Opinion
No. 05-CV-160-LRR.
July 13, 2007
ORDER
I. INTRODUCTION
The matter before the court is Petitioner John Lee Ford's Motion to Submit Certified Question to Supreme Court of Iowa ("Motion") (docket no. 22).
II. BACKGROUND
On October 17, 2005, Petitioner brought an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in order to challenge his conviction in state court for Second-Degree Sexual Abuse, in violation of Iowa Code § 709.3 (1997). On December 27, 2006, a United States Magistrate Judge issued a Report and Recommendation (docket no. 19), in which he recommended that the undersigned deny the application. The Magistrate Judge recommended that all but one of Petitioner's claims be denied on their merits. The Magistrate Judge also recommended that the remaining claim be dismissed on procedural grounds, because Petitioner only raised the issue before the Iowa Court of Appeals. After the Iowa Court of Appeals affirmed the denial of post-conviction relief, Petitoner did not raise the issue in his application for further review to the Iowa Supreme Court.
See generally Ford v. Burt, No. 05-CV-160-LRR, 2006 WL 3825054 (N.D. Iowa Dec. 27, 2006). Petitioner's Objections (docket no. 21) to the Report and Recommendation are presently under advisement.
See generally Ford v. State, No. 03-0490, 674 N.W.2d 685, 2003 WL 23219954 (Iowa Ct.App. Nov. 26, 2003) (unpublished table disposition) (affirming denial of post-conviction relief but remanding for resentencing).
On January 8, 2007, Petitioner filed the Motion. In the Motion, Petitioner requests that the court certify the following question of law to the Iowa Supreme Court:
If a legal claim is raised by a party in the initial appellate brief filed with the Clerk, Supreme Court of Iowa, and after submission of briefs the case is transferred to the Court of Appeals of Iowa for initial disposition, does the Supreme Court of Iowa, in accordance with its own rules of appellate procedures, deem each claim included in the initial appellate brief raised and preserved for review on the merits before it whether or not a claim is contained in an Application for Further Review?
Motion at 1. On January 17, 2007, Petition filed a brief in support of his Motion. On January 10, 2007, Respondent Jerry Burt filed a Resistance to the Motion.
III. ANALYSIS
Local Rule 83.1 permits the court to certify questions of law to the highest appellate court of a state under limited circumstances. Local Rule 83.1 provides:
When a question of state law may be determinative of a cause pending in this court and it appears there may be no controlling precedent in the decisions of the appellate courts of the state, any party may file a motion to certify the question to the highest appellate court of the state. The court may, on such motion or on its own motion, certify the question to the appropriate state court.
LR 83.1; see also Iowa Code § 684A.1 (2007) (permitting Iowa Supreme Court to answer certified questions of law from federal district courts). The court has broad discretion in deciding whether or not to certify a question to a state's highest appellate court. See Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
The court declines to certify Petitioner's question, because there is no determinative question of state law before the court. LR 83.1. "Resolving whether a petitioner has fairly presented his claim to the state courts, thus permitting federal review of the matter, is an intrinsically federal issue that must be determined by the federal courts." Wyldes v. Hundley, 69 F.3d 247, 251 (8th Cir. 1995). "Because exhaustion functions as a federal court gatekeeper, the federal, not the state, courts decide when the state process has been exhausted or should be deemed ineffective because of delay." Id. Indeed, this court has repeatedly answered the federal question at issue in this case against Petitioner's position. See, e.g., Sillick v. Ault, 358 F. Supp. 2d 738, 766 (N.D. Iowa) (Reade, J.) ("Sillick's failure to raise the claim . . . in every tier of the state post-conviction relief proceedings has resulted in a procedural default of such claim."), appeal dismissed, No. 05-1966 (8th Cir. Aug. 19, 2005); see also Wedebrand v. Ault, No. 04-CV-4055-MWB, 2006 WL 156734, *13 (N.D. Iowa Jan. 20, 2006) (Bennett, C.J.) ("[B]ecause Wedebrand failed to raise his other claims in his application for further review, those claims remain unexhausted."), appeal dismissed, No. 06-1526 (8th Cir. Aug. 1, 2006). These cases recognize that, in the Iowa judicial system, a party that fails to raise an issue in an application for further review fails to preserve error on her claims to the Iowa Supreme Court. See, e.g., In re Marriage of Schriner, 695 N.W.2d 493, 501-02 (Iowa 2005) (holding that party failed to preserve error, because he did not raise the issue in his application for further review). The fact that the Iowa Supreme Court may exercise its discretion to consider non-preserved issues, see, e.g., Smith v. Shagnasty's Inc., 688 N.W.2d 67, 72 (Iowa 2004), does not change the fact that the issues were not preserved. As Respondent correctly points out, "a litigant cannot choose to walk away from a federal claim just at the moment he is given the opportunity to highlight it for the Iowa Supreme Court, and then later argue in federal court that he `exhausted' the issue by omitting it from those issues raised in his further review application." Brief in Resistance (docket no. 23-2), at 5 (emphasis omitted).
Even if there were an outstanding determinative question of state law before the court, the court would nonetheless decline to certify the question here. Certifying a question in this case would not "save time, energy, and resources" or "help build a cooperative judicial federalism." Lehman Bros., 416 U.S. at 386. To the contrary, certification would only waste more time in an already drawn out case.
IV. CONCLUSION
The Motion (docket no. 22) is DENIED.