that this default should be excused

because of cause and prejudice or actual innocence. Morgan, 744 F.3d at 539.

2.

Stephen next argues that his attorneys were ineffective for failing to file a

motion to suppress the methamphetamine found in his pocket. On post-conviction

review, the Iowa Court of Appeals agreed with Stephen that Officer Parizek’s seizure

of the baggie violated the plain feel exception to Fourth Amendment’s warrant

requirement under Minnesota v. Dickerson, 508 U.S. 366, 373, 375-76 (1993),

because the Officer did not testify that it was “immediately apparent” that the baggie

was contraband. Stephen II, 2016 WL 3556367, at *3–*4. Nevertheless, because

Officer Parizek would inevitably have arrested and searched Stephen after finding the

batteries and pseudoephedrine, the court held that the evidence would have been

admissible, and his attorneys had no duty to make a meritless motion. Id. at *4.

Here, Stephen challenges the Iowa Court of Appeals’s factual findings, arguing

that the record does not show the batteries and pseudoephedrine belonged to him, and

so—absent finding the drugs in his pocket—there would have been no reason for

Officer Parizek to arrest him. However, there was evidence in the record that showed

he owned the batteries and the pseudoephedrine: Officer Parizek testified that he saw

Stephen stuffing those items in between the seats. Stephen has not shown that it was

unreasonable for the Iowa Court of Appeals to credit this testimony nor has he

rebutted it by clear and convincing evidence. We therefore agree that his attorneys

were not ineffective in failing to file a meritless motion to suppress. 

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3.

Stephen further contends that Balduchi was ineffective because he failed to

investigate whether his seatbelt coupler was broken. He argues this finding would

have shown he was trying to connect his seatbelt instead of stuffing the batteries and

pseudoephedrine between the seats.

Even if Balduchi had found that the seatbelt was broken, however, Stephen’s

suspicious movements would still have given Officer Parizek reason to search in

between the seats and discover the contraband. Also, in light of this evidence it is

unlikely a jury would have believed Stephen was more concerned with buckling his

seatbelt than with hiding the various components of methamphetamine production all

around him. We agree with the state court that Stephen has not shown prejudice from

this alleged failing of his counsel and this claim fails. See Stephen II, 2016 WL

3556367, at *6; United States v. Orr, 636 F.3d 944, 950 (8th Cir. 2011) (“Prejudice

is established if there is a reasonable probability that, but for counsel’s errors, the

result would have been different.”).

D.

Stephen next argues that the State violated Brady v. Maryland, 373 U.S. 83

(1963) by failing to disclose receipts showing the driver had purchased

pseudoephedrine prior to Stephen’s arrest. The Iowa Court of Appeals rejected this

argument because a heading on the scanned receipts indicated that the State had faxed

them to Balduchi and they were “found in his file, thus indicating he had [them] prior

to trial.” Stephen II, 2016 WL 3556367, *9. Stephen responds that these findings

were unreasonable because the fax numbers show only that the Drug Enforcement

Administration sent the document to the Polk County Attorney, and there is no other

evidence that it was sent to Stephen’s counsel.

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We disagree. Not only was there evidence that the receipts were found in

Balduchi’s file, he conceded that—although he did not remember seeing them—it

was “probably likely that [he] did receive [the receipts] from the state in 2009.” D.Ct.

Dkt. 13-10 at 60. It was not unreasonable for the Iowa Court of Appeals to accept

this concession. Nor has Stephen presented clear and convincing evidence rebutting

the Iowa Court of Appeals’ factual findings. 

E.

Finally, Stephen argues the trial court violated the Fifth and Eighth

Amendments because it used the same grounds to justify applying both the habitual

offender and second or subsequent offense enhancements to his sentence.

Though the Fifth Amendment prevents the “imposi[tion] of multiple

punishments for the same offense,” our role in evaluating such claims “is strictly

cabined.” Dodge v. Robinson, 625 F.3d 1014, 1018 (8th Cir. 2010) (citation omitted). 

“[T]he question of what punishments are constitutionally permissible is not different

from the question of what punishments the Legislative Branch intended to be

imposed.” Missouri v. Hunter, 459 U.S. 366 (1983). Moreover, “whether a state

legislature intends cumulative punishment . . . is an issue of state law, over which

state courts have final authority.” Dodge, 625 F.3d at 1018.

At least two Iowa appellate courts have held that the Iowa legislature did intend

the habitual offender and second or subsequent offense enhancements to apply in

tandem. On direct review, the Iowa Court of Appeals held that the legislature

intended for both enhancements to apply together. Stephen I, 2011 WL 5393453, at

*14 (citation omitted). The Iowa Supreme Court has also so held. State v. Sisk, 577

N.W.2d 414, 416 (Iowa 1998). Because “[w]e are bound by the Iowa courts’

interpretation of Iowa law,” Dodge, 625 F.3d at 1019, Stephen’s claim fails. 

 

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We decline to consider Stephen’s Eighth Amendment claim because it was not

exhausted. Petitioners “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.” Welch v. Lund, 616 F.3d 756, 758 (8th Cir. 2010) (citation

omitted) (petitioner who did not apply for review in the Supreme Court of Iowa did

not exhaust his claim). Stephen did not raise his Eighth Amendment claim in his

application to the Supreme Court of Iowa on direct review, so he did not satisfy this

requirement. Because it would now be futile for him to do so, see Iowa R. App. P.

6.1103, this claim is procedurally defaulted. See Welch, 616 F.3d at 759–60. Stephen

does not contend that this default should be excused because of cause and prejudice

or actual innocence. Morgan, 744 F.3d at 539.

III.

The judgment of the district court is affirmed.

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