MEMORANDUM OPINION AND ORDER REGARDING PETITIONER’S OBJECTIONS TO REPORT AND RECOMMENDATION TO DENY STAY OF § 2254 PETITION
TABLE OF CONTENTS
I. INTRODUCTION..........................................................848
A. State Prоceedings.....................................................848
B. Federal Proceedings...................................................848
1. Boss’s § 2254 Petition..............................................848
2. Boss’s Motion To Stay..............................................849
3. The Report and Recommendation ...................................849
4. Boss’s Objections..................................................850
II. LEGAL ANALYSIS........................................................851
A. The Standards Of Review..............................................851
1. The statutory standards............................................851
2. Interpretation of the standards......................................851
b. Mandatory de novo review......................................852
c. ’’Clear error” review............................................852
B. Unexhausted Claims Versus Defaulted Claims...........................853
1. Rules for unexhausted claims.......................................854
a. Dismissal rules................................................854
b. The “stay and abeyance” rule...................................854
i. The procedure............................................854
ii. The relevant factors.......................................855
2. Rules for procedurally defaulted claims..............................855
C. Application Of The Rules...............................................856
1. Is Boss’s request for a stay moot? ...................................856
a. Untimeliness of further state proceedings ........................856
b. The § 822.8 exception...........................................857
c. The § 822.3 exception...........................................858
d. Boss’s further objections........................................859
e. Summary......................................................860
2. Can Boss overcome procedural default...............................860
III. CONCLUSION............................................................861
Should this action pursuant to 28 U.S.C. § 2254 be stayed to give a state prisoner a chance to exhaust state remedies on unexhausted claims, where the unexhausted claims are (or appear to be) barred by the applicable state statute of limitations? In a report and recommendation, a magistrate judge concluded that a stay should be denied and the unexhausted claims dismissed. The prisoner objects, arguing, inter alia, that the state court, rather than this federal court, should decide whether his admittedly unexhausted claims are now time-barred. The prisoner’s objections have triggered my obligation to consider the question de novo.
I. INTRODUCTION
A. State Proceedings
On December 12, 2002, petitioner Donald L. Boss, Jr., was convicted, in the Iowa District Court for Plymouth County, of the first-degree murder of his son, Timothy, in violation of Iowa Code § 707.2. On Dеcember 16, 2002, he was sentenced to life imprisonment without possibility of parole. He appealed. On January 28, 2004, the Iowa Court of Appeals affirmed Boss’s conviction. See State v. Boss,
On March 11, 2005, Boss filed an application for post-conviction relief in the Iowa District Court for Plymouth County, but that application was denied on August 28, 2008. Boss appealed the denial of post-conviction relief, the Iowa Court of Appeals affirmed on August 11, 2010, see Boss v. State,
B. Federal Proceedings
1. Boss’s § 2254 Petition
On November 15, 2010, Boss commenced this federal action by filing a pro se Petition Under 28 U.S.C. § 2254 For Writ Of
Boss asserts five grounds for § 2254 relief. Ground One alleges that counsel provided ineffective assistance by disclosing the location of the victim’s body during a bond review hearing. Ground Two alleges that counsel provided ineffective assistance by failing to investigate inconsistencies in the statements of Boss’s children (specifically, Boss’s son, Claxton) and by failing to secure or investigate a tape recording of Boss’s statement to Officer Bartolozzi, purportedly made while Officer Bartolozzi was transporting Boss to the station. Ground Three alleges that counsel provided ineffective assistance by failing to object to numerous uses by the prosecution in its closing argument of the word “liar” to describe Boss. Ground Four alleges prosecutorial misconduct in waving a fist up against pictures of the skeleton of the victim, multiple uses of the word “liar,” and substitution of the prosecutor’s opinions for facts, prejudicing Boss’s ability to receive a fair trial. Ground Five alleges a constitutional violation arising from the Iowa Supreme Court’s subsequent redefinition of the felony murder rule, in State v. Heemstra,
In an Initial Review Order (docket no. 8), Chief United States Magistrate Judge Paul A. Zoss directed the respondent to file an answer to Boss’s § 2254 Petition and directed the Clerk of Court to appoint an attorney to represent Boss in this matter. The respondent filed his Answer (docket no. 15) on May 2, 2011, asserting, inter alia, that Grounds Two and Five of Boss’s § 2254 Petition are procedurally defaulted. Judge Zoss then set a briefing schedule on the merits of Boss’s claims by Order (docket no. 16), filed on May 3, 2011.
2. Boss’s Motion To Stay
Boss did not file a brief on the merits. Instead, on December 15, 2011, Boss filed, through counsel, a Motion To Stay Proceedings Pending Exhaustion Of State Proceedings (Motion To Stay) (docket no. 29). In his Motion To Stay, Boss acknowledged that Grounds Two and Five of his Petition were not exhausted, but argued that this action should be stayed to allow him to attempt to exhaust those claims in state court, while maintaining the timeliness of his other claims for federal relief. The respondent filed a Resistance (docket no. 30), arguing that a stay is inappropriate. The respondent argued that the two claims at issue are not merely unexhausted, but now procedurally defaulted, because the аpplicable state statute of limitations for claims for post-conviction relief has expired, where more than three years have passed since Boss’s conviction became final. Thus, the respondent argued that a return to state court on the unexhausted claims would be futile. The respondent also argued that Boss has not shown good cause for failing to exhaust the claims at issue. Finally, the respondent argued that Ground Five is plainly merit-less.
3. The Report and Recommendation
On January 20, 2012, Judge Zoss heard oral arguments on Boss’s Motion To Stay.
Somewhat more specifically, Judge Zoss concluded that Boss had not exhausted Grounds Two and Five, either on direct appeal or on appeal of the denial of his application for post-conviction relief. Judge Zoss found that Boss had raised those claims in his application for post-conviction relief, but then either abandoned them, when pursuing appellate relief, or failed to pursue them, when seeking further review by the Iowa Supreme Court. Therefore, Judge Zoss concluded that the claims were never fairly presented to the state courts. Judge Zoss also found that the three-year statute of limitations in Iowa Code § 822.3 prevented Boss from asserting those claims in state court now, so that the claims were not just unexhausted, but procedurally defaulted. Judge Zoés concluded that Boss could not excuse his рrocedural default, because he had not demonstrated “cause” for and “actual prejudice” from his failure to present the claims in state court, because “[t]he failure to diligently assert his claims after the Iowa District Court for Plymouth County denied his application for post-conviction relief and pursue further appellate relief falls solely on the petitioner.” Report and Recommendation at 9. Judge Zoss concluded that Boss could not “call into question appointed [post-conviction relief] counsel’s decision to forego appealing an issue or filing an application for further review.” Id. (also concluding that Boss had not asserted a fundamental miscarriage of justice as an alternative basis to excuse procedural default). Next, Judge Zoss concluded that Boss had not met the requirements for a stay of a “mixed petition” for habeas corpus relief to allow him to attempt to exhaust his unexhausted claims, because no state remedies were available for the procedurally defaulted claims, making a stay futile. Id. at 12.
Finally, Judge Zoss observed,
Rather than request a stay, the petitioner should have filed a merits brief which addressed: (1) whether the highest state court had a full and fair opportunity to consider each claim, (2) whether the petitioner’s claims are procedurally barred under state law and (3) whether the petitioner can demonstrate cause and prejudice for any procedurally defaulted claim. And, notwithstanding any failure of the petitioner to exhaust the remedies that were available to him, he should have addressed the merits of his claims.
Report and Recommendation at 12.
4. Boss’s Objections
On March 21, 2012, after an extension of time to do so, Boss filed the Objections To Report And Recommendation (Objections) (docket no. 40) now before me. In his Objections, Boss reiterates his acknowledgment that Grounds Two and Five are unexhausted. However, he offers an explanation for why he did not argue the merits or exceptions to procedural default of those unexhausted claims. Specifically, he argues that the claim concerning the recording of his statements by Officer Bartolozzi could not be adequately developed, where the state still has not produced the tape recording in question, his current counsel believes that he had a better chance of obtaining the recording in state post-conviction relief proceedings than through the limited discovery permitted in federal habeas proceedings, and he does not want to lose fеderal review of the claim by failing to assert it in his first federal habeas petition.
Boss also objects to Judge Zoss’s conclusion that the blame for default of the claim lies with him. He argues that, even though ineffective assistance of post-conviction relief counsel cannot establish “cause” to excuse a procedural default, it can be considered to determine whether a stay should be granted to allow him to attempt to exhaust the claim in question. Boss asserts that, because he was unable to participate in the oral arguments before Judge Zoss, I should hear oral arguments on his Objections, so that he can now describe how important he feels the recording issue is and how clearly he communicated a desire to pursue it to counsel in the post-conviction relief proceedings at the district court and appellate levels.
Boss now acknowledges, however, that his Ground Five, concerning subsequent redefinition of Iowa’s felony murder rule by the Iowa Supreme Court in State v. Heemstra,
II. LEGAL ANALYSIS
A. The Standards Of Review
1. The statutory standards
The district court’s standards of review for a magistrate judge’s report and recommendation are established by statute:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1) (2006); see Fed. R.Crv.P. 72(b) (stating identical requirements); N.D. Ia. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge but not articulating any standards to review the magistrate judge’s report and recommendation).
2. Interpretation of the standards
The United States Supreme Court has explained the statutory standards, as follows:
Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, whilethe statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.
Thomas v. Am,
a. Permissive de novo review
A district court may review de novo any issue in a magistrate judge’s report and recommendation at any time. Id. This discretion to conduct de novo review of any issue at any time makes sense, because the Eighth Circuit Court of Appeals has “emphasized the necessity ... of retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate.” Belk v. Purkett,
b. Mandatory de novo review
If a party files an objection to the magistrate judge’s report and recommendation, however, the district court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1) (emphasis added). In most cases, to trigger de novo review, “objections must be timely and specific.” Thompson v. Nix,
c. “Clear error” review
In the absence of an objection, the district court is not required “to give any more consideration to the magistrate’s report than the court considers appropriate.” Thomas,
Nevertheless, the Eighth Circuit Court of Appeals has indicated that a dis
Although the Eighth Circuit Court of Appeals has not explained precisely what “clear error” review means in this context, in other contexts, the Supreme Court has stated that the “foremost” principle under this standard of review “is that ‘[a] finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Anderson v. City of Bessemer City,
I will review Judge Zoss’s Report and Recommendation with these standards in mind.
B. Unexhausted Claims Versus Defaulted Claims
At first blush, Boss’s § 2254 Petition appears to be a “mixed petition,” that is, “one in which some claims have been fully exhausted in state court and others have not.” White v. Dingle,
Boss’s Grounds One, Three, and Four were fully exhausted on Boss’s direct appeals and in state post-conviction relief proceedings, including appeal to the Iowa Court of Appeals and a request for further review to the Iowa Supreme Court. Id. at 925-26. On the other hand, Boss admits that, although he raised Ground Two in his application for post-conviction relief, he either did not raise that ground in his post-conviction relief appeal or did not pursue it in his application for further review. Report and Recommendation at 8. Therefore, Ground Two was not fully exhausted. Armstrong,
a. Dismissal rules
For three decades, “mixed petitions,” involving both exhausted and unexhausted claims, have been subject to special rules. As the Eighth Circuit Court of Appeals has explained,
In Rose v. Lundy,455 U.S. 509 , 510,102 S.Ct. 1198 ,71 L.Ed.2d 379 (1982), the Supreme Court held ... that a mixed petition should be dismissed without prejudice and that the petitioner should be given “the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.” ' Id.
White,
The Lundy rule created problems under the Antiterrorism and Effective Death Penalty Act (AEDPA):
Because Rose v. Lundy was decided before the AEDPA’s one-year statute of limitations was established, however, it did not contemplate that a dismissal without prejudice after expiration of the AEDPA limitations period could eliminate access to federal habeas review. The potential peril for the unwary habeas petitioner is exacerbated by the fact that the limitations period is not tolled while a petition is pending in federal court. See Duncan v. Walker,533 U.S. 167 , 181-82,121 S.Ct. 2120 ,150 L.Ed.2d 251 (2001). A petitioner like White, for example, who files his petition well before the expiration of the AEDPA’s one-year deadline may find that the limitations period has expired while his case was under consideration. In such a situation, dismissal without prejudice does not provide a petitioner with the options that the Court envisioned in Rose v. Lundy; rather, it leaves the petitionеr both out of court and out of time to file another petition.
The Supreme Court considered this issue in Rhines v. Weber,544 U.S. 269 , 278,125 S.Ct. 1528 ,161 L.Ed.2d 440 (2005), and concluded that when dismissal of a mixed petition without prejudice might unreasonably impair a petitioner’s opportunity to obtain federal habeas review,- “the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims.” In other words, the petitioner should be given the opportunity to have his exhausted claims considered on the merits.
White,
b. The “stay and abeyance” rule
i. The procedure
In Rhines v. Weber,
Under this procedure, rather than dismiss the mixed petition pursuant to Lundy, a district court might stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims. Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.
ii. The relevant factors
Although the Court held in Rhines that the district court has the authority to impose a stay, the Court аlso observed but that the district court should do so “only in limited circumstances.” Id. at 277,
The Court’s opinion provided the following guidance:
[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.
‡ ‡ ‡
Even where stay and abeyance is appropriate ... [a] mixed petition should not be stayed indefinitely.... Thus, district courts should place reasonable time limits on a petitioner’s trip to state court and back.... And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all.
[Rhines,544 U.S. at 277-78 , 125 S.Ct.] at 1535.
Rhines v. Weber,
There is at least one “prerequisite” to invocation of the “stay and abeyance” procedure. The Eighth Circuit Court of Appeals has recognized that, if the petitioner’s federal habeas petition is untimely, that untimeliness renders the “stay and abeyance” issue moot. See Parmley v. Norris
2. Rules for procedurally defaulted claims
Different rules apply if the claims in question are not just unexhausted, but procedurally defaulted. In Armstrong v. Iowa,
When a state court remedy is available for a state prisoner’s unexhausted claim, the federal habeas court must defer action until the claim is exhausted, either by dismissing the federal petition without prejudice or by using the “stay and abeyance” procedure described in Rhines v. Weber, [544 U.S. 269 ],125 S.Ct. 1528 ,161 L.Ed.2d 440 (2005). However, if no state court remedy is available for the unexhausted claim— that is, if resort to the state courts would be futile — then the exhaustion requirement in § 2254(b) is satisfied, but the failure to exhaust “provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default” (or actual innocence, whichis not an issue in this ease). Gray v. Netherland, 518 U.S. 152 , 162,116 S.Ct. 2074 ,135 L.Ed.2d 457 (1996); see Coleman v. Thompson,501 U.S. 722 , 731-32,111 S.Ct. 2546 ,115 L.Ed.2d 640 (1991).
Armstrong,
The practical effect of this reading of Armstrong here is that the first question is not whether the Rhines factors warrant a “stay ánd abeyance,” but whether the “stay and abeyance” issue is moot. That question turns on whether Ground Two is merely unexhausted, or is procedurally defaulted. If the “stay and abeyance” issue is moot, because Ground Two is procedurally defaulted, then the next question will be whether Boss can overcome the procedural default or whether the procedurally defaulted claim should be dismissed. If the “stay and abeyance” issue is not moot, because Ground Two is unexhausted, but not defaulted, then the next question will be whether or not a stay is warranted in light of the Rhines factors.
C. Application Of The Rules
Although Judge Zoss did not follow precisely the analytical procedure outlined just above, he did make the findings that would be dispositive under that procedure • (and, hence, under Armstrong). Specifically, Judge Zoss found that Ground Two, the claim relating to recording of Boss’s statements by Officer Bartolozzi, was not merely unexhausted, but was procedurally defaulted, which would render the “stay and abeyance” issue moot. Judge Zoss also found that Boss could not overcome the procedural default of Ground Two, so that Ground Two should be dismissed. Similarly, Boss made the pertinent objections, because he objects to Judge Zoss’s conclusion that resort to state court on Ground Two would be “futile,” to Judge Zoss’s conclusion that Ground Two was procedurally defaulted, and to Judge Zoss’s further conclusion that he has not shown “cause and prejudice” to overcome procedural default of that claim. Therefore, I will review de novo the conclusions to which Boss objects, but in the context of the analytical procedure that I have outlined above.
1. Is Boss’s request for a stay moot?
Again, the first question is not whether the Rhines factors warrant a “stay and abeyance,” but whether the “stay and abeyance” issue is moot. That question turns on whether Ground Two is merely unexhausted or is procedurally defaulted.
a. Untimeliness of further state proceedings
In Armstrong, the Eighth Circuit Court of Appeals concluded that a petitioner’s unexhausted claims in his “mixed petition” were “futile,” and consequently procedurally defaulted, for two reasons: (1) the petitioner had not appealed the denial of his state application for post-conviction relief, and thе time for such an appeal had long since passed, see Armstrong, at
As in Armstrong, “[t]he time to appeal the Iowa trial court’s denial of [Boss’s] post-conviction petition,” as to a claim that Boss did not pursue through all levels of appellate review, “has long passed.” Id. (citing Iowa R.App. P. 6.5(1), 6.20(2)).
b. The § 822.8 exception
What Judge Zoss did not adequately consider was whether or not circumstances exist that would permit Boss to assert his otherwise untimely clаim in state post-conviction relief proceedings. Judge Zoss did cite Wemark v. Iowa,
In Armstrong, the Eighth Circuit Court of Appeals addressed a habeas petitioner’s “sufficient reason” argument concerning his unexhausted and untimely claims. Armstrong,
Iowa recognizes a statutory right to effective assistance of post-conviction counsel, see Iowa Code § 822.5, and ineffective assistance of post-conviction counsel can provide “sufficient reasоn” for not raising or inadequately raising an issue in the prior proceeding. Sims v. State,295 N.W.2d 420 , 422-23 (Iowa 1980). However, a successive petition is barred unless petitioner can “state thespecific ways in which counsel’s performance was inadequate and how competent representation would have changed the outcome.” Rivers v. State, 615 N.W.2d 688 , 690 (Iowa 2000), quoting Bugley v. State,596 N.W.2d 893 , 898 (Iowa 1999); see also Dunbar v. State,515 N.W.2d 12 , 14-15 (Iowa 1994). Armstrong alleges that post-conviction counsel’s failure to appeal was ineffective assistance. But he makes no showing that an appeal would have changed the outcome of the claims finally adjudicated by the. state trial court, and no showing of sufficient reason why the new grounds asserted in his federal petition were not raised in state court.
Armstrong,
Here, Boss also asserts ineffective assistance of post-conviction relief counsel in failing to appeal the unexhausted ground. His argument that post-conviction relief counsel’s failings prevented adequate appellate review of the unexhausted ground is undercut, however, by his admission that the Iowa Supreme Court has “been very supportive of supplemental pro se pleading and has openly encouraged pro se supplementing of the briefing.” Petitioner’s Brief In Support Of Motion To Stay (docket no. 29-1), 6 (citing Leonard v. State,
c. The § 822.3 exception
Judge Zoss also did not consider whether Boss can escape the bar on successive applications for post-conviction relief pursuant to the exception stated in Iowa Code § 822.3. Section 822.3 provides that post-conviction relief applications “must be filed within three years from the date the conviction or decision is final or, in the event of an appeal, from the date the writ of procedendo is issued,” but “this limitation does not apply to a ground of fact or law that could not have been raised within the applicable time period.” Iowa Code § 822.3. Again, in fairness to Judge Zoss, Boss’s habeas counsel did not clearly articulate any arguments in his Motion To Stay in terms of fitting this exception. In his Objections, however, Boss’s habeas counsel does expressly rely on this exception by citing Harrington v. State,
The § 822.3 exception is not available to Boss, however. As the Iowa Supreme Court explained in Harrington, an “obvious requirement” of the § 822.3 exception is that “the alleged ground of fact could not have been raised earlier.” Harrington,
d. Boss’s further objections
I reject Boss’s objection that Judge Zoss should have left to the state court the determination of whether or not his claim regarding the recording by Officer Bartolozzi was “futile” and, consequently, proсedurally defaulted, and his further objection that neither Judge Zoss nor I should decide the issue without his personal participation in a hearing so that he can now describe how important he feels the recording issue is and how clearly he communicated a desire to pursue it to counsel in the post-conviction relief proceedings at the district court and appellate levels. As to the decision-maker issue, Boss cites no authority for the proposition that the federal habeas court is incompetent to make the determination of whether or not an attempt to exhaust a claim in further state post-conviction relief proceedings would be futile. Rather, the Eighth Circuit Court of Appeals has directed the federal habeas court to decide “whether [the petitioner] has a non-futile state court remedy for his unexhausted claims.” Armstrong,
e. Summary
Upon de novo review, I agree with Judge Zoss’s conclusion that attempts to exhaust Boss’s unexhausted claim regarding the recording are futile as a matter of law, and that, consequently, the claim is procedúrally defaulted. See Armstrong,
2. Can Boss overcome procedural default
Judge Zoss concluded that Boss could not overcome the procedural default of his unexhausted claims on the basis of “cause and prejudice,” because ineffective assistance of his post-conviction relief counsel could not constitute “cause” for the default, where there is no constitutional right to post-cоnviction relief counsel. Report and Recommendation at 9-10 (citing Murray v. Carrier,
Boss attempts to avoid the consequences of procedural default by arguing that, even if ineffective assistance of post-conviction relief counsеl cannot constitute “cause” to overcome procedural default, it can be considered to determine whether the “stay and abeyance” procedures should be invoked. Objections at 8-9 (citing Rhines v. Weber,
In Rhines, the district court believed “that the Supreme Court suggested a more expansive definition of ‘good cause’ [for a stay] in Pace and Rhines than the showing needed for ‘cause’ to excuse a procedural default.” Rhines,
Under these circumstances, Judge Zoss correctly concluded that Ground Two should be dismissed, because it is procedurally defaulted, and Boss cannot excuse that default. See, e.g., Welch,
III. CONCLUSION
Upon de novo review of the parts of the Report and Recommendation (docket no. 35) to which Boss objected, I overrule Boss’s Objections (docket no. 40), and finding no other “clear error” in the Report and Recommendation, I accept the Report and Recommendation. Consequently,
1. Boss’s Motion To Stay (docket no. 29) is denied;
2. Ground Two of Boss’s § 2254 Petition is dismissed with prejudice as procedurally defaulted;
3. Ground Five of Boss’s § 2254 Petition is dismissed with prejudice as without merit; and
4. Boss shall have to and including May 31, 2012, to file a brief on the merits of Grounds One, Three, and Four of his § 2254 Petition.
IT IS SO ORDERED.
Notes
. Boss does not object to the summary of the state and federal proceedings in the Report and Recommendation, 1-3.
. Apparently owing to technical difficulties, a miscommunication, or a problеm at the prison where Boss is incarcerated, Boss was unable to participate in the oral arguments telephonically, as the court and the parties had arranged.
. The same is true of Ground Five, but Boss raises no objections to the dismissal of Ground Five as without merit.
. The Iowa Rules of Appellate Procedure cited in Armstrong were renumbered as Rules 6.101(1) and 6.101(5), respectively, effective January 1, 2009.
. Although the Iowa Court of Appeals concluded, on Boss’s direct appeal, that “Boss’s statements to police officers at the time of his arrest reinforce this version of events,’’ drawn from the testimony of another of Boss’s children and forensic evidence, see Boss,
. On "clear error” review of Judge Zoss’s recommendation that Ground Five be dismissed as without merit, I also agree with Judge Zoss, and Boss now admits that the claim is without merit.